The powers of bailiffs when collecting debt and how to be in case of exceeding. Notifications of debtors
The accounting department receives decisions of bailiffs, where in one of the items of each resolution, the following requirement is indicated:
"To oblige a person who makes hold, to provide the bailiff once a quarter to the 20th of the month, following the reporting period, information on holding and transfer PJSC" C "of the Debtor's funds (Fm.o.) in favor of the recoverer ( Fm.o. or the name of the organization of the recoverer) indicating the amount of accrued wages, other payments from which the debt is held, the sums of the transfer of funds and their transfer of their transfer with the application of payment documents confirming the listing. Information to send in writing (hereinafter follows the name of the division and address).
Question:
Are the requirements of bailiffs of performers reasonable?
Answer:
In accordance with Art. 6, Art. 9 of the Federal Law of 02.10.2007 No. 229-FZ "On Enforcement Proceedings" (hereinafter - Enforcement Act) The debtor's employer is entrusted to carry out cash from wages of debtors to repay the debt on judicial acts and acts of other authorized bodies, including according to the decisions of bailiffs - performers.
Decisions of the bailiff in accordance with paragraph 7 of Part 1 of Art. 12 of the Law on Enforcement are independent executive documents that are executed in the manner prescribed by the specified law (From the definition of you of the Russian Federation of 03/15/2010 No. ав-2352/10 in case No. A63-15938 / 2008-C6-39).
In paragraph 1 of Art. 64 Enforcement Act provides for a list of executive actions that are entitled to commit a bailiff, including: request the necessary information from individuals, organizations and organs, to receive explanations from them, information, references (sub. 2); check, including verification of financial documents, on the execution of executive documents (sub. 3); request from the parties to the executive production required information (sub. 11); Perform other actions necessary for timely, complete and correct execution of executive documents (sub. 17). A similar norm is contained in paragraph 2 of Art. 12 of the Federal Law of July 21, 1997 No. 118-FZ "On the Bailiffs", according to which the bailiff is entitled receive the necessary information when performing executive actions , including personal data, explanations and references, as well as give citizens and organizations involved in the executive production, instructions on making specific executive actions .
Thus, the list of actions of bailiffs, performers is not closed, therefore bailiffs can apply a variety of measures that do not contradict the principles of enforcement proceedings to fulfill the requirements of the executive document. This, in our opinion, means that, despite the fact that the legislation is not directly established by the right of the bailiff to demand from organizations paying wages, pension, scholarships or other periodic payments, providing information about the deductions, but such a requirement Does not contradict the above-mentioned standards for the laws on enforcement proceedings and the bailiffs.
In addition, in paragraph 8 of Annex No. 108 "RESOLUTION OF CONDUCTION OF WAGER OF WAGES AND OTHER INCOME » by order of the federal bailiff service of July 11, 2012 No. 318, "On approval of exemplary forms of procedural documents applied by officials of the Federal Bailiff Service in the Enterprise Duty" obligation to provide a report directly provided:
Some regional FSSP of Russia (for example, in Ivanovo and Tomsk regions) developed a "memo for managers and accountants of organizations (enterprises) on retention and transfer of funds for the executive documents of various categories", in which the report requirement is also directly enshrined:
"On the retention and transfer of money to the recoverer, the employer is obliged to submit information to the bailiff every month, in the manner specified in the order of recovery of wage.
According to paragraph 4. Art. 14 Enforcement Act Resolution of the bailiff or other official of the Bailiff Service subject to execution on the period specified in the ruling , and may be appealed in order to subordinate to the superior official of the bailiff service or challenged in court. That is, in if the organization believes thatthe requirement of the bailiff on the provision of the report violates its rights, it is entitled to contact the arbitration court with a statement about recognizing it illegal. Unfortunately, we could not find a single judicial act in which the legality of the considered requirement of the bailiff was analyzed.
