The attachment of intangible property (also called garnishment) is a procedure through which a creditor may obtain possession of dematerialised property that makes up his debtor’s assets; as opposed to the tangible assets that may be the subject of a standard garnishment (please refer to note no. 3 with regard to the latter point).
The term “dematerialised assets” shall refer to any element of an asset nature that may be physically apprehended.
Besides, the attachment of intangible assets takes place in different forms; the main ones are set out in this e-note.
By way of a general introductory remark, we would like to draw the reader’s attention to the fact that only executory attachment of intangible assets shall be dealt with primarily in the case in question.
In this E-note:
- General rules for garnishment under ordinary law
- Delegation of sums
- Income tax garnishment
- Garnishment for the recovery of criminal fines
- Garnishment of maintenance
- Garnishment of securities
- Banking garnishment
- Territorial competence
Garnishment aims to enable a creditor to intercept sums of money or items owed to his debtor while they are still in the possession of a third-party (art. 1445 of the Judicial Code).
In other words, it is a question of attaching assets that are held by a third-party but which actually already belong to the assets of the pursued debtor if the third-party is in turn the debtor’s debtor. In other words, the garnishee must be the attachment creditor’s debtor and the third-party/garnishee’s creditor.
E.g.: Attachment of an employee (garnishee)’s salary by the latter’s employer (third-party/garnishee) paid to the creditor (attachment creditor).
E.g.: Attachment with regard to a banking institution (third-party/garnishee) of sums of money that the debtor has in an account that he (the garnishee) holds paid to his creditor (the attachment creditor).
The executory garnishment therefore enables the creditor to obtain payment of sums that he is owed by obliging the third-party/garnishee to hand over amounts to the acting judicial officer, to the amount of his debt towards the garnishee.
Therefore, the garnishment brings together three persons:
- The attachment creditor, the person who carries out the attachment;
- The garnishee, creditor or owner of the items or money that are being attached;
- The third-party/garnishee, the debtor of the garnishee against whom the attachment is carried out.
Although the attachment of sums of money constitutes the most likely scenario for this type of attachment (see example under point A), it cannot be summarised purely as such.
It may also apply to intangible assets that belong to the debtor and are in the possession of a third-party.
However, the effects of the garnishment will be different depending on whether it concerns debts or tangible or intangible property: in the first example, the garnishment reaches its final stage when the attachment creditor is attributed sums that the garnishee is owed by the third-party/garnishee; in the second example, it leads to the sale of the garnishee’s property that is in the possession of the third-party/garnishee and the payment of the attachment creditor using the proceeds from their realisation.
Articles 1409 to 1412 of the Judicial Code even organize the partial or total immunity from attachment and inaccessibility of certain types of sums of money that belong to the debtor so that the latter and his family may retain a minimum subsistence figure (e.g.: salary, benefits, supplementary income, allowance etc.).
With regard to the attachment of tangible property, please refer to e-note no. 3.
Purely anecdotally, we would like to point out that garnishment carried out by the attachment creditor has not been ruled out, meaning that the triangular relationship (described below) leaves room for a relationship in which the attachment creditor also takes on the role of third-party/garnishee.
In addition, we should note that instead of distinguishing, in this case, two types of different debts in the context of the legal relationship joining the attaching party, debtor and third-party/garnishee: the claim that exists between the creditor and their debtor (claim/cause) as well as that existing between the debtor and the third-party/garnishee (claim/object).
Garnishment may be carried out with regard to short-term, conditional or disputed claims belonging to the debtor (art. 1446 and 1539, paragraph 2 of the Judicial Code). Therefore, it is sufficient for the claim to exist in embryonic form at the time of the attachment in favour of the debtor.
In addition, this enforcement measure must be justified with regard to an existing claim in favour of the attachment creditor. Therefore, the question that is raised here is how to work out which type of debts can be garnished.
There are conditions of substance and conditions of form, so please refer to e-note no. 1 for more details.
