Writ of execution and bailiffs - nuances of procedures

How to force bailiffs to collect a debt if they do not act

First of all, after receiving a writ of execution from the court, the claimant goes to the bailiffs, writes a statement and submits it along with the writ of execution to the FSSP, then the bailiff, having received your application and the writ of execution, initiates enforcement proceedings, which makes a decision. Next, the bailiff is obliged to notify the debtor that enforcement proceedings have been initiated against him and give him, on the basis of paragraph 12 of Article 30 of the Law on Enforcement Proceedings, 5 days to voluntarily comply with the requirements of the writ of execution. That is, the debtor has exactly 5 days from the date of initiation of enforcement proceedings to pay the debt.

Possible difficulties in debt collection

The activities of bailiffs are regulated by the Federal Law on Enforcement Proceedings dated October 2, 2007 No. 229-FZ. Therefore, the main normative act that will need to be appealed is precisely the provisions of the said law.

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Part 12 art. 30 of the Federal Law provides that after receiving a court order (writ of execution), the bailiff must notify the debtor about this and give him a period (5 days) for voluntary execution of the court decision.

Part 12 art. 30 Federal Law 229

In practice, this means that the debtor (alimony recipient) is obliged to notify the accounting department at the place of work that a decision has been made against him to collect alimony, and to submit a court order (writ of execution) to the chief accountant.

If he does not have this document in hand, he must inform the bailiff of the exact postal address of the place of work with the name of the enterprise, so that the order is sent to the accounting department by mail. This ends voluntary compliance for a working alimony debtor.

The situation is more complicated with debtors who do not have a permanent place of work, do not work anywhere, or are individual entrepreneurs who maintain their own accounting records. In this case, voluntary execution will consist of regularly transferring the amount specified in the order to the recipient’s account and submitting reports to the tax authorities on the transfer of deductions under the writ of execution.

The next deadline is the time given for enforcement of the decision. In accordance with Part 1 of Art. 36 Federal Law No. 229, this period is 2 months. Thus, the entire period of time allotted for the execution of the court decision on working with the debtor is 2 months 5 days. This does not mean that you should passively wait all this time for funds to start flowing to you. It is necessary to start acting within 2 weeks if the bailiffs are inactive regarding alimony.

Part 1 art. 36 Federal Law 229

Next, we will consider the procedure for debt collection by bailiffs based on a court decision.

The proceedings begin at the initiative of the plaintiff after filing a corresponding application with the attachment of a court ruling to the SSP (Article 30 of the Federal Law No. 229). Within three days, the service is obliged to consider the application and accept it for work.

If there are similar claims by one or more persons against the defendant, it is possible to combine the cases into consolidated enforcement proceedings (i/p). Enforcement actions are carried out during the day or by agreement of the parties to the claim. The joint venture has the right, on its own initiative and at the request of the claimant, to suspend the progress of the case or extend it.

Notice to Parties

The joint venture is obliged to send to the debtor and the collector a copy of the decision to initiate i/p within the prescribed period. In this case, a five-day period is established for the defendant to voluntarily fulfill his obligations to the plaintiff. If after this period the debt has not been repaid, the enforcement procedure begins and the enforcement fee is calculated.

The SSP is authorized to send a request to the debtor to provide information about property, as well as to receive information from government agencies (State Traffic Safety Inspectorate, Rosreestr, Federal Tax Service, etc.) about the availability of property in the person’s possession. The defendant’s property includes real estate, cars, money, shares, jewelry, land, etc.

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The executor has the right to impose restrictions on registration actions, the rights of the debtor to dispose of property, bank accounts in order to ensure their safety. It is worth noting that the total restrictions cannot exceed the amount of debt presented for collection. Seizure can be an independent enforcement measure (the decree is an order to the bank to collect money from the account) and interim as a tool for protecting property.

The joint venture may, at its discretion or at the initiative of the plaintiff, establish a temporary ban on the debtor from crossing the state border of the Russian Federation, as well as limit the right to drive transport.

Regarding the debtor's funds, there are several options for withdrawal in favor of the plaintiff:

• direct debit from an account at a credit institution (bank);
• confiscation from the organization's storage (cash);
• application for wages and other income.

