Debt collection is a process that involves several stages, which are provided for by law. It is possible to collect a debt on each of them. The stages differ in a certain sequence of actions, and in the absence of the final result, one stage passes into another. In this case, the actions taken on the previous one are necessary for the next one to occur. We will analyze how to exercise your right and return property or funds competently in terms of the requirements of the law in our article.
Pre-trial debt collection procedure
The pre-trial procedure, carried out in accordance with the norms of the current civil legislation, increases the possibility of repaying a debt without seeking help from the court. The Civil Code of the Russian Federation endows a person not only with certain rights, but also provides for the opportunity to protect them.
How to negotiate with different types debtors, see this video:
Pre-trial debt collection is essentially a search for a compromise and finding out the real intentions of the borrower. The occurrence of debt is usually associated with two main reasons:
- Objective, in the presence of which debt collection is hampered by the debtor's inability to pay the debt due to lack of funds.
- Subjective, which is caused by the unwillingness of the person to fulfill the obligation. The motive can be both disputable nuances of the agreement concluded between the parties, and non-contractual obligations arising from damage to someone else's property.
The actions of the person to collect the debt must be recorded. Therefore, all contacts with him must be made in writing. The law provides for a special procedure for pre-trial settlement of a dispute, which is called the claim procedure. It can be carried out by sending a claim to the debtor, which indicates:
- details of the sender and recipient;
- date of writing;
- exposition legal relationship arising between the parties indicating the person's right to receive Money, according to the contract or court decision on the recognition of the debtor guilty of violation of property rights;
- ways of resolving the conflict, while it is necessary to determine the period of payment, the amount, including penalties and indicate how the debt can be fulfilled;
- In addition, in the claim, it is necessary to note the right of the person to apply for protection to the court, in the event of the debtor's refusal to satisfy the requirements set forth in the claim.
It is important to know that the claim is handed over to the person in person against receipt or sent by mail with acknowledgment of receipt.
As a result of contacts with the obligated party, it is necessary to find out the reason for the debt and, if it is caused by objective circumstances of a temporary nature, there is no dispute between the parties and the person obliged to pay the funds is ready to negotiate. That rational action is: payment by installments or debt restructuring.
Installment payment for debt repayment
Payment by installments refers to the softest way to solve the problem of debt collection. Its essence consists in the repayment of the debt in parts within a certain time by the parties. As a rule, payment by installments is formalized by a written agreement of the parties, which must necessarily indicate:
- The date of the agreement.
- Details of the parties.
- The total amount of debt.
- Periodic payments.
- Terms, namely the date of maturity of all debt and the maturity of each payment.
- Signature of the parties.
This method is beneficial primarily to the obligated person, since it may not provide for the payment of interest on the loan and penalties. However, for the creditor, the likelihood of debt repayment increases significantly if the person obliged to return the funds has no intention of not fulfilling the terms of the contract. In other words, it makes sense to use an installment plan for debt collection only if the debtor is in good faith and solvency.
You can find out about the payment by installments by court decision in this video:
Debt restructuring for debt collection
Debt restructuring, in contrast to the installment plan, although it gives the obliged person additional time and the opportunity to pay off the debt in smaller installments, but affects total amount debt in the direction of its increase. This method is often used financial institutions, for example, banks when issuing a loan and subsequent restructuring.
Debt restructuring in debt collection is essentially a change in the terms of debt repayment. It can be done in three main ways:
- an increase in the debt repayment period due to the so-called "credit holidays", which consist in the fact that the debtor does not pay the amount of the debt or interest on it for some time, but ultimately the money must be repaid in full along with interest;
- decrease in the size of monthly payments, due to an increase in the total term for fulfilling obligations, while the amount of interest on the loan also increases with time;
- change in the currency of debt repayment.
It is important to know that a positive moment for the obliged person in all cases of restructuring is the absence of penalties, negative consequence- an increase in debt obligations.
Debt restructuring when collecting debt is formalized in two ways: by an additional agreement to the main agreement or by a separate agreement.
The debt restructuring agreement primarily provides for the recognition by the debtor of the debt and fixing its amount, in addition, the document must indicate:
- Grounds for the debt.
- Initial terms of debt repayment.
- New rights and obligations of the parties.
- Payment schedule.
The debt restructuring agreement for debt collection is not a change in the way the obligation is fulfilled, that is, the original agreement remains valid, but in a modified form.
In some cases, creditors turn to companies that provide collection services for out-of-court debt collection. V recent times quite a popular way. In the Moscow region, such firms are growing exponentially.
