Chile - Attachment of Assets
Cristián Eyzaguirre, EYZAGUIRRE & CIA.
Originally from Attachment of Assets
1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgment to be obtained (attachments)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?
Attachments and injunctions are treated separately in Chilean law depending on the kind of proceeding in which they have been ordered.
In executive proceedings or Juicios Ejecutivos (i.e. proceedings aimed at attaching assets of a debtor in order to sell them in public auction and pay its debt with the proceeds thereof) attachments are of the essence, and it is defined as a judicial action practiced by a public officer in which one or more assets of the debtor are seized and delivered to a depositary, to assure with the proceeds obtained from the sale thereof at a public auction ordered by the court, the payment of the applicable debt. The depository is liable for the assets that are delivered to him. The assets so delivered cannot be alienated or transferred in whatsoever manner unless the creditor or the judge so consent. Any transfer in contravention of this prohibition is null and void.
In actions other than a Juicio Ejecutivo the plaintiff is granted a series of reliefs aimed at ensuring the result of the action filed or at preventing possible damage. These remedies are:
i) sequestership of the assets subject matter of the action. It consists of the physical delivery of a thing disputed among two or more parties to a third party appointed by the judge. It can only affect personal property and does not make such personal property non-transferable;
ii) appointment of one or more receivers. The receiver must keep account of the earnings and preservation costs and expenses of the assets under its custody. To that end it is given access to the books, papers and transactions of defendant. The receiver is bound to report to the relevant court and the plaintiff of any abuse or embezzlement of which it may become aware in the administration of the assets under custody. The receiver or receivers are appointed by the court and does not make the assets in the custody of the receiver non-transferable;