3. Effect of the unavailability of any garnishment
The immediate effect of the use of garnishment is to make unavailable sums and items that the third-party/garnishee owes to the garnishee and prohibit him from making any payment (art. 1451 and art. 1540 of the Judicial Code).
Thus, the third-party/garnishee cannot legitimately off-load his responsibility onto the garnishee, or even make a payment to one of the garnishee’s other creditors. The third-party/garnishee also cannot offset this debt towards the garnishee with an amount receivable from the latter.
The unavailability is total, in the sense that it ties up the garnishee’s entire claim and additional costs (art. 1455 of the Judicial Code). This may only be disregarded through segregation (art. 1403 of the Judicial Code).
4. Special rules for precautionary garnishment (articles 1445 to 1460 of the Judicial Code)
In the event of precautionary garnishment, this may be carried out without the judge’s authorisation, not only by a creditor who has an authentic right, but also merely on the basis of a simple private right and at the creditor’s own risk.
This right must consist of a document that is regular in form, enforceable against the garnishee and which testifies to a claim that is certain, of a fixed amount and due.
In the absence of such a right, the attachment must be requested unilaterally, in accordance with articles 1417 and 1418 of the Judicial Code.
Within eight days of the third-party’s receipt of the document containing the garnishment, notice of this must be given, at the attachment creditor’s request, to the attached debtor, by registered letter with acknowledgement of receipt or in a bailiff’s writ (article 1457 of the Judicial Code).
Garnishment creates two obligations for the third-party/garnishee (article 1451 of the Judicial Code and articles 1452 to 1455 of the Judicial Code). Please refer to point F.4 below for more details.
If the third-party/garnishee fails to fulfil these obligations, he may simply be declared a debtor, either partly or fully, of the causes of the attachment (i.e. the debtor’s debt) following an action brought by the creditor before the enforcement judge (article 1456 of the Judicial Code).
Please refer to E-Note no. 1 for more details about precautionary attachment.
5. Special rules for garnishment (articles 1539 to 1544 of the Judicial Code)
A creditor who has secured an enforceable right may have an enforceable attachment order served by a bailiff upon a third-party regarding the sums and items that the latter owes to their debtor.
Particulars of the writ of attachment
The writ containing the enforceable attachment order must contain, in addition to the formalities that are common to all served writs of attachment, the wording of articles 1452 to 1455 of the Judicial Code (the chapter on precautionary attachment orders) and article 1543 of the Judicial Code (the chapter on enforceable attachment orders); in accordance with article 1539, paragraph 4 of the Judicial Code).
By analogy, it is also appropriate to consider that the serving of the enforceable attachment order must also contain a warning to the third-party/garnishee that he must comply with these provisions.
Lastly, it is particularly interesting to emphasise that this writ shall not lead to notice being given of a previous order as is normally the case in any distraint.
Notice of the attachment given to the attached debtor
Notice of the enforceable attachment order must be given to the attached debtor within eight days. Under pain of nullity, if this time period is not subject to limitation by lapse of time it shall nevertheless affect the proper functioning of the enforcement measure.
According to article 1539, paragraph 5 of the Judicial Code, this notice shall be solely be given in a judicial officer’s writ and in addition, under pain of nullity, it shall contain the dependent child declaration form, if the attachment concerns the income referred to in articles 1409 § 1 and 1a, and 1410 of the Judicial Code.
By contrast, the eight day time period is not subject to limitation by lapse of time under penalty of nullity, since late notification would further postpone the date from which the fifteen days starts to run during which time the attachment may stand in the way of the enforcement measure and which triggers the moment of divestiture. (art. 1543, paragraph 1 of the Judicial Code).
Therefore, the notification of the attachment that is given to the garnishee is therefore an essential feature of the enforceable attachment order:
- 1) For the third-party/garnishee, in so far as the writ of notice has to be presented to him at the time of payment so that he may verify the legality of the creditor’s claim against the attached debtor.