Collection firms can professionally and effectively represent the interests of the creditor, for a fee or redeem the entire debt and already act as creditors.
Executive inscription for debt collection
The Civil Code of the Russian Federation provides for the conclusion of an agreement in writing, certified by a notary. This form is required for some types of agreements, but the parties, if they wish, can certify any transaction in this way.
What is a notary's executive inscription and in what cases it is applicable, see this short video:
If the agreement between the parties, certified by a notary, includes a clause stating that the obliged person agrees to collect the debt from him in an indisputable manner in the event of a delay in payment, then the problem of debt collection can be resolved with the help of a notary.
In the event of a violation of the terms of the contract in the payment of obligations, the creditor applies to the notary for an execution note.
It is important to know that the notary's inscription has the force of a writ of execution.
This form of resolving the problem of debt collection has recently been popular in banking structures in Moscow. It makes it possible to repay the debt out of court and without additional correspondence and new agreements.
However, this form has its drawbacks, namely:
- the delay must be at least two months;
- the notary may refuse the executive note if the obliged person within 7 days sends to the notary his objections, that is, about the occurrence of a dispute.
In the latter case, the debt collection conflict is resolved in court.
Debt collection judicial procedure
In a situation where all the methods of pre-trial settlement did not lead to the desired result, you should proceed to the next stage - debt collection through the court.
The procedure provides for the following procedure:
- Collection of the necessary evidence base confirming the occurrence of the debt and the lack of performance by the debtor of his duties.
- Writing and filing an application or claim with the court.
- Participation in court hearings.
If the debt arose as a result of the contract, then the contract itself, all the correspondence between the parties to resolve the problem, including the claim, can serve as evidence. And if the debt arose as a result of the unlawful actions of a person, for example, as a result of an accident, property suffered and the debtor was found guilty by the court, then the court's decision to plead guilty to the person, the recorded amount of damage, as well as a confirmed attempt by the injured party to collect the debt in pre-trial order.
You can learn more about the court order for debt collection in this video:
Through the court, it is possible to reimburse not only the amount of the debt itself, but also additional funds:
- penalties in the form of interest and forfeit, if they were stipulated by the contract;
- interest for misuse of money, provided for by Art. 395 Civil Code;
- losses incurred by the person as a result of the debtor's failure to fulfill his obligations, including court costs.
Debt collection through the court provides for a simplified procedure for consideration through the issuance of a court order and a claim.
Debt collection order
The court order is the sole decision of the magistrate, taken on the basis of the creditor's statement and the evidence provided. Besides court order can be used as a writ of execution.
Judicial practice of the magistrates' courts in the region Moscow records an increase in the consideration of cases on debt collection precisely by order, since it has a number of advantages, among them:
- Expedited Review Procedure.
- Lack of court hearings, which means that the parties do not have to appear before the justice body.
- In the presence of a sufficient evidentiary base and in the absence of a dispute between the parties, the applicant can do well on his own and not spend money on the services of expensive lawyers in Moscow.
The disadvantages of the clerical proceedings include the possibility of canceling the decision if the debtor, within the time period specified by the law, receives a statement of objection and dispute in relations between the parties.
Debt collection procedure
The claim procedure is provided in a situation where the parties have a different and mutually exclusive attitude to the resulting debt, that is, the relationship is controversial.
How to independently file a lawsuit in court can be found in this video:
In such cases, a statement of claim and the proceedings on the consideration of the conflict are carried out according to the full procedure, which provides for court sessions, analysis of the arguments of both one side and the other, which requires the active and competent behavior of the plaintiff. In such situations the best option will contact law firms. Moscow has a sufficient number of lawyers specializing in debt collection cases.
The end of the consideration - the case is the adoption of a decision by the court. However, it should be noted that the decision does not take effect immediately. The law provides for a one-month period, which gives the parties the opportunity to appeal the court verdict in the appellate instance.
Besides, arbitrage practice in different regions of the country, including Moscow, records enough large percentage non-compliance with decisions of the judiciary on a voluntary basis. In this case, the debt collection procedure provides for the onset of the third stage - enforcement proceedings.
Debt enforcement proceedings
Enforcement proceedings for enforced debt collection are carried out by bailiffs. It provides for fairly broad powers of officials in relation to limiting the rights of the debtor in order to force him to pay the debt. So the bailiffs have the right:
- to seize property;
- collect funds by forcibly debiting money from a bank account;
- withhold the necessary funds from wages;
- impose a ban on leaving the territory of the Russian Federation;
- temporarily deprive of some special rights, for example, the right to drive a personal vehicle.
