Enforcement proceedings are represented by a process implemented by bailiffs against debtors who are unwilling or unable to cope with their many debts. In this situation, creditors are forced to go to court, by the decision of which this procedure begins. It is conducted only by bailiffs, who are endowed with numerous powers and capabilities. They are represented by interim measures in enforcement proceedings. Their main purpose is to guarantee the possibility of a refund to creditors. These measures are not too pleasant for debtors, because they can lose their funds in the accounts, and property is often confiscated and sold from them.
Legislative regulation
The enforcement proceedings are governed by the provisions of the Federal Law No. 299.
Significant additions to the Federal Law No. 299 are made by the provisions of the Federal Law No. 383. Particularly much attention is paid in the regulatory documentation to the rules for notifying the registering state body that the debtor’s property is being seized.
Types of Events
Interim measures in enforcement proceedings are directly related to preventing debtors from performing various activities leading to the destruction or sale of their property. Most often they are introduced at the initiative of the lenders themselves, who do not want to lose the real opportunity to return their funds.
These measures can be presented in the following forms:
| Types of measures | Their features |
| Seizure of property owned by a debtor | It may be at the disposal of the immediate defendant or other persons. The property includes various values, for example, an apartment, non-residential premises, a car or cash held in bank accounts. Based on the arrest, the owner loses the opportunity to dispose of such property on his own. If an arrest is imposed on an apartment or a house, then it is impossible to sell them, since this measure is recorded in the registration authorities. Arrest may even be imposed on property that is pledged to the benefit of others, so it will not be possible to change the provisions of the pledge agreement. |
| The application of the ban on various actions | Such interim measures in enforcement proceedings are quite popular. The actions of the bailiffs are aimed at preventing the debtor from holding general meetings of shareholders, using disputed property or transferring it to other persons. This ensures that the values will remain untouched, so lenders will be able to use them to receive their funds. |
| The prohibition of the commission of various actions by other persons | These measures should be carried out only in relation to the subject of the trial. Therefore, the defendant will not be able to transfer values for different purposes to other persons. |
| Suspension of the property sale process | Often a trial begins at a time when a citizen is already selling an apartment or a car. Lenders usually insist on interim measures in enforcement proceedings to suspend the sale process. |
| Interim measures in the form of suspension of enforcement proceedings | This process is implemented if the debtor disputes the collection through the court. In this case, the bailiffs must cease all actions in relation to the values. |
Any measures can be implemented both at the initiative of the bailiffs themselves, and on the basis of special petitions made by the creditor or debtor. All types of interim measures in enforcement proceedings are effective and efficient, therefore they guarantee that the property that is the subject of legal proceedings will indeed remain untouchable.
How are the measures taken
In practice, the application of these interim measures involves the implementation of certain sequential actions. Often, they are used at all in relation to property about which the bailiffs do not have data, but reliable information about the lender has it. Various restrictions apply solely within the limits of the claims. The procedure for interim measures in the enforcement proceedings is divided into successive stages:
- All property belonging to the debtor is revealed, after which the circumstances under which it can be withdrawn are evaluated.
- Evidence is gathered that the court decision will not be executed without interim measures.
- An application is formed for the application of these measures by the creditor or another participant in the process.
- The application with the collected evidence is submitted to the court.
- The application of interim measures is permitted at any stage of the trial.
- The judge studies the application, and then decides on the need for these measures.
- Often, the plaintiff is required to provide security for damages, which the defendant can allegedly incur.
- For consideration of the application, it is not necessary to call the parties to the process to court.
- If the court satisfied these measures, then a writ of execution is formed and issued to the bailiffs.
- to implement these measures, additional enforcement proceedings are instituted. Restrictions remain until the final court decision is made.
- As soon as the court decision comes into force, the defendant in case of denial of the claim may bring a counterclaim, on the basis of which he has the right to demand compensation for losses incurred as a result of application of interim measures to him.
The creditor can fully control all measures and actions used by the bailiff in relation to the defendant. The writ of execution issued by the court must be immediately executed by the bailiffs. If it turns out that the bailiff did not seize the property within the prescribed time, therefore the debtor transferred it to third parties on the basis of an official and legal transaction, then the specialist may be held liable.
Cancellation of interim measures in enforcement proceedings may be carried out on the basis of a petition or counterclaim filed by the debtor. There must be good reason for this, for example, the plaintiff undertakes to fully repay the debt to the creditor after the sale of the values.
What is contained in Federal Law No. 299
It is in this law that all interim measures in the enforcement proceedings are prescribed. Art. 95 Federal Law "On Enforcement Proceedings" includes important provisions:
- The bailiff must send a copy of this document to the Federal Tax Service within three days after drawing up the act of seizing property.