In relation to the debtor's property, there is a forced putting up for auction with subsequent sale and allocation of funds to satisfy the requirements. If the amount of debt is within 30 thousand rubles. the right to sell assets remains with the defendant. Property used to pay off debts is subject to restrictions established by the Code of Civil Procedure of the Russian Federation. The assessment of seized objects is carried out in accordance with Art. 85 Federal Law No. 229.

As part of the restructuring measures, the introduction of supervision in the event of bankruptcy of the debtor, the SSP suspends the validity of enforcement documents, with the exception of the i/p specified in clause 1 of Art. 63, paragraph 2 of Art. 213.11 Federal Law No. 127. The joint venture has the right to foreclose on other assets of the debtor, for example, securities, receivables of counterparties.

Collection of debts from individuals by bailiffs involves the payment of an enforcement fee. According to current legislation, it is calculated at seven percent of the debt amount. For claims of a property nature, a minimum fee has been established in the amount of one thousand for individuals, individual entrepreneurs and ten thousand rubles for legal entities. Non-property claims will cost debtors between five and fifty thousand, respectively, for citizens and organizations.

Completion

Satisfaction of requirements occurs in legal order. Expenses for enforcement actions and services of involved persons are subject to reimbursement at the expense of the debtor. If there is insufficient funds, the transfer occurs in the order in which claims are filed with the SSP.

After the debtor’s obligations to the creditor are fulfilled, the joint venture issues a resolution on the completion of the i/p.

According to the law, bailiffs must collect the debt within two months from the date of receipt of the writ of execution. However, these two months do not include numerous delays: waiting for documents, searching for a hiding debtor, suspending the case, the period of sale of property, etc. In fact, debt collection cases can last for years, especially if the debtor is an individual. To speed up the process, the plaintiff can send repeated applications to the bailiffs so that the debtor's accounts are checked again.

Legal proceedings to collect a debt are valid for three years, but after this time the debt is not written off. The statute of limitations here is not the debt, but only the writ of execution.

Let's assume that on April 1, 2010, bailiffs opened proceedings in a debt case. If the debtor does not have the funds to repay the debt, or the debtor has disappeared, then on 04/01/2013 the bailiffs close the case and notify the plaintiff. However, there is no statute of limitations for the debt itself, and the plaintiff has every right to immediately go to court again, and everything will start all over again.

In cases where a debtor is hiding from paying a debt, the bailiff has the right to put the citizen on the wanted list, as well as to involve the Ministry of Internal Affairs and the tax office. The search for the debtor is carried out thoroughly, starting from the place of residence and addresses of relatives, and ending with the workplace. Representatives of the FSSP are authorized to conduct searches from 6 a.m. to 10 p.m. If the debtor is absent from his place of residence, the bailiff undertakes to send the citizen’s property for storage.

We invite you to read: Limitation period for alimony: legal advice

Bailiffs have the right to seize any property that is not “vitally necessary” or “a means of earning money.” It is also impossible to seize an apartment if it is the only home of the debtor and his family, with the exception of collecting mortgage debt. The seized property is recorded in the inventory report and signed by attesting witnesses.

If the bailiffs cannot collect the debt within three years, they will be forced to close the enforcement case and notify the plaintiff that it is impossible to collect the debt. But debt obligations do not have a statute of limitations, so the plaintiff has the right to go to court to extend the writ of execution and re-transfer the case to the bailiffs.

How to force bailiffs to work according to a writ of execution

Three days after registering the application with the bailiff service, the enforcement document will be sent to a specific bailiff, who will issue a resolution to initiate enforcement proceedings and send a copy of this resolution to the claimant and the debtor. Will take out and direct, this means must make and must send in accordance with the requirements of the law “On Enforcement Proceedings”, but it is not at all necessary that the bailiff will be able to actually carry out these procedural actions. Therefore, about a week after submitting the application, you should find out the name of “your” bailiff and, during reception hours, appear before his bright eyes with a demand to hand over a copy of the resolution and a polite request to inform him whether he has sent requests to banks, tax authorities, Rosreestr, traffic police, GIMS and other important and necessary institutions to establish the assets and property of the debtor.

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Complaint against the action or inaction of a bailiff

At the first stage, it is necessary to file a complaint, taking into account the subordination of department employees. If the bailiff is inactive, then the application is submitted to the senior bailiff.

