HomeFITNESSwhat may or may not be pledged and how to proceed

what may or may not be pledged and how to proceed

An attachment of goods is always synonymous with the existence of a debt, whether to the State, a company or even an individual (as in the case, for example, of alimony).

The pledge of assets is the way that creditors have to guarantee that the debt will be paid, either through the sale of the debtor’s assets or by withholding part of his salary, pension or other type of allowance.

The attachment of assets does not always apply only to the person who contracted the debt. It may also affect the spouse if the marriage was carried out under the community property regime or the general community regime.

The sale of pledged assets is intended not only to pay the debt, but also the costs of the process.

Asset attachment: when and how it happens

The attachment of assets happens when the creditor is unable to collect the debt and decides to resort to justice for this payment to be made, using the assets of the person who contracted the debt.

If, three months after the beginning of the seizure, no seizable assets are found, the execution process ends. This is a way to avoid cases dragging on in court for several years.

The creditor can also find out, through the Pre-Executive Extrajudicial Procedure (PEPEX), what is the possibility of recovering his credit. This platform allows, in a simple and cheaper way than going to court, know which assets are seizable.

The law also foresees a series of mechanisms so that the creditor and the debtor can reach an payment agreement.

The attachment of assets will thus be almost a last resort for recovering the amount of a debt.

Pledges can be made by a private creditor, natural or legal person, within the scope of an enforcement process.

When they are made by the State, namely for the payment of debts to the Tax Authorities or Social Security, they are part of a tax enforcement process.

seizable goods

These processes usually begin with the attachment of easily enforceable goodssuch as money, precious stones and metals and whose values ​​are more suitable for paying the debt.

Thus, the most valuable assets can be pledged, such as real estate, cars, planes, jewelry, precious stones, works of art, items such as televisions, furniture or even other appliances (especially when the pledge concerns the payment of their purchase or repair). .

But the attachment of assets can also apply to bank accounts, wages, Savings Certificates or inheritance fractions.

The creditor – that is, the person requesting the attachment – ​​can indicate, to the enforcement agent, the assets that he wants to be attached in the first place. And he must respect this will, unless this desire goes against the law or when the value of these goods is disproportionate to the debt.

Can my house be foreclosed on?

There are two situations to take into account: the attachment of the house and the possibility of it being sold.

With regard to the seizure of housing, the Law No. 117/2019which came into force in early 2020, brought some restrictions in cases where the property is the home of the debtor.

Thus, a property that is one’s own and permanent residence can only be subject to attachment if:

  • The value of the execution is equal to or less than twice the value of the jurisdiction of the court of 1st instance (that is, 10 thousand euros) and
  • if the attachment of other assets does not allow the debt to be settled within 30 months or
  • in an execution with a value greater than 10 thousand euros: if the attachment of other assets presumably does not allow the creditor to be fully satisfied within a period of 12 months.

Can the mortgaged house be sold?

THE Law No. 13/2016 came to preserve, in part, the right of families to keep their home in case of attachment. But this only applies to those who have their own house, let it be their first home and whose asset value does not exceed the €574,323. This value is equivalent to the maximum rate of the Municipal Tax on Real Estate Transfers (IMT).

Thus, in the event of attachment, the law determines that the debtor be “constituted as a depositary of the property, with no obligation to deliver the property”. In practice, and despite having the house pawned, he can continue to live there. And he will be able to pay the debt that originated the execution.

Even in cases where the value of the property does not prevent attachment, a deadline is given. The house can only be sold one year after the end of the period for voluntary payment of the oldest debt.

But keep in mind the following: this only applies to attachments resulting from tax debts, provided that the tax attachment is the first. And, in fact, it does not prevent the attachment, only the sale of the property.

If the attachment is made by a private entity – such as a bank, for example – this right is no longer safeguarded.

Still, there are rules to avoid abrupt evictions. He can remain as a depositary and will only be obliged to hand over the house when the sale is completed.

And my salary?

The salary can also be subject to attachment but, as with the house, there is legal protection so that the debtor does not lose what is necessary for his subsistence.

the attachment can only cover 1/3 of the salary, guaranteeing, however, that the debtor does not receive monthly less than the national minimum wage. That is, less than €760 (2023 value).