We think that in this case, when submitting such a statement, the prospect of a court decision in favor of the organization is extremely small, since the report requires a bailiff for monitoring the fulfillment of the requirements of executive documents, and argue what is the violation of the rights and legitimate interests of the organization, which is requested by the report, almost impossible.
In turn, nthe revolution of the law enforcement proceedings is an administrative offense provided for in Article 17.14. Code of the Russian Federation on Administrative Offenses, in accordance with paragraph 1 of which:
"Violation by the Debtor of Enforcement Commercial Legislation, expressed in non-compliance with the legitimate requirements of the bailiff, submitting unreliable information about their rights to property, dismissal about dismissal from work, about the new place of work, study, place of receipt of the pension, other income or place of residence, With the exception of the violation provided for in Article 17.17 of this Code, the imposition of an administrative fine on citizens in the amount of one thousand to two thousand five hundred rubles; on officials - from ten thousand to twenty thousand rubles; On legal entities - from thirty thousand to one hundred thousand rubles. "
Failure to fulfill the claims contained in the executive document on the period established by the bailiff after making a decree on the recovery of the fulfillment of the executive fee, entails the imposition of an administrative fine on officials - from ten thousand to twenty thousand rubles; on legal entities - from thirty thousand to fifty thousand rubles (Art. 17.15 of the Code of the Russian Federation on administrative offenses).
Thus, in our opinion, the requirement of a bailiff on the provision of a reportthe deductions should be performed on the time and in the manner prescribed in the relevant decision.
This small but useful in my opinion the article that is equally suitable for both legal entities and physical.
My clients often turn to me with a question: "Does the bailiff obliged to inform the recoverer about all the actions on the enforcement proceedings." Meet this issue mainly the following, within the framework of the executive production, the addition should do a certain work aimed at the search for the property of the debtor. These are queries in banks, requests to Rosreestr, in the traffic police well, and accordingly, receiving answers to them.
So, Should the ability to notify the recoverer after the direction of any request or receive a response?!
Let's figure it out together. In accordance with the Enforcement Act, the persons participating in the executive work are notified about the time and place of the execution of executive actions or the use of enforcement measures or are caused to the bailiff of the agenda with the notice of the presentation, telegrades, telegram, using electronic, other types of communication and delivery or face, with his consent, the bailiff charges them to deliver.
This rule of law does not oblige a bailiff to inform the recoverer on the progress of enforcement proceedings and all the perfect actions mentioned above. And by itself the fact of the failure of the recoverer about all the actions committed within the framework of the enforcement proceedings is not the basis for the conclusion about the inaction of the bailiff.
This position is confirmed by judicial practice. Resolution of the Arbitration Court of the Moscow District of 18.11.2015 No. F05-15301 / 15 in case No. A40-65471 / 2015. In this trial, the plaintiff - the recovere asked to recognize the inaction of the district department of bailiffs illegal. He pointed out that repeatedly sent requests for the progress of enforcement proceedings. But the answer was not received. The courts of all instances legitimately rejected the argument of the recoverer that the bailiff is not obliged to inform it about the actions carried out in the framework of the enforcement and did not consider that the attracting was inactive.
The court also pointed out, and I agree with this position that the Federal Law "On Enforcement Proceedings" gives the right to the recoverer to get acquainted with the materials of the enforcement proceedings, to make discharge from them, remove copies. And after you have familiarized yourself with the executive production and found that the baptization does not send requests or responds about the property available, and the attracting does not impose an arrest or does not draw a penalty on it, it is possible to recognize inaction illegal.
The persons participating in the executive proceedings are notified about the time and place of the execution of executive actions or the application of compulsory measures are either caused to the bailiff of the agenda with a notice of the presentation, telephone message, telegram, using electronic, other types of communication and delivery or face to which With his consent, the bailiff entrusts them to deliver them. (as amended by the Federal Law of the 28.12.2013 N 441-FZ) (see text in the previous edition) 2. In cases where the executive document is subject to immediate execution, as well as when applying arrest on property and other security measures, the bailiff The Contractor has the right to perform executive actions and apply compulsory measures without prior notice to those involved in the executive production.
