Constitutional rights in enforcement proceedings

Rules for freezing a salary account

The rules for arresting the debtor’s salary, including those coming to bank accounts, are regulated by Articles 98 – 101 of the Federal Law of October 2, 2010 No. 229-FZ “On Enforcement Proceedings”. Some issues of collection are also raised in Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 17, 2020 No. 50 “On the application of legislation by courts when considering certain issues arising during enforcement proceedings.”

According to regulations, the seizure of wages and other regular income can be applied if:

• The writ of execution against the debtor contains an instruction to collect funds in the form of periodic payments.

This primarily concerns alimony, payments in connection with the loss of a breadwinner, personal injury and other similar obligations. If the amount of salary and other payments (subject to the restrictions discussed below) is sufficient for periodic payments towards the debt, then the debtor’s other property is not involved in enforcement proceedings.

Expert opinion

Lawyer Alexander Vasiliev comments

If the salary is small and it is impossible to make payments at its expense in the amount prescribed by the court decision, the recovery of alimony and other periodic payments can be applied to the funds in the accounts and other property of the debtor (Clause 2 of Article 98 of the Law on Enforcement Proceedings).

Periodic payments are also collected in a similar manner in cases where the debtor is not employed. In this case, arrears of alimony and other similar payments can be repaid at the expense of the debtor’s property.

• The amount to be collected does not exceed 10 thousand rubles.

This amount is relatively small. Therefore, it will not be considered inappropriate to seize other property in order to pay it. The seizure of property is a complex procedure that must be completed: it is carried out with the involvement of witnesses, drawing up an act and inventory of property and performing other formalities. Going through this procedure for the sake of a small amount of debt is considered inappropriate.

In addition, according to the rules for applying enforcement measures, the restrictions imposed must be approximately proportionate to the amount of unfulfilled obligations. Property worth less than 10 thousand rubles gives rise to many difficulties when selling it for the purpose of repaying debt, which is also considered unreasonable.

• The debtor has no other property and money that could be foreclosed on.

In this case, the amount of recovery does not matter; it can be more than 10 thousand rubles. If the ability to repay the debt is not secured by anything other than regular wages, it may be seized.

What are the legal duties of bailiffs?

When interacting with a debtor, the bailiff, according to Russian legislation, can:

• take actions for the timely implementation of court decisions;
• work with personal information of citizens;
• obtain information about the property and financial condition of debtors, including by contacting their labor organization;
• inspect the premises that belong to the borrower;
• seize and sell a citizen’s property in order to pay off his debt;
• freeze citizen's bank accounts;
• search for the debtor, his property, children, if there is a claim to return or take away the child;
• use the borrower's car to transport his property;
• execution of cases on administrative offenses;
• refuse to conduct a business if you have a personal interest in it.

Remember! All this cannot be done by an assistant bailiff who is only involved in office work. The main task of this specialist is to create conditions for the effective implementation of tasks by the bailiff.

Restrictions

It is impossible to seize all money coming into accounts. The debtor has the right to retain the funds necessary for life. Their maximum size is limited by Articles 99 and 101 of the Law on Enforcement Proceedings, as well as the Labor Code of the Russian Federation.

As a general rule, the debtor will retain at least 50% of the income received (Article 99 of the Law on Enforcement Proceedings, Article 138 of the Labor Code of the Russian Federation). However, in some cases the amount of deductions can reach up to 70%:

• collection of alimony for minor children;
• compensation for harm to health;
• compensation for damage in connection with the death of the breadwinner;
• compensation for damage caused as a result of a crime.

The restrictions listed above apply to the last payroll payment and other types of income coming into the account. Amounts previously accumulated on the account are not protected from collection.

The recovery can be applied not only to wages, but also to unemployment benefits. Withholding from it can be carried out under the same conditions as from wages. Read more about this here.

In order to determine which account is a salary account, the bailiff may request a certificate about this from the debtor's employer (or each of the employers, if there are several of them). The debtor may, on his own initiative, provide this information to the bailiff. If this is not done, the arrest will have to be lifted, possibly through the courts.

From judicial practice: the debtor challenged the seizure of a bank account, due to which he was unable to withdraw funds necessary for life. The bailiff explained that she had no information that it was the debtor’s wages that were transferred to the specified current account; after receiving such information, the seizure of the account was canceled. The court recognized the actions of the bailiff as legal.

If the salary account has been seized in full without taking into account the restrictions established by law, you must submit an application to lift the seizure. A sample of it can be found here.

