Queries

Incasso.com regularly receives enquiries about collection, attachments, taking legal action and all other matters relating to collection. We are, of course, more than willing to answer your queries in full. And because many companies evidently often have the same queries we have included the most frequent ones and the accompanying answers on our web site. If your query is not included then you are welcome to put your question to our team of collection specialists and attorneys-at-law by contacting us. Generally speaking, you will receive an answer within 24 hours.

We have called in a debt collection agency to collect outstanding bills from a client. The client has paid the bills but not the collection charges. He claims he is not obliged to do so because we failed to inform him that he had to bear the expenses in our final notice. We did announce that we would be calling in a debt collection agency. Is it correct that in this case he is not obliged to pay the collection charges? Answer...

I have heard of a prejudgement attachment. If I have understood it correctly, this is possible without a judgement (but via a petition to the delegated judge?). And do you do this to secure a difficult claim? With such a petition is the other party informed of this by the delegated judge? If so, if the opposing party raises a substantive objection, is the prejudgement attachment then dropped? Answer...

Does an attachment, for example, on a bank account, always have effect if there is still money in that account? Imagine that you have a claim of 5,000 euros. At the moment that the attachment is served there are 10,000 euros in the account. This should be sufficient, however the entrepreneur argues that he has other creditors (possibly the tax authorities, salaries etc.) Do these types of debts have priority? Who decides this, how is the order determined? Answer...

A bailiff imposed an attachment on the salary of one of my employees. The payments took place accordingly. At one point in time, however, the employee in question became bankrupt. I was unaware of this and continued to make the payments for several months to the bailiff imposing the seizure. The bankruptcy receiver has now declared these payments null and void and wants me to pay him a sum to the amount of the payments which were made on the basis of the dropped attachment (ex art. 33, second paragraph Fw) . What should I do and can I claim back the sum paid to the bailiff as payment that was not due? Is it possible to seek recourse against the employee because he did not report that he was bankrupt? Answer...

I have been trying to collect the sum of €3,200 from a difficult debtor since last year. Having demanded payment several times I passed this claim on to the DAS debt collection agency. Now, six months later, nothing has been settled and I am under the impression that DAS is doing little or nothing. Since the last telephone conversation with DAS I keep hearing that they are still busy on the case. I fail to understand why it should take so long. I want to take tough measures now against my debtor. Can you advise me what the possibilities are in this case. Answer...

I have a claim of 100,000 euros on a client. This client cannot/will not pay. I was considering imposing a prejudgement attachment. The client has a property that has four mortgages on it, three prejudgment attachments and an attachment under a warrant of execution. The total of the attachments and mortgages is roughly equivalent to the value of the property. On .. April the bank (holder of the first mortgage) will put the property up for sale under execution. This auction will probably yield less than the total of the attachments and the mortgages. My query is this: is it wise to have a prejudgement attachment served, does the attachment follow the property or the client? If, before the sale under execution by the bank a buyer comes forward, does this buyer first have to settle the attachments, with the bank first naturally, before he/she can buy the property? I would like to discuss this matter with an expert please. Answer...

We have a dispute with a company about meeting obligations concerning an investment made. The company maintains that it cannot settle because a judicial attachment has been served on bank balances. How do we verify if this is true and who could have ordered the serving of this attachment. Answer...

If a creditor has obtained a prejudgement attachment on part of a house, can another creditor also obtain a prejudgment attachment? Answer...

I would like to know how long after sending the invoice and the final notice I can legally “unleash” a debt collection agency on a client. Are there provisions for this under the law? Answer...

What administration fees can you charge for a demand? Answer...

We have a client who says that he/she is willing to pay but is unable to do so. How can we best handle this? Answer...

We have a client who says that he/she is willing to pay but is unable to do so. How can we best handle this? Answer...

When should I send my first reminder if my invoice is not paid within 30 days? Answer...

We have called in a debt collection agency to collect outstanding bills from a client. The client has paid the bills but not the collection charges. He claims he is not obliged to do so because we failed to inform him that he had to bear the expenses in our final notice. We did announce that we would be calling in a debt collection agency. Is it correct that in this case he is not obliged to pay the collection charges?

Answer..

This is incorrect. According to the new European directive the debtor is automatically in default as soon as the due date expires. The Voorwerk II report also points in this direction. A judge can refute collection charges if, in his or her opinion, the debtor has not been given adequate formal notice. See also: Voorwerk II - http://www.nvvr.org/nl-NL/Content.aspx?type=publication&id=18 EG Richtlijn 2000/35/EG

I have heard of a prejudgement attachment. If I have understood it correctly, this is possible without a judgement (but via a petition to the delegated judge?). And do you do this to secure a difficult claim? With such a petition is the other party informed of this by the delegated judge? If so, if the opposing party raises a substantive objection, is the prejudgement attachment then dropped?

Answer..

