Can a bank account be attached without prior warning?

Question

José Manuel Alburquerque · Accepted Answer

Yes. An attachment is not announced in advance, because the court orders it without first hearing the debtor and the bank withholds the money as soon as it receives the order, sometimes before the notification arrives. But it does not come out of nowhere. Normally there has already been a judgment, an order for payment procedure (“proceso monitorio”) in which the debtor was required to pay or, if the debt is recorded in a notarial document, a demand for payment. The exception is precautionary attachment (“embargo preventivo”), which the judge can order before judgment, even without hearing the debtor if the matter is urgent. Why there is no warning When the creditor applies for enforcement, which is the procedure for compelling compliance with a judgment or another enforceable instrument, the judge issues the enforcement order without hearing the debtor. On the same day or the next, the court clerk (“letrado de la Administración de Justicia”), the official in charge of enforcement at the court, orders the attachments. The orders reach the banks electronically within a short time, whereas notification to the debtor may take longer. That is why many people find out from their bank. If a warning were given, the money could disappear from the account before the attachment. The warnings that do come beforehand What the law requires is that the debtor should first have had an opportunity to pay, in one of these ways: With a judgment ordering payment, the creditor has to wait twenty days from when it becomes final before applying for enforcement. After that, there is no longer any need to demand payment from the debtor in order to attach. If the judgment has been appealed, in some cases the creditor can ask for it to be enforced straight away, which is known as provisional enforcement. In the order for payment procedure, the fast-track procedure for claiming money debts, the court has already required the debtor to pay. If the debtor neither paid nor objected, the creditor can apply for enforcement straight away, without waiting those twenty days. With a deed executed before a notary or a commercial contract witnessed by a notary (a “póliza intervenida”), which allow enforcement to be sought without a prior trial, the court demands payment from the debtor when issuing the enforcement order and, if the debtor does not pay on the spot, proceeds to attachment. That demand is not needed if the creditor had already made it through a notary at least ten days earlier. Once notified, the debtor has ten days to object to the enforcement of a judgment, only on certain grounds, such as having paid. An objection does not stop the attachments. Attachment before trial Before judgment, the creditor can apply for a precautionary attachment. If the matter is urgent, they can apply for it even before bringing a claim. It is an interim measure that serves to ensure there will be assets from which to recover payment if they win the case. The creditor has to show that without it the future judgment might not be complied with, provide some evidence that they are in the right and lodge security, a guarantee known as a “caución”, to cover any damage the attachment may cause. The judge will normally hear the debtor first. But the judge can order it without hearing the debtor if the matter is urgent or if warning the debtor could defeat the attachment. In that case, the debtor is notified as soon as it is carried out and has twenty days to object.