That bailiffs arrest in the apartment. What income and property do not have the right to take away for debts bailiffs? Exclusion from the description
Today, many Russians have debts that increase every year. If we turn to the numbers, the overdue debt of individuals to banks on bad loans in 2019 grew to almost 4 trillion rubles (in the first six months of 2019, the FSSP received 4 million enforcement proceedings for the recovery of bank debts in the amount of more than 2 trillion rubles). In addition to bank debts on loans, the population has debts for alimony, for housing and communal services, fines that have not been paid, and the like. This situation indicates that bailiffs will be knocking on the doors of Russians much more often this year.
In this publication, we will help you figure out what bailiffs are entitled to, what they can take, and what types of income, and what property cannot be recovered from the debtor in court.
Issues discussed in the material:
Property not subject to collection for debts
Turning to Article 446 of the Code of Civil Procedure, you can find a list of property that, on the basis of executive documents, cannot be recovered from a citizen. If a person lives in an apartment, and this housing is the only owned premises suitable for these purposes, then the debtor will not be able to be evicted from it. If the person in debt lives in a private house located on a land plot, and this housing is his only one, then it cannot be recovered either. In the case when the debtor owns several apartments or houses, then, depending on the amount of the debt, according to the law, part of the property (apartment or house) will be taken away.
But there is an exception here: housing bought with a mortgage does not fall under the “inviolability of the only housing” rule. , despite the fact that minor children are registered in the apartment. For bailiffs, this will not be an obstacle.
List of property not subject to collection by bailiffs
Property that is not subject to recovery in court for debts by employees of the Federal Bailiffs Service:
- Bailiffs do not have the right to seize personal items, in particular shoes and clothes, household items and furnishings. The exception is luxury items and jewelry.
- The property required by the debtor for professional activities cannot be taken away. The exception is items that exceed the value of one hundred minimum wages established by federal law. For example, if a debtor citizen earns a living by baking cakes, then they have no right to take away the oven and baking dishes from him.
- Also, domestic animals and livestock that are used for personal purposes, seeds used for new sowing cannot be selected. This rule applies to non-business situations. In other words, if the debtor raises chickens for food, then they will not be taken away, but if the chickens are intended for sale and profit, then they can be seized on account of the debt.
- Also, bailiffs do not have the right to take money, the amount of which is not less than the living wage for the debtor himself, as well as persons who are dependent on him. They are not allowed to take food.
- The fuel required by the family for the entire heating season and for cooking every day will not be taken away.
- In the case when the citizen-debtor is disabled, bailiffs cannot take away vehicles and things that he needs for health reasons.
- State awards, prizes, commemorative and honorary signs issued to the debtor as awards will not be taken away for debts.
Income not recoverable by court for debts
Before going home to the debtor in order to seize his property, bailiffs send requests to the bank in order to obtain information about where the money of the indebted citizen is stored. This is done for the reason that it is much easier to collect a debt from a bank account than to take home appliances from disgruntled households for subsequent sale at auction.
But not all types of income can be used to pay off debt. Turning to Article 101 of the Federal Law-229 “On Enforcement Proceedings”, you can familiarize yourself with the list of income that is prohibited from foreclosure.
The list of income on which bailiffs do not have the right to foreclose:
- Financial resources that are paid to a debtor citizen as compensation for harm caused to health.
- Amounts of money that are paid to citizens who have received various injuries in the line of duty - shell shock, wounds, injuries. This includes amounts received by family members in the event of death (death) of the above-mentioned category of persons.
- Financial means that are paid in connection with the death of the breadwinner as compensation for harm.
- Compensatory payments that are made at the expense of the funds of the constituent entities of the Russian Federation, federal budget, local budgets to citizens who have suffered as a result of man-made or radiation disasters.
- Financial resources paid for the maintenance of children who have not reached the age of majority at the time of the search for their parents.
- Funds that are paid as alimony.
- Payments (compensation) made from the funds of the local budget, funds of the federal budget, budgets of the constituent entities of the Russian Federation to persons caring for disabled people.
- Funds that are insurance coverage for compulsory social insurance. The exceptions are old-age pensions, temporary disability benefits and disability pensions.
- Cash payments made every month or annually, which are accrued to certain categories of citizens on the basis of legislative acts of the Russian Federation. These include reimbursement for the purchase of medicines, reimbursement for travel and others.
- Pension payments issued at the expense of the federal budget in the event of the loss of a breadwinner.