- 2) For the garnishee, from the moment that the notice comes out it triggers, for him, the period of fifteen days that he has to oppose and defend his rights (art. 1541 of the Judicial Code).
- 3) For the attachment creditor, in order to enable him to actually have the third-party/garnishee hand over the attached/arrested sums and items. In fact, under the terms of article 1543 of the Judicial Code, if the garnishee allows the period of fifteen days to pass without exercising his right of appeal, the third-party/garnishee is required to hand over sums up to the amount of the attachment.
Objection by the attached debtor
Article 1541 of the Judicial Code gives the attached debtor the right to object to the attachment within fifteen days of being given notice of it.
This objection shall be carried out in compliance with ordinary rules, through a summons, served upon the attachment creditor at the garnishee’s request, to appear before the judge of attachments who is competent for the territory concerned, i.e. the judge of the attached debtor’s place of residence or the judge of the place of enforcement if the debtor is domiciled abroad or has no known residence in Belgium.
At that time, the debtor may put forward any procedural or substantive pleas.
Notice of the writ of summons shall be given to the third-party/garnishee by the judicial officer (article 1541 of the Judicial Code).
The double formality of having to submit the objection and notification to the third-party/garnishee may be carried out in the same writ (art. 1541 of the Judicial Code), as long as the attachment creditor and the third-party/garnishee reside in the same judicial district. If not, two writs will be necessary in order to complete this double formality.
Notice of the decision issued with regard to this objection shall also be served upon the third-party/garnishee by the first party to take action (art. 1541, paragraph 2 of the Judicial Code).
While awaiting a decision from the attachments judge, the obligation for the third-party/garnishee to pay the attachment creditor shall be suspended but the effect of the unavailability along with the declaration obligation shall remain.
An order issued by the attachments judge regarding an objection aimed at lifting an enforceable attachment order can only be effective after notice of it has been given by the judicial officer to the third-party/garnishee.
Determining of the third-party/garnishee’s obligation
The third-party/garnishee’s obligation is, in principle, established by their declaration, which shall be carried out in accordance with the rules and forms stipulated by the Judicial Code.
In fact, the third-party/garnishee not only has to retain the attached assets and not make any payment, since article 1540 of the Judicial Code also requires him to declare what he owes to the garnishee.
In the same way, he is required to inform the attachment creditor and attached debtor, at their request and in the same forms, of the sums and items that may increase the assets that exist at the time of the first or previous declaration (art. 1455 of the Judicial Code).
The effect of this provision, until the attachment is lifted, is to constrain the third-party/garnishee to also give notice of the sums that will be payable after his declaration, without a new garnishment being necessary.
Although the initial declaration has to be given within fifteen days of the garnishment (art. 1452 of the Judicial Code), the law has not fixed any time period for any additional declaration, since this shall occur “at the request” of the attachment creditor or attached debtor.
According to article 1453 of the Judicial Code, this declaration must be sent to the attachment creditor or judicial officer who executed the attachment, and the attached debtor respectively, in a letter registered with the postal service or delivered by hand with receipt. It is not ruled out that a simple letter may be sent, but this may mean that the third-party/garnishee is unable to prove that he did indeed fulfil his legal obligations (in accordance with article 1452 of the Judicial Code), with the effect that he may simply be declared a debtor, in full or in part of the causes of the attachment in accordance with article 1546 of the Judicial Code.
A copy of the supporting documents will be annexed to the declaration sent by the third-party/garnishee to the attachment creditor or acting judicial officer (art. 1453 of the Judicial Code).
Article 1452 of the Judicial Code specifies particulars that must contain the third-party/garnishee’s declaration and which must enable a precise insight into the situation to be provided, since the declaration must be a clear and sincere explanation of the legal relationship between the garnishee and the third-party/garnishee.
