What property cannot be seized? Arrest of unrecoverable property: position of the Presidium of the Supreme Arbitration Court of the Russian Federation Land plot where the only housing is located.
Loans help solve many problems: get an education, start a business, or pay for a large purchase, which would have to be postponed for months. But the amount borrowed has to be repaid, also with interest. If this is not done voluntarily, the bailiffs can seize the property in favor of the creditor forcibly. But there is property, which, according to the requirements of modern legislation, cannot be foreclosed.
What if there is no way to pay the borrowed amount, interest and fines, and bailiffs start knocking on the door? First of all, do not panic: for a long time they have no right to leave the debtor “in one linen”: there are rules for collecting debts, which all financial organizations must obey.
In this article
Modern legal framework
- Real estate that is the only home for the debtor and his family, as well as the land plot on the territory of which it is located. An exception is the case when the real estate originally served as collateral. For example, an apartment taken on a mortgage, which at the same time serves as the subject of a pledge, will be subject to collection according to executive documents;
- Household and household items, as well as old and new personal items, with the exception of material values, antiques and luxury goods. That is, they can confiscate the TV, jewelry and antique painting from the debtor, but the bed, table, kitchen stove and the only refrigerator in the house are no longer there;
- Professional tools... If a debtor, who does not work as a photographer or videographer, finds a video camera during the inspection of the property, it will be seized as material value. But if the debtor needs the same camera for work, and this can be documented, it turns into property that is not subject to collection;
- Animals and plants that are grown for personal use and not for sale. In addition, they do not have the right to take away feed for these animals, seeds for the upcoming sowing and buildings necessary for keeping livestock;
- Food and cash in the amount of 1 minimum wage for each family member;
- Fuel resources used for heating and cooking during the season;
- Things and vehicles necessary for a disabled person. Things that, in the case of a non-disabled person, would be considered material value, for example, a washing machine, can also fall into this category;
- State awards, prizes and other badges of honor, which were awarded to the debtor.
What if the property is someone else's?
Bailiffs are responsible for the description of the property. The task of these people is to compile a list of valuable things, and to confiscate them. Of course, all the information is officially documented and it does not matter whether we are talking about the recovery of compensation for the share of property in the inherited property, or about the seizure of things in favor of the creditor.
The principle of work of bailiffs is, as a rule, the same: they come to the house of the debtor and begin to methodically describe all the valuable property that "catches the eye." But what if the debtor lives in a communal apartment, and two refrigerators in the corridor do not belong to him at all, but to neighbors from other rooms? What should people who "fall under the distribution" do? It is unpleasant to come home from work and find that some of the things have been taken away at the expense of someone else's debt.
In this case, there are always two ways. The first is the simplest one: it is enough to keep receipts and guarantee coupons for all purchased valuables, be it household appliances, jewelry, etc. You should remember the basic rule: when collecting property from a debtor, creditors have no right to affect people living with him in the same territory. At the same time, the presence of consanguinity does not matter: if the computer belongs to the brother or father of the debtor, they do not have the right to take it away.
An exception is the case when this person, due to his own short-sightedness, agreed at one time to be a surety - in this case, instead of the debtor, he is forced to pay the principal debt, interest on it and penalties.
The second path is for those who want to return their property, but have not retained official proof of ownership. You will need to connect witnesses, find old payment documents (bank card statements if the payment was made by a non-cash method), and also contact a specialist who will help to challenge the decision of the bailiffs.
Since this process is quite laborious and does not always end in favor of an individual, it is better not to bring a situation like this, keeping receipts, warranty coupons and other official confirmation that this property is owned by third parties.
Stands apart. As a rule, the attention of creditors will be drawn to it only if this share of the property can be separated from the rest. For example, a room in a communal apartment may be taken away and auctioned off. In another situation, the property can be sold with the consent of other owners, and the money is distributed among them. At the expense of the amount received by the debtor, the debt or part of it will be repaid.
What is the situation with legal entities?
In addition to credit liabilities, organizations can collect property for non-payment of various tax liabilities. In this case, tax collection cannot be carried out at the expense of the taxpayer's property - it is only possible to withdraw his money. The property of the organization, or part of it, will also be seized (depends on the total amount of debt, including fines and penalties). The settlement of this issue is dealt with by Article 123.22 of the Civil Code of the Russian Federation, according to which the institution is liable for its obligations only with the available funds. At the same time, there is a procedure for collecting tax, as well as a list of things that cannot be levied. These things include:
- Property that has a liturgical purpose. There is no specific list of it, but according to the logic of things, all those things that are church attributes, for example, the altar and iconostases, will be referred to it. The ban on the seizure of such property is established by the Federal Law "On freedom of conscience and on religious associations";
- Indivisible funds, including property of agricultural cooperatives: livestock, vehicles, feed, machinery for sowing and harvesting, poultry, workhorses, vehicles other than passenger cars, etc.