A prejudgement attachment is generally served if it is presumed that the debtor is on the point of embezzling certain valuable assets, for example with an eye to imminent judicial proceedings, whereby there would be a danger of no longer being able to enforce the judgement. The attachment may, indeed, only be served after the president of the court has given permission. The president will roughly examine whether the attachment is not unfounded or unjust. If permission is granted the bailiff may serve an attachment (and this is usually the moment when the debtor is informed of the fact that an attachment has been served). The consequence of this is that you as plaintiff are generally obliged to start proceedings for applying for the actual enforcement of a judgement within 8 days after receiving permission. Only with such a judgment may the goods seized be sold off. Further points to be taken into consideration: - consider the risks: if the judge subsequently rules that the attachment was undeserved, then the person imposing the attachment is liable to pay damages; - costs: registry court fee, and bailiff and procurator (litis) costs soon mount up. Amounts ranging from roughly EUR 700 to EUR 2,000 are quite conceivable, depending on the complexity of the attachment; - the debtor can only defend him/herself against attachment by his/her attorney-at-law in advance “blackening” the impending attachment. This entails putting the debtor on a list and the delegated judge will first hear the debtor before granting permission. In a nutshell; it is not a simple process but it is often effective.

Does an attachment, for example, on a bank account, always have effect if there is still money in that account? Imagine that you have a claim of 5,000 euros. At the moment that the attachment is served there are 10,000 euros in the account. This should be sufficient, however the entrepreneur argues that he has other creditors (possibly the tax authorities, salaries etc.) Do these types of debts have priority? Who decides this, how is the order determined?

Answer..

If there is an active balance in the bank account this cannot be tampered with by other creditors. However: if there is a likelihood of it ending in a bankruptcy, which one would hope to avoid, a receiver will be appointed. In this case all attachments are dropped, the funds revert to the estate and they are divided according to the normal distribution code whereby the tax authorities do indeed take precedence (and the receiver him/herself, at the moment!) But other preferential creditors also have priority. So if a bankruptcy does look imminent, it is generally pointless to incur expenses for an attachment.

A bailiff imposed an attachment on the salary of one of my employees. The payments took place accordingly. At one point in time, however, the employee in question became bankrupt. I was unaware of this and continued to make the payments for several months to the bailiff imposing the seizure. The bankruptcy receiver has now declared these payments null and void and wants me to pay him a sum to the amount of the payments which were made on the basis of the dropped attachment (ex art. 33, second paragraph Fw) . What should I do and can I claim back the sum paid to the bailiff as payment that was not due? Is it possible to seek recourse against the employee because he did not report that he was bankrupt?

Answer..

If there is an active balance in the bank account this cannot be tampered with by other creditors. However: if there is a likelihood of it ending in a bankruptcy, which one would hope to avoid, a receiver will be appointed. In this case all attachments are dropped, the funds revert to the estate and they are divided according to the normal distribution code whereby the tax authorities do indeed take precedence (and the receiver him/herself, at the moment!) But other preferential creditors also have priority. So if a bankruptcy does look imminent, it is generally pointless to incur expenses for an attachment.

I have been trying to collect the sum of €3,200 from a difficult debtor since last year. Having demanded payment several times I passed this claim on to the DAS debt collection agency. Now, six months later, nothing has been settled and I am under the impression that DAS is doing little or nothing. Since the last telephone conversation with DAS I keep hearing that they are still busy on the case. I fail to understand why it should take so long. I want to take tough measures now against my debtor. Can you advise me what the possibilities are in this case.

Answer..

Unfortunately debt collection cases can often be lengthy if the debtor deliberately makes use of (or rather misuses) all the delaying tactics that Dutch law offers him/her, or if the debt collection agency’s methods are unsatisfactory. Choosing the right collection partner is difficult, but bear the following points in mind: - are you able to follow the progress in the file via the Internet? If this is the case then you can follow the case from day to day on-line, also as regards receiving third-party money. On our site www.incasso.com you can log in with “client / client” and you can view examples of such reporting; - does the debt collection agency have a good field organisation? A visit to the debtor by a trained member of staff usually produces a much quicker result than letters and telephone calls. If DAS is prepared to give back the file, then we would be pleased to take action in the short term. Please note that giving back a file can lead to high costs with some agencies. We hope this information has been of assistance.

I have a claim of 100,000 euros on a client. This client cannot/will not pay. I was considering imposing a prejudgement attachment. The client has a property that has four mortgages on it, three prejudgment attachments and an attachment under a warrant of execution. The total of the attachments and mortgages is roughly equivalent to the value of the property. On .. April the bank (holder of the first mortgage) will put the property up for sale under execution. This auction will probably yield less than the total of the attachments and the mortgages. My query is this: is it wise to have a prejudgement attachment served, does the attachment follow the property or the client? If, before the sale under execution by the bank a buyer comes forward, does this buyer first have to settle the attachments, with the bank first naturally, before he/she can buy the property? I would like to discuss this matter with an expert please.

Answer..