Executors can fine the obligated person for failure to comply with the instructions. In addition, all the costs of the bailiffs, including the search for the defaulter and his property, are ultimately paid by the debtor himself.
For errors in debt collection, see this video:
Against the background of an extremely unstable economic situation in the country, in last years the population's ability to pay is decreasing, the standard of living is falling, and prices in stores are rising, as a result debts of individuals are increasing, unscrupulous citizens are in no hurry to part with money.
However, since accounts receivable it is possible and necessary to fight. To do this, it is not necessary to turn to the "gray", but it is enough to limit yourself to your own methods and means.
The procedure is conventionally divided into 3 stages, we will consider them below.
1st stage. Pre-trial settlement of a dispute
This stage includes the entire range of measures carried out before the creditor goes to court for the protection of violated rights aimed at returning funds by the debtor.
It includes the following steps:
Claim work - sending written notices about the presence of debt, notices of the creditor's intention to go to court.
In the claim, it is better to clarify that in the event of further failure to fulfill obligations, the costs of an individual will be increased by the amount of interest for the misuse of other people's funds, the amount of state duty, costs of paying for the services of a representative, as well as postage.
Posts - telegraph, telephone, messages in social networks and others demanding urgent payment.
Telephone conversations ... Surprisingly, but with competent conversation, this is often quite enough.
Personal meetings ... but given view pre-trial work can be unsafe and should only be used if there is complete confidence in the adequacy of the debtor and his family members.
Calls at the place of work have a positive effect on many individuals, because not every employer will tolerate a malicious debtor, and will also think about whether such a person will be able to do his job in good faith.
Please note: On 03.07.2016, the President of the Russian Federation, in order to protect the rights of debtors, signed Federal Law No. 230, according to which the collection of a debt in a pre-trial procedure from citizens in 50,000 rubles only professional collectors included in the state register can deal in favor of individuals.
2nd stage. Debt collection through the court
If the borrower has not voluntarily returned the money, it is necessary to submit statement of claim to court.
Based on Art. 196 of the Civil Code of the Russian Federation general term limitation period is 3 years from the date of the emergence of monetary obligations.
Even if the deadline is missed, it is possible to restore it through the court. To do this, it is enough to provide documents confirming the validity of the pass. This may be a certificate that treatment has been carried out for a long time, a travel certificate, or other documents indicating the impossibility of going to court in a timely manner.
However, even if there are no vouchers, you can file a claim and hope that the defendant will not declare that the limitation period has been missed, because without a corresponding statement, on the basis of Art. 199 of the Civil Code of the Russian Federation, the judge will not be able to apply it.
By general rule(Article 28 of the Code of Civil Procedure of the Russian Federation) the statement of claim is filed at the location or place of residence of the debtor, however, there are exceptions (alimony, moral damage, compensation for harm to health, etc.), when the plaintiff can choose the court at his own discretion. In the event that the amount claimed does not exceed 50,000 rubles it is necessary to apply to the judicial department of the magistrate court, if from above - to a federal court of general jurisdiction.
The claim must indicate:
- name and address of the court;
- FULL NAME. plaintiff and defendant, registration addresses, actual residence addresses, telephone numbers;
- briefly describe under what circumstances the debt was formed, in what period of time, when it should have been returned;
- references to the norms of laws that govern the relationship of the parties (for a loan agreement, receipts - Articles 807-811 of the Civil Code of the Russian Federation);
- formulate the petitional part (indicate what the court should ultimately recover from the debtor);
- draw up an annex to the statement of claim.
The application must be accompanied by:
- calculation of the cost of the claim;
- document - the basis of the debt (loan agreement, receipt, etc.);
- a receipt confirming the payment of the state duty;
- a copy of the defendant's passport (if any);
- a copy of the plaintiff's passport;
- other documents that can affect the correct and timely consideration of the case.
The claim should be filed by registered mail or filed in person through the court's registry. The judge will issue a ruling on the acceptance of the claim for proceedings and set a date for the proceedings, or leave the claim without progress and propose to eliminate the deficiencies.
Even if the loan agreement or receipt does not provide for the accrual of interest, any plaintiff, guided by Art. 395 of the Civil Code of the Russian Federation can, if desired, collect interest from the debtor for the unlawful use of other people's funds, using a calculator.
When making a positive decision on satisfying the requirements, upon expiration time limit for appeal, an executive document is issued. The appeal period is month... If the decision was made by way of proceedings in absentia, the period begins to be calculated from the moment the defendant receives the decision, or from the moment a letter is returned to the court about the refusal to receive it by the defendant or the letter is returned with a mark on the expiration of the storage period in the mail.
