WHAT IS A GERECHTSDEURWAARDERS

A gerechtsdeurwaarders is a kind of public servant authorized to carry out ‘official actions on behalf of the government. The terms ‘gerechtsdeurwaarders ‘ and ‘bailiff’ denote the same thing. Legal proceedings often refer to enforcement officers as bailiffs, a phrase that suggests a higher level of formality. Typically, a gerechtsdeurwaarders is the one who is called upon to enforce the law. In addition, the term ‘judicial bailiff’ is used, which is misleading.

The bailiff’s official duties may include evicting a tenant, laying attachments, issuing subpoenas, and serving (legally handing over) judgments and writs. In addition to their statutory duties, gerechtsdeurwaarders often engage in extrajudicial work, such as debt collection, in a manner similar to that of a collection agency. Gerechtsdeurwaarders, unlike debt collection companies, is recognized by the law and have the authority to enforce it. These authorities, however, do not extend to monitoring bailiffs’ efforts to collect on outstanding debts.

BACKGROUND

The laws that control how a judgment or a right may be carried out are called ‘enforcement laws.’ Attachment legislation incorporates the enforcement law. Attaching and selling an asset against the debtor’s will, then distributing the money among the creditors, are the typical steps in execution.

In order to foreclose, the creditor must first get an enforcement order. For the most part, this refers to a final or non-appealable judicial decision that may be implemented immediately. This judgment may be enforced by the plaintiff if the defendant does not comply with the judgment. The debtor must comply with the enforceable title when it is served by a gerechtsdeurwaarders. The debtor’s property (which includes money, vehicles, homes, and other buildings), as well as any rights to action (such as wages), may be taken if the order is disobeyed. Property, both personal and real, is sold at public auction when an attachment is filed. In liquidation, the debtor’s creditors are paid first, and any surplus is returned to the debtor.

If the debtor contests the execution of a judgment or other enforceable title, the creditor may ask the court to decide whether or not the execution is warranted.  A judicial officer is a public servant who, by virtue of or in accordance with the law, performs the duties specifically and exclusively allocated or reserved to judicial officials. The word ‘gerechtsdeurwaarders ‘ is often used in this context. In addition, the State Tax Authorities or local authorities (such as a municipality or water board) may engage tax gerechtsdeurwaarders to enforce tax laws.

WHAT DO GERECTSDEURWAARDERS DO

Specifically, it is the gerectsdeurwaarders job to enforce acts belonging to or required for the execution of enforceable titles or the preservation of rights and also provide the issuance of judicial notices, announcements, protests, and further writs.

Until a gerectsdeurwaarders serves a summons, a proceeding has not officially begun. A gerectsdeurwaarders serves the defendant with a summons on the plaintiff’s behalf. The gerectsdeurwaarders must first examine the PRD before issuing the summons. The gerechtsdeurwaarders must then use a writ to issue the summons. In this case, the defendant is considered to have ‘taken awareness’ of the proceedings that have been initiated against them. 

The issue of the summons has been debated for a long time. Since the gerechtsdeurwaarders  (typically) makes verbal contact with the defendant, the issuance of the summons has been appreciated up to this point. At that time, the gerechtsdeurwaarders may explain the current proceedings in court and how the defendant can provide a defense if they do not agree with the claim if that is what the defendant desires. When a gerechtsdeurwaarders serves a summons, they always travel to the defendant’s home in person, so they may see the circumstances first-hand and make an informed decision. If the defendant’s residence turns out to be vacant and up for sale, for instance, it may be avoided that the summons is placed there.

A gerechtsdeurwaarders may use a writ to serve legal papers if that’s what’s needed. It is not common practice, but a writ may be chosen over a registered letter where substantial financial interests are at stake. At the claimant’s request, the gerechtsdeurwaarders will serve the judgment, order, or judgment even after the court has reached a decision. With personal service or upon the occurrence of any act of publicity, the objection time begins, and the party against whom the enforceable title is directed is presumed to be aware of its contents. The gerechtsdeurwaarders will often issue a writ ordering payment after the verdict is provisionally enforceable. Unlike the service itself, this payment order is a stand-alone formal action. While doing so in a single writ is the norm in most contexts, variations are possible.

DRAFTING A DOCUMENT

A gerechtsdeurwaarders has the same power to draft deeds for public inspection as a notary under civil law. If there is ever a dispute about the veracity of these events, the deeds themselves may be used as proof in court. A gerechtsdeurwaarders will always file a deed with an official report when they attach personal property.