Cash situation
In accordance with the legislation, money and securities are withdrawn from the debtor before the property. But in this case, you also cannot collect certain amounts, such as:
- various indemnifications and compensations received for damage to health, injury, injury, concussion, etc .;
- compensation to the relatives of the deceased for the loss of the breadwinner, social benefits for burial;
- compensation to citizens who have suffered as a result of man-made disasters, radiation accidents, natural disasters, as well as the results of the collection of humanitarian aid to these citizens;
- alimony for minor children, funds that are intended for their maintenance before the search for parents, as well as maternity capital;
- reimbursement of the cost of travel, treatment, training, worn out working tools and other expenses that are compensated by the employer, regional and state funds.
In this case, you can collect a debt from the following sums of money, in addition to the debtor's wages: old age, disability and temporary disability pension.
Outcome
Summing up, it should be said: modern systems for collecting taxes, fines and debts from individuals and legal entities are organized in such a way that it is possible to collect a debt without depriving a person of vital things. But the foreclosure on property for the obligations of the owner is an extreme measure, to which it is best not to bring the matter.
As a rule, modern creditors are interested in the debtor returning the funds to them, which means that when contacting them, they can revise the terms of the loan agreement in case of emergency. In this case, the main thing is to start solving the problem in time so as not to get property problems.
If it comes to the collection of property, it is important to know the above information in order to defend your rights in case of communication with an unscrupulous creditor and protect the property held by third parties and the debtor from illegal seizure.
The Judicial Collegium for Civil Cases of the Armed Forces examined the debtor's complaint against the bailiff's actions. He arrested the debtor's only living space, and she felt that this violated her rights.
The situation with debt collection is relevant today for many. Debts must be repaid. Especially by court order. This is what the bailiff service exists for. But are their actions always legitimate? Almost all debtors know that it is forbidden to touch the only housing. Is this really so, and what actions does the bailiff have the right to perform with the debtor's apartment without breaking the law?
In the district court of St. Petersburg, a decision was made on the claim against a local resident. By a court decision, she was obliged to repay a considerable debt. The bailiff started enforcement proceedings and arrested the land plot and part of the citizen's dacha. They were sold, and the money went to pay off the debt.
But these funds were not enough for all repayment, and the bailiff seized the apartment where the debtor lived with the child.
But the defendant did not agree with the arrest of the apartment. She went to another district court with a statement in which she challenged the order issued by the bailiff to arrest the house. In support of her claim, the citizen wrote that the apartment was the only place of residence for her and her little son, so she could not be arrested.
The District Court agreed with this statement. In its decision, the court of first instance said that according to Article 79 of the Law on Enforcement Proceedings, foreclosure cannot be levied on the property belonging to the debtor by right of ownership, the list of which is established in the Civil Procedure Code. The only premises suitable for permanent residence are included in this list (Article 446 of the Code of Civil Procedure.)
"Since the disputed apartment as the only place of residence of the debtor cannot be foreclosed, the seizure of property that cannot be foreclosed cannot be used as an independent enforcement measure and cannot lead to the execution of a court decision," recorded in the decision of the district court.
The creditor and the bailiff were offended by this verdict and filed a complaint with the St. Petersburg City Court. The appeal says that the arrest of the apartment was made "not for the purpose of levying execution against him, but as an independent measure of compulsory execution, provided for by the law on enforcement proceedings." But the city court did not support the bailiff and the creditor. The appeal stated that their argument was "based on a misinterpretation of the legislation in force." The court said that the measure taken by the bailiff was not included in the list of grounds for arrest.
Therefore, "the argument about the legality of the seizure in order to force the debtor to actually fulfill the requirements of the executive document does not correspond to the current legislation" - is written in the appeal decision. The City Court also said that the imposition of an arrest to ensure the safety of the property in our case is devoid of legal significance, since "such an arrest in this case cannot lead to the execution of the court's decision."
The creditor also disagreed with this wording and went further and higher - to the Supreme Court of the Russian Federation. And there, after reading this case, they declared the following - the acts of the St. Petersburg courts are incorrect and are subject to cancellation, since their conclusions are based "on an incorrect interpretation of the norms of substantive law."
In its ruling, the Judicial Collegium for Civil Cases indicated that an arrest as an enforcement action could be imposed by a bailiff “in order to enforce a court decision containing claims for property penalties” (arts. 64 and 80 of the Law on Enforcement Proceedings). According to the Supreme Court, despite the fact that Article 446 of the Code of Civil Procedure prohibits levying execution on the debtor's only housing under executive documents, such housing can be arrested, because arrest is not a penalty. These are different actions.
According to the collegium, the court of first instance and the appeal mistakenly equated the prohibition on taking registration actions with the apartment and the enforcement measures. The decision of the Supreme Court says that "it is clear from the decision of the bailiff-executor that it was made in order to ensure the execution of the court's decision."
And the court clarified that this arrest does not provide for restrictions on the right to use the apartment and levy execution on it, namely, the seizure of the apartment and its sale or transfer to the claimant. The debtor can live in her apartment calmly, but after the arrest, the woman will not be able to dispose of the housing. That is, sell it, donate or change it.