- A number of compensation payments determined by the legislative acts of the Russian Federation on labor. In particular, payments in connection with a business trip for official purposes; in connection with the wear and tear of tools that belong to a citizen-worker; in connection with the direction or transfer to work in another region. This includes funds that are paid by the enterprise in connection with the death of relatives, with the registration of marriage, in connection with the birth of a child.
- Payments to pensions made at the expense of the funds of the constituent entities of the Russian Federation in connection with the loss of a breadwinner.
- Monetary funds representing maternity (family) capital, stipulated by the Federal Law of December 29, 2006 No. 256-ФЗ “On Additional Measures of State Support for Families with Children”.
- Cash payments made from the budgets of the constituent entities of the Russian Federation, from the federal budget, extra-budgetary funds of state structures, local budgetary funds, to persons who have children.
- Social allowance allocated for the burial of the deceased.
- Cash amounts of material assistance issued at a time from the budgets of Russian subjects, at the expense of foreign states, federal budget funds, extra-budgetary funds, interstate organizations, foreign and domestic organizations in connection with such cases:
— terrorist acts;
— emergency or natural disasters;
- death of family members;
- as a humanitarian aid;
- encouragement of a monetary plan for assisting in the prevention, detection, disclosure, suppression of actions of a criminal nature or terrorist acts. - Compensation payments, if they are provided for by the legislation of such a plan: the cost of travel documents to the place of treatment and on the way back. If, according to the law, the travel of an accompanying person is compensated, then this amount.
- Compensation payments in full or in part from the employer for the cost of vouchers to health resorts located in Russia. These funds are paid to disabled people, family members of employees who do not work in this organization, the employees themselves. This does not include travel packages. Funds for full or partial reimbursement of expenses for the purchase of children's vouchers to health and spa facilities located in Russia. Children are under 16 years of age.
Please note that quite often the FSSP writes off the debt as bad, so, for example, in 2019, according to the Federal Bailiff Service in Russia, about 1 trillion rubles of debts of individuals to banks can be written off due to the impossibility of collection.
What to do if bailiffs come
If you do not pay the loan for a long time and avoid contact with the creditor bank, then be prepared for the fact that the bank will transfer your case to collectors who will also try to convince you to pay off the loan debt. After calls and visits of collectors, persistent non-payers will have a much more serious meeting with bailiffs.
In cases where neither the bank nor the collectors could achieve a result, your case will be taken to court and, most likely, enforcement proceedings will be assigned to it, aimed at the forced collection of the debt by the Federal Bailiff Service. Here it will no longer be possible to avoid a meeting simply by ignoring phone calls or renting an apartment in another area, bailiffs will come to your home and try to repay your debt at the expense of your property. Let's try to figure out if the bailiffs can take your property and what the bailiffs do if the property is not enough to repay the debt.
Overdue credit debt is not the only reason why bailiffs may come to you. As a reason for initiating FSS enforcement proceedings, any debt that the court has decided to recover from you can be any debt that has not been paid for a long time, utility bills or taxes. Often, a long debt hole leads citizens to the fact that they are wanted for several reasons at once.
Powers of bailiffs
Bailiffs are ordinary civil servants involved, among other things, in enforcing court decisions to recover property from debtors on account of debt. The actions of bailiffs are strictly regulated and have certain limits. At the same time, it must be remembered that the decision of the bailiffs to come to your home and start an inventory of property cannot be arbitrary, if the bailiffs came, then this means the execution of a specific court decision made in your regard.
Therefore, the first thing you need to start communicating with is to find out if the bailiffs can even come to you, for which you immediately demand that they present their certificates of the FSSP employees and the court decision. If such documents were presented to you and the enforcement proceedings really have grounds, then it remains only to ensure that the actions of the bailiffs are carried out within their powers and you do not become a victim of the negligent attitude of the bailiffs to their official duties.
Please note that according to the current legislation (Article 35 of the Federal Law “On Enforcement Proceedings”), the bailiffs are not required to warn the debtor about the upcoming visit. But they also cannot come to your home in the middle of the night - only at a time strictly limited by law - from 6 o'clock on the tour to 22 o'clock in the evening.
What can bailiffs do to enforce a judgment:
- receive from debtors the information they need, including personal data, as well as check their identity documents;
- enter and inspect the premises belonging to the debtors, or, if necessary, open them;
In essence, this means that if the debtor does not open the door to the bailiffs, then they can break it open and forcefully enter the premises.
