Attachment, Attachment of wages and attachment of regular income

Virtually all regular (i.e. recurring) income can in principle be attached. This means that wages, unemployment benefit and pensions can be attached! However, social benefits/basic income, parental benefit up to § 300, maternity benefit or nursing benefit for nursing care by self-supplied carers cannot be attached.

What happens when income is attached?

The creditor must apply to the body that pays the income (e.g. employer, pension authority, employment agency). This body is called the third party debtor. There are three ways of attaching regular income:
a) The creditor has obtained a so-called title (e.g. enforcement order, court ruling). With this title he can apply to the court (Vollstreckungsgericht) for your regular income to be attached. The court then issues an order of attachment and transfer of garnished clause (Pfaändungs- und UÜberweisungsbeschluss [PfuÜB]) which the creditor serves on the third party debtor.
b) Public creditors (e.g. tax authorities, town purse) initially issue a decision and can then attach wages themselves and serve the order of attachment and transfer of garnished clause directly on the third party debtor.
c) If the attachable portion of the income has already been assigned to the creditor, he only needs to send a copy of the assignation to the third party debtor. Virtually every loan agreement contains such an assignation. The third party debtor must accept an order of attachment and transfer of garnished clause and an order of attachment. However, he can include a clause in a contract releasing him from the obligation to comply with assignations.

How much can be attached?

The third party debtor must calculate how much of the income can be attached. This is settled by law. He must transfer this amount to the creditor. The remaining part of the income which cannot be attached is paid to the debtor.

a) Table of attachable amounts:

The amount that can be attached depends on your net income and your statutory maintenance obligations. The table can be found on: Table of attachable amounts
Statutory maintenance obligations that must be counted are maintenance payments to children, spouses (including spouses living in separation or divorced if a court ruling or a notary's deed is presented), parents (e.g. costs of a home or nursing care) and registered same-sex partners. If parents are not married, maintenance must also be paid to the parent with whom the child grows up, at least for the first three years, provided this parent does not have sufficient income. If the third party debtor does not know of all the maintenance obligations (because they are not entered on the income tax card), the debtor must provide evidence of all maintenance obligations (e.g. acknowledgement of paternity, divorce decree) and the actual payments made. If necessary, the competent court or the official creditor making the attachment will make the decision.

b) Non-attachable parts of income:

The following wage components cannot be attached (gross): Expenses, allowances for special expenditure, half of overtime pay, dirty work bonus, standard amount of holiday bonus and half the Christmas bonus (max, § 500.-).

Can several sources of income be added together?

Only income from one person (e.g. pension and wages) can be added together by virtue of a court ruling (or an order by a public creditor). In the case of dual- income families, the creditor seeking to attach the income may ask the court to exclude the spouse with adequate income from maintenance obligations.

Is it possible for a creditor to attach more?

If continuous maintenance payments, maintenance debts from the last 12 months or compensation payments in connection with a wilfully committed criminal act are demanded, the creditor may attach more than is actually calculated on the basis of the "Table of attachable amounts". However, he needs a court order in order to do this. The debtor must be left a minimum to live on - if necessary an application can be made for this to be reviewed.

Can a debtor ask for the amount to be attached to be reduced?

The debtor may apply to the court or public creditor for the attachment amount to be reduced. This is possible, if the debtor can prove that very high (and necessary) costs are incurred for professional or private reasons. Additional professional costs include, for example, high costs of driving to work or childcare costs in the case of a single parent family. Additional private costs include, for example, costs for medicines or special dietary requirements in connection with illness or extraordinary costs after a separation/divorce or release from prison.

Do I have a right to a current account?!

If you don t have a current account, life can be expensive and complicated. For each individual transfer (UÜberweisung), you have to pay hefty charges. It also makes it more difficult to receive payments (wages, social benefits etc.) and even looking for a flat or job is harder. Banks often refuse to open accounts if you have a negative credit record (SCHUFA report) of sometimes even if you receive unemployment benefit II (ALG II).

Unfortunately, you have no statutory legal right to a current account.
However, banks have voluntarily agreed to open so-called credit accounts (Guthabenkonto).

