Attachment and transfer order

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The attachment and transfer order (PfÜB for short) is a legal institution in Germany for enforcement in civil procedure law . It is issued on application by the local court as an enforcement court . In public law, authorities can issue attachment and confiscation orders for public-law claims themselves, ie without having to go to court.

civil right

For the enforcement of claims or other property rights of the debtor, the local court at the debtor's general place of jurisdiction is responsible as the enforcement court, Section 1 ZPO , Section 27 GVG , Section 764 (1), Section 802 , Section 828 (1), Section 2, Section 13 ZPO, § 7 BGB .

The seizure causes the seizure of the claim seized by the creation of a lien. So that the creditor can also realize the seized claim (ie convert it into money), the seized claim is transferred to him for collection (therefore: attachment and transfer order, § 829 ZPO). The transfer resolution entitles the obligee to the third party debtor to realize the claim. The term “transfer” should therefore not be confused with a bank transfer.

Most of the debtor's money claims against a third party, the so-called third - party debtor , are attached. This third party debtor can z. Be as the employer of the debtor against whom he has a right to payment of wages or salary, or the credit institution in which the debtor has an account. In this case, the debtor's claim against the bank for payment of the credit is attached.

But other claims, such as the right to surrender a certain thing, are also subject to attachment. The attachment of so-called third-party debtors' rights is of no great practical importance (this includes, for example, the claim from the highest bid to be awarded the contract in the context of an auction).

If the prerequisites for foreclosure are met, the judicial officer at the enforcement court will issue the following at the request of the obligee:

  • the attachment order by which the seizure of the right is ordered, the debtor is prohibited from confiscation, the third party debtor from performance to the debtor and
  • a transfer decision of the claim for collection (the most common variant) or instead of payment (this occurs less often because it involves risks for the creditor).

Content of the resolution

These two measures are usually combined in one order, the attachment and transfer order. The obligee himself is authorized to assert the attached right.

The resolution includes, among other things:

  • naming the debtor
  • naming the creditor
  • the naming of the third party debtor
  • the indication of the creditor's claim
  • the name of the attached claim
  • the account details of the obligee
  • the sentence of attachment
  • the prohibition on the third party debtor to pay the attached claim to the debtor (so-called arrestatory, § 829 para. 1 sentence 1 ZPO)
  • the requirement for the debtor to refrain from any disposal of the claim, in particular its collection (so-called inhibition , § 829 para. 1 sentence 2 ZPO).

Effect of the resolution

The seizure becomes effective upon delivery of the attachment and transfer decision to the third party debtor. If the third-party debtor nevertheless pays the debtor after delivery, this can have criminal consequences (see Section 288 of the Criminal Code ).

The service takes place in the party business , in that the creditor instructs a competent bailiff to do the service. The order is placed by the bailiff's distribution point of the local court in whose district the delivery takes place. Service is usually first made to the third-party debtor and then to the debtor, so that the debtor does not quickly collect the claim himself before the seizure takes effect, thus letting the enforcement fail. For this reason, the debtor cannot be heard before the decision is issued ( Section 834 ZPO).

Regulations to protect the debtor

The garnishment of wages -, content - and similar receivables is limited for social reasons on the seizable part of remuneration. The amount of the attachable part is shown in the annex to § 850c ZPO, the so-called wage attachment table . The deposit-free amount is based on the debtor's maintenance obligations, among other things. If a creditor enforces maintenance claims, a regularly lower deposit exemption amount will be set on request, deviating from the wage attachment table. A garnishment of wages also applies without further ado for future payments from the same third party debtor. The seizure remains in place even if the employment relationship is interrupted for up to 9 months ( Section 833 (2) ZPO).

Seized credit balances of a natural person at a credit institution may only be paid out by the institution four weeks after delivery ( Section 835 (3) sentence 2 ZPO) of the transfer decision to the third-party debtor in favor of the obligee, so that the debtor, if necessary, the judicial clearance of non-attachable wages can apply. In addition, there was a special account protection for social benefits with a wage replacement function (e.g. statutory pensions): A credit to the account of the beneficiary ( Section 55 (1) sentence 1 SGB ​​I ), which was based on such a benefit, was for the first 14 days (since July 1, 2010; previously: 7 days) since it was credited from a garnishment, so that the debtor could dispose of it despite the garnishment of the account. Since January 1, 2012, seizure protection has only been available for a P account (Section 55 SGB I has been omitted). From January 1, 2012, it no longer matters where the credit on the P account comes from. It is therefore irrelevant, for example, whether the credit on the P-account is due to income from self-employment, an employee activity or social benefits ( § 850k ZPO).