The whole truth about bailiffs in Russia. Facts, myths and mayhem

The difficult economic situation in the country is driving people into a hopeless situation. To purchase essential goods, pay for their children’s education, and buy expensive medicines, they take out microloans, get loans, and stop paying utility bills. As a result, people end up in debt. Most of the money earned goes to pay off debts. Then citizens are again forced to take out loans, plunging into a financial abyss.

Often this situation leads to lawsuits. And verdicts not in favor of the debtor entail dire consequences. At a minimum, this is forced collection of debts with the help of bailiffs.

There are a lot of rumors and myths about them. Bailiffs have a bad reputation among the people. Most citizens treat them the same as debt collectors, considering them the embodiment of evil. In the eyes of people, they personify heartless and soulless “bouncers” who take the last of their debts. According to rumors, even the only housing may be taken away and they will be sent to prison for a short delay.

Let's figure out what bailiffs are, what work they do, what they can do and what they can't.

Who are bailiffs?

These are government officials. Their main responsibilities are to ensure the work of the court and enforce its decisions.

The structure that oversees their activities is the FSSP of the Russian Federation. This is a federal body belonging to the structure of the executive branch. The Federal SP Service, represented by bailiffs, as mentioned above, ensures the operation of courts established by current legislation. It controls the execution of judicial acts and supervision of their compliance. The FSSP is a structure of the Ministry of Justice.

The responsibilities of the Federal Bailiff Service, among other functions, also include maintaining a register of legal entities engaged in collection services and monitoring their activities.

Citizens most often have to deal with bailiffs. They carry out forced seizure of funds and property for loans or may require payment of fines. Bailiffs involved in ensuring the activities of the judicial authorities act only within the framework of ongoing processes.

Executors working with debtors can:

• monitor the implementation of court decisions;
• consider petitions and statements regarding enforcement proceedings;
• establish the location of the debtor (within the framework of the law), and put him on the wanted list.

5 myths and facts about the activities of bailiffs

1. For debts, they can take away all property, even pets.

According to the law, FSSP employees can confiscate:

• vehicles;
• luxuries;
• real estate;
• household appliances and other property that is suitable for subsequent sale.
• Pets cannot be confiscated. These even include poultry and cattle bred for food. But some animals - racehorses, expensive breeds of cats and dogs, winners of prestigious exhibitions - can be considered “luxury items”. They can be withdrawn to pay off debt.

2. Due to debts, travel to other countries may be restricted.

This is true. But only under one condition - if the case is already in the enforcement proceedings of the bailiffs. They have the right to restrict the debtor's travel in this case. You can become “restricted from traveling” due to non-payment of a loan, alimony, utility fines or other debts if their amount is more than 30 thousand rubles.

3. Due to debt, rights may be taken away.

This is true. In 2016, a federal law was adopted, which states that if a debt exceeds 10 thousand rubles, bailiffs can temporarily confiscate a driver’s license. To lose them, you must have arrears of alimony, court or traffic police fines.

Clients of microfinance organizations and banking institutions with unfulfilled loan obligations should not worry. No one will take away their rights. It must also be taken into account that this measure is resorted to as a last resort. If the debtor refuses to comply with the court order, then the bailiff, with the consent of the traffic police, may limit his right to drive a vehicle.

4. Children are taken away because of debts.

This is a stupid rumor that has no relation to reality. It was caused in the wake of similar intimidation of debtors by collectors. It is legally impossible to take children away because of such a situation. Bailiffs never do this kind of thing. If collection agencies, employees of banking institutions or microfinance organizations promise to pick up the child during SMS or phone calls, it is necessary to document the threats and write a statement to the prosecutor's office.

According to the law, children can be removed from their parents only in case of unfavorable conditions for their life, for example, a threat to health. This is done by the guardianship staff. This decision is made if the parents are drug addicts or alcoholics. Also, guardianship authorities can separate a child from his parents if they face criminal punishment, and there are no close relatives who want to raise him.

5. They can go to jail for debt.

This is wrong. They can be deprived of their freedom only if criminal liability arises, for example for fraud, financial fraud or malicious evasion of loan payments. These crimes must be proven in court. In other cases, criminal punishment of the debtor is impossible. In most cases, the process of bankruptcy begins. Bailiffs confiscate property and allow a person to continue life without debt obligations. If collectors or bailiffs threaten to put you in jail, you can file a complaint with law enforcement agencies.

What actions do bailiffs have the right to?