Complaints are submitted to him about the inaction of his deputies. If a senior employee does not fulfill his duties, then a complaint against him is submitted to the chief bailiff throughout the region.

The last and most effective measure is to challenge the inaction of FSSP employees in a judicial body. In this case, the claimant submits an application either to the arbitration court (if the executive document was originally drawn up by it) or to a court of general jurisdiction.

An acceptable measure is to contact the prosecutor's office. In this case, the citizen also draws up a complaint. After accepting the document, the authority begins an appropriate check of the inactive FSSP employee.

This document is written according to the following rules:

1. In the upper right corner of the document the initials, position of the employee to whom the claimant is filing a complaint, as well as the name of the FSSP unit are indicated. Below, the citizen indicates his data along with his address and telephone number.
2. In the main part of the document, the applicant indicates the number and date of the resolution that contributed to the start of enforcement proceedings. The initials and position of the bailiff who issued the act and is responsible for executing the court decision must be indicated.
3. The applicant indicates all actions that were taken by the unit employee. Below are the actions that were not performed by him.
4. The applicant describes all violations, citing references to the Law.
5. At the end of the document, he asks that the inaction of the employee he indicated be declared illegal.

The superior employee has three days to review the received document and take appropriate actions on it.

If you, as a recoverer, are unlucky with a bailiff for enforcement proceedings, then you can take several options:

1. File a petition to disqualify the bailiff. If a large amount of time has passed and the money has not been collected, if your calls and visits to a personal appointment do not in any way affect the work of the bailiff, then it makes sense to try to change him to another. Perhaps you should even contact the head of the department on this issue and personally ask him to have a more experienced and efficient bailiff work on your proceedings. If you convince the head of the department (or reflect the reasons for the recusal in the petition) that you are extremely dissatisfied with the work of a particular bailiff and see no other way out except to change him or write complaints about his inaction, then most likely your request will be granted . And if the proceedings go to a really good and experienced bailiff, then the chances of collecting the debt increase significantly.
2. Contact the head of the department - senior bailiff orally with a complaint that the bailiff is inactive. To do this, you must first make an appointment with the head of the department. And then at the reception, present specific arguments that the actions of the bailiff are ineffective, for example, that he still has not seized the debtor’s property or has not gone to the debtor’s home at all. Department heads are most often loyal and respectful of the interests of the claimants who contact them personally. Usually, pressure from a boss is a great stimulus for the activity of a bailiff.
3. Appeal the inaction of the bailiff in the order of subordination. The period for consideration of such a complaint is 10 days. You can first file a complaint directly with the department head. For the head of a department, each such complaint means a deterioration in the performance of the department from the position of senior management. Therefore, if your complaint turns out to be justified, then the inactive bailiff will definitely get a slap from his boss. If nothing changes after this, then a similar complaint can be submitted to the Office of the FSSP of Russia in your region. Then the department employees, starting with the boss, will ask why specific actions have not been taken and, as a result, the bailiff will have to fully handle the enforcement proceedings. Usually, the result of a complaint for a bailiff is the usual dissatisfaction of the authorities, rarely - disciplinary liability in the form of deprivation of bonuses.
4. Appeal the bailiff's inaction to the prosecutor's office or court.
   If complaints in the order of subordination do not work, then feel free to write to the prosecutor’s office or court. This will be much worse for a bailiff than any superior. After all, such complaints can entail both disciplinary sanctions and financial liability, including compensation for moral damage in court. Therefore, he and his boss will try to completely remove the blame for inaction and fully work out the enforcement proceedings. Complaint to the court. The period for consideration in court is 10 days. The complaint to the court must be formalized as an administrative claim to declare illegal the inaction of the bailiff and other officials of the FSSP of Russia. Satisfaction of the complaint for the bailiff may entail disciplinary sanctions, payment of compensation for moral damage in court; Complaint about the bailiff's inaction to the prosecutor's office. Such a complaint can be written in free form. The processing time at the prosecutor's office is 15-30 days. If the complaint is justified, the prosecutor's office will issue an order to the bailiff to eliminate violations, a protest or a resolution declaring his inaction illegal. This may result in disciplinary action for the bailiff.