If the party against whom a judgment or notarial deed has been made fails to comply with the direction of the judicial officer, often during delivery of the title, the officer may resort to enforcement actions to compel compliance. Any time money is owed, a gerechtsdeurwaarders may collect it via attachment.

Removal from the leased property is a possible outcome of a court-ordered termination of a rental agreement. Only a gerechtsdeurwaarders is allowed to perform such an eviction. The gerechtsdeurwaarders have the authority to collect fines and penalties that result from a decision entered ‘under penalty of law.’ However, penalties are only canceled out when the sentence has been completed. 

CURRENT STATUS OF THE GERECHTSDEURWAARDERS

Since the Court Gerechtsdeurwaarders Act of 2001 went into effect, gerechtsdeurwaarders s are no longer need to be accredited by a single court (whether it be a subdistrict court, district court, court of appeal, or the Supreme Court) since the gerechtsdeurwaarders have operated out of a place of business rather than an office.

The gerechtsdeurwaarders historical role in maintaining order during court hearings has ended as a result of the gerechtsdeurwaarder’ lack of current court accreditation. Court ushers and other personnel have been responsible for this duty since the Gerechtsdeurwaarders Act was introduced. Costs may be incurred while having the gerechtsdeurwaarders conduct official duties. The Decree on Rates of Official Acts of Court Gerechtsdeurwaarders specifies the fees that judicial officers may collect for their services. In general, the gerechtsdeurwaarders’ fees are assessed on the losing party or the one who owes money. 

Most gerechtsdeurwaarders work independently in addition to their formal responsibilities. Legal services include providing advice, representation in cases brought before the subdistrict court, drafting standard terms and conditions, and similar extrajudicial debt collection actions. In the process known as ‘Collective Debt Settlement,’ an attachment court may appoint the gerechtsdeurwaarders to carry out the judicial duty of ‘debt mediator’ (CSR). 

When it comes to gerechtsdeurwaarders oversight in the Netherlands, the Financial Supervision Office is in charge. A gerechtsdeurwaarders may only be appointed as long as they are a citizen of the Netherlands, an EU or EEA member, or a Swiss national and have graduated from an Approved Gerechtsdeurwaarders  Training Program Recognized by the Minister or is a graduate of the internship program. It is also necessary to possess a level of fluency in Dutch appropriate for the position of gerechtsdeurwaarders. The requirement is to be an assigned or prospective judicial officer who has worked a minimum of twenty-one hours per week in the previous year.

The King appoints all gerechtsdeurwaarders s (art. 509 of the Judicial Code).  Article 519 of the Judicial Code lists the specific judicial duties of the gerechtsdeurwaarders . It concerns drafting and serving all writs; this means that the gerechtsdeurwaarders is the person who can issue a summons, order to pay, attachment, eviction, attachment of wages, and all other deeds.

These are activities for which the gerechtsdeurwaarders do not have a legal monopoly and cannot confer their office. The gerechtsdeurwaarders may execute judicial judgments and tax debts for which writs of execution have been issued. In the framework of this enforced execution, they have the authority to draft and formally notify the guilty person of all deeds pertaining to the case. Therefore, the debtor will get the legally binding title first. A deed notarized by a public notary may also serve as a valid title. Orders to pay may or may not be included with this service. In addition to levying a seizure, the gerechtsdeurwaarders may also levy a conservatory or executive attachment on either moveable (such as personal items, shares, earnings, etc.) or immovable property.

Having a title that can be legally used is essential. A debtor’s ability to challenge or dispute a title’s validity puts a hold on enforcement proceedings. The gerechtsdeurwaarders may begin forcible execution even if a legal remedy has been filed, but only if the court has declared the judgment to be ‘provisionally enforceable,’ which may be seen in the disposing portion of the judgment or decision at the very rear.

The gerechtsdeurwaarders have the authority to carry out enforcement to completion, making him accountable for the public auction of personal property and the (pro rata) distribution of the revenues to the debtor’s creditors. The attachment judge has exclusive authority to determine any claims that enforcement has been unjustly carried out or that any additional enforcement measures have been implemented in violation of the law.

WHAT CAN THE GERECHTSDEURWAARDERS DO 

The individual hires a gerechtsdeurwaarders to serve a summons and bring their case before a court if they have a claim against an individual or business and have previously made fruitless attempts to collect it on their own. However, a gerechtsdeurwaarders cannot normally act as the applicant’s legal counsel.

