What is Affidavit? Know the Oath’s, Consequences & Advantages
Behind the term, "affidavit" (also: oath of disclosure or affidavit) is nothing more than the asset disclosure. This is already an enforcement measure, with the help of which the creditor receives important information about the debtor's financial situation, for example:
his bank and account details
who is his employer is
what assets and property does the debtor own
what income he receives
In addition, the debtor must ensure that the information provided by him is complete and true.
The affidavit, oath of disclosure, and asset disclosure: Are there differences?
Until 1970, debtors had to take an oath of disclosure and thus disclose their financial situation. After that, the affidavit or declaration replaced the oath of disclosure.
Since 1.1, in 2013, debtors submit a statement of assets – again with an affidavit that this information is complete and true.
The legal conditions have also changed somewhat: unlike in the past, an unsuccessful attempt at seizure is no longer necessary today before the creditor can apply for the submission of the affidavit.
Furthermore, bailiffs can now obtain information from certain authorities in accordance with § 802I ZPO if the debtor refuses to provide information on assets. In addition, according to the new regulation, the relevant documents are only stored electronically in a database to which all bailiffs have access.
Requirements: When does the debtor have to submit an affidavit?
Since 2013, there is no longer a need for a successful attachment attempt before the creditor can apply for the debtor's affidavit. Because the asset disclosure is already an enforcement measure, he needs a so-called titled claim.
In particular, the following serve as enforcement titles:
notarial deed, in which the debtor submits to (immediate) enforcement
the final decision of an authority
As a rule, the debtor must only submit the affidavit once every two years.
Only if the debtor's financial circumstances have changed significantly is he obliged to make a new query.
Suppose a debtor is summoned to an appointment again, although they have already made such a declaration instead of an oath within the last 24 months. In that case, they should contact the bailiff immediately and inform them of the relevant file number. The latter then send the creditor a printout of the last affidavit.
When and how is an affidavit submitted?
The debtor must or can only make an affidavit if a creditor expressly requests it or if he instructs a bailiff to do this.
Once this has been done, the bailiff sets the debtor a two-week deadline. He is spared the asset report if he pays his debts during this period. Sometimes the debtor is also given a longer payment period or an agreement to pay in installments for his debts, always provided that the creditor agrees (which is rather rare) - although those affected have no legal right to this.
If the debtor does not pay within two weeks, the bailiff sets a date for the submission of the asset disclosure. The debtor then usually has to go to the business premises of the responsible bailiff and submit his affidavit of existing debts there.
To do this, the debtor must fill out a form entitled "List of Assets" and swear under oath that he has given all the information in full and that it is true. Anyone who provides false information is liable to prosecution.Also read : Electronic Document Management Software
What happens if you don't submit an affidavit?
Many a debtor would prefer to avoid submitting an affidavit - this means that the creditors are informed comprehensively about their income and financial situation.
As already mentioned, the affidavit is made by the bailiff. The creditor can apply for an arrest warrant if the debtor does not show up for this appointment without an excuse.
However, this is not to be compared with a criminal arrest warrant since it is not written out for a search.
However, the bailiff can contact the police and bring the debtor to their attention with their help.
If the debtor refuses to provide an affidavit, they may face up to six months in detention. However, if he makes his statement, he will be released from custody immediately. The debts remain.
If the debtor refuses to provide information about his assets, the bailiff may obtain the relevant information from certain authorities:
From the Federal Motor Transport Authority, he can find out which motor vehicles are registered to the debtor.
The Federal Central Tax Office has information regarding the deposits and accounts of the person concerned.
The debtor's employer can be determined via pension insurance or health insurance company, so wage garnishments are possible.
The affidavit & its consequences: What happens afterward?
The affidavit is of enormous importance to the creditor. For example, he finds out...
Whether and where his debtor works
What income from work and what other income he earns
Whether he is married or divorced and has children (important for the calculation of maintenance obligations that affect the garnishment exemption)
Whether the debtor owns real estate or valuable motor vehicles
With the help of this information, the creditor can initiate garnishment of wages from the employer or garnishment of an account - he can even combine these two measures. However, if the creditor finds out that the debtor has no assets and income to be seized, he may refrain from attempting enforcement or further reminders..
An affidavit also has other consequences:
The competent enforcement court stores the information obtained in electronic form for two years. Other creditors can access this upon request and obtain information about the income and financial situation of the person concerned.
Submission of the affidavit also means that debtors receive a negative entry at SCHUFA, so they can neither conclude loans nor other important contracts.
Under certain circumstances, the bank terminates the overdraft facility of the person concerned. Difficulties can also arise when looking for an apartment due to the negative SCHUFA entry.