Home > If your debtor does not pay you, you can trigger a conservatory garnishment on their bank account

If your debtor does not pay you, you can trigger a conservatory garnishment on their bank account

Unbeknown to many, in the case of an outstanding debt, you can if certain conditions are met, freeze all of your debtor’s bank accounts without even needing to seek judicial authorization.

Therefore, if the debt in question is certain (for example an undisputed invoice), liquid (assessable in monetary terms, as is the case of an invoice), payable (the period of payment has expired), and there is a situation whereby the recovery of your debt is in danger (i.e. risk of insolvency) – you can, without prior authorization from the seizure judge, have frozen all bank accounts opened by the owing party.

Provided however, that you know the identity of your debtor’s bank or financial institution.

The opposing party will then be able to contest the attachment, but will have to initiate legal proceedings themselves before the attachment judge, the duration of which may extend over several months, and bear the legal costs associated with the initiation of such a procedure (lawyers, bailiffs, etc.).

For as long as the seizure judge has not rendered a decision, the seized funds then remain frozen by the bank. Essentially meaning that, if this legal tool is enacted strategically, it is possible to truly paralyze the operations of your debtor, and thus lead them to voluntarily pay the outstanding amounts, or to conclude an amicable settlement in exchange for the lifting of the seizure.

If you plan to carry out such a seizure via several banks whose head offices are located in the same judicial district (for example, in Brussels), you can optimize the costs (i.e., the same act of bailiff can be used across all Institutions, thus eliminating the cost of using multiple bailiffs). A caveat being that due to bank secrecy, it is not possible to know the balance of bank accounts before making a seizure. You should therefore be confident before triggering this process, that the balance of your debtor’s account can cover all or part of the outstanding debt.

Finally, such a seizure is not without risk. The decision to seize therefore, must be taken with sufficient discernment. If your debtor is for example, able to demonstrate that the outstanding invoice has been seriously contested and that your debt is therefore not certain, they may obtain in the context of the legal proceedings that they have brought before the foreclosure judge, not only the lifting of the seizure that you have made, but also your conviction for legal costs.

In addition, if it should be established that you acted with the aim of causing harm, you expose yourself to the risk of having to pay damages to the opposing party for the count of reckless and vexatious seizure, the amount of which will be defined by the attachment judge.

 

Meet the author

Jonathan TORO

Jonathan Toro has been a lawyer at the Brussels Bar since 2005. He holds a license in private law (great distinction) and a diploma in specialized studies in international business law (great distinction) from the Université Libre de Bruxelles (ULB).

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