- If the debtor is a credit institution, then the act is sent additionally to the Bank of Russia.
- Within 30 days after receipt of the act, the Federal Tax Service informs the bailiff whether the process of declaring the company bankrupt will be started or whether the license for credit activities with the bank will be revoked.
If a decision is made to declare a company bankrupt, then the enforcement proceedings are suspended until the court decides to declare the debtor bankrupt. Based on this decision, forced liquidation of the organization is carried out. In this case, interim measures in the enforcement proceedings are suspended.Article 95 of the Federal Law No. 299 indicates that upon liquidation of a debtor’s company, creditors also include employees who have not received a salary, as well as other persons to whom the company must transfer funds.
The nuances of seizure
The most effective measure of influence on the debtor is considered the arrest of property. It is he who prevents the possibility of a company or citizen committing fraudulent activities aimed at selling property in order to use the proceeds for their own purposes, and not to pay creditors. Therefore, the arrest is considered the most relevant interim measure in enforcement proceedings. Art. 95 and other provisions of Act No. 199 include rules on which particular values may be confiscated by bailiffs.
Basic rules for the implementation of such measures:
- An arrest may be imposed only after the initiation of enforcement proceedings.
- The value of the values should not be more than the amount of the claim.
- Confiscation of property is not allowed if the amount of the debt does not exceed 3 thousand rubles.
- After seizing, the debtor cannot freely dispose of his property.
Withdrawal of a security measure in bankruptcy is allowed. Enforcement proceedings under these conditions are terminated by a court decision. During the insolvency procedure, a trustee is appointed who identifies all property belonging to the debtor. It is he who further takes various actions to protect these values from sale or transfer to third parties in other ways. Already in the framework of bankruptcy, bankruptcy proceedings are used, which involves the sale of property of the debtor at auction. The funds received from this process are sent to creditors to pay off the debt. If after this procedure outstanding debts remain, then they are written off.
What things cannot be arrested
Quite often, interim measures are applied in enforcement proceedings. Article 446 of the Code of Civil Procedure includes values that cannot be arrested by bailiffs. These include property of citizens:
- Living space, which is the only place for people to live.
- Household items (dishes, household appliances, furniture).
- Items and other property of minors.
- Things that are impossible to sell because of their poor condition.
- Personal use items, which include clothing, shoes, or bedding.
- Means necessary for the performance of labor duties.
- Awards and prizes.
- Food products that cost less than the cost of living.
- Livestock or pets, as well as buildings erected for animals.
- Property that has previously been confiscated.
- Property held by another organization or private person.
Other values may be confiscated solely on condition that they belong to the direct debtor on the basis of ownership.
What is subject to arrest
An arrest is necessarily imposed on the following property of citizens:
- Money held at home in cash or in bank accounts.
- Jewelry.
- Values that are artistic or historical.
- Securities for which the debtor must have property rights.
Due to the application of these measures, the debtor cannot sell the property in order to obtain profit or repay the debt. The cancellation of interim measures in enforcement proceedings is allowed only after the debtor submits the corresponding petition to the court. Moreover, he must have evidence that he will be able to repay the debt on his own. Often an official promise is formed to pay off a debt after the sale of property.
How is the arrest procedure
The seizure of property of the debtor is carried out in several successive stages. To do this, bailiffs perform the following actions:
- A list of all the values that can be sold by bailiffs as part of the production.
- Valuation of the presented values, for which the services of an independent appraiser can be used.
- Transfer of items for direct sale.
- Sale of property, for which tenders are held. The lots put up for them are transferred only to the auction participant who offers the highest price.
All the above actions are directly carried out by the bailiff, who is appointed as an executor for a specific production. Only property is described, after the sale of which it is possible to fully repay existing debts. Additionally included in the total debt are the costs of the proceedings. To ensure the safety of property, it is sealed.
Rules for drawing up an inventory statement
All actions with values are officially recorded, for which the corresponding entries are made in a special act of inventory. The arrest act is drawn up by the bailiff, who personally inspects all the property of the debtor.
The document must contain information:
- Place and time of the inventory.
- The name of the court by decision of which the arrest is being conducted.
- Data on the bailiff and debtor.
- Details of the writ of execution.
- Information about invited witnesses.
- Data on the described items, allowing them to quickly identify.
- Information about the persons to whom the valuables were transferred for storage.
Copies of the document are transferred to the debtor and creditors.
Conclusion
Security measures in enforcement proceedings are presented in several forms. Their main purpose is to preserve the property of the debtor, so that he could not get rid of it for personal gain in various ways. Through such actions, it is guaranteed that debts will be repaid through the arrest and sale of the debtor's values. These measures are used exclusively by bailiffs on the basis of the available writ of execution.