In this case, the Supreme Court used the resolution of the Plenum "On the Application of Legislation by Courts when Considering Certain Issues Arising in the Course of Enforcement Proceedings" (November 2015).
In that resolution it is said that the arrest of a residential premises, which is the only one for permanent residence of the debtor-owner and his family, as well as the establishment of a ban on the disposal of this property (including the settling and registration of other persons), cannot be recognized as illegal if these measures were taken by the bailiff-executor so that the debtor could not dispose of the real estate to the detriment of the interests of the claimant. (Case No. 78-KG15-42)
Today, there are often cases when, after a court decision, funds are collected from the debtor, bailiffs and executors are dealing with these issues. If, within the allotted time, the defendant has not contested the decision, then he will be seized of property and bank accounts. But the debtor must know what property is not subject to arrest by bailiffs, this will help protect their rights.
Lodging
Many people mistakenly believe that they can lose their roof over their heads for debts, but this is a big mistake. In fact, the only housing and land plot, but which a private house has been erected, if it is the sole property of the debtor, is not subject to arrest.
It's another matter if the debtor owns other residential real estate. She can be arrested. But here, too, there are significant limitations. If the property is in shared ownership and the defendant is not the sole owner, then the bailiffs will not be able to arrest the property. Another nuance is that the value of real estate should be comparable to the amount of debt. Here we are not talking about mortgage debts, because in this case the housing is pledged by the bank and will be seized if the borrower fails to fulfill its obligations under the loan agreement.
But this does not mean that the arrest cannot be imposed on other personal belongings, household items, furniture and equipment. Next, you should carefully consider what property is not subject to arrest by bailiffs.
Personal belongings
Here, each debtor has many questions, and each of them requires individual consideration. First of all, personal belongings are not subject to arrest, these include shoes, clothing, personal hygiene products, food. This does not apply to luxury goods and jewelry, they can be withdrawn, but only if their value corresponds to the amount of the debt.
There are still quite a few questions. For example, can high-value clothing, such as a fur coat, be confiscated? In fact, no, they cannot, because this is a piece of clothing, but if something like that happened, the debtor has the right to file a claim with the court and return the property back. But more about this procedure below.
Furniture
An exciting question: which of the pieces of furniture can bailiffs remove? The legislation does not provide for the seizure of such property, especially if the apartment has old furniture. If bailiffs threaten to describe interior items, then this does not apply to furniture. And, for example, antiques, luxury goods, expensive paintings and much more can be withdrawn if their value is close to the amount of the debt. In addition, the task of the bailiffs is to seize and sell the property of the debtor, and the old furniture is of no particular value to them.
Appliances
This is also a controversial issue. The bailiffs cannot seize household appliances, without which it is difficult for a person to exist. First of all, these are kitchen stoves, they are necessary in everyday life for cooking. Without them, it is difficult to provide a family with adequate nutrition, which means that the rights of citizens are violated, which does not comply with the law. The same is the home refrigerator, without which it is impossible to store food that a person needs on a daily basis.
But this rule does not apply to other household appliances, such as a microwave oven, washing machine, multicooker, TVs. According to the bailiffs, these are luxury goods, and no ban has been imposed on their arrest. But do not despair, it is enough to challenge this decision in court if it is possible to prove that the seizure of property will dramatically worsen the position of the debtor. By the way, if in the house, for example, there are two stoves or refrigerators, several televisions, then they can be confiscated.
Gifts, prizes and awards
Gifts and prizes are the property of the debtor, but it cannot be seized. As well as for state awards, prizes and more. But this does not apply to inheritance, that is, if the debtor inherited any property and it became his property, then he can be arrested for debts. It is impossible to realize the means necessary for the existence of a disabled person, for example, strollers and cars.
State awards are a separate topic, they were received for any merit, and third parties are not entitled to claim them. Accordingly, bailiffs cannot seize them for the purpose of subsequent implementation.
Professional subjects
The property that is necessary for professional activity is not subject to arrest. That is, property that generates income. For example, if the defendant works in a taxi, then it is impossible to confiscate his car, or he is a musician, and he needs a musical instrument. The exception is the high cost, in excess of 100 times the minimum wage. But it is, accordingly, possible to withdraw it only if the amount of debt corresponds to the value of the item.
It is impossible to confiscate from the debtor the property used by his children, for example a computer. If a child is a schoolboy, then this subject is necessary for him in his studies and cannot be subject to withdrawal.
Agricultural property
For a rural dweller, the main source of food is his own farm. Bailiffs cannot sell livestock, the products it gives, and feed for its maintenance. This is if we are not talking about entrepreneurial activity. In simple words, if the debtor keeps the courtyard not for sale, but for his own use, then it cannot be withdrawn. The same goes for the seeds needed for the next sowing season.
In some cases, transport cannot be seized if it is necessary for movement from rural areas to, for example, a place of work. Buildings and structures for keeping livestock are also not subject to arrest.
Inviolable items include fuel, such as wood, which is used to heat the room and is the source of cooking.
