Definition and Fundamentals of the Subsequent Attachment
Die Subsequent Attachment is a term from German enforcement law and refers to the subsequent involvement of additional creditors in an already existing attachment. This institution primarily concerns claims attachments pursuant to §§ 828 et seq. of the Code of Civil Procedure (ZPO). The subsequent attachment allows several creditors to enforce against the same asset of a debtor and thus participate in the proceeds. The regulations serve to ensure equal satisfaction among creditors and procedural efficiency.
Legal Basis of the Subsequent Attachment
§ 826 ZPO: Definition and Systematics
The subsequent attachment finds its central regulation in § 826 ZPO. This provision forms the legal basis for the procedure following an attachment already effected by an attachment order. The rule allows further creditors, by order of the enforcement court, to “join” an existing attachment of a claim, without the need to fully repeat the enforcement proceedings.
Requirements for Subsequent Attachment
- There must already be a valid attachment by another creditor.
- The joining creditor must have an attachable claim against the same debtor.
- A complete enforcement title is required (e.g., enforcement order, judgment).
- An application for a subsequent attachment must be filed with the competent enforcement court.
Proceedings
- Filing the Application by the joining creditor with the competent enforcement court.
- Examination of Requirements by the court regarding the existence of a title, an enforcement clause, and service.
- Order on the Subsequent Attachment by the court.
- Service of the order to the parties involved.
Legal Effects of Subsequent Attachment
Effect towards the Debtor and Third-Party Debtor
With the subsequent attachment, the new creditor assumes the legal position of an attached claim. The third-party debtor, often the employer or a bank, must remit the attached amounts to the court or the highest-ranking creditor until complete clarification.
Ranking and Satisfaction of Creditors
A subsequent attachment does not change the ranking of creditors. The ranking is generally determined by the time the respective attachment and transfer order is served on the third-party debtor (§ 804 para. 3 ZPO). Claims are considered according to the principle of priority, whereby higher-ranking creditors are satisfied before lower-ranking creditors. The joining creditor can only participate in the remaining part of the claim.
Effect on Enforcement Protection Rights
The subsequent attachment has no effect on any enforcement protection provisions in favor of the debtor, such as § 850c ZPO, which determines exemption amounts. Any outstanding objections or challenges also remain unaffected.
Special Features and Distinction from Related Legal Institutions
Distinction between Collective Attachment and Multiple Attachment
The so-called collective attachment, in which several claims of the same creditor are attached with a single attachment order, must be distinguished from the subsequent attachment. Likewise, multiple attachment, in which several creditors independently attach the same property right, must be distinguished.
Distinction from Third-Party Objection Claims
If several attachments concern one and the same right, third parties can enforce their claims through a third-party objection claim under § 771 ZPO. The subsequent attachment, on the other hand, is an internal procedure between creditors and the court without the participation of third parties.
Practical Importance of the Subsequent Attachment
The subsequent attachment is of significant practical importance for creditors with subordinate titles, as it enables streamlined and swift participation in enforcement. It reliably contributes to equal treatment in creditor competition and prevents debtors from being disadvantaged by the early individual enforcement of a creditor.
Overview of the Most Important Legal Provisions on Subsequent Attachment
- § 826 ZPO (Subsequent Attachment)
- § 804 para. 3 ZPO (Ranking in the case of multiple attachments)
- § 829 ZPO (Attachment and Transfer Order)
- § 850c ZPO (Exemption Limits for Attachment)
Conclusion
The subsequent attachment is a central instrument in German enforcement law for ensuring fair and orderly distribution of proceeds in the presence of multiple creditor interests. It ensures the fair inclusion of further creditors in ongoing attachment proceedings, thus providing a high level of legal certainty and equal treatment in collective enforcement processes. Special attention must be paid to the formal requirements and the ranking of creditors in order to avoid legal disadvantages when using subsequent attachment.
Frequently Asked Questions
What legal requirements must be met for a subsequent attachment?