What is a credit account?

This is a current account that cannot be overdrawn. If the account is not suffi- ciently funded, no transfers will be carried out and you cannot take out any money. There is no point arguing with the bank staff as you then risk losing the account altogether. You will not be given a credit card. However, very often you will be given a cash card which you can use to withdraw money at cash machines, but which cannot be used as an EC card to make payments. Sometimes direct debit orders will be allowed.

How can I get a credit account?

Talk to your bank. Apply for a credit account to be opened. If the bank refuses, ask politely but assertively, why they have refused. The bank may refuse to open an account (in writing), if you have debts with this bank or already have an account with another bank.

Can the credit account be closed?

The account may only be closed if you overdraw the account without permission or if you behave badly towards a member of the bank staff. Unfortunately, how- ever, accounts are also often closed if the bank receives an attachment order. You should fight this!

Attachment of assets (Sachpfändung)

If you are unable to pay your debts, the creditor may apply to the court for a bailiff to attach your goods in your home (cf. § 803 et seq. German Code of Civil Proceedings [ZPO]).
The claim must have been established by a court, e.g. in a judgment or writ of execution (=title). The title must have been served upon you.

Procedure:

The bailiff is instructed to go to your home to see if there are any attachable items. If you have any cash, savings books, jewellery or securities, he will take these with him (attach them). If the items are very large (e.g. antiques), he will stick a bailiff's stamp on them (Pfandsiegel). This item is then attached. You may continue to use it until the bailiff collects it, but you may not sell it or give it away. All attached items are publicly auctioned by the bailiff (possibly via the Internet). However, this is only done if the proceeds cover the costs and there is still enough left over for the creditors.

What items will not be attached?

Any items that you and your family need in order to live (e.g. clothing, furniture, a television, food, medical aids etc.) cannot be attached. Pets cannot be attached. Items that you need for your work or education also cannot be attached (including a computer or your car if you live a long way from your work or work awkward hours!) The bailiff may exchange a very valuable item. You must tell the bailiff if an item does not belong to you or has not been paid for. Normally these will not be attached. If he does take such an item, the owner may take legal steps.

Does the bailiff announce when he is coming?

Bailiffs come without notice. If you are not at home, he will leave a note in your letterbox stating when he intends to come back. You should be at home on this date! If this is not possible, you should phone him to arrange a different date. You must allow the bailiff into your home. If you do not, he will apply for a search warrant and your home can be opened by force. The bailiff is allowed to ask you where you work or whether you have a savings book; you are not obliged to answer! However, if you do answer, you must tell the truth.

Affirmation in lieu of oath (= affidavit as to the accuracy of an account or an inventory [Offenbarungseid]

The bailiff may also have been instructed to request you to make an affirmation in lieu of oath (EV). In this way the creditor can find out if you have anything else that can be attached (e.g. wages from your employer). For this you must correctly fill in a several-page questionnaire. For example, you must say what you live on, whether you have any assets, real estate or life insurance policies and where you have your bank account. You have to swear in lieu of oath that the information you have given is correct and complete. It is a criminal act to give false information. You may only be asked to give an affirmation in lieu of oath every three years. It is only possible earlier if the creditor can credibly assert that your financial situation has improved. You are not obliged to say that your situation has improved (e.g. that you have found work)!

Arrest warrant

If you do not make the affirmation in lieu of oath either at home or in the bailiff's office, the bailiff may apply for an arrest warrant, ordering you to come to his office to fill in the form. If you still refuse, you will be sent to prison, provided the creditor applies for and pays for it coercive arrest = Erzwingungshaft.

Consequences of the affirmation in lieu of oath

In all likelihood the creditor will apply for enforcement proceedings. Very often accounts or wages will be attached. When you make an affirmation in lieu of oath, this will be recorded by the court having competence in the execution of civil judgements or the SCHUFA (German credit control organisation).
When you make an affirmation in lieu of oath you basically declare that you are insolvent. If you then enter into new payment obligations (e.g. a hire purchase agreement) and fail to pay the instalments, this may be seen as a case of fraud. If charges are brought against you, you may be sentenced.
See also Attachment of bank accounts