It consists of the judicial declaration about what assets, owned by the debtor, can be used to pay his debt.
It can occur in both civil and criminal proceedings and can affect current and future assets. It should not be confused with the preventive embargo.
Besides, There are seizable and non-seizable assets, as well as an order of embargoes.
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Legal framework of the embargo
The provisions regarding seizure are found in the following laws:
- Civil prosecution law. About precautionary measures, forced execution, seizure of assets, effects of embargo among other points.
- Criminal Procedure Law for bail and seizures in criminal proceedings.
- Mortgage Regulations: on preventive annotation of seizure of property or real rights.
- Concursal law, for seizures in the bankruptcy declaration procedure.
- General Tax Law, for seizures for tax debts.
Features of embargo
The seizure or executive embargo has the following characteristics:
Who orders it
The executive seizure must be ordered by a judge. On the other hand, the administrative embargo can be issued by a competent body of the Public Administration such as the Treasury, Social Security or the City Council.
Assets on which it falls
They may be current or future, monetary and non-monetary. In the latter case, prior settlement is provided for auction public.
Assets of value greater than the amount claimed cannot be seized, unless there are assets of lower value.
No assets will be seized whose foreseeable value exceeds the amount for which execution has been issued, unless in the assets of the executed person there are only assets of a value greater than those concepts and the attachment of said assets is necessary for the purposes of execution.
Article 584 of the Civil Procedure Law
In addition, the assets of third parties may be seized, who must assert their rights through a third party Of domain.
Forms of seizure
It can be done by judicial retention, that is, by deduction from the debtor's payroll or income.
- By judicial administration, which consists of the appointment of an administrator who guarantees the correct development of the judicial process.
- Or by judicial deposit, a special execution precautionary procedure that consists of the seizure of individualized assets.
The deadlines for the execution of an embargo are well determined. The execution periods begin to be counted from the moment of the judicial decree of execution of the sentence.
These deadlines are the following:
- 20 business days until the sentence is final.
- Another 20 business days until it can be executed, during which the debtor has the option of fulfilling the judgment voluntarily.
In total, 40 business days minimum.
The embargo must cover the debt, interest, costs and expenses of the judicial process, usually an additional 30%.
The seizure of an asset already seized by other debts is possible. The collection preference is for the first creditor.
Attachable and non-attachable assets
In order for an asset to be seized, it must comply with certain requirements:
- Not be seizable.
- Belong to the debtor.
- Have been identified in detail.
The unseizable condition of an asset is related to the personal circumstances of the debtor. From this point of view there are two categories: assets that are absolutely non-seizable and assets that cannot be seized in relation to the debtor.
- Absolutely unseizable assets. Assets declared inalienable fall within this category, that is, they cannot be validly alienated; accessory rights, such as easements, common elements, bonds or mortgages; assets that by themselves lack patrimonial content, such as personal, political or social rights among others, and, finally, assets declared unseizable by a legal provision.
- Unseizable assets in relation to the debtor. These include the furniture, household goods and clothing of the debtor and his family; books and instruments necessary for the exercise of the activity; goods dedicated to religious worship, and the sums of money established by law based on the interprofessional minimum wage. This criterion does not apply to child support payments.
Order of seizures
The Civil Procedure Law establishes the order of seizures in a subsidiary manner, that is,The provisions of the law must be applied in the event that an agreement cannot be reached between the parties, whether judicial or extrajudicial.
On the other hand, the Court Clerk must start with the assets that are most easily disposed of and least burdensome for the debtor.
1. If the creditor and debtor have not agreed otherwise, within or outside of the execution, the Lawyer of the Administration of Justice responsible for the execution will seize the assets of the executed person, trying to take into account the greater ease of its disposal and the least onerousness of this one for the executed.
Article 592.1 of the Civil Procedure Law
In the absence of these criteria, the order established in article 592 of the Civil Procedure Law must be applied.
2. If due to the circumstances of the execution it is impossible or very difficult to apply the criteria established in the previous section, the assets will be seized in the following order:
1. Money or checking accounts of any kind.
2. Credits and rights realizable immediately or in the short term, and securities, securities or other financial instruments admitted to trading in an official secondary securities market.
3. Jewelry and art objects.
4. Income in money, whatever its origin and the reason for its accrual.
5. Interest, income and fruits of all kinds.
6. Movable or real property, shares, titles or securities not admitted to official listing and corporate participations.
7. Real estate.
8. Salaries, wages, pensions and income from autonomous professional and commercial activities.
9. Credits, rights and securities realizable in the medium and long term.
Article 592.2 of the Civil Procedure Law
This order is exhaustive, that is, a property cannot be seized if the property preceding it on the list has not been seized.
He order is the following:
- Money in cash and in bank checking accounts.
- Credits and rights realizable in the short term or immediately. Securities and other financial instruments negotiable in an official secondary market.
- Jewelry and art objects.
- Money income.
- Interest, income and fruits of all kinds.
- Movable or real property, shares, titles or securities not admitted to official listing and shares in companies.
- Wages, salaries, pensions or income from self-employed activity.
- Credits, rights and securities realizable in the medium and long term.
Attachments for tax debts
The General Tax Law empowers the public administration to begin the embargo phase to debtors who have not made the voluntary payment of their taxes within the deadlines granted by the Administration.
The notification must be made in a reliable manner indicating the reason and amount of the embargo. If payment is made, the embargo is lifted. Otherwise, the seized property will be auctioned or executed.
Beyond following the order established by the Civil Procedure Law as explained in the previous section, The Administration adopts different types of seizure:
- Bank accounts. Bank account seizures are a mandate directed to the credit institution, so that it withholds an amount from the accounts belonging to the debtor. The bank or entity must retain this amount and deposit it in the Treasury.
- Wages, salaries and pensions. The diligence is sent to the employer, who must continue withholding and paying the indicated amounts to the Tax Agency until the seizure is lifted or terminated.
- Credits. Withholding is requested from people or entities that have a relationship with the debtor such as the payment of rent or because they carry out commercial operations. The requested party must retain all of the payments that should be made to the debtor and submit them to the Tax Agency.
- Values. The communication sent to the depositary entity requires that it retain them, meaning that they cannot be transmitted or sold.
- Properties, vehicles and other personal property. Seizures are carried out directly on the debtor, communicating the impossibility of transferring them. If it is movable property, the Administration may require its deposit in a specific location.
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