What are the legal implications of foreclosure
Foreclosure: Procedure and Measures
Foreclosure can be applied for at an enforcement court. An important prerequisite for the application is an enforcement title with an enforcement clause that has been served on the debtor. Such titles can be enforcement notices, judgments or maintenance fixing orders.
In most cases, the subsequent enforcement is carried out by the bailiff. It is an independent body responsible for the administration of justice. Enforcement bodies can also be the land registry, a trial court or an enforcement court.
There are various measures of foreclosure:
- Attachment of movable property
These are things that are in the debtor's custody. He does not necessarily have to be the owner of these things. For example, electrical appliances, furniture or even cars can be seized.
- Auction of movable property
In order to utilize the seized items, they can be auctioned. Auctions can either be held on site or via your own auction portals.
- Attachment of claims
In this case, salaries or wages can be seized. It is also possible that claims from life insurance are attached in the context of foreclosure.
In the case of an auction, the debtor usually has a week to find the money that prevents the seized property from being sold.
Foreclosure on movable property
As part of a foreclosure, a bailiff will first try to seize the movable property. To do this, he announces his visit to the debtor's living quarters. All movable goods that are seized receive a seal of the bailiff, the so-called "cuckoo".
Smaller items or items that could be damaged by the seal are usually taken immediately by the bailiff. He will have the rest of the seized items picked up later. The pledge will later be auctioned in order to use the proceeds to pay off the debt to the creditor.
What is actually meant by a garnishment?
A seizure is generally a seizure of property as a result of a court order in order to satisfy a creditor's claims. Attachment is a form of foreclosure.
A special form is the so-called "pocket seizure". This is a seizure that the bailiff does not carry out on the premises of the obligee, but directly on the obligee. For this purpose the creditor is visited. Then clothing and objects carried along are examined and, if necessary, immediately attached. This can be, for example, watches, jewelry or a wallet with cash.
These items remain with the debtor
Items that the bailiff cannot take away immediately remain with the debtor for the time being. They will be marked with a court seal. Once marked, these items no longer belong to the debtor. He may no longer dispose of these, otherwise he risks the so-called "entanglement breach". For example, if the creditor's stereo system is attached and marked with a seal, the creditor is then no longer allowed to use it.
Objects that cannot be seized
Beds, radio, television and clothing may not be seized because they are needed for a “modest lifestyle”.
A bailiff can be hired by anyone who has an enforceable title against a debtor. Tenants can hire a bailiff to enforce outstanding rental debts. Energy suppliers can also appoint a bailiff to seize the debtors. Courts can also give the bailiff an order for enforcement if a debtor no longer makes his payments.
How does the creditor get his money?
If money is attached, it can be used immediately to pay off the debt to the creditor. If things are seized, they are first auctioned off. The proceeds then go to the creditor until the entire debt has been paid off.
Foreclosure on immovable property
Foreclosure on real estate or land is initially carried out by the competent local court. With the foreclosure auction and the foreclosure administration, two different options are available to settle the debts with a creditor.
In a foreclosure auction, at least the value of a piece of land or a property should be redeemed. The income is then offset against the creditor's claims.
In the case of receivership, a receivership takes over the administration of the property or property. The income from this administration is passed on to the creditor. Forced administrations are used, for example, for enforcement in the hotel industry or for rented property.
Another way of enforcing real estate is the forced mortgage. The debtor is required to take out a mortgage on his property or property. This mortgage is entered in the land register and must be more than 750 euros. For the creditor, this mortgage serves primarily as security for his claims, because he does not receive any money from this mortgage. If the debtor does not pay his claims, he can still later seek a foreclosure auction or foreclosure through foreclosure.
Foreclosure in pecuniary claims
The attachment of monetary claims takes place on the basis of the so-called attachment and transfer decision of the enforcement court. This lists debtors and third-party debtors. In this case, third-party debtors are employers or banks.
In this way, wages and salaries, but also account balances or social benefits, can be seized. In the event of seizure of wages or salaries, a so-called seizure table must be observed. It determines how much can be seized each month.
In the case of garnishment of wages, the creditor usually receives his money immediately, since the debts are settled directly with the debtor's income.
In the case of attachment of so-called P-accounts, attachment protection applies.
What to do in the event of foreclosure?
In principle, you do not have to let a bailiff into your home. However, he has the right to use a judicial search warrant if he does not find you after two attempts.
As soon as a bailiff has come to you, he is allowed to search your apartment completely. This also includes offices or business premises as well as courtyards, gardens or garages. If you live in a shared apartment, the bailiff can also search common rooms. Only the rooms exclusively used by your roommates themselves are taboo for him.
The bailiff also has the right to open drawers or inspect cabinets. The same applies to briefcases or suitcases.
The bailiff is allowed to take seized property directly with him. You will receive a receipt for seized cash and items. He may now collect wages paid out in cash proportionally based on the garnishment table.
No obligation to provide information
In principle, you do not have to give the bailiff any information. For example, you are not required to state your employer. The creditor must obtain this information himself.
However, you are obliged to provide comprehensive information if the foreclosure is linked to an order for the immediate acceptance of an affidavit. However, you can initially object to this.
Enforcement remedies by the debtor
Every debtor has the option of various legal remedies in the event of foreclosure. These are the enforcement reminder and the immediate complaint. Both remedies mainly allege formal errors in enforcement. With the third party objection suit, the suit for preferential satisfaction as well as the enforcement defense suit, you as the debtor refer to defects in the reason as well as in the object, i.e. to deficiencies in the content of the enforcement.
The enforcement reminder in foreclosure
The reminder against the manner of foreclosure means that the debtor wants to point out that there were errors in the enforcement regulations. The enforcement reminder is possible, for example, if the debtor claims that something was attached that is needed for a modest livelihood, for example a bed.
Protection of a third party through third party action
Debtors can defend themselves with the third party objection suit if, for example, the property of a third party is attached. This can be a leased vehicle, for example. The third party objection action can be brought by a third party, for example the owner of the leased vehicle. In this way he prevents him from losing his property.
With this legal remedy, the debtor has the option of dismissing enforcement because, in his view, there is no longer any reason to do so. For example, he can assert his right if he is of the opinion that he has already paid the debt or that he has prematurely withdrawn from a contract that has led to an enforcement action.
Submission clause as an acknowledgment of guilt
With the so-called "submission clause" the debtor declares that he is submitting to foreclosure. According to Section 794 of the ZPO, the obligee receives an enforceable title which he can assert immediately with a bailiff without going through a court.
The submission clause is useful if a creditor wants to go to foreclosure without lengthy proceedings. Often the submission clause is inserted in notarial contracts when purchasing real estate.
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