- in case of resistance to the lawful actions of bailiffs, it is allowed to use special means and even firearms in case of a threat to the lives of participants in enforcement proceedings;
- call citizens to the FSSP according to executive documents;
- check financial documentation in the accounting department at the place of work of the debtor;
- arrest, seize and transfer for storage the property of the debtor;
- sell seized property;
- to seize funds in accounts and valuables in the safe deposit boxes of the debtor in banks;
- put the debtor, his property or children on the wanted list;
On the official website of the FSSP, any citizen of the Russian Federation can clarify whether any legal proceedings are being conducted against him. In addition, on the FSSP website, you can immediately pay the existing debt or print a receipt for payment.
Failure to comply with the decisions of the bailiffs by the participants in the proceedings (and such instructions are mandatory) may result in a fine, administrative or criminal liability.
What bailiffs can't take
Most often, in relation to the debtor, the court decides to forcibly withhold part of the salary, but for the unemployed or especially zealous deviationists, decisions can be made to seize and seize property belonging to the debtor. What do bailiffs do in this case? As a rule, a group of executors comes to the debtor's home, describes the property and takes it. But at the same time, bailiffs cannot pick up:
- Household items are those things that you need on a daily basis. It can be a bed, bed linen, hygiene products and so on.
- Items that you need to earn money and you need for this. For example, a computer for a professional web designer or a car for a professional driver working on it.
- Animals and birds of your personal household that are not involved in making money, i.e. the opposite of the previous point. In addition to animals, this includes bees.
- Real estate, if it is the only living space of the debtor.
- Means for life support and movement for the disabled - wheelchairs and special vehicles.
- Things that do not belong to the debtor, if he does not live alone.
The last point is one of the most difficult, since it is often very difficult to confirm the belonging of a particular thing to another person. Therefore, if you are waiting for the arrival of bailiffs, then prepare loan agreements, sales contracts and warranty cards for your property. These documents must indicate another person - not a debtor.
In addition, you can present the bailiffs with a ticket in the name of the debtor and a check for a purchase made in his absence, which can also serve as indirect evidence that the item belongs to another person.
Can the bailiffs take all the property from the spouses? The answer is unequivocal - no! By law, married couples jointly own property, so bailiffs can only take half of the property. That is, if you have two TVs in your family, then the bailiffs can take away only one of them, if there is one TV and a computer, then also one thing.
When the bailiffs have already arrived - a reminder of the debtor
So, they call at your door and introduce themselves as bailiffs - what to do and what is important to remember:
- Ask for identification and a court order. Do not be too lazy to write down the data of employees and the order number, as well as record the time of the visit.
In no case do not try to hide behind a closed door - the door will be broken, and you will be fined (at best).
- Try to find the maximum possible number of things that do not belong to you and have documentary evidence of this.
- Facilitate and comply with the decisions of the bailiffs - they rarely go beyond the bounds of what is permissible if the debtor is sociable and not aggressive.
- If the bailiffs took property that does not belong to you and you can confirm this, then try to describe this property in as much detail as possible (up to the serial numbers of household appliances) and apply to the court with an application to remove the illegally imposed arrest (not for illegal actions of the bailiffs, but for the removal from seizure of property).
Thus, it is important to remember that bailiffs can take almost any thing belonging to the debtor, but only if they act on the basis of a legal court order. Be sure to verify the legality of the actions of the bailiffs and do not resist. In case of violations on their part, you yourself apply to the court.
Enforcement proceedings in the Russian Federation are a tool for the execution of court decisions, opened by the bailiff service, carried out according to a well-established mechanism, which involves opening a case and bringing it to a successful conclusion. If a lawsuit is initiated regarding the debts of a citizen, then a decision is made on the forced collection of the debt. Ways to collect funds to pay off debts - arrest of bank accounts or an inventory and sale at auction of his property.
Can bailiffs describe the property of the debtor's relatives
The functions of the bailiff service include the duty to control the execution of orders issued by the court, therefore, when the court makes a decision on the need to collect a debt at the expense of a citizen’s property, the bailiffs are sent to the place of his registration in order to describe his belongings. The further fate of the property - sale at auction. The proceeds are used to pay off debt.
The law states that the debtor's relatives are not liable for his debts. Therefore, the arrival of representatives of the bailiff service to the parents of the debtor is not authorized, and they cannot demand that relatives pay the debts of children.
Based on the provisions of the Federal Law "On Enforcement Proceedings", it is obvious that that no one has the right to seize the property of the parents if it does not belong to the debtor. Parents can confirm the ownership of items of use by 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 cards and more.
