Colombia - Attachment of Assets
Bernardo Salazar-Parra, Jose Lloreda Camacho & Co
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 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?
In Colombia, attachments are considered provisional measures ancillary to the proceedings where a decision on the merits is to be rendered. These measures are addressed to ensure that the plaintiff be able to enforce the judgment when handed down.
A new procedural regulation was recently implemented as a result of the issuance of the General Code of Process, by means of Law 1564 of 2012, which replaced the Code of Civil Procedure.
In Colombia there are several types of proceedings. For purposes of this paper, we will focus on the following: (i) Declarative proceedings, among which it is included a new type of proceeding called the “monitory proceeding,” (ii) Collection proceedings, and (iii) Liquidation proceedings.
Most of the disputes related to contracts, torts, and, in general, civil proceedings for damages are handled through “declarative proceedings.” On its turn, collection of moneys is usually conducted by means of “collection proceedings”. In these cases, in order to commence collection proceedings, the plaintiff must hold a document where the debt is mentioned clearly, express, due and payable, such as in a promissory note, bond, check or judgment. Additionally, by means of the monitory proceedings, which are a type of declaratory proceedings, the plaintiff can request the court to order the payment of a credit derived from a contractual relationship, in an expedite manner. The main differences with the collection proceeding are that within the monitory proceeding the plaintiff does not need a document in which the debt appears clear, express, due and payable, and that there is a cap amount to commence monitory proceeding equal to forty monthly minimum wages (for 2017 approx. USD$10,250).