Whether the bailiff to forward. Can a bailiff find a debtor in another region and what will he do next
This is a small but useful in my opinion article, which is equally suitable for both legal entities and individuals.
My clients often turn to me with a question: "Is the bailiff - the executor obliged to inform the claimant about all actions in the enforcement proceedings". Under this question, they basically mean the following, within the framework of enforcement proceedings, the bailiff must do certain work aimed at finding the debtor's property. These are requests to banks, requests to Rosreestr, to the traffic police and, accordingly, receiving answers to them.
So, Should the bailiff, after sending any request or receiving a response to it, notify the claimant ?!
Let's figure it out together. In accordance with the Law on Enforcement Proceedings, persons participating in enforcement proceedings are notified of the time and place of enforcement actions or enforcement measures, or are summoned to the bailiff by a subpoena with acknowledgment of receipt, telephone message, telegram, using electronic and other types of communication and delivery or by a person to whom, with his consent, the bailiff instructs to deliver them.
This provision of the Law does not oblige the bailiff to inform the recoverer about the progress of the enforcement proceedings and all the actions taken above. And the fact of failure to notify the claimant about all the actions committed within the framework of enforcement proceedings in itself is not a basis for a conclusion about the inaction of the bailiff.
This position is confirmed by judicial practice. Resolution of the Arbitration Court of the Moscow District of November 18, 2015 No. F05-15301 / 15 in case No. A40-65471 / 2015. In this trial, the plaintiff - the claimant asked to declare illegal the inaction of the district department of bailiffs. He indicated that he had repeatedly sent inquiries about the progress of the enforcement proceedings. But no reply was received. The courts of all instances rightfully rejected the claimant's argument that the bailiff was not obliged to inform him about the actions carried out within the framework of the enforcement proceedings and did not consider that the bailiff was inactive.
The court also indicated, and I agree with this position, that the Federal Law "On Enforcement Proceedings" gives the right to the claimant to get acquainted with the materials of the enforcement proceedings, make extracts from them, and make copies. And after you have familiarized yourself with the enforcement proceedings and found that the bailiff does not send requests or answers about the available property, and the bailiff does not seize or levies a penalty on it, you can declare inaction illegal in court.
A bailiff is an official who enforces court decisions, as well as other legal acts. Its activities are strictly limited by the relevant legislation and regulations. Let us consider in more detail this position and the duties of the person holding it.
First, it should be noted that the bailiff is a government official. This function has implications for compliance with certain disciplinary and ethical principles and norms, as well as criminal and civil liability. He works at the District Court where he was appointed. Its tasks include the following.
Making judgments on pecuniary and non-pecuniary claims and securing claims, fulfilling other orders on the order of execution, drawing up a protocol of facts before the start of a trial or before a decision is made at the request of a court or prosecutor, serving court notices, promises of protests and complaints. All actions can be performed by executive authorities on weekdays and Saturdays from 7 to 7.
What are the job responsibilities?
As well as the rights, the duties of the bailiff are fixed in Art. 12 ФЗ dated July 21, 1997 No. 118-ФЗ, which was amended in 2016. Among the main duties of the person holding this position, to ensure the established procedure for the activities of the courts (OUPDS), there are:- Provide familiarization of the parties to the trial, as well as their representatives with the materials of the enforcement case, provide extracts from the documentation, as well as make copies of them.
- Take measures to ensure the timely, complete and correct implementation of the decisions established in the executive documents.
- Consider all applications and petitions submitted by the participants in the proceedings, draw up appropriate resolutions, and explain to persons all the conditions (terms, procedure, etc.) of their appeal in case of disagreement.
- To recuse themselves in cases where the bailiff himself is interested in the procedure for enforcement proceedings or if there are any grounds for doubting his loyalty and impartiality.
Regardless of the type of offense, the bailiff is obliged to respect all the rights and interests of citizens.
In cases where there is a need to hold certain events on a public holiday, the authority must obtain the consent of the president of the district court. It is important that activities that started before 9 pm can be continued if their interruption could interfere with the enforcement.
Does the bailiff have the right to enter the apartment and does it need consent?
The bailiff is required to use an identifier that includes his / her name, photograph, description of function and the name of the district court in which he / she operates. At this stage, it is important to note what the beginning of the actions of the bailiff looks like. Well, a bailiff who receives a case from a creditor is not obligated to investigate whether there really is a basis for starting enforcement.
Based on the above job responsibilities, it can be concluded that the bailiff is the main regulatory official who participates in the enforcement proceedings. Accordingly, it is he who is responsible for all obligations regarding the control and verification of the execution of all court decisions.
