2 effective and 1 ineffective way to cancel the illegal seizure of the debtor’s property

Head of the bailiff

The opportunity to lift the seizure of the debtor’s property administratively, without going to court, is provided to participants in enforcement proceedings by Article 123 of Federal Law No. 229-FZ of October 2, 2007 “On Enforcement Proceedings”.

Where to go

An administrative complaint against a bailiff's decision to seize property is submitted to his superior in the order of subordination. The rules by which it is determined who exactly needs to file a complaint are set out in Article 125 of the Law on Enforcement Proceedings and the Methodological Recommendations for organizing work on consideration of complaints, approved by the Letter of the FSSP of Russia dated May 25, 2021.

The addressee of the complaint depends on which bailiff issued the order to seize the property. The table below shows the rules for determining a superior manager.

If a complaint is submitted to the wrong manager, it will not be returned, but will be forwarded to the correct official. But this will require additional time, which will delay the consideration on the merits.

An administrative complaint is not subject to state duty. Read more about this here.

What to include in a complaint

There is no standard complaint form, but there are mandatory details that must be indicated in this document:

• Full name, address, contact details of the applicant, his role in enforcement proceedings;
• Information about the bailiff whose actions are being appealed;
• Number of enforcement proceedings;
• Data from the resolution on the seizure of the property that is being appealed;
• Justification why the resolution is illegal;
• Links to legal norms;
• Request to cancel the appealed decision;
• Date and signature of the applicant.

The basis for canceling the seizure of property, which is indicated in the complaint, may be:

1. violation of the procedural order of its application;

Expert opinion

Lawyer Alexander Vasiliev comments

The Law on Enforcement Proceedings establishes detailed rules for the application of seizure of property. In most cases, the arrest is formalized by drawing up an act and an inventory of property in the presence of witnesses. The debtor and the collector will be notified of the execution of enforcement actions, but their participation in them is not required.

If the property is seized in violation of the procedure established by Art. 80 of the Law on Enforcement Proceedings, this may serve as a basis for its cancellation. For example, if the seizure of property was carried out without witnesses, this will be a violation of the procedural rules of its production and grounds for cancellation. Another reason to cancel the seizure will be failure to comply with the requirements for identifying property in the act of seizure and inventory.

1. improper application of arrest on the merits;

Even if all procedural rules have been complied with, the debtor can challenge the seizure of his property on the merits. Arguments in favor of canceling the arrest may be:

• disproportion of the seized property to the amount of unfulfilled obligations,
• active actions of the debtor to execute the court decision,
• the fact that the seizure of property harms the rights and legitimate interests of the debtor and others.

There is no universal formula for successful challenge. In each specific case, it is necessary to select arguments so that the cancellation of the arrest order is considered justified. However, you should not count on easy cancellation. The seizure of property protects the interests of the claimant and ensures that the bailiffs themselves carry out the work. Therefore, orders to seize property, issued without procedural violations, are rarely canceled either by higher bailiffs or in court.

Whether the seizure of property can be lifted by another bailiff, read here.

Sample complaint to a higher bailiff for seizure of property

The sample below is an example of drawing up a complaint in an administrative manner to a higher bailiff - executor against an illegal decision to seize the debtor's property. Please consult with an attorney before filing a complaint.

Name of the FSSP department

Full name, position of superior bailiff

Address.

Applicant: Full name of the citizen or name of the legal entity,

address, phone number, role in enforcement proceedings (claimor or debtor)

Enforcement proceedings No.

Complaint

On appealing the decision of the bailiff - executor

The bailiff - executor, full name, name of the structural unit of the FSSP, is conducting legal proceedings No. XXXX, initiated on the basis of the writ of execution No. XXX dated XXXXX, issued by XXXX federal court.

As part of the said legal proceedings, the bailiff issued Resolution No. ХХХХ dated ХХХХХ on the seizure of the debtor's property, namely ХХХХ.

The debtor considers this resolution illegal for the following reasons: XXXXX.

This resolution violates the rights of the debtor and does not comply with the requirements of Articles XX and XX of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”.

Based on the above and in accordance with paragraph 4 of Art. 14, art. 121 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”:

ASK

1. Recognize as illegal the resolution of bailiff XXX No. XXX dated XXX to seize the debtor's property.
2. Oblige the bailiff XXX to eliminate the violations by XXXXX.

Application:

1. A copy of the resolution of the bailiff XXX No. XXX dated XXX on the seizure of the debtor's property.
2. Documents confirming the illegality of the decision to seize the debtor’s property.

Date, signature of the applicant

How to submit

You can submit a complaint in person to the office of the bailiff service department. In this case, the complaint must be drawn up in two copies, and one of them must be marked as having been delivered. The complaint can also be sent by registered mail with return receipt requested.