We invite you to familiarize yourself with: Collection of alimony for the past period: collection procedure and judicial practice

We also draw the attention of claimants to the fact that the best preparation before writing a complaint is to familiarize yourself with the materials of the enforcement proceedings. Having previously studied the materials of the enforcement proceedings, you will be able to verify what specific actions the bailiff did or did not perform to execute the court decision. This knowledge is necessary to prepare an effective complaint.

For additional articles About the debt collection service, read the article: national collection service The legislation of the Russian Federation provides two ways to challenge the action or inaction of a bailiff to collect a debt. The first is to file a complaint with the head of the bailiff, that is, in the order of subordination (in accordance with Article 123 of the Federal Law “On Enforcement Proceedings”).

The second method also comes down to filing a complaint, but against the orders of the bailiff, and to an arbitration court or a court of general jurisdiction, depending on where the official performs his duties. It is possible to appeal the actions of the bailiff, such as issuing decisions that violate the rights of citizens. Also, the inaction of the bailiff is subject to appeal if he does not take actions prescribed by law.

A complaint against a bailiff about his action or inaction is filed within ten days after the fact of violation is established. If the debtor is not informed about what time the bailiff will carry out certain actions, then the citizen has the right to appeal these actions no later than ten days from the date of their completion. In this case, proof becomes a postal notification with the date of receipt of the letter.

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Based on Article 199 of the Arbitration Procedure Code of the Russian Federation, an application to the arbitration court to challenge the action or inaction of a bailiff must reflect the following points:

1. Full name of the citizen or name of the organization submitting the application, place of residence or location of the organization;
2. Full name of the official in respect of whom the application is being made;
3. Grounds for appealing the decision of the bailiff service, a description of what his actions or inactions consist of;
4. Requirements of the organization or citizen who filed the complaint;
5. Attached documents.

The following must be attached to the application: a receipt for payment of the state fee; a copy of the Certificate of Impossibility of Execution; a copy of the resolution on the completion of enforcement proceedings; a copy of the court decision on the case; a copy of the writ of execution.

As a result, the court will either satisfy the stated requirements or refuse. If the court approves the complaint, the defendant will be charged the cost of paying the state fee, and enforcement proceedings will resume.

The first step, as they usually force bailiffs to work on a writ of execution, is to call the bailiff service (FSSP) to find out who is processing your court order (writ of execution). It is sent to a specific contractor for execution 3 days after registration. It is necessary to write down and remember your full name. and a special title of an official, since in the future you will have to intensify his actions.

The second step is to call again to agree on a time at which it is convenient for you to visit the bailiff in order to familiarize yourself with the results of his work in implementing the collection of alimony.

The third step is direct conversation. But conversation is not a conversation about anything, but purposeful, law-based actions to which you have the right. During the conversation, in a polite manner, ask the executor to give you a copy of the resolution to initiate enforcement proceedings and requests printed on paper:

• At the debtor’s place of work;
• To banks;
• To the tax authorities;
• To Rosreestr;
• At the traffic police;
• In GIMS;
• To other institutions that can confirm that the debtor has property and assets that can be sold to collect alimony or pay off the resulting debt.

Another option for obtaining alimony if the bailiffs are inactive is to appeal against his actions, or rather inactions.

Traditionally, there are three authorities where you should complain:

• Apply at the appropriate level - to the senior bailiff;
• To the prosecutor's office;
• To court.

Grounds for collection

The presence of unfulfilled obligations or assigned compensation payments in favor of other persons is confirmed by the document data. It is formed on the basis of an arbitration decision based on the results of consideration of cases and contains the following information:

• name of the judicial authority;
• the case in question to which the document is devoted;
• court statement;
• the date of entry into force of the document.

A writ of execution (WW) can be issued immediately after the completion of the proceedings, but no later than 10 days. The document is sent directly to the claimant or bailiffs. If there are 2 or more defendants, several copies are issued.

The basis for issuing IL may be a number of reasons, including the following:

• calculation of alimony;
• obligation to transfer compensation payments, taking into account possible indexation;
• repayment of debt, failure to fulfill budget obligations, default on loans;
• presence of unpaid fines;
• other claims.

The debt under the writ of execution is forcibly written off at the expense of the defendant’s received income, including wages and pensions. In addition, when paying debts, the state of the property of the defaulter, including the unemployed, is taken into account.

The writ of execution is sent to the FSSP for the purpose of collection from debtors