There are two possible scenarios:
- (a) the third-party/garnishee admits that he is garnishee’s debtor or
- (b) he is not or is no longer the garnishee’s debtor.
The third-party/garnishee admits to being a debtor
The third-party/garnishee must, in this event, state the exact causes and amount of his debt, the due date and, if necessary, its terms (art. 1452 of the Judicial Code).
The third-party/garnishee is not, or is no longer, the garnishee’s debtor
In this event, the law requires the third-party/garnishee to assert that he is not or is no longer the garnishee’s debtor (art. 1452, paragraph 2, 2. of the Judicial Code). This assertion, despite its negative character, is designed to spare the attachment creditor from having to pay unnecessary procedural costs.
In the two cases envisaged above, whatever the content of the declaration, the third-party/garnishee must, in addition, include in his declaration a statement of all the garnishments that have already been received by him (art. 1452, paragraph 2, 3. of the Judicial Code).
This obligation is justified by the fact that it is in the attachment creditor’s interest to be informed of this so that he may check other creditors’ claims and assess his chances of being paid.
With regard to the declaration costs, the Judicial Code shall grant a third-party/garnishee who has had to pay certain fees when making his declaration the right to a refund (art. 1454 of the Judicial Code).
A third-party/garnishee who does not make his declaration within the legal time period or who makes an inaccurate declaration may be declared a debtor towards the attachment creditor in full or in part of the causes of the attachment, as well as the costs of this. This sanction is considered equivalent to a custodial sentence which has no effect on the validity of the executed attachment.
Clearly, this sanction shall only apply from the moment that the third-party/garnishee becomes aware or should have been aware of the document containing the garnishment, since such activities are therefore considered a hindrance to the garnishment procedure undertaken by the attachment creditor.
It should be pointed out that the third-party/debtor of the causes of the attachment may plead, with regard to the attachment creditor, the exceptions that the garnishee may raise against the latter. These may therefore be objections of substance (e.g. the garnishee is not or is no longer the debtor) and/or objections of form (e.g. lifting of the garnishment).
If the third-party/garnishee’s declaration is contested, his obligation shall be established by the judge competent for reconciling the dispute and, in this event, establish the existence and amount of the claim to which the third-party/garnishee is held.
Divestiture by the judicial officer and effect with regard to the garnishee
In the event of garnishment, the third-party/garnishee must pay the acting judicial officer and not the attachment creditor so that the judicial officer may diligently carry out the distribution procedure, if appropriate.
The attached debtor shall only be released from his obligations towards the attachment creditor to the extent of the payments received by the latter in the context of the garnishment followed by the distribution by contribution procedure.
Procedurally speaking, two scenarios have to be distinguished:
The attached debtor has not raised an objection
From the moment that notification of the attachment has been given to the garnishee in person or at their place of residence, and no earlier than two days after the period of fifteen days from when the notice was given that the garnishee has to exercise his right of appeal, a third-party/garnishee whose debt is fixed and due is required to pay the acting judicial officer, when the writ of notice is produced and in accordance with his declaration, up to the amount of the attachment (art. 1543 of the Judicial Code).
If not, the third-party/garnishee is only required to pay if the attachment creditor has already obtained permission from the judge.
If the third-party/garnishee does not comply with the divestiture obligation, he may be forced by the attachments judge to meet the attachment creditor’s request (art. 1543, paragraph 1 of the Judicial Code).
The attached debtor has raised an objection
The third-party/garnishee’s obligation to pay shall, in the event of an objection being raised by the garnishee, be suspended until the garnishee is given notice of the decision that threw out the objection (art. 1543, paragraph 2 of the Judicial Code) “failing the effect of appeals that may be lodged against this decision”.
This means that if the decision is not declared enforceable, the appeal shall also have a suspensive effect, according to ordinary rules.
Distribution by contribution
Distribution by contribution governs the distribution of the income from the enforceable attachment order (art. 1627 et seq. of the Judicial Code).