Cash
The first thing that is seized is the bank accounts. Credit cards are banned, because they are not the property of the defendant, but belong to the bank, therefore, it is impossible to arrest them. The salary account can be arrested, but not completely, the maximum amount is 50%, and the balance cannot be less than the minimum wage in the region. But the duties of the bailiff do not include finding out where and why the funds are being transferred to the debtor's account. To lift the ban, you need to contact the bailiff service and document that this is a salary.
Child benefits, alimony, subsidies and other payments also cannot be arrested. Similarly, you need to prepare documents and contact the bailiff service. The arrest will be lifted, and the debtor can receive the previously arrested funds.
Cash found in the inventory of property can be withdrawn, but only partially, the remaining amount should not be less than the subsistence level. And accordingly, there cannot be more than the amount of the debt.
Other property
There is also other property that is not subject to seizure. These are religious items. These include books, icons and other attributes, as well as objects that do not belong to the debtor, but to other family members who live with him in the same living space. But this fact will need to be proven in court.
The controversial issue is the property of the spouses. On the one hand, all property is jointly acquired, including debts. For example, if the defendant took a loan in marriage, but could not pay it off, his wife was not a surety or co-borrower, then the collection will be at the expense of joint property. The only exception is the circumstance if one of the spouses did not know about the loan of funds and did not use them, which will be difficult to prove.
There are many nuances about what property is not subject to seizure by bailiffs. Even if the law does not provide for a ban on the sale of property, but it is really necessary for the debtor, then it is wiser for him to file a claim in court and present evidence. Then he may be able to defend him.
Illegal actions of the bailiff-executor
It is not uncommon for the bailiff to try at any cost to recover the debt from the defendant, and at the same time he is not very interested in whose property was under arrest, even if it was acquired by third parties. Many legally illiterate debtors are ready to give up even those items that no one has the right to take. But this is far from correct.
First, the bailiff comes to the defendant's house and seizes his property, that is, the owner loses the right to dispose of his property, he cannot sell, donate, or destroy it. If the defendant does not agree with the actions of the bailiff, then he has the right to file a claim with the court. This also applies to those cases when the owner does not agree with the appraisal of the item's value. Then an examination is appointed, and according to its conclusion, the final price is determined.
In general, in case of any disagreement, you should not be afraid to go to court. The state duty is not charged for the claim, the procedure will not take much time, but it will make it possible to legally defend your rights.
Conclusion
Every citizen, especially a debtor, should know exactly what property is not subject to arrest by bailiffs. In addition, you can solve the issue without arrest, for example, go to court with a request for a delay or installment payment. Or challenge the actions of the bailiffs. These measures will not help get rid of debt, but will help buy time, collect the required amount and pay off the debt. Only the property that has been described cannot be realized. It should also be borne in mind that if the amount is less than 3,000 rubles, then no one can seize the debtor's property or his funds.
At the moment, in the Federal Law of October 2, 2007 No. 229-FZ "" (hereinafter - the Law) there is no clear classification of the types of arrest that can be imposed on the debtor's property in the framework of enforcement proceedings, as well as the goals for the achievement of which this can occur ... In this regard, the courts are often required in the course of considering the relevant disputes to determine what kind of arrest was applied. Was it aimed at collecting property, or acted only as a measure of securing an enforcement document or encouraging the debtor to fulfill his obligations. In practice, disputes regularly arise about whether the debtor's property, which is not subject to collection in accordance with and, can be seized for the above purposes.
On March 27 of this year, on the official website of the Supreme Arbitration Court of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 19, 2013 No. 6065/13 in case No. А43-17970 / 2012 was published, which brings some clarity to this situation. The document provides a legal assessment of the actions of the bailiff-executor on the seizure of items of ordinary household furnishings and household items belonging to an individual entrepreneur with arrears in tax payments. In the opinion of the Presidium of the Supreme Arbitration Court of the Russian Federation, it does not provide for the right of the bailiff-executor to seize such property in order to secure a writ of execution or to stimulate the debtor to pay the debt.
Below are the positions of the courts of the first appeal and cassation instance, the Supreme Arbitration Court of the Russian Federation and the Presidium of the Supreme Arbitration Court of the Russian Federation in this case, as well as the judicial practice of resolving similar cases by other arbitration courts and courts of general jurisdiction.
Case story
The Inspectorate of the Federal Tax Service of Russia made a decision to collect tax arrears from an individual entrepreneur. The corresponding decree was sent for compulsory execution to the territorial body of the FSSP of Russia. The bailiff-executor issued a resolution to initiate enforcement proceedings.
In view of the non-fulfillment of the requirement for voluntary repayment of the debt and the lack of property that can be foreclosed, the bailiff-executor drew up an act of seizure (inventory of property) on the TV, telephone, washing machine, kitchen set. The property was left in storage with the debtor with an indication of the possibility of using it.
An individual entrepreneur appealed to the arbitration court with a statement on the recognition of the actions of the bailiff-executor on the seizure of the disputed property illegal, citing a violation of the requirements and.