Bailiffs can:

• request the necessary information from the management of the enterprise where the debtor works;
• obtain personal data and information about a specific person if it is necessary for the execution of a court decision;
• seize valuables and funds, provided that their amount does not exceed the amount of debt specified in the writ of execution;
• receive the necessary assistance from the FSB, government agencies involved in migration processes, the Ministry of Internal Affairs, the FSB and other official structures;
• have access to real estate or premises owned or occupied by the debtor for the purpose of arrest and seizure of his property;
• use physical measures and firearms if necessary. For example, to detain a debtor trying to escape. But the bailiff must warn about the use of such means. And in the event of damage, injury or trauma, provide the debtor with all possible medical assistance. The need for his actions can be considered or appealed by the victim in court.

Restrictions on the actions of bailiffs

Executors of court decisions have great powers. But they also have some limitations.

Bailiffs may not:

• carry out any actions not supported by a court order;
• make an inventory of the debtor if he is not present;
• appear at the doorstep of the debtor’s home from 10 pm to 6 am (weekdays), as well as on weekends;
• to take away the only housing, food, awards, a sum of money that is the subsistence minimum, and objects that serve as a source of income as debt;
• describe property that the debtor did not purchase.

Lawlessness under the guise of law. Real cases from the practice of bailiffs

Thousands of people who have had the misfortune of encountering bailiffs note numerous cases of arbitrariness, negligence and violation of the law on their part. The media's picture of stern but fair professionals doing their duty is shattered when confronted with reality.

The story of the Cherepovets management companies “Comfort” and “Metallurg” is indicative. These management companies listed all their residents as debtors. As a result, on the basis of court orders, people's money was written off, despite the fact that many had all their debts paid by that time. Interestingly, in one family, the “debt” was collected from credit cards four times. Another woman’s money was withdrawn, although she had long ago paid the required amount, and enforcement proceedings against her were terminated.

Thus, more than a hundred residents of Cherepovets were affected. We had to fight to return the money, going through all the necessary authorities. No one was punished for the massive “mistakes” that occurred. Even sick pensioners whose money was illegally withdrawn from their accounts had to wait in long queues to get justice.

In Tuapse, due to debt, bailiffs seized 100% of the money belonging to a large family. All funds coming to the working husband’s card were withdrawn. A family with small children starved for months.

Another illustrative case. A woman on the eve of giving birth lost her husband. She went into debt to bury him. When they were reimbursed, rent arrears arose. As a result, bailiffs seized child benefits. For a long time the family barely survived without money. Small children suffered.

There are known cases when bailiffs seized accounts from the full namesakes of debtors. To prove their case and unlock funds, people spent weeks and sometimes months. Of course, no one compensated them for lost nerves, time and moral suffering. They didn't even apologize.

A resident of Novosibirsk, Alexey, had more than 380 thousand rubles written off from his card for the debt of his namesake. They ruined my vacation and didn’t allow me to sell my car. Having begun to prove his case, Alexey was amazed by the rudeness and impudence of the bailiffs. They didn't even want to talk to him. Only a series of indignant letters to the president and the prosecutor's office began to change the situation.

His fellow countryman Mikhail Grigoriev discovered that 12 thousand rubles had been taken from his card, and it was driven into the red. Then he received a decree that 50% of his salary would be written off to bailiffs in Ufa, where his debtor double lived. The man sat without money for a long time. It was impossible to reach the bailiffs.

People trying to get through to the bailiffs note the disgusting organization of the reception. Kilometer-long queues form. First, several people are sent in to issue coupons. Then people stand in line for several hours to discuss their issues. And you can get an appointment with them only 2 times a week, and at the same time, work with visitors is carried out in a matter of hours. Bailiffs do not respond to written requests. They behave arrogantly and are often rude to visitors. Often, all enforcement proceedings are combined, and the debtor is charged an exorbitant financial amount for two loans at once.

A glaring case from Moscow. Pavel received 2 loans from two different banks. In one - for 2 million rubles, with insurance, of course, in case Pavel loses his existing job, in the other - 700,000 rubles. with the same insurance. Loans were paid on time. After 7-8 months there were delays in wages, and later a crisis arose in the company where Pavel worked. It became more difficult to pay off the first loan; less than the required amount was deposited into the account, which resulted in arrears. There were no violations on the second loan.

The insurance that was included in the “body of the loan” does not actually work. Its registration is a rather complicated and bureaucratic scheme, which took a lot of time and nerves, and did not really lead to anything, and the delay grew. After 3 months, the bank transferred the case to the bailiffs, and the bailiffs, having combined the two loans , transferred the amount of debt on the first loan to the account of the second loan. Now I can’t afford to pay the second loan. “Second Bank” shrugs its shoulders, referring to the decision of the bailiffs. Naturally, a ban on leaving the country followed. Contacting the bailiff by phone is a waste of time. I had to wait in line (for two hours) and get an appointment with a bailiff.

