Originally from Attachment of Assets

Preview Page

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 (“attachment”)? Freezing property in place? Placing it in the custody of a third party, such as a court official, sheriff or marshall?

In our legal system, the attachment has a precautionary legal nature, since it is requested prior to the lawsuit, to ensure the results thereof, and its effect is to freeze or make debtor’s properties unavailable for the duration of the attachment, so that all acts of disposition (sale, exchange, assignment, donation, etc.) or encumbrance (mortgage, pledge, etc.) that are subsequently carried out will be “prima facie” null and void  or may not be raised vis-à-vis the secured creditor, who will be able to proceed with the collection of his/her credit, regardless of the execution of any of such acts of disposition or encumbrance.

Debtor properties that are attached and consequently subjected to the judicial proceedings may be subsequently sold (auctioned) by the judge so that the creditor may recover all or part of its credit, as we will analyze hereinafter.

2. What is the form of the attachment? Injunction? Other kind of judicial order? Specify.

The attachment is an injunction that may only be decreed by the court (and not by an arbitrator), at the request of the plaintiff, provided all applicable legal requirements have been complied with.

Once the attachment of personal property has been decreed by the court, it will be implemented by a court officer designated by the judge (“marshall”), who will carry out the effective or symbolic dispossession of said property. The marshall will draw up a minute of all the properties subject to attachment that he/she has had personal access to, and will place them in the custody of a depositor. The depositor may be the debtor or a third party appointed by the court, as proposed by the plaintiff prior to the attachment, or by the marshall at the time of the attachment.