First instance, appeal and cassation
In the situation under consideration the courts did not find any violations of the current legislation that would significantly affect the rights and legitimate interests of the applicant. According to the position of the courts, in accordance with paragraph 1 of Art. 12 of the Federal Law of July 21, 1997 No. 118-FZ "" the duties of the bailiff-executor include taking measures for the timely, complete and correct execution of executive documents. For these purposes, he was granted, in particular, the right to arrest, seize, transfer for storage and sell seized property.
Bailiff in order to ensure the execution of the court order containing claims for property penalties, has the right to seize the debtor's property. He can do this also within the period established for the voluntary fulfillment by the debtor of the requirements contained in the enforcement document (). The seizure of the debtor's property includes a prohibition to dispose of the property, and, if necessary, the restriction of the right to use the property or the seizure of property ().
At the same time, the entrepreneur's argument that the arrest of property was in violation and was made for household items was rejected by the courts. So, according to their position, these norms regulate issues related to the application of such a measure of compulsory execution as foreclosure on the debtor's property() and do not apply to controversial legal relationships.
According to the courts, the bailiff-executor applied another measure of compulsory execution - the seizure of the debtor's property () in the form of a prohibition to dispose of this property. In the opinion of all three instances, in the case under consideration, the disputed actions do not belong to the number of enforcement actions related to the foreclosure of property. In addition, no restrictions were imposed on the right to use the property, its seizure was not made, the seized property was left for storage by the entrepreneur with the right to use it.
In such circumstances, the courts concluded that the contested action of the bailiff-executor to seize the property of the entrepreneur meets the requirements of the law and does not violate his rights and legitimate interests in the field of entrepreneurial and other economic activities. Due to this the claim is denied.
Motivation for transferring the case to the Presidium of the Supreme Arbitration Court of the Russian Federation
First of all, when transferring the case to the Presidium (the Supreme Arbitration Court of the Russian Federation of August 16, 2013 No. VAS-6065/13 in case No. enforcement proceedings distinguish two types of arrest:
- arrest as an independent enforcement measure applied ();
- debtor's seizure in order to secure the executive document containing claims for property penalties ().
At the same time, the Supreme Arbitration Court of the Russian Federation noted that it contains closed list of cases of application of attachment to the debtor's property:
- to ensure the safety of property that is subject to transfer to the claimant or sale;
- when executing a judicial act on confiscation of property;
- when executing a judicial act on the seizure of property belonging to the debtor and located with him or with third parties.
From this, the Supreme Arbitration Court of the Russian Federation concludes: the seizure of the debtor's property and the foreclosure on it are successive stages of the procedure aimed at selling the property in order to fully restore the property sphere of the claimant.
Position of the Presidium of the Supreme Arbitration Court of the Russian Federation
Considering the case, the Presidium of the Supreme Arbitration Court of the Russian Federation noted that the courts, referring to the use by the bailiff-executor of arrest, as an independent measure of compulsory execution (), not aimed at the same time at the recovery of property, did not take into account that this is possible solely in pursuance of a judicial act on the seizure of property... In the absence of such an act, taken by the court as an interim measure, the conclusion of the courts on the application of the specified provisions of the Law in the dispute under consideration is incorrect.
In this regard, the Presidium of the Supreme Arbitration Court of the Russian Federation also emphasized that a closed list of grounds for seizing the debtor's property has been established. At the same time, from the above provisions of the Law, according to its position, it is not possible to seize household items and household items in order to stimulate the debtor to execute the executive document on the collection of mandatory tax payments at the expense of the taxpayer's property.
"The seizure imposed on the property of the debtor in order to secure a writ of execution containing a demand for the collection of funds is the initial stage of the implementation of the collection.", - noted the Presidium of the Supreme Arbitration Court of the Russian Federation.
At the same time, in the opinion of the Presidium of the Supreme Arbitration Court of the Russian Federation, the actions of the bailiff-executor in the situation under consideration are among the enforcement actions related to the foreclosure of property, since the decision to initiate enforcement proceedings was issued on the basis of an executive document - a decision of the tax inspectorate to collect tax arrears.
As the court noted in this case, within the meaning of these legal norms, the seizure of property to ensure its safety presupposes its subsequent transfer to the recoverer or sale. In accordance with the foreclosure cannot be levied on the property belonging to the debtor-citizen on the right of ownership, the list of which is established.
The practice of considering similar cases by courts of general jurisdiction
A similar situation is observed when considering such cases by courts of general jurisdiction. As a rule, the courts note that the bailiff-executor committed enforcement actions to arrest the debtor's property, which do not violate the debtor's rights to own and use the dwelling, but act as a kind of an interim measure guaranteeing the possibility of execution of court orders... It is also taken into account that the foreclosure on the seized property was not carried out by the bailiff.