To lawfully carry out a subsequent attachment, a enforceable title pursuant to § 704 ZPO is first required, authorizing the creditor to enforce. The asset to be attached must have already been seized by a prior attachment of a higher-ranking creditor (§ 826 ZPO). The joining creditor must apply for a separate attachment and transfer order at the enforcement court. The subsequent attachment can be effected with the same third-party debtor as long as the claim arises from the same asset pool and has not yet been distributed. It is also essential that there is no bar as a result of completed enforcement measures, such as in the case of indivisible restitution claims or if the claim of the first creditor fully covers the attached asset. The subsequent attachment is permissible as long as the first attachment is effective and the third-party debtor has not yet been obliged to perform (§ 828 para. 3 ZPO).
What legal effects does a subsequent attachment have?
Upon the issuance of the attachment order, the subsequent attachment acts as an additional security, similar to the initial attachment, and secures the claim of the further creditor to the attached claim (§ 826 para. 2 ZPO). However, it has no retroactive effect, but is ranked behind the initial attachment, which has priority in satisfying its claim. Creditors in a subsequent attachment participate in the portion of the assets exposed by the attachment in proportion to their claims only after complete satisfaction of the higher-ranking creditor. As a result of the subsequent attachment, the third-party debtor is required again to make a so-called third-party debtor declaration pursuant to § 840 ZPO and is obliged to provide information on the status of the claim.
What order must be followed when satisfying multiple subsequent attachments?
The legislator arranges the ranking of creditors strictly according to the chronological receipt of each attachment and transfer order at the competent enforcement court (§ 804 para. 3 ZPO). The first served or effective attachment has priority. First-ranking creditors are fully satisfied before joining creditors, and only then are subsequent creditors considered according to their ranking. Concurrent attachments are handled in order of submission; in the case of equal rank, an equal quota applies. Subsequent attachments filed afterwards are ranked according to the time of service of the order.
How long is a subsequent attachment valid for?
The subsequent attachment remains effective as long as the underlying enforceable title exists and the initial attachment is not yet settled. It ends, among other reasons, when the claim is fully satisfied, the attachment is withdrawn, the attachment and transfer order is lifted, or statutory deadlines expire (e.g., expiration terms in the title or waiver declarations). It also lapses if the attached claim has already been paid out to the initial creditor or is finally declared not to exist. In the debtor’s insolvency, the position arising from the subsequent attachment remains within the transformed insolvency estate, but is subject to the insolvency distribution rules.
What requirements apply to the application for a subsequent attachment?
The application for a subsequent attachment requires an independent title evidencing the creditor’s claim against the debtor. The application must specifically designate the claim to be attached as well as the third-party debtor. The subsequent attachment must be filed with the competent enforcement court; existing attachments must be indicated to ensure correct ranking and notification of the third-party debtor. If the application already contains all necessary data and the legal basis, the order will be issued swiftly. Furthermore, the creditor must credibly show that not all claims against the attached asset have been satisfied and that another attachment is not precluded by serious legal obstacles (blocking effects, exclusion periods).
How is the third-party debtor notified of a subsequent attachment and what obligations arise?
After the subsequent attachment order is issued, it is served on the third-party debtor. With service, the third-party debtor is obliged for the first time or again to submit a third-party debtor declaration under § 840 ZPO and to make payments only to the highest-ranking creditors or in accordance with the ranking. The third-party debtor must provide the joining creditor with all information relevant for asserting the claim, such as information about payments made to the initial creditor or the existence of the attached claim. Failure to comply with this duty to provide information may result in civil sanctions under § 840 paras. 2 and 3 ZPO.
Is a subsequent attachment possible even if the claim has already been attached by several creditors?
Even in the case of claims already attached multiple times, a further subsequent attachment is possible as long as there are still assets that are not fully covered and the claim has not been completely exhausted by higher-ranking creditors. The ranking is thereby extended accordingly. In practice, however, this may mean that the joining creditor is only (partially) satisfied if the priority claims do not exhaust all of the attached assets. The restrictions as set out in § 828 para. 3 ZPO with regard to the third-party debtor’s payment obligation apply here.