Serving a prejudgement attachment has limited value – as you yourself also estimate, given that, with a forced sale, little or no surplus can be expected. The attachment served on a property follows the property. As soon a financial settlement is drawn up by the civil-law notary it can be seen whether, in addition to repaying the mortgage lender, funds remain for paying the attaching creditors. With a prejudgement attachment it will have to be seen whether this was based at the time on a justifiably claim, whereby the attachment becomes an attachment under a warrant of execution. The extra revenues remain in principle in the care of the civil-law notary involved in the sale. The buyer will pay the stipulated price and can take possession of the property free of other collateral and attachments. What consequently happens with the purchase price remains a matter for the civil-law notary. Finally the attachments are registered in the entry in the land registry. Your claim is substantial. If there were to be a surplus, the attaching creditors share pro rata “from the pot”. This means that if you impose a prejudgement attachment before the sale, you qualify - also pro rato – for a share in any surplus. If there is none, in due course you are entitled to enforcement, and this could be opportune within the framework of other recovery possibilities, should they exist.

We have a dispute with a company about meeting obligations concerning an investment made. The company maintains that it cannot settle because a judicial attachment has been served on bank balances. How do we verify if this is true and who could have ordered the serving of this attachment.

Answer..

What will be meant here is a prejudgement attachment (as opposed to an attachment under a warrant of execution after a favourable judgement has been obtained); this precedes judicial proceedings pertaining to a dispute about the payment of a sum of money under the terms of an agreement, or due to a wrongful act. Attachments on moveable property are not registered as such in data that is open to the public. From your story one concludes that your debtor does not wish to inform you further. It should be his/her responsibility to demonstrate the inability to pay by means of documents that clearly point to an attachment. If you are familiar with the bank connection of the other party, you might try approaching them and enquiring whether an attachment has actually been served. An answer may be given, but this will depend on the bank (or the employee). Generally speaking, they are extremely reluctant to do so. If you do not know who the bank connection is or if they are unwilling to cooperate and you do not know who the party served the attachment is, then there is a difficulty. You could possibly arrange for a “parallel” prejudgement attachment. You would need to know the bank connection and preferably also an account number. Finally it is questionable whether the attachment served would produce a surplus with respect to the pending claim. This will not be likely because, in that case, as a rule the attachment is cancelled and is replaced by a bank guarantee. This in order to avoid the "blocking" of all liquid assets ensuing from the credit balances. Another possibility is to search for information relevant to recovering the amounts due, a path often considered for unearthing this kind of information, especially if it concerns a specific way of formulating this in the investigation.

If a creditor has obtained a prejudgement attachment on part of a house, can another creditor also obtain a prejudgment attachment?

Answer..

Anyone who has a claim, or thinks they have a claim on the owner of a property can have a prejudgement attachment served on that property before summons proceedings commence. The fact that there is an attachment means that the property can be sold but that no property rights can be passed on, whereby all the attaching creditors see their right of recourse safeguarded. With the civil-law notary, subject to payment of the commissions, at least the surplus, in excess of preferential obligations (namely the mortgage), will be appropriated pro rato to the attaching creditors.

I would like to know how long after sending the invoice and the final notice I can legally “unleash” a debt collection agency on a client. Are there provisions for this under the law?

Answer..

It is the case that, if the term of payment of an invoice has expired, the debtor is, by law, in default. It is wise to send two demands in any event, stating in the final notice a term within which the amount should be settled at the latest, in default of which you will hand over the question of collection to a debt collection agency. It is also important that you state that the statutory rent and out-of-court collection charges are to be borne by the debtor. So there is no explicit statutory waiting period before placing the invoice in the hands of a debt collection agency.

What administration fees can you charge for a demand?

Answer..

There is no maximum amount for this. In general between 7 euros and 25 euros per demand. Make sure that the passing on of administration fees is included in the General Terms and Conditions!

We have a client who says that he/she is willing to pay but is unable to do so. How can we best handle this?

Answer..

If debtors indicate that they are willing to pay but are unable to pay, then we advise you to take this up immediately by saying that you naturally appreciate the situation but that you would like a signed acknowledgement of debt. In this way you avoid any sudden disputes later and, moreover, if you have the opportunity of having an acknowledgement of debt signed in private, you have already secured a lot for yourself. The next step, on the basis of the acknowledgement of debt, could be a repayment arrangement with, for example, weekly payments (preferable weekly and not monthly). In this way you remain on amicable terms with your client, yet you are covered.

We have a client who says that he/she is willing to pay but is unable to do so. How can we best handle this?

Answer..

If debtors indicate that they are willing to pay but are unable to pay, then we advise you to take this up immediately by saying that you naturally appreciate the situation but that you would like a signed acknowledgement of debt. In this way you avoid any sudden disputes later and, moreover, if you have the opportunity of having an acknowledgement of debt signed in private, you have already secured a lot for yourself. The next step, on the basis of the acknowledgement of debt, could be a repayment arrangement with, for example, weekly payments (preferable weekly and not monthly). In this way you remain on amicable terms with your client, yet you are covered.

When should I send my first reminder if my invoice is not paid within 30 days?

Answer..

You can do so on the first due date of course, but it is more customary to wait a few days (for example 3 days) so that the payments that have been made on the due date can be processed by the bank. With larger sums the present trend is to call the debtor a few days prior to the due date and enquire whether there are any complaints and if the invoice has been received.