Remedies

As an enforcement measure, an attachment and transfer order can - with a few exceptions - be challenged with the reminder § 766 ZPO against the manner of enforcement . However, only those objections that concern the prerequisites and the procedure of foreclosure itself are permissible. Objections to the claim of the obligee are not to be taken into account in the enforcement proceedings, since a cognitive procedure has usually already preceded in which the debtor was able to submit his corresponding objections.

Garnishment Exemption Limits

The debtor is allowed to keep part of his monthly net income. There are seizure exemption limits, which are based on the net income and the number of dependent persons. However, these only apply when converting to a PSK (garnishment protection account).

Procedure and costs

The procedure for the attachment of claims has developed into a mass procedure. It has therefore proven to be expedient for the creditors to submit the application in such a way that they submit the desired resolution as a finished draft so that, if the application is accepted, the court has little work to do in drawing up the resolution. Since March 1, 2013, it has been necessary for the creditors to use a mandatory form to apply for an attachment and transfer order, which can be downloaded from the website of the Federal Ministry of Justice. The form is available in two versions: on the one hand as an application for the issuance of a garnishment transfer order, in particular because of ordinary monetary claims, and on the other hand as an application for the issuance of a garnishment transfer order for maintenance claims, which is specifically only to be used for maintenance claims . For each application for the attachment and transfer order, the obligee has to pay the enforcement court an advance payment of EUR 20.00, which is due upon receipt of the application. The costs for the bailiff are added later.

Public law

In public law, an attachment and confiscation order takes the place of an attachment and transfer order . The enforcement authority issues the attachment order itself, so it does not require a court order. Since there is no control by an independent body, a legal examination of the prerequisites for the waiver is urgently recommended in the case of attachment orders. The other requirements and effects of the attachment order are essentially the same as those of the attachment and transfer order.

Arrestatory

The arrestatory is the order of the enforcement body (in this case the senior judicial officer as the enforcement court) in the context of foreclosure against the third party debtor that he is no longer allowed to pay his previous creditor due to the attached claim. As long as this has not been brought to his attention, he enjoys the protection according to § 1275 , § 407 BGB analogously. When paying to the debtor of the foreclosure, he is not released from the payment to the debtor of the foreclosure.

Example: A sues B. He wins the process and receives a title. By means of a seizure and transfer order, which he applies for because of the title, he enforces by seizing a claim that B has against C. With the arrestatory, C is forbidden to pay to B.

According to German law, the arrestatory is mentioned in Section 829, Paragraph 1, Clause 1 of the ZPO.

This order is always part of the attachment and transfer decision. The absence would justify the ineffectiveness of the decision. It always occurs together with the so-called inhibitor .

There is no isolated legal remedy against the arrestatory . A reminder according to § 766 ZPO (only in exceptional cases, an immediate complaint according to § 793 ZPO) is permitted against the seizure and transfer decision in its entirety . Legal remedies can be asserted both by the third party debtor and by the debtor himself.

literature

Web links

Individual evidence

  1. ↑ Compare with § 829 Abs. 4 ZPO in connection with §§ 2 and 3 foreclosure form regulation.
  2. ↑ http://www.bmjv.de/SharedDocs/Archiv/Downloads/20140923_Zwangsvollstreckung_AntragPfaendung_Geldleistungs.pdf?__blob=publicationFile&v=5
  3. ↑ http://www.bmjv.de/SharedDocs/Archiv/Downloads/20140624_Zwangsvollstreckung_AntragPfaendung_Unterhaltsendung.pdf?__blob=publicationFile&v=5
  4. ↑ Compare Section 12, Paragraph 6 in conjunction with No. 2111 KV-GKG. The advance payment does not have to be made if the creditor has received legal aid.