Attachment is a widely used institute of civil procedural law, both in getting a loan from financial institutions and enforcing condemnatory judgments that recognize the obligation to pay.
This is a guarantee to the lender’s benefit that debts will be paid in case of default. Thus, the seizure of assets uses the disposal of movable assets of the debtor in order to ensure the exact fulfillment of what was agreed between the parties.
Given the importance of the issue for the enforcement process, we have some clarifications about the attachment of assets, and how it can be used to pay debts. Be sure to check it out!
How does asset attachment work?
According to what we have already explained, attachment is an act of constriction of property – that is, of the suppression of some property rights over a given movable object.
This restriction on the use of things is due to the allocation of equity to the fulfillment of a certain obligation to pay. In this sense, article 1.431 of the Civil Code reinforces that:
The pledge is for the effective transfer of possession which, in guarantee of the debt to the creditor or its representative, makes the debtor, or someone for him, a movable thing, susceptible of alienation.
In short, it is the guarantee given to the creditor, through the effective delivery of an object susceptible of alienation, that if the debt is not paid and can dispose of the property for this purpose.
For this reason, seizure restrictions on the sale, donation or transfer of the property pledged as collateral to a third party. The central idea is to provide the parties with certainty and legal effectiveness as regards the protection of substantive law.
What are the ways of using the attachment of assets?
In most cases, the seizure of property may be used in two different ways and well defined by law, occurring at different stages of the contractual relationship. Check below what are the main hypotheses!
Loan with the attachment of assets
One of the ways to use the attachment of property stems from the express agreement and will of the parties. In this case, the debtor transfers to the creditor direct possession of movable property as a means of guaranteeing the satisfaction of personal credit.
Most of the time, this practice gives consumers access to loans that best meet their needs. The most common example is the transfer of jewelry to the financial institution to release the agreed amount.
Remember that when the debt is paid in full and normally, the object must be returned to the consumer. The property can only be auctioned in order to cover debts in case of default. If there is profit on the value of the jewelry, the exceeded margin should be returned.
Seizure of assets to settle debts
The other use of the attachment is by court order. This can happen mainly in the enforcement process that recognizes the obligation to pay or in the sentence compliance phase.
A good example of this is a condemnatory court order ordering repayment of a debt. Let’s assume that the debtor does not deposit the amount due within the legal term.
In such a case, as soon as the time has expired, the judge may order the attachment of assets authorized by law – such as money in bank accounts or an object whose market value is capable of covering the recognized debt.
What assets can be pledged to pay debts?
Especially the regards of settlement of debts by court order, seizure of movable property has some limitations. The law defines what may and may not be pledged, observing the rights and dignity of the person of the debtor.
When there is collateral in the loan, the lender may take for himself the movable property, provided that the default is proven.
In cases of constriction by conviction, on the other hand, valuable assets may be seized, provided they are not intended for the family budget or the subsistence of the party’s dependents.
It is also possible to search for works of art and ornamental objects, for example. It is also possible to retain cars and televisions identified at the debtor’s residence, except when the perpetrator does not have more than one or if the objects are used for work.
The amount deposited in savings accounts can also be pledged in court if the amount exceeds forty minimum wages.
And what are the goods that cannot be pledged?
We already know that the law sets some limits on the attachment of assets. This is because it is necessary to comply with the constitutional principles of guaranteeing a dignified existence to any citizen, regardless of their temporary condition of debtor.
For this reason, according to the Code of Civil Procedure, there are some unenforceable assets. For example:
- furniture, belongings and other household appliances except those of high value and which exceed common needs;
- personal belongings, such as clothing, unless of high value;
- Remuneration and earnings of any kind intended to support the debtor and his family.
Brazilian civil procedural law also vetoes the retention of:
- public funds from the party fund received by the political party;
- amount deposited in savings account, up to forty minimum wages.
The attachment of assets is a feature that brings great security to the lender by ensuring a simpler process for paying off debts. For this reason, it is important that the debtor also be aware of the possibilities of constructing his assets. After all, it is your financial health that will be at stake.
The most appropriate, however, is that the debtor pays all debts in order to avoid the attachment of a portion of his equity. If not, it is recommended to ask for financial help to guide and regularize your situation.
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