Garnishment protection account

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The seizure protection account (short: P-account ) is the bank account of a natural person in Germany, which in the case of account garnishment allows the disposal of the monthly pledging free amount to the debtor. The P account (like other accounts) can be attached by creditors . It serves to protect a seizure-free (basic) exemption and thus the implementation of the welfare state requirement , i.e. securing the socio-cultural subsistence level . It is usually only managed as a credit account. The Working Group on Debt Advice of Associations (AG SBV) and the Central Credit Committee (ZKA - the merger of the five central associations of the German banking industry) have published a joint brochure with general information on the new account seizure protection for debtors. This information is continuously updated and published on the Internet.

As of September 20, 2018, there were more than 2.5 million seizure protection accounts in Germany. In January 2015 there were around 1.8 million.

Principles

  • According to Section 850k Paragraph 7 Clause 2 of the German Code of Civil Procedure (ZPO), a bank customer can request at any time since July 1, 2010 that the (account-keeping) credit institution maintains its current account as a garnishment protection account. If an account has been attached, there is a legal obligation to convert within four days of receipt of the declaration by the institute.
  • The P-account is only set up by the bank at the request of the customer and according to a contractual agreement.
  • Only an existing current account can be converted to a P account. The law does not provide for a legal claim. However, since June 19, 2016 there has been a legal right to the so-called Jedermann account .
  • The account can only be managed as an individual account, joint accounts cannot be converted.
  • The P-account is usually only managed on a credit basis.
  • There may only be one seizure protection account for each natural person . In the event of an agreement, the customer has to assure the bank that he does not have another seizure protection account.
  • The P account can be used by credit agencies, etc. a. thus the Schufa , to be reported; credit agencies may only use credit institutions upon request for the purpose of checking the correctness of the above. Provide the insurance company with information about the customer's existing seizure protection account. It has not yet been clarified whether an existing P account has an impact on the creditworthiness of the owner.
  • A switch back to a normal current account has not been regulated in the law on the reform of the protection against attachment; however, in 2012 the OLG Schleswig-Holstein justified a legal right to conversion back. This view was confirmed by the highest court in 2015 by the Federal Court of Justice.

Cost of a P account

In the explanatory memorandum for the law, the legal committee of the German Bundestag expressed its expectation that the P account should not be more expensive than a normal account; however, there was no statutory regulation. Only the usual bank charges for current accounts can be charged. The credit institute has to bear additional expenses.

In the beginning, credit institutions often charged additional fees or restricted or switched to specific, higher-priced accounts. In the final instance, the Federal Supreme Court upheld the rulings of two higher regional courts against additional bank fees and rejected the appeals by the defendant savings banks . The management of a current account as a P-account is only a contractual secondary obligation to a conventional current account and as such cannot be priced additionally. This also confirmed the judgment of the Higher Regional Court of Frankfurt am Main of March 28, 2012, Az. 19 U 238/11, according to which "a remuneration clause, according to which a (far) higher monthly fee is required for keeping a seizure protection account than for the Maintaining the general current account is an unreasonable disadvantage for private customers in accordance with Section 307 (1) of the German Civil Code (BGB) because, at the customer's request, keeping a current account as a garnishment protection account within the meaning of Section 850k (7) sentence 2 ZPO is a service to fulfill represents a legal obligation for which a bank cannot charge a fee even if it results in higher expenses. "

An investigation by the Federation of German Consumer Organizations in January 2013 showed that only eight of the 46 banks and savings banks examined had repaid the wrongly levied fees. Some financial institutions only want to reimburse the fees at the customer's request. When consumers were called by the Marktwächter finances project , several consumers reported that they would be charged higher fees for the P account than for the previous account model. Those affected also report further disadvantages and limitations in performance.

In a further ruling, the Federal Court of Justice declared clauses in the general terms and conditions of a bank to be ineffective, which put bank customers at an unreasonable disadvantage (Section 307 (1) sentence 1, paragraph 2 no. According to this, it is not permissible to stipulate a certain basic price per month for a garnishment protection account in the general terms and conditions that deviates from the prices for other accounts. The management as a P-account is not a special service of the bank, but it takes place in fulfillment of a legal obligation. An agreement on a surcharge for the account management as a P account is therefore ineffective. Also the other clauses challenged with the lawsuit, “an account management is basically only possible on a credit basis”, “no bank card or credit card can be issued for the account”, “the use of the card and document service is excluded”, and others Services that were not included in the monthly basic price of the account would be billed separately and would not withstand judicial control. It is not permissible that services once agreed, such as a bank card, are automatically canceled when the account is switched to a P-account regardless of a termination ; for the termination of such additional products, the BGH requires separate, effective termination by the respective bank.

Effect of the P account

If the credit is attached to a P-account, the debtor can freely dispose of up to the amount of the monthly attachment exemption according to § 850c ZPO (since July 1, 2019, base amount: € 1,178.59; see for more information on the attachment exemption limits ). If the debtor has maintenance obligations, the financial institution increases the monthly seizure allowance after submitting appropriate evidence. A sample form was created for this. The account is no longer blocked so that transfers can still be made. If the credit protected by the garnishment exemption is not used up in one month, the garnishment exemption for the following month is increased by this amount. A court decision on the amount of the seizure allowance within the framework of § 850c ZPO is usually no longer necessary. There is also the option of applying for individual protection against seizure at the enforcement court or of having the basic amount changed in certain situations. The type of income is irrelevant for the new seizure protection, so that z. For example, voluntary third-party benefits or income from self-employment are also included in the monthly garnishment allowance.

