E-note 3 – The attachment of tangible movable property (Citizen E-note)

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Civil enforcement proceedings, and notably attachments of movable property, are governed by article 719 et seq of the New Code of Civil Procedure.

A creditor who has an enforceable title and who wishes to recover the sum that he is owed by the debtor may implement an attachment order on his movable property, as well as movables.

The conditions that are common to all of the enforcement measures set out in e-note no. 1 must be fulfilled. Therefore, the creditor must have an enforceable title establishing a claim that is certain, fixed and due and certified enforceable.

The execution title

The execution order is the procedure that enables the creditor to arrange for one or several of the movable assets belonging to his debtor to be sold, and to recoup the sum that he is owed from the profit from the sale.

1. Definition

An execution order is a procedure that offers a creditor the opportunity to arrange the attachment of his debtor's assets in order for them to be sold and the price recouped.

2. Conditions for the implementation of an attachment sale

In order to make use of this civil enforcement procedure certain conditions have to be fulfilled:

the attachment must relate to movable property;
the attachment must relate to attachable property; article 728 of the New Code of Civil Procedure contains a list of objects that cannot be attached;
a payment order must have been served upon the debtor previously; This order is the document through which the debtor is ordered to pay his debt. This document is drawn up by a judicial officer who informs the debtor of it.

The serving of the payment order upon the debtor has the effect of interrupting the limitation period (the debtor cannot plead that a certain time period has elapsed in order to elude the enforcement of his obligation).

3. Attachment

The attachment operations start after one clear day from when the payment order is served.

These operations are carried out at the place where the movable property is located. They are conducted by a judicial officer accompanied by 2 witnesses, who must be of legal age and Luxembourgian.

They may be carried out by the debtor or a third-party holding the property on the debtor's behalf.

In particular, in the context of these operations, the judicial officer will take an inventory of the debtor's assets and will draw up a writ of attachment that will establish the inalienability of the attached property.

At the end of these operations, the attached property shall then be sold.

4. Results of the attachment

The forcible sale of attached property can be carried out 8 days after the attachment of property.

In addition, it should be highlighted that during the execution order procedure, various incidents may occur. In fact, a person who is not party to the proceedings may plead ownership of the attached property, or the debtor may plead that the attached property is exempt from attachment.