Obligations of the bailiff to collect alimony
In the case of the collection of alimony, the bailiff is obliged to act within the framework of the currently established legislation. Accordingly, he has no right to perform any extraneous actions. He acts according to the standard scheme, conducting field events, interviewing the debtor in order to identify the reasons for his refusal to pay alimony, and also carries out all the necessary procedures for collecting funds.In addition, the bailiff is responsible for determining the property status of the debtor. He must control his income, purchases, and other sources of income. All information must be noted in special documents, which can then serve as the basis for enforced collection.
How to write a letter to bailiffs
The bailiff, through his actions, seeks to comply with the judgment, that is, to ensure compliance with the amount of money. Execution may be carried out, among other things, from movable property, remuneration for work, bank accounts or real estate. With the execution of the execution, the bailiff notifies the debtor, informing him about the rank and the persons to whom the proceedings are being conducted.
Many people live in the mistaken belief that "the bailiff has a duty." The ability to conclude an agreement, release a specific asset or suspend its execution depends only on the lender. This does not mean that a bailiff should be avoided.
Obligations of bailiffs under a writ of execution
After the end of the trial, the claimant is handed over to the hands of the writ of execution, which must be sent to the bailiff. In some cases, judicial institutions independently transfer the document to the performer.In accordance with a court order, the following obligations may be imposed on the bailiff:
Once the bailiff has been informed about the initiation of the execution, it is important to contact him and tell him or her about his property, whether he wants to pay off the debt or make a voluntary payment. It should be noted that such actions on the part of the debtor will minimize the cost of the execution. In this situation, if a party presents its assets to the executive body, it will not be obliged to pay the costs of finding it. In the course of the proceedings, each debt subject to performance must be transferred to the debtor within 4 days.
- from the person who suffered material damage to the victim;
- collect a state fee;
- collect the maintenance payment established by the court;
- to reinstate to work persons who were unlawfully laid off.
If the bailiff is delayed, he / she is obliged to pay interest on the amounts received and outstanding. There may also be circumstances in which a bailiff cannot perform his duties, then he assigns them to perform his or her deputies - another bailiff or bailiff. The bailiff will notify the page of any action taken.
The main duties of a bailiff
In practice, this means more efficient execution. An important change is the introduction of legal disclosure of property. The bailiff will have the right to obtain a list of assets from the debtor. The list of assets will be presented by the debtor on pain of criminal liability, which will be debited by the debtor. If the debtor does not appear in the bailiff due to acquittal, refuses to answer a question, or does not submit a statement or promise, then the bailiff can fine him or ask the court to enforce the debtor or even petition for detention not exceeding one month.
Video: Powers and Responsibilities of the Bailiffs for the OUPDS
The following video offers to find out what the bailiff should do after arriving at the address indicated in the judicial act on the drive:Thus, we can conclude that the bailiff plays a very important role in the judicial proceedings itself. On his shoulders lies the obligation to enforce all decisions of the judicial authorities to collect material debts. Accordingly, the rights and obligations of an official are primarily governed by these tasks.
Bailiffs are required to act within the framework of the relevant federal law. In most cases, their actions and decisions are aimed at securing a court decision that has entered into legal force. But many people often wonder about their powers. Some are convinced that FSSP employees sometimes act contrary to the law. Therefore, it will be further described in detail what rights they have in relation to the debtors.
What are the rights of bailiffs?
For the most part, the rights of bailiffs are established by a specialized federal law. Their responsibilities are also noted here. Let's list what is included in their powers:
- arrest and describe any permitted property;
- search the debtor;
- withdraw money from all known accounts;
- with the participation of police officers, they can conduct searches and seizures;
- impose bans (on departure, registration actions, communication).
What are the bailiffs entitled to describe from the debtor?
Such property includes any bank and salary accounts, pension contributions (up to 10-15%), movable and immovable property belonging to the debtor, household appliances, goods and tools of production, securities, bonds, bills of exchange, bank advice notes, cards, agricultural and pets.
6. If it is necessary to commit certain enforcement actions and (or) the application of certain enforcement measures in a territory that is not subject to the powers of the bailiff-executor, he has the right to instruct the relevant bailiff-executor to perform enforcement actions and (or) apply enforcement measures. The order is drawn up by a resolution of the bailiff-executor in accordance with Article 14 of this Federal Law and approved by the senior bailiff. According to this resolution, the bailiff-executor, to whom it was received, initiates enforcement proceedings in compliance with the requirements of Article 30 of this Federal Law. During the execution of the order, the main enforcement proceedings may be suspended.
