Currently, the work of bailiffs (FSSP) in enforcement proceedings has become much more. Non-payment of loan obligations or non-enforcement of court decisions have recently become commonplace.
The recoverer must remember that he can present the writ of execution at the place of execution, that is, not only the bailiff can deal with this.
A document giving the right to recovery is issued to the party that won the court for any coercive action. At the same time, this document can be either sent for execution to the FSSP by the court, or handed out to the claimant himself.
The recoverer is the only person who has the right to initiate any proceedings against the debtor and to terminate, as well as to recall the writ of execution. The consequences of such a procedure impose certain obligations on the creditor and debtor, which will be discussed below.
Failure to recover
Three features of enforcement proceedings should be distinguished. In the first case, the creditor (collector) completely refuses to collect - at the moment and in the future.
Accordingly, a complete refusal to recover money or any property from the debtor, as well as the withdrawal of the writ of execution by the claimant in respect of the losing party in court, may occur on the following grounds:
- the debtor has already paid the debt or fulfilled obligations to the collector;
- there is no possibility of recovery due to the lack of property or finances, as well as the lack of the ability to fulfill obligations to the collector;
- the debtor died untimely.
There are other grounds for refusal, which may also be of a personal nature.
It should be noted that further enforcement proceedings cannot be resumed (according to Article 43 Law “On Enforcement Proceedings”).
Feedback
In the second case, the writ of execution shall be returned by the claimant. By this action, the lender temporarily suspends collection by filing an application with the FSSP. Accordingly, the recovery is possible in the future according to the writ of execution, and the creditor has the opportunity to send the writ of execution to production. However, the law provides for certain periods during which the collector has the opportunity to do so.
According to Section 21 of the Law, a writ of execution can be used for its intended purpose for three years. It should be remembered that the consequences of recalling a writ of execution by a recoverer are that the deadlines for presenting a writ of execution are suspended at the time of production. Accordingly, if the recall has already occurred at the request of the claimant, the period provided for in the article shall continue.
Temporary cessation
In the third case, the suspension of the proceedings may occur under different conditions described in article 40 of the Law on Enforcement Proceedings. Among other reasons for which enforcement proceedings can be suspended are called the death of the debtor (due to the possibility of succession), participation in hostilities, being in a medical institution, etc.
That is, the reasons why the execution of a court decision is temporarily suspended by the bailiff himself are those that do not allow the debtor to fulfill his obligations.In this case, the question of how the debt can be recovered or the fulfillment of obligations to the collector should be resolved.
Revocation of the writ of execution by the recoverer shall be made by contacting the creditor with the territorial or local authority of the FSSP. A citizen writes a statement. The bailiff forms a decision, according to which, the writ of execution is withdrawn from production.
With this approach, there may be an agreement with the debtor, for example, to defer collection. It is better to formulate it in writing, since the claimant always has the right to return the writ of execution back to production.
Court recall
It should be noted that actions with a writ of execution can be performed not only by bailiffs or collectors, but also by the court. The court shall revoke the writ of execution in the event that a decision was made to cancel it at the initial court decision.
In this case, the case may be returned for further investigation if something in the preliminary investigation was not found out or the position of the trial court is completely rejected. This position and powers of the court are enshrined in the above law, in article 47.
In the event that the recall took place at the moment when the enforcement proceedings have already been launched and any funds have been transferred in favor of the creditor, the recovered property is subject to return.
Payment of alimony
A court decision on the payment of alimony also entails the formation of a writ of execution and its presentation to the bailiff service. When fulfilling the conditions specified in the document, some reasons may arise for which the executive document is revoked.
First of all, it should be noted that the writ of execution can be returned in any cases that do not contradict the law. Most often, recall occurs at the initiative of the person in respect of whom the production was started. The citizen promises to pay child support in a much larger amount than on the writ of execution. He explains this by saying that the official and real salaries, to put it mildly, do not coincide in amount.
In this case, when the writ of alimony is revoked, you have to trust the person who pays the alimony, since the amount that the citizen plans to transfer without the letter is quite different from the amount according to the writ of execution.
Here it is necessary to remember that the person who is trying to agree did not pay child support voluntarily, which is why he has a court decision on the forced payment of the amount. Whether he will voluntarily pay the amount much more than the amount that is currently being exacted from him for enforcement proceedings is not known. That is why with respect to alimony and other forced payments, recall of the writ of execution by the exactor entails a certain risk.
You can allow the option when the recall occurs for a slightly different reason (for example, to take actions in relation to the citizen, when the existence of enforcement proceedings does not allow some procedures to be completed).
On practice
Case study: a citizen was not able to pay child support for 4 years on the writ of execution and was convicted, but for another crime. After a certain time, the existence of enforcement proceedings against him could not allow him to receive parole.
In this case, the spouse of the convict wrote a statement and made a revocation of the writ of execution, although alimony was not paid by her spouse. Thus, for the time that the writ of execution was in production, the amount payable was canceled at the moment when the writ of execution was withdrawn by the recoverer.
If you again contact the bailiff service, for example, after 2 years, the proceedings will resume, and the citizen will have to pay child support only for the last 3 years that preceded the filing of the application from the claimant. However, some bailiffs, taking into account the legislative provision, also pay attention to the time frame for the execution of the writ of execution to be recovered by the exactor (sample below). At the same time, there are no claims on the date of the statement. Therefore, in this situation, the amount of alimony can be calculated not for 3, but for 2 years.
Bank recall
In addition to the fact that writ of execution may be held by bailiffs, the collector has the right to present this document on his own to the bank, where the debtor has accounts, or at the place of work. In this case, the order of revocation of the writ of execution will look different.
Revocation of a writ of execution is usually done due to a lack of funds from the debtor in a bank account for a long time. If the creditor has the opportunity to collect the amount of debt in another way, he has the right to terminate the enforcement proceedings (but with the possibility of renewal).
A sample statement of withdrawal of the writ of execution from the bank is presented below.
Feedback from the place of work
In the event that the writ of execution is in the accounts department of the debtor's place of work, the recoverer must write a request for review to the department of the enterprise where he independently took the writ of execution.
It should be borne in mind that the termination of deduction of certain amounts in favor of the recipient of accounting can be carried out only from the beginning of the month following the settlement, or according to other established criteria.
Requisites
For a procedure such as recall of a writ of execution by a recoverer, the sample specified above can be slightly modified for any case of recall. When acting in relation to bailiffs, it is necessary to know the name of the service unit where the application will be sent.
If the collector writes a statement for the bank or employer of the debtor, the scheme is similar - you must specify the name of the bank or organization where the debtor works.
If necessary, the data of the debtor can be specified in the writ of execution and in a copy of the court decision on the case. It should be noted that such documents must be kept by the creditor (and the debtor) until full settlement of the obligations.