3rd stage. Compulsory execution of a court decision
Often, individuals and after the entry of a court decision into legal force are in no hurry to pay off their debts. For the execution of the decision, it is necessary to seek help from officials - bailiffs-executors.
The writ of execution must be accompanied by an application with a petition to initiate enforcement proceedings and Bank details to which the bailiff will transfer funds.
Credentials bailiffs are wide enough, in the execution of a court decision, such levers of influence are used as:
- seizure of property,
- foreclosure on the debtor's funds stored in bank accounts, salary, pension,
- restriction of travel abroad,
- a ban on registration actions with real estate, vehicles.
According to the Federal Law "On Enforcement Proceedings" (Art. 21), the claimant has the right to present a writ of execution to the bailiff service within 3 years from the date of issue.
Upon the expiration of the specified period, the bailiff will have the right to legally refuse to initiate enforcement proceedings, and the missed period can be restored only through the court, by submitting a separate petition.
It should not be overlooked that despite a fairly wide range of impact on the debtor-individual, there is a possibility that the funds will never be returned to the creditor, therefore, already at the stage of transferring money into debt, it is better to assess the solvency of the potential debtor. It will not hurt to find out in advance whether he has vehicles, apartments, garages, land plots in the property and establish the place of work of the borrower.
Legal advice on video
In the video below, lawyer Oleg Sukhov explains the main points that you should know about the procedure for collecting a debtor and lenders.
So, what you have been waiting for has happened. Finally, you received a writ of execution on the collection from the debtor of a very decent sum of money and look forward to the return of your "blood". It is good if your debtor has money, and even better if he has a desire to return it to you. But it's no secret that cases of quick and easy repayment of overdue debt are quite rare. Most likely, by the time you received the executive document, you had already tried a lot: you negotiated with the debtor to pay off the debt, sent him claims with a detailed description of the legal consequences of evading debt payment, filed a lawsuit, won the process and received a decision. At the same time, a considerable period of time has passed: on average, typical accounts receivable cases last from six months to a year. As practice shows, in most cases, winning the court is only half of the way that the claimant has to go through. The second half, if your debtor is not financially sound, falls on the enforcement of the court decision.
Where is the writ of execution submitted?
There are several options for how you can present a writ of execution for collection. According to the Federal Law "On Enforcement Proceedings", you have the right to submit an enforcement document to the territorial office of the Bailiff Service. This can be a branch located both at the place of residence (registration) of the debtor, and at the place of his stay (actual location), as well as at the location of his property.
In addition, you can bypass the appeal to the bailiffs and submit a writ of execution to the bank in which the debtor's current account is opened. To find out which bank the debtor uses, contact any tax authority with a statement on the provision of information about the debtor's accounts - and you will be able to receive this information after 7 days. And if your debtor is a citizen from the public sector, then you can start with Sberbank: taking into account the share banking market, which he borrows, the chances of writing off the debtor's money "at random" are quite high. A bank that has received a writ of execution from a claimant is obliged to independently establish accounts and write off funds from all existing accounts within the amount specified in the writ of execution.
Finally, a writ of execution can be presented to an organization that pays periodic payments to the debtor-citizen (salary, pension, scholarship). This could be the debtor's employer company, a pension fund, educational institution and others. Legislation allows this method of collection if the amount of the debt does not exceed 25,000 rubles or if the injuries to health are reimbursed according to the executive document, alimony or other periodic payments are collected.
How to properly fill out an application to the bailiff service?
If it is impossible to collect a debt with the help of banks, employers and other organizations, then you should contact the Bailiffs Service.
Enforcement proceedings are initiated by the bailiff-executor on the basis of an application by the claimant or his representative. The original of the writ of execution and the power of attorney of the representative (if he signs the application himself) are attached to the application for the initiation of enforcement proceedings.
Before filing a writ of execution, it is important to check whether the three-year period for the submission of a writ of execution has expired, whether all necessary information in the executive documents are indicated (see the list of requirements in Article 13 of the Federal Law "On Enforcement Proceedings") and is there executive document mistakes. Otherwise, the bailiff is obliged to refuse to initiate enforcement proceedings. True, it should be noted that, for example, in recent years, judicial practice is critical of refusals to initiate enforcement proceedings due to the lack of information on the place of birth of the debtor in the writ of execution, pointing out the insignificance of this identifying information (see Resolution of the Arbitration Court of the Ural District from October 7, 2015 in case No.A60-19042 / 2015).
