When a writ of seizure and sale is executed against a debtor, how does the bailiff establish ownership of items that could be co-owned or bought by other family members staying in the residence. Do the debtor's spouse and children have any recourse against a wrongful seizure, even when they do not possess a proof of ownership of the items seized. Where does this burden of proof of the seized items lies when establishing claims?

  • In which jurisdiction?
    – cpast
    Jul 31 '15 at 14:44
  • @cpast I am interested in commonwealth country with laws similar to UK. But the answer need not be restricted to that since this is a general question. Jul 31 '15 at 14:48
  • This is certainly not a general question; property law, especially in unusual circumstances like this, will vary wildly by jurisdiction. Aug 1 '15 at 2:26
  • @JustinLardinois, I would think that the circumstances as I described above is quite common. I added a common law tag as per suggestion in meta discussion. Aug 1 '15 at 2:50
  • That's not what common law means: en.wikipedia.org/wiki/Common_law Aug 1 '15 at 14:02

No, nor could he seize goods belonging to a company owned by the debtor.

In general, it would be enough to state that the goods are the property (jointly or otherwise) of someone else. The onus of proof rests with the creditor,

An example of the process from New South Wales

  • Can you add in some references to support your assertion? Aug 1 '15 at 2:39
  • Quoting from article you cited, it says, "If any property listed on the inventory belongs to someone else, the legal owner can apply for its return by filling in a Notice to sheriff of disputed property form (go to Civil forms and download Form 75). The legal owner or claimant will need to provide proof of ownership, such as receipts or proof of purchase, to the sheriff's office that made the seizure. " Can you quote where it supported your assertions? Aug 1 '15 at 3:18
  • The part you have quoted is what happens after property has been seized, in the attached PDF it is clear the list the sheriff makes must be of wholly owned property.
    – Dale M
    Aug 1 '15 at 5:56
  • Sounds confusing. If in the first place, the bailiff cannot seize property not wholly owned by the debtor, then why would there arise a case for claimant to dispute ownership of the seized items. Also, from the article, it seems the burden of proof lies with the rightful owner of wrongfully seized items. Aug 1 '15 at 13:45

In Germany, the Gerichtsvollzieher takes care of seizing goods, after being asked to do so by the creditor. During a seizure (Zwangsvollstreckung), the Gerichtsvollzieher is not required to check whether the goods actually belong to the debtor (since that would be impractical) - it's enough that they are in possession of the debtor.

However, if goods are seized that belong to a third party, the real owner has a right to get them back. To get them back, the third party must first ask the creditor (who had them seized) to give them back (if they sue right away, they may end up paying court fees (§93 ZPO)).

If the creditor refuses to return the goods (maybe they don't believe the third party), the third party must sue the creditor. This is called a Drittwiderspruchsklage (§771 ZPO). Then the court will decide who is right. The burden of proof in that case will follow the usual rules for civil suits, i.e. usually "preponderance of the evidence".

In practice, if the debtor or the spouse make a convincing argument that the goods are not the creditors property, the Gerichtsvollzieher will likely decide not to seize them, as doing so would only create extra work. However, that is up to them to decide, and they are actually required to seize goods unless it is "obvious" that they are not the debtor's property (§ 119 GVA).

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.