The baits did not notify the debtor about the initiation of enforcement proceedings.
Information about the changes: Federal Law of December 28, 2013 N 441-FZ in part 2 of Article 24 amended, see the text of the part in the previous edition 2. In cases where the executive document is subject to immediate execution, as well as when applying for property and The adoption of other security measures The bailiff has the right to perform executive actions and apply forced fulfillment measures without prior notice to those involved in the executive work.
At the same time, the bailiff is obliged to notify the indicated persons on the commission of executive actions or on the application of enforcement measures no later than the next working day after the day they are committing or use. Information about the changes: Federal Law of December 28, 2013 N 441-FZ Part 3 3 of Article 24 set forth in the new edition, see
Text of the part in the previous edition 3.
How bailiff should notify the debtor
Attention
Notifications addressed to the recoverer and debtor are sent to the addresses specified in the executive document. The notice addressed to the person participating in the enforcement proceedings is sent at the place of residence or location of such a person. Notification can be directed at the place of work of a citizen participating in the executive production.
Information about the changes: Federal Law of December 28, 2013 N 441-FZ Part 4 of Article 24 set forth in the new edition, see the text of the part in the previous edition 4. The person participating in the executive production is entitled to inform the other address in writing (including The number of email address), according to which the bailiff must send notifications, or specify a different method of notification and other information necessary for the timely informing of this person on the progress of enforcement proceedings.
Notifications of debtors. Legal acts
The procedure for submitting an administrative statement if there is no evidence confirming the proper notification in the executive proceedings, you have the right to apply to the court with an administrative statement. It will contain the requirement to recognize the illegal act of the property of property and its abolition. In the application you can specify any adequate arguments in your defense.
It is important that the administrative claim is submitted not later than three months from the date of the arrest of property. Administrative proceedings (CAS) Code establishes a list of documents attached to an administrative statement.
Article 24. Notifications and challenges in the execution
This proves that the citizen was notified. Even the addition can send a telegram to call or send an email. Such options are also possible. In general, it is recommended not to deny attacks in collaboration. That is, you do not need to run from them, ignore letters and calls.
All the same, it is better to be aware of the case, and not to dwell in ignorance and fear every shadow. Anyway to avoid debt payment will not be possible. If the debtor changes the place of residence, it is necessary to report this to the bidding service. Then all letters will definitely come to your new address.
And it will save from many problems in the future. In addition, such a variant of the development of events is possible when the bumping first applies any actuators, and then the debtor is informant about what happened. How is this possible and is it legal? Everything is fully consistent with the law.
Should Baille notify the debtor about banning to leave?
Info
Yes, the baptized is obliged to notify all sides of the enforcement proceedings. Copies of all resolutions are mandatory sent to the parties of production. Thank you for your useful advice!
- Good day! Not just obliged to notify, but to send a copy of the decision on the initiation of enforcement proceedings and provide you with a deadline for voluntary repayment of debt.
If he did not do it, you can safely serve him a complaint about the management of FSSP on RO, thank you very much for the detailed and understandable answer!
Do you have an answer to this question? You can leave it by clicking on the button Reply Similar questions I received a decision of the bailiff on the initiation of enforcement proceedings on the executive list on the execution of debt to the enterprise.
Proper notifications about the excitation of the executive
Important
In this case, the attract makes certain actions without prior notice. However, he still has to send a notification to the person in respect of which an action was carried out, no later than the next business day. How to find out the rent debt? Find out if you can evict from an unsuccessted apartment for rent debts.
As the debtor is notified of the initiation of enforcement proceedings in the initiation of enforcement proceedings (IP), the abill must send the decision on the beginning of the IP to the Charger and to the Court (or another body that made a decision on the forced recovery of debt). Debtor A copy of the decision is sent by mail by registered letter with a back notice or ordinary registered letter, which is located in the post office for 30 days. In case the addressee has not received it, it is sent back.