Particular attention should be paid to the power of attorney, that is, the powers of the representative. The text of the power of attorney must indicate the right of the authorized person to present and revoke the executive document. Otherwise, the bailiff will issue a resolution to refuse to initiate enforcement proceedings and return the enforcement document. It is also worth knowing about other powers of the representative, which are specially stipulated in the power of attorney. These powers are:
- transfer of authority to another person (transfer of trust),
- appeal against decisions and actions (inaction) of a bailiff,
- receipt of the awarded property,
- waiver of collection under a writ of execution,
- conclusion of an amicable agreement.
Thus, when preparing a power of attorney, it is necessary to check whether the scope of the powers specified in the power of attorney corresponds to those powers that are really necessary when representing the interests of the claimant.
It is important to work carefully on the content of the statement. In the application, you must indicate the petitions for the seizure of property of which you know:
- information about bank accounts,
- real estate (you can make inquiries in advance and attach an extract from the USRN to the application),
- motor vehicles (you may have taken a copy of the vehicle registration certificate),
- information about the place of work (indicate the employer's details, address, telephone number),
- information from the Unified State Register of Legal Entities on the rights to the debtor's shares in organizations,
- information about the spouse of the citizen-debtor (the spouse's property can be arrested, and the creditor can demand the allocation of the debtor's share through the court).
Sometimes, due to a lack of information in the statement, the bailiff conducts enforcement proceedings for several months, while this could have been done much faster.
We recommend that when submitting documents to the office of the bailiffs department, immediately inquire which of the bailiffs-executors will receive the executive document, find out the number of his office and contact phone number. The claimant's statement and the writ of execution are transferred from the office to the bailiff within 3 days. It is important to check compliance with this deadline (you can call or come again). In enforcement proceedings, non-working days and holidays are not taken into account when determining the deadline. In practice, there are cases when, without any legal basis, an executive document can lie in the office for more than a year.
The bailiff-executor, within three days from the date of receipt of the executive document to him, shall issue a resolution to initiate enforcement proceedings or to refuse to initiate enforcement proceedings. This process also cannot be ignored: if necessary, you need to remind the bailiff of the deadline set in the law.
It is noteworthy that the claimant has the opportunity to receive information on the progress of enforcement proceedings with the help of Email... To do this, you must provide your e-mail address in the application for the initiation of enforcement proceedings or in a separate notification. In addition, it became possible to send electronic applications through the personal account of the party to the enforcement proceedings to. Electronic interaction in this field is still being improved, but it is already yielding modest results, allowing you to quickly receive and transmit information, statements and petitions.
Information on the initiation of enforcement proceedings and the data of the bailiff who conducts the proceedings can also be obtained from the Data Bank of Enforcement Proceedings on the website of the Bailiff Service. In addition, you can subscribe to changes in information on the enforcement proceedings of your debtor, which is very useful.
In addition, we recommend that you subscribe to change the information about the debtor on the site. If a bankruptcy case is initiated against the debtor, you will have two months (from the date of publication) to include your claims in the register of creditors' claims for their subsequent satisfaction from the debtor's bankruptcy estate. Upon completion of the procedure, the bankrupt organization will be excluded from the register of legal entities, and the bankrupt citizen may be released from paying debts.
Enforcement proceedings have been initiated, what's next?
After the initiation of enforcement proceedings, the bailiff sends electronic requests to Rosreestr, Federal tax office, Traffic police, Pension Fund RF, to the banks with which it is organized electronic document management, REGISTRY OFFICE, GIMS, Rostekhnadzor, operators cellular communication, to the Federal Migration Service. Answers to inquiries, as already noted, come to the bailiff within a few days, and some within a few weeks.
If there is an urgent need to arrest the debtor's property, then it is necessary to agree with the bailiff-executor on a joint departure, if possible, providing vehicles. It is best to go to the debtor in the very first days of enforcement proceedings, that is, while he does not yet know about the initiation of the enforcement procedure. In this case, the debtor may not have time to transport liquid property to another location or "draw" documents confirming the disposal of property from his property.
During the check-out, insist (or better - agree with the bailiff in advance) on drawing up an act-inventory of property, issuing an order on the seizure of property and transferring the seized property for safekeeping to you (with the exception of real estate, which cannot be transferred to the claimant for storage). If the property, when it is seized, is transferred for safekeeping to the debtor or members of his family, then the debtor must be warned in writing about criminal liability under Art. 312 of the Criminal Code of the Russian Federation "Illegal actions in relation to property subject to inventory or seizure or subject to confiscation."