In addition, in the opinion of the courts, it follows from the meaning and content that the seizure of property, as a measure to ensure the execution of a writ of execution, is not part of the foreclosure on property and ensures the execution of the court decision on the recovery of funds throughout the enforcement proceedings (see the Appellate ruling of the Rostov Regional Court of December 23, 2013 in case No. 33-15187 / 2013; the Appeal ruling of the Rostov Regional Court of May 24, 2012 in the case No. 33-5635; Appeal ruling of the Supreme Court of the Republic of Tatarstan dated June 20, 2013 in case No. 33-7178 / 2013; Appeal ruling of the Supreme Court of the Republic of Tatarstan dated September 20, 2012 in case No. 33-9475 / 2012; Determination of the Sverdlovsk regional court of October 16, 2012 in case No. 33-12253 / 2012).
According to another position, the ban on the disposal of property is one of the parts of such a measure to ensure the execution of a court decision, such as seizure, which is used to ensure the safety of property subject to transfer to the recoverer or sale. However, by force, the execution cannot be levied on the property belonging to the debtor-citizen on the right of ownership, the list of which is established. With this in mind, this prohibition is devoid of practical significance, since it cannot lead to the execution of a court decision(see the Appellate ruling of the Moscow City Court dated December 2, 2013 in case No. 11-39357 / 2013).
Thus, the majority of courts interpret establishing the possibility of using arrest to enforce a court order, in isolation from the closed list of cases where arrest can be imposed. Similarly, in the legal literature, a number of authors believe that it allows to expand the goals set in the list, for the achievement of which the bailiff-executor can seize. Other authors, on the contrary, believe that it is necessary to apply guided by the closed list established in Art. At the moment, the practice of considering cases related to the imposition of seizure of the property specified in, is at odds with the above position of the Presidium of the Supreme Arbitration Court of the Russian Federation. Probably, in the future, she will follow the path of recognizing the arrest of such property as illegal, regardless of whether the purpose of the arrest was to collect this property or to provide an enforcement document (to encourage the debtor to perform his duties).
Article 446 of the Civil Procedure Code
1. Recovery under executive documents may not be levied on the following property belonging to the debtor citizen on the basis of the right of ownership:
A dwelling (its parts), if for the debtor citizen and his family members living together in the owned premises, it is the only premises suitable for permanent residence, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and in accordance with foreclosure may be levied against mortgage legislation;
Land plots on which the objects specified in the second paragraph of this part are located, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and foreclosure may be levied on it in accordance with the legislation on mortgage;
Items of ordinary home furnishings and household items, personal items (clothes, shoes and others), with the exception of jewelry and other luxury items;
Property necessary for the professional occupation of the debtor citizen, with the exception of items the value of which exceeds one hundred minimum wages established by federal law;
Used for purposes not related to the implementation of entrepreneurial activities, breeding, dairy and draft cattle, deer, rabbits, poultry, bees, feed necessary for keeping them before pasture (leaving for an apiary), as well as economic buildings and structures necessary for their content;
Seeds required for the next sowing;
Food products, money for a total amount not less than the established value of the subsistence minimum of the debtor citizen himself and his dependents;
Fuel needed by the family of the debtor citizen for preparing their daily food and heating during the heating season of their dwelling;
Means of transport and other property necessary for a citizen-debtor in connection with his disability;
Prizes, state awards, honorary and memorable signs, which were awarded to the debtor citizen.
Article 101 229-FZ - Types of income that cannot be foreclosed
1. Collection cannot be levied on the following types of income:
1) sums of money paid in compensation for harm caused to health;
2) sums of money paid in compensation for harm in connection with the death of the breadwinner;
3) sums of money paid to persons who have received injuries (wounds, traumas, concussions) in the performance of their official duties, and to their family members in the event of the death (death) of these persons;
4) compensation payments from the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets to citizens affected by radiation or man-made disasters;
5) compensation payments from the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets to citizens in connection with the care of disabled citizens;
6) monthly cash payments and (or) annual cash payments accrued in accordance with the legislation of the Russian Federation to certain categories of citizens (travel compensation, purchase of medicines, etc.);
7) the sums of money paid as alimony, as well as the sums paid for the maintenance of minor children during the period of the search for their parents;
8) compensation payments established by the legislation of the Russian Federation on labor:
A) in connection with a business trip, with a transfer, admission or assignment to work in another locality;
B) due to wear of the tool belonging to the employee;
C) the sums of money paid by the organization in connection with the birth of a child, with the death of relatives, with the registration of marriage;
9) insurance coverage for compulsory social insurance, with the exception of old-age insurance pension, disability insurance pension (taking into account the fixed payment to the insurance pension, increases in the fixed payment to the insurance pension), as well as funded pension, urgent pension payment and temporary disability benefits ;
10) pensions in the event of loss of the breadwinner, paid out of the federal budget;
11) payments to pensions in the event of loss of the breadwinner at the expense of the budgets of the constituent entities of the Russian Federation;
12) benefits to citizens with children, paid at the expense of the federal budget, state extra-budgetary funds, budgets of the constituent entities of the Russian Federation and local budgets;
13) funds of maternity (family) capital provided for by the Federal Law of December 29, 2006 N 256-FZ "On additional measures of state support for families with children";
14) the amount of one-time financial assistance paid out of the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets, off-budget funds, at the expense of foreign states, Russian, foreign and interstate organizations, and other sources:
A) in connection with a natural disaster or other emergency;
B) in connection with a terrorist act;
C) in connection with the death of a family member;
D) in the form of humanitarian aid;
E) for rendering assistance in the detection, prevention, suppression and disclosure of terrorist acts and other crimes;
15) the amount of full or partial compensation for the cost of vouchers, with the exception of tourist vouchers, paid by employers to their employees and (or) members of their families, disabled persons who do not work in this organization, to sanatorium and health resorts and health institutions located on the territory of the Russian Federation, as well as amounts full or partial reimbursement of the cost of vouchers for children under the age of sixteen to sanatorium and health resorts and health institutions located on the territory of the Russian Federation;
16) the amount of compensation for the cost of travel to the place of treatment and back (including the accompanying person), if such compensation is provided for by federal law;
17) social allowance for burial.
