Как да обезпечите вземането си преди съдебно решение

Winning a court case is not always enough. If, in the meantime, the debtor has sold, transferred or concealed their property, the awarded claim may remain only on paper. This is precisely where proceedings for securing a claim come into play.

Why it Is important to Act in time

One of the most serious risks in debt collection is that, by the time enforcement proceedings begin, the debtor may no longer have property from which the obligation can be satisfied. The reason may be the accumulation of obligations over the years, but sometimes it also involves deliberate actions - sale, transfer or concealment of assets in order to avoid payment.

The law provides different ways to protect against such bad-faith actions. However, they often require new court proceedings, additional costs and time, and the result is not always sufficiently effective.

Therefore, in many cases it is reasonable, even before filing the claim or simultaneously with it, to take actions that limit the debtor's ability to dispose of their property. This is done through the so-called proceedings for securing a claim.

What the Proceedings for securing a claim are?

Securing the claim does not resolve the dispute on the merits and does not mean that the claimant has already won the case. Its purpose is to preserve property against which enforcement may later be directed if the claim is upheld.

The proceedings may begin at different moments:

• before the claim is filed - as security for a future claim;
simultaneously with the filing of the claim;
after it has been filed, while the court case is still pending.

This possibility also exists where the dispute must be heard by arbitration pursuant to an arbitration agreement between the parties.

Where the Application for Security for a Future Claim Is Filed?

Where the claim has not yet been filed, the application for security may be submitted to the court at the permanent address or registered seat of the future claimant, as well as at the location of the property that will serve as security.

This is an important facilitation. It is an exception to the general rule, according to which a claim is usually brought at the permanent address or registered seat of the defendant. The purpose of this exception is to enable the claimant to obtain the security order within shorter time limits and at a location convenient for them, before moving on to the examination of the dispute on the merits.

What must the request contain?

In the application for granting security, the claimant describes the facts from which their claim arises, as well as the reasons that require the granting of security (the existence of a need for security, where, without the granting of security, the claimant would not be able to realise their rights). Written evidence supporting both the merits of the claim and the existence of a need for security is also attached to the application (for example, advertisements for the sale of property published by the debtor).

A document evidencing payment of a state fee in the amount of EUR 20.45 must also be submitted with an application for granting security for a future claim.

How Quickly the Court Rules

The court examines the application on the day on which it is received and rules by way of a ruling. If it considers that the claim is supported by convincing written evidence and that a real need for security exists, the court grants the requested measure.

When securing a future claim, the court also sets a time limit within which the claim must be filed before the competent court. This time limit may not be longer than one month.

There is an important specific point here. If the court has ruled on the very day the application was submitted, the time limit begins to run from that same day - regardless of when the claimant learned of the ruling or received the security order. If the court rules later, the time limit begins to run from service of the ruling.

If the claim is not filed in time or evidence of this is not presented to the court, the security order is invalidated.

Security in an Already Filed Case

Where the case has already been initiated, the application for security is submitted to the court hearing the case. In this situation as well, the court assesses whether the claim appears likely to be well-founded according to the evidence presented and whether there is a real need for security.

When the Court May Require a Guarantee from the Claimant ?

If the evidence is not sufficiently convincing, the court may nevertheless grant the security, but against the provision of a guarantee by the claimant.

The guarantee has a protective function for the debtor. It serves to cover any damages that the debtor may suffer from the imposed measure if the claim subsequently proves to be unfounded. Its amount is usually around 10% of the value of the claim. The amount is paid into the court's account and, if the claim is upheld, it is returned to the claimant.

What Security Measures May Be Imposed

The type of measure depends on the property that will serve as security. Among the most commonly used options are:

attachment over movable property;
attachment over a receivable of the debtor from a third party;
attachment over bank accounts;
injunction over immovable property.

Attachments are imposed by a bailiff at the request of the applicant, and the injunction is registered with the relevant Registry Office.

If the security initially granted proves insufficient, the claimant may request that it be supplemented - for example, by attaching another receivable or imposing an injunction over another immovable property.

When the Court Notifies the Debtor

If the court refuses the security, the claimant may appeal the refusal before the higher court.

The application itself, the court's ruling, the appeals and subsequent acts are not served on the debtor in advance. The reason is simple: the proceedings rely on speed and surprise. If the debtor is warned, they may dispose of their property before the measure has even been imposed.

Where security is granted, the debtor learns about it only after it has been imposed - through a notice from the bailiff regarding the attachment or from the Registry Office regarding the injunction.

How the Debtor May Defend Themselves

After being notified, the debtor has the right to appeal the ruling by which the security was granted. However, filing an appeal does not suspend the effect of the measure already imposed.

The debtor may also request the replacement of one security measure with another - for example, that the attachment over bank accounts be replaced with an injunction over immovable property.

When a claim that can be valued in money is being secured, the debtor may, even without the consent of the other party, replace the granted security with a pledge of money or securities.

Of course, the main defence remains the defence in the case itself. If the claim is dismissed, the security measure is subject to cancellation.

Why Security Is Often Decisive?

Well-prepared proceedings for securing a claim may be of essential importance for the actual collection of the receivable. They preserve the possibility that, after winning the case, the creditor may direct enforcement against specific property.

The imposed measure may also have another practical effect - to motivate the debtor to pay their obligation voluntarily and for the dispute to be resolved out of court.

However, the procedure involves short time limits and a number of specific features. Missing a deadline or incorrectly formulating the application may have adverse consequences for the protection of the party's rights.

How the KGK Team Can Help ?

The team of KGK Law Firm has experience in protecting both parties within proceedings for securing a claim. Our lawyers can assist both with securing a future or already filed claim and with defence against imposed security measures.

If you need assistance, you can contact us.