If the amount of the debt is more than 2,250,000 rubles, remind the bailiff of the need to warn the debtor about criminal liability under Art. 177 of the Criminal Code of the Russian Federation "Malicious evasion accounts payable". In the future, this can give additional features to induce the debtor to pay off the debt.
If the debtor interferes with the bailiff or refuses to comply with his legal requirements, then he may be held administratively liable under Art. 17.14 of the Administrative Code of the Russian Federation. By the way, any persons and organizations that do not fulfill the requirements of the bailiff to provide information, transfer money, etc. can be fined under this article.
How to restrict the debtor from traveling abroad?
The bailiff has the right to restrict the debtor's travel outside the Russian Federation, if:
- the debtor has been notified of the initiation of enforcement proceedings,
- the basis for collection is a judicial act,
- the 5-day period has expired for the voluntary execution of the judicial act,
- the debt exceeds 30,000 rubles (and for socially important penalties - alimony, compensation for moral damage, etc. - 10,000 rubles).
If the amount of recovery is from 10,000 to 30,000 rubles, then such a measure can be applied after two months, provided for the voluntary execution of the judicial act.
If, six months after the issuance of the judicial act, the debtor still has not paid off the debt, the bailiff may re-impose a ban on leaving Russia. It is important for the recoverer to track the completion of the specified deadlines and remind the bailiff of the need to re-issue the order to restrict the debtor from traveling abroad.
How do bailiffs sell the debtor's property?
First of all, the foreclosure is made on the debtor's funds. Until all his bank accounts are checked, the seized property will not be issued for sale. Therefore, it is important to find out whether the debtor's existing accounts have been checked, whether there are banks' answers in the case. If there is no money in the debtor's bank accounts or there is not enough money, the bailiff begins the assessment and sale of the seized property.
The appraisal and sale of the debtor's property is carried out by specialized organizations. At an open auction in the form of an auction, the following are sold:
- things more expensive than 500,000 rubles,
- real estate,
- securities,
- property rights,
- the pledged property, which has been foreclosed in order to satisfy the claims of a claimant who is not a pledgee,
- items of historical or artistic value.
The Federal Property Management Agency is in charge of organizing and conducting tenders. Information on the sale of property at auction is published in periodicals and on.
If the property is not sold after the first auction, then the bailiff reduces its value by 15% and again puts it up for auction. If the re-bidding did not take place, the bailiff proposes to the claimant to take the unrealized property with a decrease in value by 25% of the initial price to pay off the debt. If the claimant does not collect the unrealized property within five days after receiving the offer, then it is returned to the debtor. According to the law, the sale of property is carried out within two months, but in practice this procedure takes three months to two years (this depends on the quickness of the bailiff, appraiser, distributor, as well as on the involvement of the claimant in the implementation process).
It is impossible not to mention about simplified procedure sale of property worth less than 30,000 rubles. In the event of a seizure of such property, the debtor has the right, within ten days from the date of notification of the assessment, to submit a petition for its independent implementation. The bailiff can give the debtor the opportunity to sell the property within ten days. The claimant, after receiving the assessment of the property, also has ten days to submit a petition to retain the property. In the absence of a petition for self-sale by the debtor or unsuccessful sale of the property by the debtor, the bailiff offers the property to the recoverer in repayment of the debt. If the claimant refuses to accept it, the property is transferred for compulsory sale in the usual manner.
Thus, the first debtor is given the right to sell property worth less than 30,000 rubles. Then the right to take the property against the debt is given to the recoverer. If there are several claimants who have filed a petition, then the first will be the one whose requirements are higher in the order established by Art. 111 of the Federal Law “On Enforcement Proceedings, and if the claimants belong to the same queue - the one whose list was submitted for enforcement earlier than the other.
It is important to take into account that the debtor-citizen has executive immunity established by Art. 446 Code of Civil Procedure of the Russian Federation. Residential real estate, which is the only one suitable for the residence of the debtor and his family.
Disputes regarding the granting of immunity to multi-floor houses and apartments of the debtor still do not subside. The Constitutional Court of the Russian Federation recommended the legislator to develop the necessary legislative framework to overcome immunity for living space that exceeds the social norms of housing, and several bills have appeared that have failed. Nevertheless, the issue is being discussed, and someday it will be put to an end.