In the case in question this refers to the distribution, between the competing creditors of funds from the sale of attached intangible property or attached sums.
Therefore, the third-party/garnishee cannot be given the task of carrying out the distribution, which solely belongs to the judicial officer.
The judicial officer shall include in his distribution by contribution procedure both the opposing creditors and all the attached debtor’s creditors.
Since the Law of 29 May 2000, article 1495, paragraph 2 of the Judicial Code has laid down that when attachment is carried out with a view to obtaining payment of amounts in arrears for a claim relating to regular income, the attachment may also take place in order to obtain payment of future amounts as and when they are due.
6. The third-party/garnishee’s liability towards the attachment creditor
The third-party/garnishee shall be liable towards the attachment creditor, in such a way that a third-party/garnishee who violates the prohibition to relinquish sums in his possession, risks being declared simply a debtor of the causes of the attachment and sentenced as such.
Therefore, the third-party cannot go beyond this prohibition to relinquish the sums until he has been given confirmation that the attachment has been lifted. Consequently, the debtor cannot criticise him for complying with this obligation.
7. “Common” garnishment
In the event of garnishment executed by a judicial officer on behalf of a creditor as the “first attachment creditor”, article 1543a in the Judicial Code stipulates that an opposing creditor who has an enforceable right may, if the first attachment creditor has already been given notice and without forming any subrogation claim, have the acting judicial officer proceed with the divestiture of the third-party garnishee in accordance with article 1543 of the Judicial Code.
Alongside garnishment under ordinary law, the legislator has organised a special procedure called the delegation of sums, in which maintenance creditors may have a right of appeal under certain circumstances (articles 221 of the Civil Code and 1280, paragraph 5 of the Judicial Code).
The delegation of sums may be defined as “the judicial authorisation given to the maintenance creditor to directly obtain, to the exclusion of the debtor, under the conditions and within the limits fixed by the judgment, the debtor’s revenue or any other sum owed to the latter by a third-party”.
All in all, the implementation of this is similar to a simplified garnishment that takes place though notification without the principal being informed of this, without an obligation for the third-party responsible for making a declaration of claim, and without special sanctions being applied to him laid down by the Judicial Code in the event of non-fulfilment of his obligation by the third-party/garnishee.
Income tax garnishment is a form of simplified garnishment in the sense that notification of the garnishment can be provided by a letter registered with the postal service by the relevant collector, and consequently it does not require the judicial officer’s involvement.
Article 164 of Royal Decree no. 92 implementing the Income Tax Code lays down that, aside from certain characteristics particular to this tax-related measure, the general provisions of the Judicial Code that are applicable in the case of garnishment are applicable in this case, it being understood that the attachment amount shall be handed over to the competent collector and no longer the judicial officer.
2. The judicial officer’s involvement
However, the judicial officer’s involvement is not entirely excluded in the context of such an enforcement measure.
Pursuant to article 165 of Royal Decree 92 implementing the Income Tax Code, garnishment must be executed by a bailiff’s writ, in the manner laid down by the provisions of the Judicial Code, if it appears that:
- the amount owed is in conflict with the garnishment referred to in article 164, § 1, of the Royal Decree no. 92 implementing the Income Tax Code ;
- the third-party/garnishee contests his debt with regard to the amount owed;
- the sums and items are the subject, on behalf of other creditors, of opposition or garnishment prior to the attachment referred to in article 164, § 1, of the Royal Decree no. 92 implementing the Income Tax Code ;
- the attached items must be realised.
In these events, the garnishment executed by the collector shall retain its precautionary effect if the collector proceeds using a bailiff’s writ, under the circumstances described above, with garnishment by the third-party in the month following the following the mailing of the objection to the owed amount provided for in article 164, § 1, paragraph 3 of Royal Decree no. 92 implementing the Income tax Code, or the declaration provided for in article 1452 of the Judicial Code.