If the debtor is obliged to notify
Also, the notice of the debtor about the initiation of enforcement proceedings can be directed through the telegram, telegram or through a third party who gave consent to the delivery of the citizen's notice. Along with these methods, the notification can be directed at the place of work of the debtor or to the email address. If the notification was sent by mail, but the addressee did not receive it (there is no place at the place of residence or the organization is not found), the citizen is considered notified properly. However, the FSSP employee must take measures to notice it (re-sending postal correspondence, autobsvon). If the person who has not paid the debt, refused to get a notice or if it was left to adult persons living together with him, it is believed that the notification is properly produced. Read how to find out electricity debt.
Should the debtor must notify
Information about the changes: Federal Law of July 18, 2011 N 225-FZ in part 5 of Article 24 there have been amended, entering into force upon the expiration of the ninety days after the day of the official publication of the named federal law, see the text of the part in the previous edition 5. Persons, evade From the call on the challenge of the bailiff, may be subject to the drive on the basis of the decision of the bailiff, approved by the senior bailiff or his deputy.
See the procedure for carrying out the drive bailiffs to ensure the established procedure for the activities of courts, approved by the Order of the Ministry of Justice of Russia of July 13, 2016 N 164 Thank you very much for the detailed and understandable answer!
- Quote: Is the bailiff obliged to notify the debtor about the initiation of enforcement proceedings? Good day.
Whether the bailiff must notify the debtor
Question: For the time limit, the bailiff should notify the debtor about the initiation of enforcement proceedings? Does the right to arrest property, without loving the debtor? Answer: The bailiff does not have the right to implement executive actions without notifying all interested parties. The following methods of notification are appropriate:
- electronic relationships;
- telephone line;
- agenda;
- written notice.
Another condition that allows the baits to impose an arrest on property - the direction of the relevant decree, where the execution date is specified. In this case, only the property listed in the ruling is subject to arrest.
The notification is admired only if there is evidence confirming that the debtor really received it.
Executive proceedings in the Russian Federation is a tool for the execution of court decisions, opens by the attractive service, is carried out on the exhaust mechanism, which involves the opening of the case and bring it to a successful completion. If the trial is initiated about the debts of the citizen, then a decree on the forced recovery of debt is made. Ways for recovering funds to the repayment of debts - arrest of bank accounts or inventory and selling from a bidding of its property.
Can bailiffs describe the property of the debtor's relatives
The function of the bailiff service includes the duty to control the execution of the decisions made by the court, therefore, when the court decides on the need to recover the debt at the expense of the property of a citizen, the bailiffs are sent at the place of registration to describe the things that belong to it. Further destiny - sale with trading. The proceeds are sent to debt repayment.
The law is spelled out that the relatives of the debtor are not responsible for his debts. Therefore, the arrival of representatives of the bailiffs to the parents of the debtor is unauthorized, and they cannot require relatives to pay debts of children.
Based on the provisions of the Federal Law "On Enforcement Proceedings", obviously that no one has the right to impose an arrest on the property of parents if it does not belong to the debtor. Confirm the right of ownership of objects of use Parents can, presenting documents that indicate their acquisition. First of all, this is a certificate of ownership when it comes to large real estate, as well as checks, receipts, warranty coupons, and so on.
Thus, in order to avoid negative consequences of accumulated debt, legislation provides for quite legal action schemes in order not to bring the situation to the extreme - property arrest. Despite the magnitude of the debt, the ministers of the law will be able to make him compensate only at the expense of the property of the debtor.
About the situation when children are spelled out on parents
The debtor can be registered at the place of residence of parents. If he lives with them, then some property is subject to arrest. These include things that do not fall under the category of large ownership, and are general items.
There is a list of things that do not fall under the opis:
- Apartment or house, if they are the only housing.
- Personal things.
- Car disabled.
- Cash in the amount of at least one subsistence minimum on all family members.