It is worth noting two important aspects... Firstly, immunity presupposes the prohibition of sale, while the seizure of property is not prohibited. Therefore, when opening an inheritance within the value of the inherited property, the heirs will be responsible for the debts of the testator, and if the property is escheat, it will be inherited by the state represented by the Federal Property Management Agency or the municipality (if inherited land or residential real estate). It is important that the arrest imposed on the debtor's residential property is preserved and the enforcement proceedings are not mistakenly terminated or terminated.
Secondly, while the legislator is thinking about how to properly foreclose on a part of living quarters the debtor, a judicial practice appeared, allowing to allocate part of the property (one or several rooms) and sell it at auction. It's pretty bold, progressive, but not too common.
In compulsory execution, an important issue is whether the debtor has common property acquired in marriage. Sometimes all the property is registered with the spouse, and here the bailiff-executor has a rarely used opportunity to request information about such property and to impose arrests on it until the issue of separating the debtor's share from the common property of the spouses is resolved.
Should I appeal against the actions of the bailiff?
According to the law, the requirements contained in the enforcement document must be executed by the bailiff within two months from the date of initiation of enforcement proceedings. This does not mean that the debt will be collected in two months. It also does not mean that the bailiff-executor will issue an order to end the enforcement proceedings.
The expiration of the terms for the execution of enforcement actions and the application of enforcement measures does not entail consequences in the form of the termination of enforcement proceedings. The executive document can lie with the bailiff for years. Therefore, an appeal against the bailiff's inaction due to a two-month delay may turn out to be futile. Superior executive(senior bailiff of the department) or the court will refuse to satisfy such a statement.
In practice, appealing against the bailiff's actions leads to excessive formalism in his work on your production. Therefore, it is better to have a trusting relationship with the bailiff.
We recommend that you complain to the senior bailiff, the prosecutor's office or the court only when it comes to a material violation of your rights (for example, if the bailiff commits illegal actions or if there is information and facts that the bailiff is in collusion with the debtor). We recommend that you notify the bailiff of your intention to file a complaint: perhaps the bailiff will correct the mistakes made or stop inaction, and you will not have to complain.
The article was written specifically for the site
bankruptcy, execution of decisions, collection services
Debt collection by a court decision is compulsory. This happens already at the stage of enforcement proceedings. A dispute won in court does not guarantee that the obligated party will pay off the existing debt on its own. If this happens, you need to wait until the judicial act comes into force, get a writ of execution and send the document to the bailiff service. As a result, the defendant will have to return the money forcibly. How quickly the plaintiff will receive them depends on the work of the bailiff.
How to start enforcement proceedings for debt collection?
To receive money from a defendant by a court order , the plaintiff must initiate enforcement proceedings in the department of the bailiff service. The procedure for compulsory deduction of funds from the defendant is governed by Federal law dated 02.10.2007 No. 229-FZ.
The procedure is carried out in three stages:
- After the receipt of documents from the plaintiff, proceedings are initiated;
- Forced withholding of funds is carried out on account of debt repayment;
- A decision is made on the completion of the bailiff's actions.
The bailiff performs enforcement actions at the debtor's address.
In order to find out which department of the BSC to contact, you should find out the information by calling the FSSP. You can also use the agency's Internet resource.
How to write a statement?
The application for the start of production is filled in free form. The document will need to indicate:
- the name of the SSP department;
- information about the plaintiff;
- information about the executive document;
- information about the defendant and his property;
- a request to resolve the issue of the search and seizure of property;
- the requirement to start production;
- date and signature.
For legal entities:
For individuals:
The application is filled in two copies. One is given to the bailiffs for registration. On the second, which remains with the applicant, an incoming stamp with the date and signature of the responsible employee is affixed.
It is necessary to apply for enforcement before the end of the three-year period from the date of entry into force of the judicial act.
What documents should I attach?
A writ of execution is attached to the application. Additionally provided:
- judicial act;
- a copy of the passport (if the debt is collected from an individual);
- constituent documents (if the debt is collected from legal entity);
- extract from EGRIP (if the debt is collected from the individual entrepreneur);
- bank account details;
- information about the property of the defendant;
- information about the place of employment of the debtor-citizen.
If the documents are submitted by a representative, you need to issue a power of attorney with the authority to participate in the proceedings on behalf of the claimant.
All documents indicated in the list can be requested by the bailiff service from the relevant organizations and departments, if the claimant cannot receive them on his own for objective reasons.
When is the order to start enforcement proceedings issued?
Within three days from the date of submission of documents, a decision is made to start production. The bailiff issues a resolution and sends it to the address of the claimant and the debtor.
