Attaching movables, wages and accounts under the Enforcement Law
The Law Office of Ali Barakat in Baghdad sets out the rules on attaching a debtor’s movable property, wages and salaries, and property held by a third party, including an account, under Enforcement Law No. 45 of 1980, published in the Official Gazette, issue 2762 of 17/3/1980. The page presents the limits the statute lays down.
When are movables attached, and how is the attachment carried out?
If the debtor does not perform the judgment or enforceable instrument voluntarily, the Enforcement Directorate proceeds to compulsory enforcement in accordance with this law, under article 22. A judgment or instrument requiring delivery of a specified sum, or of a thing treated as a debt, is performed by attaching enough of the debtor’s property, together with expenses and fees, and then selling it, under article 54. Attachment, release and sale of the debtor’s property take place on the application of the creditor and by a decision of the Enforcement Officer, under article 55. If the debtor has several assets, enough of them to satisfy the debt and the costs are attached, under article 56. An agreement between the parties on attachment or sale procedures contrary to this law is not recognised, under article 58.
The Enforcement Officer, or a member of the Directorate’s staff whom the Officer deputizes, carries out the decision to attach the debtor’s movable property, under article 63. The step may be taken in the absence of the person seeking attachment or of the person whose property is being attached, under article 64. The decision is carried out in the presence of the neighbourhood mukhtar, if available, or of two witnesses who have no connection or kinship with the official carrying out the attachment or with either party. A record is drawn up stating the kind, type, quantity and value of the attached property, with the assistance of an expert if that is necessary, and stating where it has been kept and how it is being guarded, under article 65.
If the attachment takes place in the debtor’s presence, the official must inform the debtor that the judgment or instrument must be performed within three days from the day after the attachment, failing which the attached property will be sold. If it takes place in the debtor’s absence, the Enforcement Officer serves a summary of the record, and the same period runs from the day after service, under article 69. If the attached property is perishable, or its value cannot bear the cost of keeping it, the Enforcement Officer decides that it is to be sold at once, in the interest of both parties, under article 70.
Property held by a third party, wages, and property that may not be attached
If the debtor’s property that is sought to be attached is in the hands of a third party, that third party is served with the attachment decision and is informed that the property must not be delivered to anyone, that the third party is responsible for it, and that the third party has no right to dispose of it except by a decision of the Enforcement Officer. The third party may make any statements or objections, under article 75. Funds the debtor holds with a bank or with any body that keeps money for the debtor fall under this rule, because the text addresses the third party who holds the property.
The third party may inform the attaching Directorate whether or not it holds property belonging to the debtor, within seven days of service of the attachment notice. If the third party denies holding any such property, the creditor may apply to the court designated in article 76. If the third party acknowledges holding property of the debtor, it must state its kind, type and amount and must deliver it to the Directorate on demand. If it does not, it is responsible for the property according to the description in the attachment notice, under articles 76 and 77.
The salary and allowances of a civil servant, a member of the armed forces, a police officer, a worker, a person receiving a retirement salary, and anyone who receives a salary or wages from the State, may be attached up to one-fifth of what that person receives by way of salary and allowances, including cost-of-living allowances, under article 82, first. If the debt is not owed to the State or to the other category mentioned in paragraph second of the same article, attachment under paragraph first is allowed only if the debt is established by a final court judgment or, in the case of a dower, by an official marriage deed, and the debtor’s agreement to the contrary is not recognised. Subject to paragraphs first and second, non-accumulated maintenance awarded by a court may be attached whatever its amount, and is collected from the total of salary, allowances, incentives, bonuses and any financial source coming from the State, and is treated as a privileged debt, under article 82, third. Attachment of salary and allowances does not prevent attachment of the debtor’s other property, under article 83. The person responsible for paying the salary is bound to carry out the attachment decision, and takes the position of a third party when served by the Directorate, and must reply within seven days, under article 84.
If attachment of immovable property is decided, the Enforcement Officer notifies the Real Estate Registration Department so that an attachment annotation is placed on the property register. The debtor is served with notice of the attachment and is required to pay the debt and its accessories within ten days from the day after service, failing which the attached property is sold, under articles 86 and 87. That is the rule for immovable property. It is mentioned here to distinguish it from attachment of movables, to which the three-day period in article 69 applies.
Article 62 prohibits the attachment or sale, in satisfaction of a debt, of property it lists. The list includes what is sufficient, from the debtor’s income, for the living of the debtor and of those the debtor supports; essential household furniture, unless the debt arose from its price; tools necessary for the debtor’s trade or profession, unless the debt arose from their price; provisions sufficient to feed the debtor and the household for one month; books belonging to the debtor’s profession; the debtor’s dwelling, within the limits the paragraph sets; the portion of salary and allowances above one-fifth; and the social-protection salary, together with other heads the article sets out in full. Property of the State, and what the text attaches to it in paragraph first, and property validly dedicated as waqf, is also excluded from attachment under that article.
| Step | Period | Article |
|---|---|---|
| Performance of the judgment or instrument after attachment of movables, failing which the attached property is sold | Three days from the day after the attachment or service of it | 69 |
| The third party’s notice to the Directorate of whether it holds property of the debtor | Seven days from service of the attachment notice | 76 |
| Reply by the person responsible for paying the salary to the Directorate | Seven days | 84 |
| Payment of the debt after attachment of immovable property, failing which the property is sold | Ten days from the day after service | 87 |
Legal basis and sources
Frequently asked questions
May an entire salary be attached?
Not as a rule. Article 82 limits attachment to no more than one-fifth, except for non-accumulated maintenance awarded by a court, which may be attached whatever its amount, under paragraph third, and subject to the instrument required by paragraph second if the debt is not owed to the State or to the other category that paragraph mentions.
How are funds of the debtor in an account with a third party attached?
Article 75 serves the third party with the attachment decision and prohibits delivery or disposal except by a decision of the Enforcement Officer. Article 76 requires the third party to report within seven days.
Is every movable capable of being attached?
No. Article 62 excludes property it lists, including, within the limits it sets, what is needed for living and for a dwelling, tools of a profession, and the portion of salary above one-fifth.
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