By virtue of article 299, § 1, of the Law of 27 December 2006 pertaining to various provisions (I), the collector of revenue from State/Crown property and or criminal fines, without having previously given notice of the judgment or decree that has become enforceable, may proceed, with a letter registered with the postal service, with the garnishment by a third-party of sums and items that are owed to or that belong to a convicted person, up to the amount of all or part of the amount due by the latter by way of fines, fees, contributions, confiscated sums and costs of proceedings or enforcement costs. The convicted person must be given notice of the garnishment by a letter registered with the postal service.
The convicted persons may raise an objection to the garnishment by sending a registered letter to the competent collector within fifteen days of the mailing of notification of the attachment.
The convicted person must inform the third-party/garnishee of this within the same time-period by a letter registered with the postal service.
Aside from certain characteristics particular to this measure, the general provisions of the Judicial Code that are applicable in the case of garnishment, are applicable in this case (just as in the case of tax attachment), it being understood that the attachment amount shall be handed over to the competent collector and no longer the judicial officer.
2. The judicial officer’s involvement
Article 299, § 4 of the Law of 27 December 2006 “pertaining to various provisions (I)” provides that garnishment must be executed by a judicial officer’s writ, in the manner laid down by the Judicial Code, when it appears that:
- the convicted person is contesting the garnishment referred to in § 1;
- the third-party/garnishee contests his debt with regard to the convicted person;
- the sums and items are the subject, on behalf of other creditors, of opposition or garnishment prior to the attachment referred to in § 1;
- the attached items must be realised.
In these events, the garnishment executed by the collector shall retain its precautionary effects if the collector proceeds using a bailiff’s writ, under the circumstances described above, with garnishment by the third-party in the month following the mailing of the objection by the convicted person or the declaration laid down in article 1452 of the Judicial Code.
This enforcement measure can be applied in order to enable recovery of unpaid maintenance claims.
Although the garnishment procedure does not, in this scenario, depart from the general procedural regime, it should be noted that the attachment creditor’s status is special.
In fact, as maintenance creditor he occupies a privileged position that grants him the right to seize all of the sums from the third-party/garnishee without any unavailability or inaccessibility limit, as long as these sums constitute a salary, replacement income or certain benefits (art. 1412 of the Judicial Code).
Therefore, this is an exception to the protector principle set out in point 1/, B.
Since the privileged position granted to the maintenance creditor only operates in these circumstances, for the remaining amount he is subject to the law of competition as an ordinary creditor alongside any others.
Securities (shares, bonds, membership shares etc.) may be seized, in principle, by the attachment creditor through garnishment by the company.
This is carried out in the same way as seizure of /enforcement against property, i.e. by applying articles 1516 to 1528 of the Judicial Code.
In the absence of coherent regulations, a distinction must be made here, according to the type of company that is being dealt with when the garnishment is executed.
By way of example, details are provided below of the situation specific to a private limited company.
Article 232 of the Company Code stipulates that “shares and bonds may exist within private limited companies. These securities are registered. They have an order number“.
Article 233 of the Company Code adds that a register of shares and bonds is kept at the registered office, and this may be consulted by any interested third-party.
These registered securities may be seized without any problem by a garnishment which may be precautionary or enforceable, and which must be executed by the company.
Problems arise when the attachment creditor wishes to move on to the forced sale of membership shares following garnishment. In fact, shares are subject to restrictions (legal or statutory) regarding transferability.
These restrictions run the risk of no buyer being found; they constitute a real obstacle for a creditor who wants to proceed with an attachment.
However, it is recognised that statutory clauses compliant with the Company Code must in principle be respected, if the conventionally stipulated inaccessibility does not make the registered share exempt. In fact, the lack of transferability may lead to the winding up of the company at the plaintiff’s request so that he is able to recover what he is owed.
In the same way, dematerialised securities can equally be seized using garnishment.
