Appeal against incorrect verdict | Legal Aid Clinic


Questioner

After appearance, before single chamber, judge draws up report. In this report, incriminating statements of the opposing party are not mentioned at all. Also own position is incorrectly presented. Own lawyer writes this to the court. No reaction. Judgment will follow within four weeks, provisionally enforceable. Judgment made by a multi-member chamber. Appeal lodged. Counterparty proven right; after two weeks bankruptcy petition. etc. Question: Is the fact that an incorrect/incomplete report underlies the decision of a multi-member chamber, before which one has never appeared, a reason to invoke the nullity of the decision and its consequences?

Lawyer

Of course, this is the case. Provisionally enforceable means that the court's judgment must be executed immediately (immediately executed). If you want to appeal against the court's judgment, the judgment is generally suspended. It does not have to be executed until it has been decided on appeal that the judgment must also be executed. This does not apply to provisionally enforceable. With provisionally enforceable, it must be executed immediately, whether or not an appeal is lodged. The legal remedies against the judgment cannot suspend the execution of the judgment. The claimant can therefore request immediate execution of the judgment even if the defendant does not agree with it at all and the defendant wants to contest the judgment in appeal. However, if the defendant is proven right in the appeal, the claimant must reverse the statement in the first judgment and pay back everything, if applicable. An appeal against such a judgment must be filed within three months. Please note. However, the claimant must explicitly request this repayment in appeal. Otherwise, a bailiff cannot collect the repayment. Your lawyer may be aware of this.

Questioner

Thanks for the response. The question focuses on whether the omission from the report after the hearing of essential facts, in this case concerning the appointment of a natural person as guarantor, constitutes nullity because the multi-member chamber was unable to take cognizance of it. The essential facts include the creditor/claimant's statement that he had put pressure on the principal debtor's banker to transfer the principal debtor to Special Administration, which resulted in additional charges for the principal debtor. The sum of these additional charges was equal to the claimant's claim. The surety argued that he is entitled to all defenses of the principal debtor and that the plaintiff has therefore disadvantaged the principal debtor to such an extent that the latter could not pay his debt to the plaintiff. Spicy detail, the defendant, the questioner, submitted an internal document from the principal debtor's banker showing the increase in financing charges due to the plaintiff. This fact was explicitly admitted by the claimant at the hearing. However, the judge, despite comments on the draft report, did not include it in the report of which the multi-member chamber took cognizance. Nullity?

Lawyer

What is very strange is that this fact is not included in the report. But that is beside the point. As I have stated before, this is a definite point to raise in appeal and may constitute an interest of the law. You can also use an extraordinary legal remedy, withdrawal of the case. Your lawyer should know more about this. Failure to draw up a report as referred to in article 395 paragraph 2 opening sentence and under c Sv leads to the nullity of the investigation at the hearing and of the ruling made as a result.

Neem de volgende stap

Blijf niet rondlopen met vragen over je situatie. Stel je vraag en krijg persoonlijk antwoord van een ervaren jurist.
Privacy is gewaarborgd.