In calculating the salary, all extras (such as meal allowances and overtime) are included, minus taxes and other contributions. That is, it focuses on the net salary.

non-seizable assets

Not everything is attachable and the law provides some exceptions with respect to assets that may be subject to attachment.

A difference is also established between absolutely or totally unseizable goods and relatively unseizable goods.

Between the Absolutely non-seizable goods they are:

  • Inalienable things or rights (such as the use of housing);
  • Assets in the public domain of the State and other public legal persons, such as roads, rivers, railways;
  • Objects whose seizure is offensive to good customs or lacks economic justification, for example, personal correspondence;
  • Objects intended for the exercise of public worship;
  • Tombs;
  • Essential objects for the treatment of patients;
  • Company animals.

With regard to relatively unseizable goods There are essentially three categories:

  • Assets of the State and of public collective persons essential for carrying out public utility purposes;
  • Essential goods for the performance of the profession or professional training;
  • Goods essential to any domestic economy that are in the actual dwelling of the debtor (for example, bed, table, chairs).

However, in the last two cases, the attachment is valid if the cause is non-payment for the purchase or repair of these items. That is, if you haven’t paid for the computer you work on or the chair you sit in, these can be pawned.

How does the pledge process work?

The central figure of an attachment process is the enforcement agent, appointed by the court.

It is through him that all parts of the process pass, including the notices and citations of the parties involvedexecution of the attachment, sale of the goods and payments to the creditor.

The way in which the attachment is processed varies depending on the goods. So let’s look at some cases:

Pledge of bank deposits

The enforcement agent communicates, electronically, with the bank or banks where the creditor has an account, notifying them that the balance or share of the debtor is blocked from that date.

The amounts blocked become only available be moved by the enforcement agent.

garnishment of wages

It is the only case in which the debtor does not have to be informed in advance, only becoming aware of it when he receives the salary.

The due date is communicated to the employer, which starts to deduct the determined amount from the salary. This amount is transferred to the bank account held by the enforcement agent.

Pledge of commercial establishment

It is done through a report, in which the list of goods that integrate it is made. The attachment does not prevent the store or company from continuing to operate normally and under the direction of the debtor, unless the creditor objects.

In that case, it is up to the judge to designate an administrator, with powers to carry out the respective daily management. If the company is closed or suspended, the judge must appoint a depositary for the assets.

Home stuffing pledge

the goods are seized and removed to a warehouse. The enforcement agent assumes the role of trustee and is obliged to deliver a writ of attachment.

When the attachment of goods takes place in the house where the debtor lives, it can only be done between 7:00 am and 9:00 pm. If the person concerned does not authorize entry, the enforcement agent may ask the judge to request the presence of the police, who have the power to break down the door.

Pledge of motor vehicles

Even before the electronic communication of the attachment – ​​made between the Procedural Management of Enforcement Offices (GPESE) system and the vehicle registration computer system – the enforcement agent must immobilize the vehicle.

This immobilization can be done through seals and the objective is to prevent the debtor from fleeing or hiding the vehicle. after attachment car documents are seizedwhich can be removed and transported to a police station or public park.

How to avoid the seizure of assets?

If it was completely impossible for you to pay the debt and you are being subject to a seizure of assets, there are ways to prevent the situation from getting even worse.

The most obvious, and if possible, will be to pay voluntarily.

If this is not possible and you are entering into a default process, you can avoid a seizure using mechanisms such as PARI – Action Plan for Default Risk and PERSI – Extrajudicial Procedure for Regularizing Default Situations.

The idea will be to renegotiate the debt before it moves into the execution phase.

You can also negotiate the phased debt payment, and will also have to pay default interest. In any case, you will avoid having your assets seized. In this case, you may have to present a bank guarantee.

If it is totally impossible for you to pay, you can file for insolvency, thus obtaining the lifting of the attachment.

As in any legal situation, you can oppose the attachment or execution. In the latter case, you will be claiming that the execution is illegal and contesting the existence of the debt.

The opposition to the seizure, on the other hand, contests its legality. It can be done, for example, if the pledged asset is not subject to attachment or if its seizure interferes with the right of another person who is also the owner.

Article originally published in July 2019. Last updated in January 2023.

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