Under the terms of article 468 of the Company Code, a dematerialised share is represented by an entry in the account held in the name of its owner or possessor according to at an account holder approved by the Crown.
It is a question of an intangible co-ownership right which is exercised “in proportion to the securities that the account holder holds out of the undivided total or the universality that is constituted by any entries in the account holder’s name at the central body or other holders or accounts and the attached rights“.
Paragraph 2 of article 472 stipulates that “without prejudice to the application of article 471, in the event of the insolvency of the owner of securities or in any other situation of competition, the creditors of the owner of securities may assert their rights to the available balance of securities entered into the account in the name and on behalf of their debtor, after the deduction or addition of securities which, by virtue of conditional undertakings, undertakings involving uncertain amounts or short-term undertakings, are entered, if appropriate, in a separate part of this securities account, on the day of the insolvency or administration, and whose inclusion in the available funds is deferred until the condition is realised, the amount is determined or the end of the time period is reached”.
Garnishment carried out by account holders approved by creditors of holders of dematerialised securities is therefore perfectly possible.
Garnishment of a bank account is frequently implemented.
This attachment is executed with regard to all assets that the bank owes to the debtor and concerns all bank accounts opened in his name.
This is the case for a bank deposit account or a current account. The fact that this account belongs to several account holders is not an obstacle for the attachment. Each creditor of each account holder may attach it. Therefore, the entire contents of the account will be blocked as long as the third-party/garnishee does not know the share held by each of the holders.
However, this does not apply to a credit line or savings account.
1. Scope of protection
Article 1411c, § 1 of the Judicial Code stipulates that in the event of attachment, income from work or other activities as well as replacement income paid into the attached bank account shall be covered by the protective system of partial unavailability stipulated by article 1409, 1409a and 1410 of the Judicial Code, during a period of thirty days from when these sums are credited to the current account.
In order to identify the protected income, a traceability system has been implemented that therefore establishes a relationship of unavailability or inaccessibility in the event of attachment of protected income credited to a current account opened at a banking (financial) institution.
Therefore, the various types of income must be labelled with a special code when they are paid into the bank account (salary, benefits etc.) so that they can be separated from other amounts credited to the current account. As for other paid amounts, these may be attached in full.
The codes that are to be used are as follows:
- /A/ income from work and income of other kinds (e.g. rent)
- /B/income from other activities and replacement income that may be attached partially (pensions, maintenance, pensions [sic], unemployment benefit, ESF benefits, incapacity benefit, insurance payments, pensions for accidents at work or occupational diseases etc.).
- /C/ replacement income that is unavailable and inaccessible (family allowances, orphans’ pensions, allowances paid to disable persons, social assistance etc.)
Therefore, this is an obligation that lies with the originator’s bank to label the sums that it is paying with a special code, under penalty of criminal penalties (fines) in the event of oversight or fraud.
The matter may also be referred to the attachments judge so that he may declare the interested party a debtor, in full or in part, of the causes of the attachment or transfer, as well as the costs of this, without prejudices towards any damages towards the party if appropriate.
Protection of the partial unavailability or inaccessibility shall apply for a period of thirty days from when the sums enter the current account.
However, the calculation of the unavailable proportion shall drop by a thirtieth according to the number of days between the date the sums entered the account and the date of the attachment or assignment. In other words, the calculation of the proportion of the balance that can be attached is carried out in proportion to the number of days remaining in the protection period compared to the attachment or transfer date.
Therefore, the protection granted is graduated. It should be noted that there is a specific system if the protected sums are the subject of an overall payment when they relate to a duration of more than one month (e.g. compensation in lieu of notice equivalent to 3 months’ salary).
It goes without saying that in this case the maintenance creditor also benefits from (see point 5/) a privileged status which enables him to disregard the applicable protective system and thus attach a current account’s entire credit balance, except for certain specific amounts.