If the bailiff finds out the place of work of the debtor
Debt obligations in modern society arise very often. These can be both credit borrowers and citizens who do not want to transfer alimony to their children. It is often possible to face a situation where the defaulter does not want to fulfill his duties and hides his income. In such a situation, the collection of payments will take place with the direct participation of bailiffs.
What can a bailiff take away for debts
A writ of execution - it is necessary to understand that the bailiff begins to look for the debtor and all his property only after receiving the writ of execution and the beginning of the enforcement proceedings. This whole procedure can start only on the basis of the results of the trial and the decision of the court, which entered into force.
Arresting an account in another city
In accordance with the law on enforcement proceedings, enforcement actions and enforcement measures against civilians are applied by the bailiff-executor at their place of residence, place of stay or location of their property.
Can the bailiffs arrest my salary in another region
You cannot be registered in any apartment or residential building, since there has been no registration in Russia for more than 16 years, which was canceled almost immediately with the collapse of the USSR. Law No. 5242-1 of 26.06.1993 "On the Right of Citizens to Freedom of Movement, Choice of Place of Stay and Residence within the Russian Federation" premises at their place of residence (this is temporary registration) and at their place of residence (this is permanent registration).
Debtor in another region
The debtor's relocation to another city should not become an obstacle to debt collection. If there is reliable information about the debtor's new place of residence, inform the bailiffs, they should check this and redirect the enforcement proceedings to another territorial department of the bailiff service.
Can the bailiff find funds stored in a savings bank in another region
That is, if enforcement proceedings are initiated at the location of the debtor (which usually happens), then the bailiff acts precisely according to the location of the debtor, so that enforcement actions take place at the location of the property, grounds and a whole procedure are needed:
How bailiffs look for debtors and when they stop looking for them
The bailiffs have always been endowed with the right to independently search for the property of debtors, and since 2012 they have already received the right to search for the debtors themselves. The bailiffs can resort to search actions against defaulters and their property both at the request of the claimant and on their own initiative.
Arrest of property: what bailiffs can and cannot take away
Bailiffs usually do not even try to find out where the money is coming from to the debtor's card. Therefore, in most cases, the entire available amount is debited from the account of the person in debt, which sometimes can exceed the debt itself. In such situations, the debtor must contact the FSSP department and write a statement with a request to return part of the funds (the return procedure can take several days, then the money will come to the arrested account).
9. The chief bailiff of the Russian Federation or the chief bailiff of the constituent entity (chief bailiff of the constituent entities) of the Russian Federation, for the purpose of more complete and correct implementation of enforcement proceedings, has the right to transfer enforcement proceedings from one unit of bailiffs to another (including at the stage of initiation of enforcement proceedings) , about which a corresponding resolution is issued. The resolution of the chief bailiff of the Russian Federation or the chief bailiff of the subject (chief bailiff of the constituent entities) of the Russian Federation on the transfer of enforcement proceedings from one unit of bailiffs to another no later than the day following the day of its issuance is sent to the respective chief bailiffs of the constituent entities of the Russian Federation and senior bailiffs. The chief bailiff of the subject (chief bailiff of the constituent entities) of the Russian Federation, the senior bailiff, having received the said order, no later than the day following the day of its receipt, organize the transfer of enforcement proceedings to another unit of the bailiffs in the manner prescribed by parts 7 - 7.2 of this article ...
The bailiffs will find out the debtor's place of work
Important: It is usually pointless for a person who is in debt to hide their location or place of work. To find human which is tied to the operating system is simple enough. And for the entire time, while he will evade payments on his own debts, penalties (fines, penalties) will grow. State duties are always added to the amount of the debt, which the recoverer pays when applying to the court for debtor... For example, a creditor might sue while waiting for a certain period of debt to arise. This means that the duty on the debt will be a multiple of the number of applications to the judicial authorities.
Legal advice in Yekaterinburg
That's all the measures of the state exacting-debt coercion. Here I do not mention the bailiff's right to charge an executive fee of 7% of the collected debt, since if the debtor did not return the principal debt, then this 7%, obviously, is for him - as for an elephant grain. The creditor has the right to collect through the court also a penalty for overdue debt repayment and indexation; but again, due to the failure to return the principal, this penalty loses its punitive (for the debtor) and enrichment (for the creditor) properties.