Compared to the old seizure protection for current accounts, which remained largely unchanged for a transitional period until December 31, 2011, the seizure protection on a P account had priority. If the debtor already had a P account by then, he was only given protection against attachment for this P account.

abuse

In order to prevent misuse, the customer has to assure the financial institution that he only has one P account. In addition, the financial institution is expressly authorized by the legislator to use credit agencies such as B. to notify Schufa of setting up a P-account for a customer (even without his consent).

If it turns out that a debtor, contrary to the provision in Section 850k (8) sentence 1 ZPO, according to which every (natural) person may only keep one seizure protection account, has several giro accounts as seizure protection accounts, the enforcement court orders the application of a (seizing) creditor that only the current account specified by this creditor in his application remains with the debtor as a seizure protection account. The creditor has the requirements by producing the appropriate explanations of the third-party debtor (the depositary banks) credible to make; the debtor is not heard. The decision of the enforcement court must be served on all third party debtors. When the decision is served to those credit institutions whose current accounts are not intended for seizure protection accounts, the effects according to Section 850k Paragraphs 1 to 6 ZPO no longer apply .

Start of month problem

In addition to some linguistic inadequacies in the Reform Act and the fact that the ZPO serves to regulate civil procedural law (formal procedural law or procedural law) and is therefore not intended to include rights outside of the material law that exists for this purpose (e.g. civil law) Law book), the legislature has also overlooked the fact that social benefits are often transferred at the end of the month. This led to the so-called beginning of the month problem with the P account:

"Since social benefits with a wage replacement function (e.g. unemployment benefit, social assistance or social pensions) as well as wages are often credited to the accounts on the last working day of a month for the next month, the following situation can arise: The exemption for the month in which the credit is made is already used up. The allowance for the next month for which the social benefit or wage was paid cannot yet protect the credit, as the credit was already made in the previous month. This leads to the aforementioned problem at the beginning of the month : Without appropriate protective measures, the bank, as a third party debtor, would have to transfer the entire amount to the attaching creditor in the worst case. The debtor is then left without sufficient means of subsistence. "

A remedy through a change in the law was initially announced for 2010 in 2010; until then, the Federal Ministry of Justice wanted to make do with "hints". According to the resolution recommendation of the Legal Committee of the German Bundestag in Drucksache 17/4776 on the draft law of the Federal Government, BT-Drucksache 17/3305, draft of a second law on inheritance equality of illegitimate children , the so-called beginning of the month problem with the seizure protection account should be promptly added to § 835 ZPO and by amendment of § 850k Paragraph 1 and 2 ZPO are resolved. With effect from December 28, 2010, the revised version of Section 850k (8) ZPO, in particular, the Schufa monopoly on information was no longer applicable.

On April 15, 2011, the amendment to the law to solve the so-called beginning of the month problem with the P-account, the second law on inheritance equality of illegitimate children, to amend the ZPO and the AO of April 12, 2011 ( Federal Law Gazette I p. 615 ) was published. The new regulation came into force immediately on April 16, 2011 without a transition period.

Individual evidence

  1. ↑ Information on account attachment protection on the website of the Deutsche Kreditwirtschaft
  2. ↑ https://die-dk.de/media/files/kundeninformation.pdf
  3. ↑ Attachment- proof accounts are booming . In: Der Spiegel . No. 47 , 2018, p. 13 ( online - November 17, 2018 ).
  4. ↑ see § 31 of the Payment Accounts Act (ZKG) , BGBl. 2016 I p. 720
  5. ↑ Schuldnerhilfe-Direkt on March 19, 2015: Now also a decision by the BGH: Bank customers can request the P-account to be converted back at any time , accessed on March 18, 2016
  6. ↑ Decisions of the BGH Az. XI ZR 500/11 and XI ZR 145/12
  7. ^ Judgment of the OLG Frankfurt 19th civil senate (AZ:) 19 U 238/11
  8. ↑ http://www.vzbv.de/11027.htm
  9. ^ Frank Matthias Drost: Barriers for unwelcome bank customers. In: Handelsblatt. Handelsblatt Media Group GmbH & Co. KG, November 23, 2017, accessed on April 10, 2018 .
  10. ↑ Judgment of the BGH of July 16, 2013, Az.XI ZR 260/12 (PDF; 208 kB)
  11. ↑ Example of such a form dated July 1, 2017 , accessed on July 21, 2018
  12. ↑ Continuous dispute with the problem at the beginning of the month - overview of case law from the IWW ( Memento of the original from March 5, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.iww.de
  13. ↑ Problem at the beginning of the month with the P account ( memento of the original from March 14, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.infodienst-schuldnerberatung.de
  14. ↑ FAQ P account and problem at the beginning of the month ( memento of the original from June 12, 2011 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bmj.de
  15. ↑ http://dipbt.bundestag.de/dip21/btd/17/047/1704776.pdf