Information on the topic
list of untouchable property in case of bankruptcy of a citizen
DocumentDocument
Document The project of the Government of the Russian Federation on the procedure for foreclosure on the only housing
Question
27-02-2020
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19-02-2020 There are municipal housing and the main tenant is the husband. Six months ago, my parents issued me a deed of gift for a house and a land plot. I am registered in a municipal dwelling. Do I need to register in the donated property? I want to file for bankruptcy and keep my house and land. The house is located on this site. Do I need to register in this house? What can be taken by a court decision?
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19-10-2019 I have 1/3 of the privatized apartment registered with my parents but I live in an apartment that belongs to my mother I want to file for bankruptcy this apartment will not be counted as my property?
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23-09-2019 Hello! I decided to file for bankruptcy. There is nothing in the property. There is a house that was bought in marriage with his wife. It is completely designed for her. I am registered there. We live there together. There is no other place to live. Can half of this house be included in the bankruptcy estate, since I am a spouse?
Question
16-09-2019 Hello. I have a house of 118 square meters and a land of 10.8 hundred meters on which the house was built. Owned for 3, me and 2 minor children. This is the only home. The company, where I have been working for 15 years, will soon be closed. I will not be able to pay off loans. So it turned out for me there are 5 of them. For 2 large ones there is insurance, in case of loss of work and payment for up to 4 months. I won't find such a high-paying job in the city. I have a few questions. Will I be able to file for bankruptcy if the insurance is valid. Will they be able to sell my share in the house if it is more than 18 sq.
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22-07-2019 Good day! I am charged a federal social supplement to my pension. Is this surcharge excluded from the bankruptcy estate or not? thanks
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19-07-2019 Hello, I want to start bankruptcy proceedings. I have a donation of 37 squares on my house. And I am registered in another place, housing is not owned. Will the donated house be put up for auction?
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26-06-2019 I'm going to file for my bankruptcy. I own only a house. This house is built on a plot that is registered to me (1/3 share of the property). However, the house was not decorated in any way. Will this house be considered the only home?
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21-05-2019 Hello. I have a debt of 285600 in the ownership of the house where my brother and penstoner parents live. Can I file for bankruptcy and will the house be taken away.
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15-05-2019 Hello, in May 2016, my mother wrote (made a dedication) to me for 1/2 of the house with a plot of 5 acres after the paperwork, I registered in it. In February 2019, the bank sued me for bonkrot. Can this property be taken as a debt?
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I can't pay the loan
Document Federal Law of the Russian Federation of December 29, 2015 N 391-FZ "On Amendments to Certain Legislative Acts of the Russian Federation"Article When will banks forgive credit debts?
Question
04-04-2019 Since this year I have registered as self-employed. I want to initiate bankruptcy proceedings. Can I be self-employed during this procedure?
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16-08-2017 The husband took out loans from three banks. After the layoff was left without work and now he cannot pay the bills. He is a pensioner. During this time he sold a truck for 100,000 rubles and paid off overdue debts on loans. There is one more car and it is also forced to sell and pay off the next for positions on credit payment is question: as to.
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30-03-2017 Good evening! I took a loan for 500,000 rubles, I have been paying for 2.5 years, but for health reasons, after the operation, it is forbidden to work and, accordingly, there is no way to pay the loan. According to the documents, there is no guarantor loan. What should I do in this situation? Where can you go for help?
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29-03-2017 Hello! I took out a bank loan for 150,000. She paid regularly for 2 years. At the moment, there is nothing to pay the loan with. Please tell me what to do in this situation? How long does it take for the bank to file a lawsuit? Or will the bank drag out the deadline in order to accumulate significant debt with interest?
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29-03-2017 Hello. My question is not entirely about bankruptcy. Can you please tell me if it is possible to conclude (try) an amicable agreement with the bank BEFORE the moment they file a claim for debt collection under the loan agreement? Thanks.
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27-03-2017 When the bankruptcy petition is recognized as justified, does interest continue to be accrued or is the amount of debt with already accrued interest fixed?
