An affidavit or insurance for an oath takes place in many different contexts . In the following text we focus on the topic of debt and foreclosure . Since 2013, debtors have been required to provide so-called asset information in certain situations. Previously, this was called an oath of disclosure or affidavit or statement. The latter two terms are still colloquially used . For this reason, this guide also refers to asset information when the term “statement in lieu of an oath” is used, even if it differs slightly in some respects.
Affidavit: What is it?
This term is used in some jurisdictions and has a different meaning in each. Generally speaking, when people give a sworn statement , it means that they emphasize that the information they provide is indeed true .
This is important, for example, under civil law, in tax or insolvency law . For this reason, different laws serve as the basis for the affidavit , depending on the context. The Civil Procedure Code (ZPO) is part of this, but also the Civil Code (BGB) and the Tax Code (AO). In what follows, we are concerned with the meaning of the term “oath statement” under the law of foreclosure.
Affidavit, Revelation, Asset Information – Where are the differences?
Until 1970, debtors had to take a so-called revelatory oath and thereby reveal their financial situation . Thereafter, the affidavit and / or declaration triggered the disclosure. Since January 1, 2013 , debtors must, under certain circumstances, provide so-called asset information in conjunction with an insurance on oath . Not only the term used has changed, also legally some changes have been made . Nevertheless, the two expressions are still used interchangeably in everyday language.
But what are the differences between them? The affidavit was important after the oath of disclosure was abolished. A debtor must disclose his financial position in the course of the declaration. This gives the creditors concerned information about where and how much money they can pledge.
Legally, the affidavit and the financial information differ, for example, in the fact that the latter no longer requires an unsuccessful attachment attempt before it can be applied for by the creditor.
Furthermore, bailiffs now have the option of obtaining information from certain authorities in accordance with Section 802 I ZPO if the debtor refuses to provide the property information . Moreover, under the new rules, the documents in question will only be electronically stored in a database accessible to all judicial officers.
A seizure despite affidavit is possible. After all, this is a list of the assets and income of a debtor. It does not ensure that debts are forgiven or that creditors are no longer allowed to pledge . Rather, it allows the creditor to find out how to access the debtor’s money. If those affected want to anticipate a seizure, they must set up a so-called seizure protection account – called P account for short.
Requirements for ordering an affidavit
In order for a creditor to apply for a debtor to provide an affidavit, various conditions must be fulfilled. As already mentioned, it should be noted that since the beginning of 2013 no successful seizure attempt has to be made so that the application can be made.
A creditor can make a corresponding request if he can present a so-called titled claim . On the other hand, open bills or reminders are not enough to make an affidavit. These may be the following titles :
- notarial deed
- legally binding decision of an authority
The affidavit must be given only once for a period of two years . If debtors are summoned by a bailiff for an appointment even though they have already made such a statement within the last 24 months, they should contact the bailiff as soon as possible and provide him with the appropriate file number. Following this then sends the creditor a printout of the last affidavit . Only if facts prove that the assets of the debtor have changed significantly, a new query can be made. What is the best way for you to get out of debt? Check your options for free now! Online debt analysis →
When and how does the sworn statement take place?
If creditors and debt collection companies are threatened with foreclosure or foreclosure, many debtors wondered, “Where can I take an affidavit?” As a matter of principle, it should be noted that only one creditor can apply for such a declaration about the financial situation of a debtor . Here it is good to know that for the affidavit no costs for the debtor are incurred.
Once this has been done, the bailiff first sets the debtor a two-week deadline . If he pays his debts during this period, he does not have to make a sworn statement. In some cases, there is also the possibility that the bailiff may grant a longer payment period. Under certain circumstances , an installment payment of debts can be agreed . However, this should be completed within twelve months. Basically, such an agreement must always be discussed and clarified with the bailiff – a legal claim to grant, however, do not have affected .
Affidavit: Are the debts gone after that?
However, if the debtor fails to meet the claims , an appointment will be made to disclose the income and assets position . As a rule, those affected are cited in the premises of the competent bailiff if they have to give a sworn statement about existing debts.
However, it is also possible for the bailiff to take this step in the debtor’s home . If this is the case with those affected, they have the opportunity to appeal within a week . If the objection arrives punctually, then the appointment takes place in the office of the bailiff.
In most cases, the debtor will be sent a form with the title ” Vermögensverzeichnis ” before the appointment. This should be filled in the best case already in the conscience conscientiously . Finally, sufferers must take an oath to assure that they have completed all the information and that they are true. If you pass on false information, you are liable to prosecution.
For many debtors, personal bankruptcy is the last option to find a way out of debt . In the process, the attachable assets and income are distributed to the creditors. After a period of good behavior of three, five or six years, then the debt relief and the person is usually loses all his debts. An affidavit does not have to precede private bankruptcy .
What happens if you do not make a sworn statement?
Many a debtor would prefer to shirk the delivery of an affidavit , it means that the creditors are fully informed about his financial circumstances. But what can happen if those affected simply refuse to make the statement?
As already mentioned, the affidavit is taken by a bailiff. As a rule, an appointment is made in his office. If debtors do not appear and they can not make sufficient excuse for their absence , the competent court may issue an arrest warrant . However, this can not be compared with a criminal arrest warrant, as it is enforced by the bailiff and no search is carried out.
If the debtor continues to refuse to make a sworn statement, it is possible that he will be detained for a maximum of six months . Incidentally, there is no reduction in debt during this time. If the debtor gives his statement, however, he will be released immediately.
If a victim does not make a sworn statement, there are also other consequences. In that case, the bailiff is authorized to seek information from certain authorities :
- At the Kraftfahrt-Bundesamt he can inform himself about which motor vehicles are allowed on the debtor.
- The Federal Central Tax Office has information regarding the depositories and accounts of the person concerned.
- With the pension insurance or health insurance the employer of the debtor can be determined, so that garnishment is possible.