What the law says
It is necessary to distinguish between the statute of limitations for presenting writs of execution for collection and the period during which bailiffs are obliged to ensure repayment of the debt. Here are the procedural points contained in Law No. 229-FZ:
- the deadline for submitting a writ of execution for forced collection is 3 years from the date of entry into force of the judicial act;
- bailiffs are obliged to initiate enforcement proceedings within 3 days at the request of the claimant;
- 2 months are given to carry out enforcement actions, during which the FSSP specialist is obliged to seize accounts and property, begin to withhold and sell.
In practice, everything works much more complicated. The deadline for execution almost never falls within the 2 months required by law. However, the bailiff is required to ensure payments under the writ of execution if a one-time deduction is not possible. for this purpose, documents will be sent to the debtor’s place of work or service for regular deductions from earnings, or forced sale of assets will begin.
How to get money back after canceling a court order?
Hello!
Such situation. The magistrate, in response to the claim of the State Budgetary Institution “Zhilishchnik” (formerly DEZ), issued a court order to collect money from me in favor of repaying the illusory debt for housing and communal services. At this time, the court of general jurisdiction had already been considering the case for a month regarding my claim against the State Budgetary Institution regarding the wrongfully accrued debt to me (the case has not yet been completed, we are suing). According to my application to the magistrate, the court order was canceled. However, a few days before this, Sberbank wrote off almost half of the debt imposed on me by the State Budgetary Institution from my account (I had accumulated a pension over the summer, but did not receive it). The bailiffs stated that they had not opened enforcement proceedings and had nothing to do with the issue. The claimant himself submitted a court order to Sberbank, according to which the write-off is carried out. My authorized representative sent a statement to Sberbank that the write-off of funds must be stopped due to the cancellation of the Court Order. Attached is a copy of the Judicial Order and the original (!) Resolution on its cancellation. However! The withdrawal of funds continues. The official response from Sberbank states that the write-off is carried out in accordance with the law on the basis of a Court Order! Not a word about its cancellation and termination of write-offs! It is only indicated that the Claimant did not report any changes!! The claimant cannot be unaware - the order was canceled a long time ago, it has already been delivered to them a hundred times! It turns out that I should hope that the collector himself will come and ask to stop writing off my money in their favor?? But this is nonsense! While I am suing them in SOYU, they will collect all their illegally accrued debts from my account according to the canceled (!!!) Court order! There are no extremes! Sberbank has nothing to do with it (aren’t they obliged to obey the decision of the magistrate to cancel the order, even if it was brought by me and not the claimant??), the bailiffs have nothing to do with it (“enforcement proceedings were not initiated” - but are the independent actions of the claimant to transfer the legal order to the bank - this is not enforcement proceedings as such?..), the magistrate also has nothing to do with it - according to him, his business is to issue a decision to cancel, and then whatever. And in general, he said that in order to get the money back, I first need to win the case in SOYU, in which we are now suing the State Budgetary Institution. But is it possible to link these two matters? Considering that the State Budgetary Institutions did not have the right to file a lawsuit against me before the magistrate on the same issue on which we were already suing them at that time in SOJ! What to do? The court order has been canceled, but I just can’t stop these write-offs! And this is a pension! In this situation, I may simply not reach the decision of SOYU - what to live on?.. And this is lawlessness, in my opinion! Please, help! What to do if the court order is canceled, but the recovery is carried out not within the framework of enforcement proceedings, which, according to the bailiffs, was not initiated, but on the initiative of the collector, who himself, naturally, will not refuse the money (I contacted them - they are playing unconscious) . The bank ignores the order to cancel the order... What to do?.. Reply
Payment term
According to the general terms, debts with individuals and legal entities (LLC, JSC, KPC, etc.) will be executed. This includes debt on loans, payment of compensation from an insurance company, and repayment of debt for housing and communal services. There is a special deadline for receiving money:
- in disputes with a budgetary institution, since the money will be transferred by the Treasury (3 months are given for settlement with the claimant);
- according to administrative decisions, including the repayment of a traffic police fine (the statute of limitations will be 2 years, and the debtor is given 60 days to voluntarily pay the sanction);
- in cases related to the bankruptcy of an organization (the period for receiving funds will depend on the actions of the manager and the volume of creditors’ claims).
When making a decision, the bailiff is obliged to indicate the deadline for payment on a voluntary basis. It can be up to 5 days, during which FSSP specialists have the right only to seize property and accounts. As soon as 5 days have passed, interim measures may be introduced and forced debits from bank accounts.
The timing of collection under a writ of execution by bailiffs also depends on the actions of the claimant. If, when submitting an application to the FSSP, you provide the most detailed information about the debtor, his place of work, and the availability of property, then the process of seizure and sale of assets will go much faster. Our lawyers will provide assistance in correctly preparing documents for the FSSP.
How to cancel a debt repayment order
Since the court decision is made unilaterally, there are often cases when defendants do not agree with it.
There is a need to file an objection to the debt collection order. But can this be done and in what cases?
