Execution against Claims

Execution against Claims

The enforcement of claims is one of the most common forms by which creditors can collect their money. It applies when the debtor himself has no cash or assets, but still has claims against other persons, such as his employer, a tenant, or a buyer. In such cases, the creditor may directly access this claim and have the money paid out by the so-called third-party debtor. This ensures that outstanding claims are actually settled.

In practice, debt enforcement plays a central role primarily in the form of salary enforcement.

Parties to debt enforcement

There are three central parties in debt enforcement. The creditor is the person to whom something is owed. The debtor is the person who has to pay this debt. The third-party debtor is a third person who is obliged to make payments to the debtor.

Through debt enforcement, the third-party debtor is accessed so that he no longer pays to the debtor, but to the enforcing creditor.

Application for Enforcement

For a claim enforcement to be carried out, the enforcing party must file an application for enforcement with the court. This application specifies against whom the enforcement is directed and which claim is affected. The court then examines whether all requirements are met and subsequently initiates the attachment.

Known or unknown third-party debtor

For the application, it is crucial whether the enforcing party knows the third-party debtor, i.e. the person or body that owes money to the obligor.

• If the third-party debtor is known, the creditor must specify this in the form.

• If the third-party debtor is not known, the court, upon application by the creditor, can conduct its own investigations in the case of salary enforcement. It then inquires with the Federation of Austrian Social Insurance Institutions about potential third-party debtors such as employers or pension providers.

With the enforcement order, the court orders the attachment and transfer of the claim to the enforcing party. This means that the third-party debtor may no longer pay the owed sum to the obligor, but only to the enforcing party.

Costs of the enforcement application

The filing of a debt enforcement application naturally incurs costs. The enforcing creditor can assert the costs for the preparation of the enforcement application against the obligor. This means that the debtor must ultimately also bear these expenses if the application is successfully filed.

Peter Harlander
Harlander & Partner Rechtsanwälte „Taking action promptly is often the most important step in successfully recovering outstanding claims.“

Non-attachable and limited attachable claims

Not every claim may be attached in the context of enforcement. Some claims are statutorily non-attachable because they serve to protect personal lifestyle or social security. These include, for example, care allowance, family allowance or childcare allowance.

In addition, there are limited attachable claims, such as wage or salary claims. They may only be attached within certain limits so that the debtor retains a subsistence level – i.e. the amount necessary to cover the cost of living. How high this allowance is depends on the level of income and the number of maintenance obligations.

Jurisdiction

In Austria, the district court in whose district the obligor resides is responsible for carrying out debt enforcement. If the debtor is a company, the registered office of the company is decisive.

As a German-Austrian law firm, we regularly carry out enforcements in Austria on the basis of German titles if the obligated party has its residence or registered office here. In this way, we support creditors in enforcing their claims across borders.

Sebastian Riedlmair
Harlander & Partner Attorneys „Many of our clients are surprised by how straightforward the enforcement of a German title can be in Austria.“

Enforcement by attachment and transfer

Enforcement is carried out by attachment and transfer.

In the case of attachment, a so-called double prohibition is issued. The third-party debtor is prohibited from making payments to the obligor. At the same time, the obligor is prohibited from disposing of or collecting the attached claim.

The enforcing party is now entitled to:

• demand payment from the third-party debtor
• take necessary legal steps for enforcement
• if necessary, sue the third-party debtor if he does not pay

Obligations of the third-party debtor

After the double prohibition has been issued, the court usually requests a so-called third-party debtor declaration from the third-party debtor. It must be submitted within four weeks. In it, the third-party debtor must state, among other things:

• whether the attached claim exists and he is willing to pay it
• whether other creditors already have a lien on this claim
• which maintenance obligations the obligor has disclosed

The third-party debtor must send this declaration to both the court and the enforcing creditor.

Discontinuance of enforcement

If the third-party debtor has paid all attached amounts including interest and costs, the enforcement proceedings can be discontinued. This means that the creditor’s claim is fully satisfied and there is no further claim. To be sure that the matter is finally closed, the third-party debtor can also apply to the competent court to discontinue the enforcement.

This judicial confirmation is important because it creates legal certainty. Without such a decision, it could remain unclear whether everything has really been paid or whether there are still outstanding amounts. With the discontinuance, it is clear that the proceedings are concluded and the third-party debtor has fully fulfilled his obligations. From this point on, he is free to dispose of future payments to the obligor again without the risk of further attachments in the same proceedings.

Your Benefits with Legal Assistance

Legal support in debt enforcement provides security and relief. A lawyer knows the legal procedures exactly and ensures that all applications are complete and correct. This avoids delays or formal errors that could jeopardize the success of an enforcement.

A specialized law firm can assess which measures are appropriate in the specific case and takes over the communication with the court, debtor and third-party debtor. In this way, the proceedings are conducted efficiently and the enforcement of the claim is best supported.

• Support in enforcing your claims
• Protection of your interests vis-à-vis all parties involved
• Support throughout the entire enforcement procedure

Frequently Asked Questions – FAQ