Replacement of a party (claimant) in enforcement proceedings, sample application

Enforcement proceedings are already the process when a writ of execution by a court decision or another document equivalent to it is subject to forced execution.

At this stage, there are no longer plaintiffs and defendants, but only a debtor and a claimant. And situations often arise when the right to receive a debt, for legal reasons, passes to another person.

Then the procedure for replacing the claimant in enforcement proceedings becomes relevant. How to prepare an application correctly? Our article is devoted to this process.

Replacement of the claimant party in enforcement proceedings

How to change the claimant in enforcement proceedings? Such procedural actions are possible both in relation to enterprises and in relation to citizens.

In the latter case, one of the grounds is the death of the claimant in enforcement proceedings.

Then his heirs can enter into the case, having assumed their rights according to the procedure outlined by civil law. Of course, all documents regarding the inheritance must be ready.

There are also other reasons why the claimant may be changed to another person.

If we talk about enterprises, this can happen as a result of reorganization, in which the creditor company changes not only its name, but also its organizational form.

For example, a limited liability company is reorganized into a joint stock company.

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Another reason for replacing the claimant is the transfer to him of all rights of claim from the previous creditor. In this case, all documents on the assignment of debt must be drawn up in the manner prescribed in the Code of Civil Procedure of the Russian Federation.

How to send a document to a bailiff

The form is submitted during a personal appointment (sign up in advance at a convenient time, arrive at the appointed time, you can write the paper at home or in your office). You can send it by email or regular mail.

On the page, provide information about the contractor: the address of the department where your question will be considered.

The appeal is examined by an official within 10 days. If you have not received an answer to it, you are not satisfied with it, send your complaint to a higher representative of the FSSP or to the court. Indicate unlawful actions, request to restore the violated right.

Be sure to attach to the application a document confirming an agreement with the other party on the assignment of the claim or a court ruling. In this case, the official will have legal grounds to begin the procedure.

How is succession formalized?

A writ of execution is issued on the basis of a court decision (district or arbitration); accordingly, an application to replace the claimant in enforcement proceedings is submitted there.

It must be accompanied by all documents confirming the fact of succession in relation to the previous creditor.

Based on the results of the submitted documents, the judge makes a decision to replace the claimant in enforcement proceedings.

It should be provided to the bailiff involved in the forced collection of debt or inducement to fulfill other obligations.

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If the court refuses to formalize the succession, then an appeal against the ruling is filed within the time limits prescribed by the Civil Procedure Code or the Arbitration Procedure Code of the Russian Federation.

However, there are also executive documents to which the court has no relation.

For example, these are decisions on various fines. In this case, all information for making a decision on replacing the claimant is submitted directly to the bailiff who is handling the case.

In any case, it is advisable to submit all documents with a cover letter against signature, to which all necessary copies will be attached. This will make it easier to prove that all authorities provided for by law were notified of the change of claimant.

Application Form

The plaintiff and the defendant can file an appeal. If a writ of execution is issued by a court decision, it is to this authority that the document is submitted. If the resolution was drawn up by a representative of the FSSP, the application is transferred to the bailiff department.

In this case, you must attach forms confirming the possibility of succession (death certificate, confirmation of family relationships, certificate of recognition as missing).

The application must be made in writing by hand or on a computer; the text should not contain grammatical errors, typos, or unproven statements.

Actions of the bailiff when replacing the claimant

Let us explain the rights of the claimant. Having received the appropriate court ruling on succession or documents on the transfer of the right of claim, the bailiff must issue a resolution approved by higher authorities.

Then, the new claimant must familiarize himself with all currently available materials of enforcement proceedings. After all, bringing a new claimant into the case does not start the whole process all over again.

Therefore, it is important to be aware of all the documents that are already in the materials of enforcement proceedings. It is quite possible that the new creditor will be able to provide the bailiff with additional information that will make it easier for him to complete the task.

Please note that when replacing a claimant, you do not need to obtain a new writ of execution. Procedural legislation does not provide any guidance in this regard.

To the Kuibyshevsky District Court of Omsk

Applicant: Homeowners Association “Medic” 644010, Omsk, st. Maslennikova, 9

Interested parties: 1. Mladentseva Galina Ivanovna 644010, Omsk, st. Maslennikova, 9, apt. ...