Thus, in order to avoid negative consequences from the accumulated debt, the legislation provides for quite legal schemes of action in order not to bring the situation to the extreme - the seizure of property. Regardless of the size of the debt, the servants of the law will be able to make him repay only at the expense of the property of the debtor.
About the situation when children are registered on the square of their parents
The debtor may be registered at the place of residence of the 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 property, and are objects of common use.
There is a list of things that do not fall under the inventory:
- Apartment or house, if they are their only home.
- Personal items.
- Disabled car.
- Cash in the amount of at least one subsistence minimum for all family members.
- Property that the debtor needs to perform professional duties (computer, workbench, machine tool).
- Awards, promotions, personal memorable gifts.
It is the duty of the bailiffs to analyze the items in the apartment. Things of value are suitable for debt repayment: jewelry, antiques and luxuries.
How is inventory and seizure of property made?
Inventory - a procedure during which the things in the apartment belonging to the debtor are taken into account in order to subsequently withdraw them to pay off the debt. The arrest is made on the basis of a court order. During the inventory, the bailiff draws up an acceptance certificate, which should reflect:
- Full name of the bailiff, debtor.
- Indication of the purpose of the inventory and the basis on which it is carried out.
- A list of items that are seized with a description of their characteristics and an indication of the approximate cost of each.
- Specify the date when the property will be sold.
The act should state that all participants in the procedure received explanations about what is happening. If one of those present does not agree with the inventory and seizure of property, then this should be stated in the act. If it turns out that the legal rights to property belong to the parents of the debtor, then this property must be excluded from the number of things described.
Thus, in the apartment where the debtor lives with his parents, a partial inventory of objects and things is made. The exception is:
- Property from the list of exceptions.
- Objects with parental ownership.
As a result, all citizens present who agree with the inventory procedure sign the act. The act is made in 2 copies, one of which remains with the debtor.
What to do if the bailiffs nevertheless described the property of the debtor's parents?
Bailiffs, going to the procedure for conducting an inventory of the debtor's things to his parents, must adhere to the legislative norms regarding the conditions for their seizure:
- The fact that the debtor lives on the same living space with his parents.
- The presence or absence of ownership of the property in the apartment of the parents.
By mistake of the bailiffs, the property of the parents, which does not belong to the debtor, can be described. The Federal Law “On Enforcement Proceedings” states that in the event of disputes about the ownership of property that has been confiscated, interested citizens can challenge the procedure in court. The claim must contain a demand for exemption from foreclosure in the form of seizure of parental property to pay the debt of their children.
Parents can write a statement of claim for compensation for moral damage caused by bailiffs who came to describe things if the seizure of property was carried out without finding out who owns it. The inventory is authorized to be carried out only by the bailiff service, bank employees do not have such powers.
In order to avoid an unlawful inventory of property, the debtor's relatives must explain to the bailiffs who is the owner of the things, present documents confirming the ownership of the property. Housing is the private property of citizens, therefore they have the right not to let even bailiffs into their territory until all the circumstances of the case are clarified to the end: whether or not the debtor lives on the same square with his parents and whether he owns any things in the apartment. In addition, when making an arrest in the house, both the debtor himself and the homeowners must be present personally.
On the features of the procedure for the inventory and arrest of property
The debtor and his close relatives need to know about some features of the description process itself, when the servants of the law appear on the threshold of the debtor's apartment and know for sure whether the bailiffs have the right to describe the property of relatives:
- Citizens have the right not to sign the act drawn up by bailiffs if they have doubts about the legality of the documents drawn up. Coercion to sign by bailiffs is considered a violation of the law.
- The bailiff service transfers the right to use the seized property to a relative of the borrower or a specialized organization.
- Before conducting an inventory, bailiffs must make sure who is the real owner of each item in the apartment.
- The owner has the right not to let bailiffs into the house without presenting a decision.
- For any illegal action, the debtor may file a claim with the court.
- It is better for the debtor to prevent the seizure of property than to bring the situation to an extreme. To do this, there are a number of legal actions that must be taken before the opening of enforcement proceedings: pay part of the debt or agree with the creditor.
Seizure of the property of a citizen who has debts is one of the most effective ways to enforce a court order. This measure is applied by the bailiff service and should be directed only to the debtor's property within the framework of enforcement proceedings.
Experience as a lawyer since 2000. Graduated from the Moscow State Open University with honors. Provides advice and assistance to citizens on all legal issues.