The issue was never resolved - the arrogant and boorish bailiff, who receives people only twice a week, said with arrogance that they had to pay on time, and that, in general, he did not invite them to the appointment, and he would not change the combination of two loans into one. Despite the evidence presented that a loan from one bank was transferred not to Pavel’s personal account, but to a credit account, which is neither appropriate nor correct, and that as a result of the bailiff’s unlawful actions, it is now impossible to pay the second loan on time, the insolent bailiff simply kicked Pavel out office, waiting for the next “client”.

Naturally, after calling the bank, it turned out that now there is another 120,000 rubles from the amount of Pavel’s loans. will be sent to the account of the bailiff... For their inaction, illiterate and incompetent decision, and in general, the lack of humane attitude towards a citizen of the Russian Federation.

In Belgorod, the story is the same as throughout the country - debtors and victims begin to sign up for bailiffs as early as 5 o’clock in the morning. A huge number of people stand on the street for half a day to get to the reception. A small room can accommodate no more than four people. There isn't even a toilet. It is impossible to sign up in advance through the FSSP website, although such a service is advertised there. Even citizens who arrive at 5 am have no guarantee that they will get an appointment.

In response to complaints and indignations, the queue hears: “You have to pay on time, you are not people.”

Bailiffs repeatedly violate laws and treat debtors like cattle. Lawyers note: recently there has been an increase in the number of “mistakes” and abuses, due to which innocent people often suffer. But justice is impossible to achieve. Officially, unlawful actions of bailiffs are subject to liability under civil law, and the damage incurred must be compensated. In real life this is very difficult to achieve.

If we are talking about moral damage, this is an assessment category determined by the court. And he, in most cases, is on the side of the bailiffs. Usually, if it is possible to extract some kind of compensation for the “mistakes” of bailiffs, then they represent a pittance and are not worth the wasted nerves and time.

Bottom line

Let's summarize: in order to avoid dealing with bailiffs, getting into trouble with the law and inventorying property for debts, you need to competently and responsibly fulfill your financial obligations. It is highly discouraged to bring them to trial in court.

Now the financial market has many tools that will help solve the debt issue. These are refinancing, credit holidays and other opportunities. If there is a delay in repaying a bank loan or other similar debt, you should not hide from creditors and ignore their demands, but try to come to some kind of mutually beneficial compromise.

You also need to be financially literate, know the specifics of the legislation, study market news, so as not to go broke and not become a victim of scammers, debt collectors or government officials who have exceeded their authority.

But if you become a victim of another “mistake” of bailiffs, you need to defend your rights, write appeals to the prosecutor’s office and other regulatory authorities with a detailed indication of violations of the law and reasonable demands. It also makes sense to involve experienced lawyers to protect your rights. Then there is a chance to achieve justice. True, you need to understand that an experienced lawyer will take on your case only if there is a financial interest and your personal solvency... This is such a vicious circle.

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How is it ensured?

The bailiff collects debts from wages through the hands of the employer, who makes payments to the employee. To collect from the salary, a writ of execution is sent to the employer. It can be sent by a bailiff - executor or collector.

The employer paying wages to the debtor is obliged to withhold part of it in accordance with the requirements of the writ of execution and transfer it to the claimant. This must be done within three days (clause 3 of Article 98 of the Law on Enforcement Proceedings).

In some cases (when collecting alimony), the employer is obliged to index the withheld amounts in proportion to the increase in the cost of living in its constituent entity of the Russian Federation (Article 102 of the Law on Enforcement Proceedings). Read more about the rules for collecting alimony in a separate material on our website.

The bank or other credit organization in which the debtor’s account is located also independently calculates the amount that can be seized, in accordance with the requirements of Order of the Ministry of Justice of Russia dated December 27, 2012 No. 330. In this case, the amount of the last payment in salary account, as well as other funds that cannot be recovered by law.

All bank commissions and other expenses related to the transfer of money to the collector are compensated at the expense of the debtor - that is, they are also deducted from his salary.

Data on the transfer of funds to the collector are reflected in the debtor’s pay slip, as well as in the payment order for the transfer of funds.

The employer does not have the right to refuse to comply with demands for the collection of funds from the debtor’s salary. This will result in liability under Article 17.14 of the Code of Administrative Offenses of the Russian Federation “Violation of the legislation on enforcement proceedings”, part 3. The administrative fine for legal entities under this article ranges from 50 to 100 thousand rubles, for officials - from 15 to 20 thousand rubles.

