Originally from Attachment of Assets

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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 judgments 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?

Under Ecuadorian law, attachments and other provisional relief orders affecting property of debtors may be specifically requested as precautionary orders (“providencias preventivas”). They can also be requested under an executive lawsuit (“procedimiento ejecutivo”) following certain requirements. Court orders are available within the procedure for the enforcement of judgements (known as “ejecución”) deriving generally from any type of lawsuit.

The precautionary order  is an independent procedure aimed directly at obtaining the seizure or the garnishment of the debtor’s assets, in support of another lawsuit that the plaintiff will start or has started already. 

On the other hand, the executive lawsuit  is a procedure aimed at executing certain documents (“títulos ejecutivos”) to which the law has assigned an “executive” nature, which means that they could be collected summarily, such as a promissory note or an obligation inserted within a public deed. In order for an executive lawsuit to be available, the obligation contained in such document should also be executive itself (i.e,, that the obligation is clearly determined, that it is liquid, and that it has expired.) Since the purpose of this type of lawsuit is not to establish or acknowledge a right, but basically to collect a payment, the plaintiff is entitled to request in advance certain measures to secure the enforcement of the debt, prior to the time when the judgment is to be issued. Such court orders may be obtained at any time during the executive lawsuit, even prior to the service of the process to the defendant.