Another way to file a complaint against a decision to seize property is through the State Services portal. To do this, in your personal account you need to select the section on appealing the actions of bailiffs.

Deadline for filing a complaint

The law establishes a very short period for filing a complaint about the seizure of property to a higher bailiff - 10 days from the date of the decision to seize property (Article 122 of the Law on Enforcement Proceedings). This period does not include non-working days (Article 15 of the law).

According to the rules for calculating deadlines established by the Law on Enforcement Proceedings (Articles 15 and 16), the countdown of the period begins from the next day after the decision is made. For example, if the order to seize property was issued on April 1, then the 10-day period is counted from April 2. The last day to appeal is April 15 (including the deduction of non-working days). If it is a non-working day, then the end of the period is postponed to the first working day following it.

Before the end of the last day of the appeal period, you must file a complaint with the bailiff service. If the complaint is submitted in person, this must be done before the end of the working day. If sent via mail, the complaint will be considered filed on time if the postmark indicates time until 24 hours of the last day for filing it.

Expert opinion

Lawyer Alexander Vasiliev comments

The period is counted directly from the moment the decision is made, if the debtor was duly notified of the time and place of the enforcement action (that is, drawing up an act of seizure of property and its inventory) and of the issuance of the decision by the bailiff. If the debtor was not notified, then the 10-day period is counted from the moment when this information became available to the debtor.

Since by default it is assumed that the bailiff notified the debtor of the execution of enforcement actions, any omission of the 10-day period must be explained in the complaint. Reasons for missing this deadline include:

• The fact that the debtor was not notified of the garnishment action and files a complaint within 10 days after he became aware of it;
• Other valid reasons, if any.

A petition (request) to restore the missed deadline must be added to the text of the complaint. Without this, consideration of the complaint will be refused on the basis of paragraphs. 2 p. 1 art. 125 of the Law on Enforcement Proceedings, since the deadlines for appealing the decision to seize property were not met.

A refusal will also follow if the application was submitted, but the reasons for missing the deadline were considered insufficiently convincing.

In practice, missed deadlines for administrative appeals are reluctantly reinstated. If there is a serious delay, it makes sense to go straight to court.

Consideration of the complaint

The senior manager of the bailiff will consider the complaint against the decision to seize property and decide whether the seizure was justified or not. A 3-day period has been established for consideration from the moment the complaint is received (clause 2 of Article 125 of the Law on Enforcement Proceedings).

Based on the results of consideration of the complaint, a decision may be made on:

• The complaint is declared illegal and the decision to seize the property is subject to cancellation. In this case, all restrictions on the property will be removed;
• Refusal to satisfy the complaint. In this case, the seizure of property will remain.

The decision to refuse can be appealed in court. It is also necessary to appeal to the court cases of delay in considering the complaint. Failure to comply with the deadlines established by law deprives the applicant of the opportunity to protect his rights.

The response to the complaint must be formalized in the form of a resolution of a higher-ranking bailiff. In another form (letter, message) such a response will not be legal.

From judicial practice: the applicant filed a complaint about the inaction of the bailiff to the acting. head of the department - senior bailiff. The subject of the complaint was non-compliance with the procedure for considering the debtor's application to cancel bans on registration actions in relation to real estate. In response to the complaint, the debtor received a letter signed by the acting. the head of the bailiff department with information that the complaint was refused. The debtor appealed the received letter to the court. The court concluded that the form of the superior official's response in the form of a letter does not comply with the requirements of the law on enforcement proceedings. Based on the results of consideration of the complaint, a decision must be made by the senior bailiff to satisfy the complaint or refuse it.

If the court has already considered a similar complaint, then it will refuse to make a decision on the administrative complaint on the basis of paragraphs. 4 paragraphs 1 art. 125 of the Law on Enforcement Proceedings. It is not allowed to issue an administrative act on an issue that has already been resolved by the court. Judicial proceedings are considered to guarantee an impartial and independent examination of the complaint. No court decisions can be refuted administratively. There is a special judicial appeal procedure for this.

How to make an application

An application for the release of property from seizure must contain:

• Name of the court to which the application is filed;
• Full name or names of persons participating in the case;
• Full name of the bailiff - executor, details of the writ of execution or other writ of execution;
• Details of the documents on the basis of which the encumbrance was created;
• Violations committed by the bailiff when seizing the debtor’s property;
• Evidence confirming the illegality of the bailiff’s actions;
• Request to cancel the seizure of property;
• Date and signature of the applicant - debtor.

To court

The decision to seize property can also be appealed to the court. In this case, a pre-trial administrative appeal to a higher bailiff is not necessary. The applicant can appeal to the court either directly or after a decision on his complaint is made by the head of the bailiff in an administrative manner.