Who are private bailiffs and why are they needed?

As explained on the FSSP website, the private enforcement system is characterized by the fact that the bailiff is a free professional. He independently organizes his activities and bears financial responsibility for the results of his work. A private bailiff receives powers from the state represented by the justice authorities and acts on behalf of the state.

Questions and answers Where to complain about the inaction of bailiffs?

It is assumed that the introduction of the institution of private bailiffs could significantly increase the efficiency of collection at the stage of enforcement proceedings and relieve the burden on the FSSP. So, for example, according to the Federal Service for 2020, it was handling over 87 million cases, of which about 52 million were completed or terminated by the end of the year.

In Russia, the idea of ​​creating an institute of private bailiffs has been discussed for several years at different levels. So, in 2006, such an experiment was proposed by Yuri Chaika , who at that time headed the Ministry of Justice, but then it was considered premature. In 2014, the department nevertheless developed a bill on private bailiffs, but it was never adopted. They returned to the idea three years later: in 2017. Then the Center for Strategic Research, which was preparing proposals for the presidential economic program under the leadership of Alexei Kudrin , released a report that spoke about the ineffectiveness of the FSSP and proposed, in particular, the introduction of private bailiffs. In March 2020, the need to create an institute of private bailiffs was announced by the Russian Union of Industrialists and Entrepreneurs (RSPP). It was assumed that bailiffs would be able to collect debts from legal entities, as well as debts on alimony, social benefits and wages. In a number of cases, the RSPP proposed allowing debt collectors to decide for themselves who to contact: a private or state bailiff.

According to several writs of execution

If an employee has received several writs of execution, the total amount of deductions and their limitations remains the same. In this case, the withheld amount is distributed among writs of execution in the order of priority established by Article 111 of the Law on Enforcement Proceedings:

1. 1st stage: claims for compensation for damage to health, in connection with the loss of a breadwinner, alimony, harm caused by a crime, compensation for moral damage;
2. 2nd stage: wages, payment of benefits to employees, payment of remuneration to authors for the results of intellectual activity;
3. Taxes and other obligatory payments; contributions to extra-budgetary funds;
4. Other requirements.

Within one queue, funds are distributed in proportion to the amount due to each of the collectors of this queue, which is indicated in his executive document (clause 3 of Article 111 of the Law on Enforcement Proceedings).

What does a bailiff do?

A bailiff is an official whose task is to ensure the timely execution of a court order. They are divided into bailiffs for ensuring the established order of activities and bailiffs. The former are engaged in OUPDS - ensuring the establishment of the procedure for activities in court, the latter - implement the court ruling. As a rule, citizens are faced with executors who confiscate property, demand payment of loan debts, pay off fines, etc.

Knowing the rights of bailiffs, their functions and job responsibilities, you can protect yourself from illegal and illegal actions of FSSP employees.

When will it stop

Deductions from wages are carried out until:

• The executive document will not be executed in full;
• Enforcement proceedings were terminated for any reason;
• Foreclosure of wages was declared illegal.

Termination of enforcement proceedings may occur in connection with the recognition of certain actions of the bailiff as illegal, or in connection with the execution of a court decision. In this case, it is in the debtor's best interest to notify his employer as soon as possible of the need to stop deductions from wages.

Expert opinion

Lawyer Alexander Vasiliev comments

Foreclosure of wages will also stop if the debtor quits his job. In this case, the employer must return the writ of execution to the bailiff with a note on the total amount collected and the period during which the employer withheld funds from payments to the employee (Article 98 of the Law on Enforcement Proceedings).

What bailiffs are not entitled to do

1. Bailiffs cannot call or visit the debtor from 10 pm to 6 am, as well as on weekends and holidays. However, there are exceptions to this rule if the deferment:

• results in a threat to the life or health of others;
• influences the holding of elections to power;
• affects the safety of quickly deteriorating property;
• slows down the deportation of foreign citizens abroad.

1. The inspector cannot break into the debtor's home without a writ of execution or the permission of a senior bailiff.
2. It is impossible to seize property without the presence of witnesses.
3. If the borrower has transferred his property, the specialist cannot foreclose on other persons. First, the lender must prove in court that the debtor’s donation of property occurred with the aim of hiding from collections.
4. You cannot collect money owed to a child.
5. Bailiffs cannot deprive a driver's license. They only limit your rights until your debt is paid.