If the debtor pays, if possible, what to do to the bailiff
Such terms are provided by Russian legislation only for the presentation of writs of execution for execution, which in your case has already been done. The bailiff, after a certain period of time, can issue a resolution to terminate enforcement proceedings due to the impossibility of collection, but, as a rule, all the necessary measures to collect the debt have already been taken by him - all requests have been sent to the organization and responses to them have been received, accounts arrested, etc.
How is the search for the debtor
- Contact persons of the debtor at the home address are established. For example, the borrower is registered with relatives who previously took out a loan from a bank. Their profiles are displayed in the database, along with all the information. All phones also ring and find out where the debtor is.
- Establish liaison persons at the work address. They call colleagues and find out information. Does the person work at the moment or not? Where can you find it?
Can a bailiff find a debtor in another region and what will he do next
- If the debtor lives in the territory to which the powers of a particular bailiff apply, in this case the bailiff continues enforcement proceedings. The same applies to the discovery of the debtor's property. Well, you understand that the powers of the bailiff are limited to the administrative division of the city into districts, regions into districts, cities among themselves, and so on.
- In the event that the bailiff has established that the debtor lives outside his territorial powers, the bailiff transfers the enforcement proceedings for execution to another department of bailiffs, namely, to the area or city in which the debtor or his property was discovered.
The normative legal acts that determine the conditions and procedure for the compulsory execution of judicial acts on civil law include: 1. Federal Law of July 21, 1997 No. 119-FZ "On Enforcement Proceedings" - hereinafter referred to as the Law on Enforcement Proceedings; 2. Federal Law of July 21, 1997 No. 118-FZ "On Bailiffs" - hereinafter the Law on Bailiffs; 3. The Arbitration Procedure Code of the Russian Federation dated May 5, 1995 No. 70-F3 - hereinafter referred to as the Arbitration Procedure Code of the Russian Federation; 4. Regulations on the Department of Bailiffs of the Ministry of Justice of the Russian Federation, approved by order of the Ministry of Justice of the Russian Federation of September 22, 2000 No. 276 "On Approval of the Regulations on the Department of Bailiffs"; 5. other legal acts. Based on paragraph 1 of Article 4 of the Law on Enforcement Proceedings: "The requirements of the bailiff-executor for the execution of judicial acts and acts of other bodies are obligatory for all bodies, organizations, officials and citizens throughout the territory of the Russian Federation." According to paragraph 2 of Article 12 of the Law on Bailiffs, a bailiff has the right to: · “receive the necessary information, explanations and certificates when performing enforcement actions; · To check with employers the execution of executive documents for debtors working for them and the maintenance of financial documentation for the execution of these documents; · Give instructions to citizens and organizations participating in enforcement proceedings on issues of specific enforcement actions; · Enter the premises and storage facilities occupied by or owned by debtors, inspect the said rooms and storage facilities, open them if necessary, and also, on the basis of the ruling of the relevant court, perform the indicated actions in relation to the rooms and storage facilities occupied by or belonging to other persons; · Arrest, seize, transfer for storage and sell seized property, with the exception of property withdrawn from circulation in accordance with the law; · To seize money and other valuables of the debtor in accounts, in deposits or in storage in banks and other credit institutions, in the amount specified in the executive document; Use non-residential premises that are in municipal ownership, and with the consent of the owner - premises that are in other ownership for the temporary storage of seized property, impose on the relevant persons the obligation to store it, use the transport of the claimant or the debtor for the transportation of property with the attribution of expenses at the expense the debtor; · In case of ambiguity of the requirements contained in the executive document, on the basis of which the executive actions are performed, to ask the court or other body that issued the executive document to clarify the procedure for its execution; · To declare the search for the debtor, his property or the search for the child; · To call citizens and officials on the executive documents, which are in production; · To perform other actions provided for by the federal law on enforcement proceedings ”. As you can see, the list of the bailiff's rights is very wide, but he also has obligations stipulated in the first part of the article under consideration: · “takes measures for the timely, complete and correct execution of executive documents; · Provides the parties to the enforcement proceedings (hereinafter referred to as the parties) or their representatives the opportunity to get acquainted with the materials of the enforcement proceedings, make extracts from them, make copies of them; · Considers applications of the parties regarding enforcement proceedings and their petitions, makes appropriate decisions, explaining the terms and procedure for their appeal; · Is obliged to recuse himself if he is interested in the course of enforcement proceedings or there are other circumstances that raise doubts about his impartiality. " The bailiff is obliged to initiate enforcement proceedings in the presence of two conditions: 1) if the deadline for the submission of the enforcement document for execution has not expired; 2) if the executive doc
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