Cancellation, of course, is provided, but citizens who actually have a debt and its amount is indicated correctly should not count on it. Therefore, lawyers advise re-reading the debt document before starting the appeal procedure. Can you say that you honestly agree with the essence of the complaint? For example, non-payment of tax payments did indeed occur, but the disagreement was caused rather by the shock of receiving such a letter.
The fact is that if the bailiff executing the order does not receive payment on time, he will have the authority to impose additional sanctions on the debtor.
That is, delaying payments if they are truly legal will result in additional financial losses for the citizen.
If you miss a deadline
A claimant who has missed the deadline for presenting a writ of execution will be able to restore it only under extenuating circumstances. Only the court has the right to evaluate such reasons, so you will have to file an application in court. To restore the term of the writ of execution, you can refer to:
- for a long-term illness, including hospitalization or travel abroad;
- to be drafted into the army, to be sent on a long service trip;
- for the lack of information about the debtor, if the enforcement search of the bailiffs did not produce results.
Please note that as soon as the documents are submitted to the FSSP. the deadline for compulsory execution is considered met. Even if the actual retention lasts for several years, there will be no need to restore the period.
Is it possible to postpone it further?
The Code of Civil Procedure of the Russian Federation and Law No. 229-FZ provide for a number of legal grounds for temporary termination of collection. The debtor has the right:
- obtain through the court a deferment on the sheet, when the deadline for execution will be postponed for a certain period of time;
- achieve installments. When the entire amount of debt is distributed over a long period of time;
- submit a petition to the bailiff to postpone action for up to 10 days.
Collection will also be suspended if a complaint is filed regarding the assessment of the seized property, or an application for clarification of the court decision or the provisions of the writ of execution.
To achieve collection, you need to transfer documents to the FSSP, to a bank or at the debtor’s place of residence within 3 years after the entry into force of the judicial act. The execution process should last no more than two months, and when withheld from a budgetary institution - up to 3 months. The debtor has the right to ask through the court for a delay or installment plan for execution, or for the FSSP specialists to postpone collection actions.
Intermittent accident
It should be clarified that we have established a mandatory claims procedure for resolving disputes with insurance companies. If the car owner does not agree with the company’s decision (for example, he was refused payment or was paid, but not enough), then he first files a claim with the insurer. If the insurer did not respond to the claim or its response did not satisfy the car owner, then it is necessary to submit an appeal to the financial ombudsman. And only if the car owner is not satisfied with the decision of the financial ombudsman, can the insurance company be sued.
There is one subtlety in this procedure: the financial ombudsman can recover from the insurance company only what is due under the MTPL law. That is, compensation for damage, as well as penalties for late payments, if any. The court, in addition, can recover from the insurer not only a penalty, but also all related expenses, for example, the costs of an independent examination, if one was carried out. In addition, the court may impose a fine under the consumer protection law, which is 50 percent of the disputed amount. The court can also recover moral damages, and also adjust the penalty in one direction or another. The financial budsman cannot do this.
However, some insurance companies are even against the fact that the ombudsman imposes a penalty payment on them. They believe that they fulfilled their obligations by paying on time according to the decision of the commissioner, despite the fact that the payment deadline under the law on compulsory motor liability insurance has passed. But the Third Court of Cassation decided that this was not so.
The car owner filed a lawsuit against the insurance company for compensation for damage caused as a result of a traffic accident, and to collect a penalty for late payment of insurance compensation. He also asked to collect a penalty from the insurance company for violating the deadline for making insurance payments from November 2021 to April 2020 in the amount of 138,400 rubles.
The insurer, refusing to pay the penalty, did not pay anything.
When requesting the collection of a penalty for violating the deadline for making an insurance payment for the specified period, the car owner indicated that the payment of insurance compensation was made by the defendant only after the plaintiff applied to the financial ombudsman and received the appropriate decision, and not within the time limits established by the law on compulsory motor liability insurance.
The court of first instance agreed with these arguments and granted the request. The appellate court overturned the court's decision and refused to collect the penalty, citing the provisions of paragraph 5 of Article 16.1 of the law on compulsory motor liability insurance, taking into account the payment of insurance compensation to the defendant within the period established by the decision of the financial ombudsman.
The penalty for violation of the deadline for payment of insurance compensation is calculated from the 21st day after the insurer receives the application for compensation
However, the Third Court of Cassation did not agree with this decision.
He recalled the clarifications of the Plenum of the Supreme Court, according to which the penalty for violation of the deadline for payment of insurance compensation is calculated from the day following the day established for making a decision on insurance compensation, that is, from the 21st day after receiving the application for insurance compensation. The deadline for payment after the decision of the financial ombudsman is not included in these deadlines. And the financial ombudsman absolutely legally orders the payment of a penalty, since this issue is resolved in the law on compulsory motor liability insurance.
Let us remind you that according to the law, the insurer is obliged to make a payment or send the car for repairs within 20 working days.
For failure to comply with the deadline for sending the car for repairs or paying insurance compensation, a penalty is charged in the amount of 1 percent. And for failure to comply with the terms of restoration repairs - 0.5 percent.