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05-09-2016 I have a debt to the bank Uralsib 189 thousand and to a microloan 6500 rubles. There is nothing to pay, there is no property, I am on maternity leave, the child is 1.8 years old. What can you suggest? I wanted to file for bankruptcy, while I am studying prices and information.
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13-06-2016 Hello. Took a microloan in an MFO 25t.r. 21 times with the amount of 25,000 for two weeks, which she paid on time. 21 The loan could not be fulfilled, I closed the individual entrepreneur ... I asked for restructuring, they refused me. Thus, a year passed. Now they expose me the amount of 270t.r. I filed a lawsuit ahead of them to declare part of the contract invalid. I disagree with the cobalt interest. The main debt is 25t.r. I am ready to pay, but in parts and by court order through the court bailiffs. The judge at the preliminary hearing turned out to be unfavorable to me and asked for evidence of why I should not pay. told me to calculate everything myself how much I paid and overpay, etc. The meeting itself will be on June 15th. Please help me with advice. I have three children and I am divorced. I also pay the rest of the overdue loans through the bailiffs. We live on alimony. Thanks a lot.
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15-02-2016 Good afternoon. I collect money for an independent bankruptcy, tk. from 3 years old she was on maternity leave, and after 3 years she wrote an application for unpaid parental leave for another year due to the frequent illnesses of her youngest son. Registered in the apartment of the parents (owners). She is married, but we do not live together - the husband supports the children, and has not been able to give money for loans since September 2015. Do I have a chance to be declared bankrupt? Will it be necessary to provide documents for parental leave, an extract from the medical card of the often older son? And won't they take away the computer from the eldest son and other equipment due to bankruptcy? (I repeat that I am registered in my parents' apartment - they are the owners). Thanks.
Question
14-02-2016 Hello, I have a loan to a TV bank at the moment 650 tons, I went on maternity leave I am on leave to care for a child at this time my company was liquidated and I divorced my husband, I am not at all capable of paying. Can i file for bankruptcy
ServiceFree consultation of a specialist in bankruptcy of individuals.
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ServiceBankruptcy of citizens - individuals in Ufa and Bashkortostan. Service package: OPTIMAL.
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bankruptcy estate in bankruptcy of an individual
Document Resolution of the Plenum of the Supreme Court of the Russian Federation of November 17, 2015 N 50, Moscow "On the application of legislation by courts when considering certain issues arising in the course of enforcement proceedings"Document PETITION to establish the amount of monthly payments in bankruptcy of an individual
Document Petition (statement) for the exclusion of property from the bankruptcy estate of a bankrupt individual
Question
27-02-2020 Good afternoon. I live in a municipal house with my husband and son in the same city. I work in the same city I registered in the house that I got as a gift in another city. If you file for bankruptcy, which housing is recognized as the only one? Thank you in advance.
Question
20-02-2020 I want to start bankruptcy proceedings, I own a house, which is the only housing, construction of a new house has begun on the same site, but the house is still far from being put into operation. will FC be able to put up for auction unfinished construction?
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19-02-2020 Declared bankrupt with the introduction of the implementation procedure for 6 months. I am 54 years old, a pensioner of the Ministry of Internal Affairs, a financial manager allocated me a living wage for the disabled population, motivating this by the fact that I receive a pension. But after all, my pension is a pension for seniority, and not by age, and according to Federal Law 166 of 12/15/2001, disabled in the Russian Federation are men and women who have reached the age of 55 and 60, the concept of incapacity for work from 1966 also states this. ... Tell me how correct the actions of fu are in this case, and if I'm still right, what should I refer to so that the living wage was deducted for me as for an able-bodied person, after all, the difference is almost 3,000 rubles.
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05-02-2020 If a spouse has a car purchased before marriage, will it be included in the bankruptcy estate?
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22-01-2020 I want to file for bankruptcy proceedings, from the property there are 1/3 of the apartment in which my parents live, I live with my husband, in another city in his apartment purchased before marriage. My things are not in my parents' apartment, everything has been moved to a new apartment. What property will be valued and put up for sale? And will there be such a procedure?
Question
22-01-2020 I am collecting documents for bankruptcy. I own a car, pledged in the MFO. Can I leave it at least before the court? Thanks in advance
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16-01-2020 Dependent on 2 children, before bankruptcy I want to open a bank account for alimony, because it’s unlikely that I will be able to agree to receive alimony. The question is: Is alimony included in the subsistence minimum that will be allocated for me or the children? Or the amount of alimony is not protected and is issued completely FU?
Question
16-01-2020 Good evening! At the stage of restructuring, the arbitration court took interim measures in relation to the property. The stage of selling the property has been completed. Please tell me, 1) interim measures are in effect at the stage of the sale of the property? 2) is it necessary to write a statement so that the interim measures were lifted or do they automatically cease to be effective after the end of the stage of restructuring or the sale of property? thanks
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31-12-2019 A relative goes bankrupt (sale of property). The living wage is not enough. If I send money to him via western union, will FU know about it
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03-12-2019 bankruptcy court on December 25th I have this money in advance, can I take it off still
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