Third-party attachment and the silent garnishee: how do you proceed as a creditor?

Creditor with an uncollectible claim, and a third party who remains silent

You finally have a judgment or another enforceable title, but your debtor is not paying. You decide to place a third-party attachment on a claim of your debtor at a bank, a business partner, or a client of your debtor, hoping to collect your claim. To your frustration, however, this garnishee does not respond, responds too late, or provides an evasive answer. What can you do as a creditor to increase the pressure and get your dues?

What should the garnishee actually do?

The law is clear: under Article 475 of the Dutch Code of Civil Procedure (Rv), the garnishee is legally obliged to provide a declaration within four weeks of the notification of the attachment. This declaration must state fully and truthfully which claims or assets of the debtor the third party holds. This is essential for you as a creditor to gain insight into the recoverable assets and to prevent the third party from making unauthorized payments to your debtor.

What if the third party does not declare at all?

If the garnishee lets the statutory period pass without submitting a declaration, you are in a strong legal position. Under Article 476 paragraph 4 Rv, you can hold the third party liable for the claim for which the attachment was placed. The law then assumes that the third party owes the full amount to the debtor, unless they can demonstrate that this is not the case. This is a powerful means of coercion to force the third party into action.

What if the third party does declare, but incorrectly or incompletely?

Receiving a declaration does not always mean you are finished. If you have strong suspicions that the third party's declaration is incorrect or incomplete, you can involve them in legal proceedings under Article 476 paragraph 2 Rv. The court will then assess the accuracy of the statement. If it turns out that they lied or withheld information, the court can still order the third party to pay the amount for which the attachment was placed.

What was happening in this case before the court?

In the ruling ECLI:NL:RBZWB:2024:7042, we saw a typical conflict between a creditor and a garnishee. The creditor had placed an attachment, but the garnishee provided incomplete information about their financial relationship with the debtor. During the proceedings, it even became clear that the third party had not declared truthfully about received funds, which complicated the creditor's position but ultimately cleared the path for a judgment.

The ruling of the court

The court ruled that the garnishee had failed in their duty to provide information and had made false statements regarding cash flows. Because the third party had not fulfilled their obligations under Article 475 Rv and could not prove they owed nothing, the judge ordered them to pay the claimed amount. The ruling emphasizes that the court takes a strict stance against third parties who try to thwart an attachment by providing incorrect declarations.

What does this mean for you as a creditor?

• Check immediately whether and how the garnishee responds to the request for a declaration.
• If the third party does not declare within the term, immediately consider holding them liable under Article 476 paragraph 4 Rv.
• Do you doubt the accuracy of a submitted declaration? Involve the third party in legal proceedings under Article 476 paragraph 2 Rv.
• Ensure that you properly document the claim and the attachment; this is crucial in subsequent proceedings.
• Do not leave the third party in uncertainty for too long; acting in a timely manner strengthens your position and prevents the third party from paying the debtor.
• If in doubt, hire a lawyer immediately; the options are powerful but require careful litigation.

What to do now?

Is a debtor's claim open at a third party, and is that party not responding or responding incorrectly to a third-party attachment? Early legal advice helps you take the right step — liability, litigation, or payment — and prevents your claim from expiring or the third party from slipping out of your grasp. Contact us directly for an assessment of your situation.

Ruling

This blog post is based on ECLI:NL:RBZWB:2024:7042.