The gerechtsdeurwaarders have the authority to make a decision on how the court case will proceed. They then write a formal report on the matter, the details infused with extra weight as evidence.  Once the individual has received a judgment, the gerechtsdeurwaarders is authorized to pursue whatever enforcement action is required to collect the award. The gerechtsdeurwaarders can get a complete picture of the debtor’s financial stability because to the wealth of data at their disposal. 

The gerechtsdeurwaarders have permission to follow through with enforcement to the very end. They have the authority to conduct a public auction to liquidate the connected property and will distribute the earnings equitably in accordance with any preexisting rights.

A traineeship certificate may be obtained once a person has served as a trainee for a minimum of two continuous years in the offices of a judicial officer traineeship master. Appointment as a candidate judicial officer requires a score of at least sixty percent on a written test and fifty percent on an oral exam. The nominating committee sets up both tests once a year. This test is meant to be challenging for all applicants. Therefore, the graduates are ordered, and the openings are filled accordingly.

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Sources

1. The creditor may not always be paid back from the profits of a foreclosure sale. Consider the scenario when a creditor has made a deal in which he is obligated to receive goods. When this occurs, the court (in the Netherlands, following Article 3:300 of the Dutch Civil Code) may rule that the creditor’s desired judgment serves as substitute delivery from the debtor. Real execution, right there.

2. Such as evictions, seizures, foreclosures, hostage-takings, and other acts; protests of non-acceptance or non-payment of bills of exchange, order notes, and the like

3. The Netherlands issued a total of 650,000 summonses in 2005.  According to the KBvG, the number of summonses issued has decreased over the previous four years, despite an expected rise of 5.3% from 2018.

4. The Dutch ‘ Debt Rescheduling of Natural Persons Act ‘ (Wsnp) is a similar debt rescheduling policy that may be likened to this process.

5. It is also necessary to o have in their possession a certificate of good behavior issued within the last three months in accordance with the Judicial and Criminal Data Act, or, if they do not have Dutch citizenship, a statement issued by a certificate that is comparable to a certificate of good conduct. Whoever is in charge in the home state is the one to go to.

6. One must meet specific requirements in order to be considered for a position as a potential judge (art. 510 of the Judicial Code)

  1. Having earned a doctoral, Juris doctorate, or master’s degree in law;
  2. Showing an excerpt from the Criminal Record that was created after the notice was published ;

7. The enforcement of enforceable titles: the gerechtsdeurwaarders, therefore, ensures that the decisions in judgments, judgments or administrative titles are executed

  1. The recovery of undisputed monetary debts in accordance with the IOS procedure ;
  2. Making determinations;
  3. Drawing up protests against a bill of exchange, promissory note, and bank cheque;
  4. The public judicial sale of movable property and ships;
  5. The voluntary public sale of movable property;
  6. Consulting, depositing, deleting, and changing the messages in the CBB .

8. This includes the following powers:

  • requesting issues and submitting and filing petitions with the registry;
  • ensure the amicable collection of claims
  • treasures of furniture and movable property;
  • act as an amicable debt mediator and as a debt mediator in the context of the collective debt settlement;
  • act as a mediator in family matters and as a mediator in the context of alternative dispute resolution;
  • carry out solvency investigations, and prepare and deliver asset reports and tax certificates of insolvency;
  • monitor authorized lotteries and contests;

9. In order to give some assurance that the debtor may lead a respectable life, the law has enacted protections for them in a number of key areas. For instance, the law recognizes that certain items cannot be seized because of their characteristics (Article 1408 of the Judicial Code). Additionally, there are restrictions on how much of a debtor’s income may be garnished (Article 1409 et seq. Judgment). Here is a summary of some restrictions imposed by law. Only in the case of collecting past-due maintenance fees is this not the case. A debtor who finds himself in such a predicament would be well to remember that his whole source of support is subject to garnishment.

10. Be aware that the gerechtsdeurwaarders  can only create a formal report on physically visible items, and cannot equate these observable sensory facts with legal qualifications or consequences. Only the judge has the authority to make such a determination.

11. This will also help them provide the applicant with the most accurate counsel on the (possibility of an) enforcement order.

12. The Decree of 4 July 2001 contains further restrictions regulating the official activities of court officials and the rates at which they may (Decree on rates of official acts of judicial officers)

13. Article 515 of the Judicial Code stipulates that a person must have been a candidate judicial officer for a minimum of five years before being appointed to a judicial position.

 

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