The debtor is invited to voluntarily liquidate the debt within five days from the date of receipt of the notification... If he has not responded in any way to the request, coercive measures are applied.
The debt must be collected within two months from the date of commencement of production.
To do this, the bailiff sends inquiries to various organizations and departments in order to trace accounts, deposits, securities, real estate, etc.
Arrest of property
If the issue of seizing personal property is being considered, the bailiff visits the debtor. During check-out:
- an inventory of the identified property is drawn up;
- an arrest order is issued;
- the seized property is transferred to the custody of the responsible person.
Timely arrest prevents the debtor from hiding property. From this moment on, he has no right to dispose of his property. It cannot be given, sold, rented, or given on bail.
The arrest is imposed not only on real estate. Bank accounts, securities, and accounts receivable may be subject to an interim measure.
Storage of seized property
In cases where this is necessary, the bailiff must ensure the storage of the described property. At the same time, he can charge the debtor with all the costs incurred for storage. If, within two months from the date of transfer of the property for storage, the debtor does not take the arrested (described) property, then the bailiff has the right to transfer it for sale, notifying the debtor in writing.
Violation of the regime (rules) of storage of the described property by the custodian may result in the application of administrative punishment to it (Article 17.14 of the Administrative Code of the Russian Federation), so that getting rid of the property transferred for storage may become more expensive for itself.
First of all, the debt is repaid at the expense of funds on the accounts of the debtor. The bailiff issues a resolution indicating the account numbers and the amount of funds to be debited. The document is sent to financial organizations in which the debtor has opened accounts. The duty of the bank is to fulfill the requirements contained in the decision of the bailiff.
If the funds are insufficient, the debtor's property is seized. The bailiff evaluates it. If necessary, a professional appraiser is involved for this. The defendant's property is then sold through a specialized organization. The proceeds are used to liquidate the debt.
If the amount of the debt does not exceed RUB 30,000, the debtor has the right to sell his property on his own. This must be done no later than 10 days from the date of receipt of the notification of the assessment.
When is the decision to end the enforcement actions taken?
The procedure ends with the end of production. In accordance with article 47 of Law No. 229-FZ, the bailiff makes a decision in the following cases:
- the requirements have been fully met, the debt has been repaid;
- the writ of execution was returned at the request of the claimant or due to the lack of property of the debtor, the impossibility of establishing the location of the defendant;
- the writ of execution was returned at the request of the court;
- the debtor firm has been liquidated;
- the defendant is declared bankrupt;
- the executive document was sent to the organization to withhold periodic payments;
- the limitation period for the execution of the judicial act has expired.
If the claimant does not agree with the decision of the bailiff, he has the right to appeal it through the senior bailiff or the court.
Is it possible to do without a bailiff?
In practice, the question arises of how to recover money after a court decision without the help of a bailiff. In order to shorten the period of debt repayment, the recoverer can transfer the writ of execution to the bank or the employer of an individual directly.
How to get money through a credit institution?
V to a greater extent it is advisable to apply to the bank when collecting a debt from a legal entity or from an individual entrepreneur.
The claimant must perform the following steps:
- get a writ of execution in court;
- write a statement to credit organization the defendant;
- submit supporting documents.
The application is made in two copies. One is transferred to a specialist of a credit institution, the second is returned to the applicant with an incoming stamp.
If there is money on the defendant's account, they are debited in favor of the plaintiff within three days.
It happens that the funds on the account are insufficient. In such a situation, the bank returns documents with a mark of partial execution. If it is known in which credit institutions other accounts are opened, a new application is submitted. Otherwise, you need to contact the bailiff.
How to get paid through an employer?
In the event that the debtor is an employed citizen, you can contact the employer directly. In this case, the following conditions will be met:
- the amount of claims must not exceed 100,000 rubles;
- the employer must make payments on a regular basis;
- the debtor's income should be subject to the collection limitation.
The plaintiff applies to the employer with a statement in which he indicates information about the writ of execution and details for the transfer of funds.
Law No. 229-FZ limits the maximum amount of withholding. After payment of personal income tax no more than 50% of wages should be paid to pay off the debt. Alimony obligations and compensation for harm maximum size retention is up to 70%.
Let's sum up
Thus, to collect a debt by a court decision, you can apply to a credit organization, to the employer of the debtor-citizen, or to the SSP. If, in addition to accounts or permanent earnings, the defendant has other property, it is recommended to immediately contact the bailiff. He has the broadest powers to apply enforcement measures (for example, to make an inventory and seizure of property) and thus ensure the further possibility of enforced debt collection.