A special probationary system has been implemented by the legislator. Thus:
- The amounts paid by the debtor’s employer through a transfer or payment in cash into the debtor’s current account shall be considered to be partially unavailable in accordance with the Belgian Judicial Code, unless it is proved to the contrary.
- The debtor may provide evidence by any legal means that amounts that are unavailable and inaccessible pursuant to articles 1409, 1409-a and 1410 have been credited to a current account that has been attached or assigned.
Quite clearly such an attachment is only effective if the attached bank account has a credit balance; failing this the attachment shall be groundless.
In the case of attachment regarding a current account, the credit institution must set out in its third-party garnishee declaration a list of the coded amounts that were credited during a period of 30 days prior to the attachment date.
Article 1452 of the Judicial Code also specifically sets out that obligation: “The declaration must stipulate precisely all of the elements needed in order to determine the parties’ rights and, as appropriate, in particular: (…) 4. If appropriate, the amounts labelled with a code that have been credited to a current account and the date of their entry if this occurred during the thirty days prior to the attachment date. “.
Article 1411-c § 2 draws a distinction between whether or not the attachment or assignment takes place with the involvement of a judicial officer.
If this is the case, it is the bailiff who establishes the statement and who, under pain of nullity of the attachment or assignment, sends the statement to the debtor by a letter registered with the postal service with acknowledgement of receipt within 8 days of notice being given of the third-party garnishee’s declaration or the one that has to be given by the assigned third-party in that instance.
Under threat of the same nullity, this registered writ given to the debtor shall be accompanied by a reply form as specified by the Crown. This form must facilitate the debtor’s task if he intends to contest the statement sent to him.
The bailiff must also retain a copy of the statement for the third-party garnishee / assigned third-party (credit institution) sent by registered letter with acknowledgement of receipt within the same time period of 8 days. This obligation, in turn, is also subject to limitation by lapse of time under pain of the attachment or assignment being null and void.
After the credit institution has received a copy, the debtor may freely dispose of unavailable or inaccessible amounts that are referred to in the statement.
If, on the other hand, notice of the attachment or assignment is not given by a bailiff, it is the creditor (in the event of tax attachment in simplified form or if the assignment is implemented by the creditor personally) who must draw up the statement personally. The same shall apply with regard to the writ given to the debtor and credit institution. The time periods and penalties of theses formalities are the same.
It is also stipulated that after the credit institution has received a copy, the debtor may freely dispose of unavailable or inaccessible amounts that are referred to in the statement.
If the debtor intends to dispute the calculation that he has been sent, he must, on pain of forfeiture, use a reply form to provide his comments to the person who sent the statement (bailiff or creditor). He must do this, by a letter registered with the post office with acknowledgement of receipt, within 8 days of the arrival of the letter (registered with the postal service and with acknowledgement of receipt) at his place of residence, containing the contested statement.
If a dispute is submitted within the appropriate time period, the bailiff or creditor shall then be required to file at the registry of the court of first instance (attachments registry) a copy of the statement and standardised reply form containing the debtor’s comments.
On pain of forfeiture, this filing must be completed “within 5 days of the submission, at the address stated in the reply form, of the registered letter with acknowledgement of receipt, containing the debtor’s comments” (article 1411-c, § 5 of the Judicial Code).
An order issued by the attachments judge cannot be opposed or appealed.
5. The third-party/garnishee or assigned third-party’s obligation to pay
In the event of garnishment, the third-party/garnishee must comply with the time period laid down in article 1543 of the Judicial Code and therefore, unless the attached debtor objects, pay the acting bailiff by the end of a period of 17 days starting from when notice of the attachment is given to the debtor as long as he has previously received both a copy of the writ of notification and the statement referred to in article 1411c, § 2.
By virtue of article 633 of the Judicial Code, applications regarding precautionary attachments and means of enforcement shall solely be referred to the judge of the place in which the attachment is taking place, unless otherwise provided for by law.
In the case of garnishment, this is the attachments judge for the attached debtor’s place of residence.