- Property that is necessary for the debtor to fulfill professional duties (computer, workbench, machine).
- Awards, promotion, personal commemorative gifts.
The duties of the attachments include analyzing the objects located in the apartment. For debt repayment, things are suitable for viability: jewels, antiques and luxury items.
How to produce an inventory and arrest of property
Inventory - the procedure, during which the things belonging to the debtor are taken into account in order to further withdraw them to pay off debt. The arrest is made on the basis of a judicial resolution. In the course of the implementation of the OPISI, the attractive act of acceptance in which should be reflected:
- Full name, debtor.
- An indication of the objectives of the inventory and the foundation by which it is carried out.
- A list of objects that are subject to arrest with a description of their characteristics and an indication of the approximate value of each.
- An indication of the term when the property will be sold.
In the act, it should be written that all participants in the procedure received clarifications about what is happening. If someone from those present agrees with the holding of an inventory and arrest of property, then this should be said in the act. If it turns out that the legitimate property rights belong to the parents of the debtor, then this property must be excluded from among the things described.
Thus, in the apartment where the debtor lives with his parents, partial inventory of objects and things are made. The exception is:
- Property from the list of exceptions.
- Objects with ownership of parents.
As a result, all those present by citizens are signed under the act, who agree with the Obia procedure. The act is made in 2 copies, one of which remains among the debtor.
What if the bailiffs still described the property of the debtor's parents?
Bailiffs, heading for the procedure for holding a debtor's behalf to his parents, should adhere to the legislation regarding the conditions for their withdrawal:
- The fact of the debtor's stay on one living area with parents.
- Availability of ownership or lack of such property in the apartment of parents.
According to the error, the attitudes may be described by the property of the parents, which does not belong to the debtor. The Federal Law "On Enforcement Proceedings" states that in the event of disputes on property belonging, which was confiscated, concerned citizens may challenge the procedure conducted in the judicial instance. The claim must contain a requirement for exemption from recovery in the form of seizure of parental property to the payment of debt of their children.
Parents can write a claim for compensation for moral damage that bailors who came to describe things if the arrest of property was carried out without clarifying who she belongs. Inventory is authorized to conduct only the bailiff service, there are no such powers from the Bank's employees.
In order to avoid illegal ownership, the debtor's relatives should explain to them to them who is the owner of things, present documents confirming the property belonging. The accommodation is the private property of citizens, so they have the right to not even let attractive attachments on their territory, until all the circumstances of the case are clarified to the end: living or not the debtor on one area with parents and whether he is owners of any things in the apartment. In addition, in the work of arrest in the house, the debtor itself must be present, and the owners of housing.
On the peculiarities of the procedure of Obia and the arrest of property
The debtor and his close relatives need to know about some features of the description of the description of the description, when the ministers of the law appear on the threshold of the debtor's apartment and know exactly if the lawsuit of the bailiffs to describe the property of relatives:
- Citizens have the right to not put a signature under the act drawn up by bailiffs, if they have doubts about the legality of the documents drawn up. Attention to signing from the side of the attachments is considered a violation of the law.
- The maintenance service conveys the right to use the arrested property to a relative of the borrower or a specialized organization.
- Before the design of the Bailiffs must be convinced of who is the real owner of each subject in the apartment.
- The owner has the right to not let attachments in the house without presentation of the decision.
- For any of their illegal action, the debtor can file a claim in court.
- The debtor is better to prevent property arrest than bringing the situation to extremes. For this, there are a number of legitimate actions that need to be made before the opening of the enforcement proceedings: to pay part of the debt or agree with the lender.
The imposition of a citizen's property, which has debts is one of the most effective ways to enforce the execution of a court order. This measure applies from the side of the bailiff and should be directed only to the property of the debtor itself within the framework of the enforcement proceedings.
The experience of the lawyer since 2000. He graduated from the Moscow State Open University with a Red Diploma. Consultation and assistance to citizens on all legal issues.