An application to appeal the decision of the bailiff-executor to seize property is filed with the court at the location of the bailiff who issued it. As a general rule, an individual’s application to appeal the seizure of property must be considered by a court of general jurisdiction. However, if the arrest is made in connection with the execution of a decision on a commercial dispute and the applicant is an individual entrepreneur or organization, the complaint will be considered by an arbitration court.

Expert opinion

Lawyer Alexander Vasiliev comments

If it is not the debtor or the claimant who intends to appeal the decision of the bailiff, but another person (for example, the real owner of the property that has been seized), then he needs to go to court. In such situations, there is almost always a dispute about the right to property, which can only be considered by a court. To resolve it, it is necessary to file a statement of claim, not a complaint.

Appeal period

A 10-day period has also been established for appealing a decision to seize property in court, the calculation of which begins from the day following the day the decision is made. If the deadline is missed, the application must include a request for its restoration.

The period is counted from the day when the applicant should have learned about the violation of his rights.

Expert opinion

Lawyer Alexander Vasiliev comments

If the deadline is missed due to the fact that the administrative appeal was delayed and the response to the complaint was not received on time, the court will consider such a valid reason (clause 11 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 17, 2015 No. 50).

State duty

The state fee for filing an application to court to appeal a bailiff's decision to seize property is not paid either in a court of general jurisdiction or in an arbitration court (Part 2 of Article 239 of the Arbitration Procedure Code of the Russian Federation).

What to include in the application

An application to a court of general jurisdiction or an arbitration court must contain:

• The applicant's name and contact details;
• List of interested parties: it is necessary to indicate the bailiff who issued the order to seize the property, as well as the FSSP department where he works;
• Details of the decision to seize the property that is being appealed;
• Information about the administrative appeal and the decision made (if appealed);
• Reasons why the order to seize property is illegal and should be cancelled;
• The applicant's request to cancel the decision;
• Documents confirming the grounds for canceling the seizure of property;
• Date and signature of the applicant.

The grounds for canceling a decision to seize property may be the same as when appealing administratively (read about this above) - non-compliance with procedural rules and norms when seizing property, or unreasonable use of seizure measures on the merits.

The application must be carefully substantiated. The better the applicant’s position is developed, the greater the chances that the court will listen to it.

Sample application to the court to appeal the seizure of property

Application to the court to declare the seizure of property illegal

In XXXX federal court

Applicant (debtor) Full name, address, telephone, email address

Interested person: bailiff Full name, name of the FSSP unit

Statement

On declaring illegal the decision of the bailiff-executor to seize the debtor’s property

In the course of enforcement proceedings No. XXXX, initiated on the basis of writ of execution No. XXX dated XXXXX, at the request of the claimant, full name, the bailiff, full name, issued a resolution No. XXXX dated XXXXXXX to seize the property of the debtor, namely: XXXX.

XX.XX.XXXX the applicant filed a complaint against the actions of the bailiff in the order of subordination, as a result of consideration of which Resolution No. XX of XXXXX was issued, according to which the appealed decision and the arrest established by it were upheld, and the applicant’s complaint without satisfaction on the following grounds XXXXX.

The applicant believes that the specified resolution No. ХХХ dated ХХХХХХХ is illegal and was adopted in violation of the provisions of the Federal Law of October 2, 2007 No. 229-ФЗ “On Enforcement Proceedings”, namely: ХХХХ. The applied measure in the form of seizure of property is illegal because: XXXXX, which is confirmed by XXXXX.

Based on the above and in accordance with Art. 64, 80 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”,

Ask:

Declare illegal and cancel the Resolution of the bailiff XXXX dated XXXX No. XXXX on the seizure of the debtor's property.

Applications:

1. A copy of the Resolution of the bailiff - executor XXXX dated XXXX No. XXXX on the seizure of the debtor's property.
2. A copy of the representative's power of attorney.
3. A copy of the complaint submitted to the superior bailiff dated XXXXXXX.
4. A copy of the resolution on consideration of complaint No. XXX dated XXXXX.
5. Documents confirming the illegality of the arrest.

Date, signature of the debtor.

Nuances of the appeal procedure

The decision is canceled when the seizure is imposed on items that cannot be subject to restrictions. The list of property that is not subject to restrictions is contained in Article 446 of the Code of Civil Procedure. In particular, these are:

• The only living space for the debtor and his family. An exception is housing, which is a security measure for a mortgage.
• The land on which the debtor's only residence is located.
• Personal belongings, household items. The exception is jewelry and other luxury items.
• Nutrition.
• Equipment, seeds, if they are not used in business activities. However, the cost of these items should not exceed 100 minimum wages.
• Fuel needed to heat a home.

It must be taken into account that minimum wages in labor and civil law are different things. In the situation under consideration, the second type of minimum wage is important. It amounts to 100 rubles.