If you do not pay your debts, the creditor may apply for a bailiff to seize goods in your house and/or to make a financial status enquiry (previously affirmation in lieu of oath).
Prerequisite
Your payment obligation must have been officially established, e.g. in judgement or writ of execution or acknowledgement of debt certified by a notary public (=title). The title must have been served upon you.
Title, see Legal default action under: „Infoblatt 09 – Gerichtliches Mahnverfahren“
Financial status enquiry
This is a long questionnaire which you are required to answer. The aim is to find out whether you have any attachable assets or financial claims against third parties (e.g. wages). You will therefore be asked whether you have any real estate, vehicles or expensive assets, a bank ac- count, savings accounts, building society accounts or life assurance policies and what you live on (wages, unemployment benefits etc.).
What are the consequences of the financial status enquiry?
It is very likely that enforcement measures will subsequently be initiated. Very often accounts or wages will be attached.
see Attachment of bank accounts under: „Infoblatt 03 – P-Konto“
see Attachment of wages and attachment of regular income under: „Infoblatt 05 – Einkommenspfändung“
The filing of a financial status enquiry will be registered with the court and SCHUFA which means that your creditworthiness may be questioned and it may become difficult to find a new flat, for example.
By filing a financial status enquiry, you disclose your financial situation. If you are insolvent but nevertheless still conclude contracts (hire purchase, tenancy agreements etc.) which you can- not pay, you may be guilty of deceitful conduct. If charges are brought against you, you may be sentenced.
The financial status enquiry does not protect you against further attempts at enforcement.
You may, however, inform other creditors that you have filed a financial status enquiry. The creditor will then reconsider whether it is worth his while applying for enforcement proceedings.
Do I have to file a financial status enquiry?
Yes. If you refuse, an arrest warrant will usually be obtained against you. If you still refuse, you will be sent to prison, provided the creditor applies for and pays for it (coercive arrest = Erzwin- gungshaft]). This coercive detention is intended to persuade you to declare your assets. Once you have done this, you will be released from custody. If you owe at least € 500 the court may also obtain information from health insurance funds and pension insurance associations. They may also ask whether you have a bank account or a car registered in your name.
Do I have to answer all questions correctly?
Yes, that is a must! It is a criminal act to give false information.
Seizure of goods
The bailiff is instructed to go to your home to see if there are any attachable items. If you have a savings books, jewellery or securities, he will take these with him (attach them). A seal (Pfand- siegel) may be attached to larger items (e.g. antiques). This item is then attached. You may con- tinue to use such items until they are collected, but you may not sell them or give them away.
All attached items are publicly auctioned (possibly via the Internet). However, this is only done if the proceeds cover the costs and there is still enough left over to repay the debt.
What items will not be attached?
Any items that you and your family need in order to live (e.g. clothing, furniture, a television, food, medical aids etc.) cannot be attached. In most cases you do not have to be related, but simply form a joint household with other people. Pets cannot be attached. Items that you need for your education (e.g. computer) or work (including your car if there is no viable alternative for getting to work) cannot be attached, either.
An item that cannot be seized but has a very high value can be exchanged. If an item has not yet been paid for or does not belong to you, you must make this known! If an item is nevertheless seized, the owners can take legal action against the seizure.
Remember: Suppliers (e.g. mail order firms, car dealers) may always collect items that have not been paid for if you are in arrears with payments, even if the item is one that is basically not attachable.
Does the bailiff announce when he is coming?
No. If you are not at home, he will leave a note in your letterbox stating when he intends to come back. You should be at home on this date! If this is not possible (because you are at work, for example), you should phone him to arrange a different date. Upon presentation of an official identity card, you should allow the bailiff to enter your home. If you do not, he will apply for a search warrant and your home can be opened by force.
Can I agree payment in instalments with the bailiff?
Yes. By paying by instalments you can avoid having to file a financial status enquiry and having your goods seized. But do remember that, in addition to the instalments, you must be able to pay other costs for rent, fuel and daily living.
Remember: A fee may be charged for payment by instalments. On top of this, you must pay interest on the arrears.