2. CJSC Industrial Catering Complex Business Meetings 644010, Omsk, st. Maslennikova, 9

3. Bailiff of the MRO for OIP Anna Petrovna Popova, 644005, Omsk, st. Lagody, 1d

STATEMENT on procedural succession

Mladentseva Galina Ivanovna, and also a number of other citizens who are the owners of residential premises of house No. 9 on the street. Maslennikova in Omsk filed a claim with the Kuibyshevsky District Court of Omsk to invalidate the construction permit and oblige ZAO PKOP Delovye Vstrechiya to demolish the unauthorized construction and restore the land plot and the wall of the house to the previous state that existed before the violation of the law .

The Kuibyshevsky District Court refused to satisfy these demands.

Cassation ruling of the judicial panel for civil cases of the Omsk Regional Court dated February 22, 2011. in case No. 2-6498/2010 (No. 33-793/2011), the decision of the Kuibyshevsky District Court was canceled and it was decided to oblige PKOP “Business Meetings” CJSC to remove obstacles in the use of property belonging to the Medic housing cooperative by demolishing the extension located at the address: Omsk, st. Maslennikova, 9; oblige ZAO PKOP “Business Meetings” to bring the land plot and the end part of the wall of house No. 9 to the address: Omsk, st. Maslennikova, 9 to the condition that existed before the start of construction, restore the asphalt surface and main wall of the house.

Based on writ of execution No. 2-6498/2010 dated February 22, 2011. bailiff of the Interdistrict Department for Special Enforcement Proceedings of the Federal Bailiff Service of the Russian Federation Popova A.P. Enforcement proceedings have been initiated against JSC PKOP Delovye Vstrechi:

— No. 16238/13/07/55 dated 08.08.2011; - No. 16239/13/07/55 dated 08.08.2011; - No. 16240/13/07/55 dated 06/18/2012; - No. 16241/13/07/55 dated 06/18/2012; — No. 26383/13/07/55 dated 03/25/2013.

On November 17, 2014, between Mladentseva G.I. and the Home Owners Association “Medic” an agreement was concluded for the assignment of the right of claim (cession), according to which the Assignor (Mladentseva G.I.) assigns, and the Assignee (HOA “Medic”) accepts the rights of claim to the Closed Joint Stock Company “Industrial Catering Complex “Business Meetings”; OGRN 1025500984299):

on the obligation of CJSC PKOP “Business Meetings” to remove obstacles in the use of property belonging to the housing cooperative “Medic” by demolishing the extension located at the address: Omsk, st. Maslennikova, 9;
on the obligation of JSC PKOP “Business Meetings” to bring the land plot and the end part of the wall of house No. 9 to the address: Omsk, st. Maslennikova, 9 to the condition that existed before the start of construction, restore the asphalt surface and main wall of the house.

In accordance with Article 44 of the Code of Civil Procedure of the Russian Federation, in cases of the departure of one of the parties in a controversial or established legal relationship (death of a citizen, reorganization of a legal entity, assignment of a claim, transfer of debt and other cases of change of persons in obligations), the court allows the replacement of this party by its legal successor. Succession is possible at any stage of civil proceedings.

According to Part. 1, 2 of Article 382 of the Civil Code of the Russian Federation, a right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person under a transaction (assignment of the claim) or may be transferred to another person on the basis of law... To transfer the rights of the creditor to another person, the consent of the creditor is not required debtor, unless otherwise provided by law or contract.

The assignment of a claim by a creditor (assignor) to another person (assignee) is permitted if it does not contradict the law. The assignment of a claim under an obligation in which the identity of the creditor is of significant importance for the debtor is not permitted without the consent of the debtor (Article 388 of the Civil Code of the Russian Federation).

The agreement for the assignment of the right of claim dated November 17, 2014 was concluded as part of the execution of the cassation ruling of the judicial panel for civil cases of the Omsk Regional Court dated February 22, 2011. in case No. 2-6498/2010 (No. 33-793/2011).

The obligation of PKOP "Business Meetings" CJSC to remove obstacles in the use of property belonging to the housing cooperative "Medic" by demolishing the extension..., and to bring the land plot and the end part of the wall of house No. 9 to the state that existed before the start of construction for the purpose of executing a court ruling exists regardless of the presence or absence of an assignment agreement (claim). In this regard, the identity of the creditor is not significant for the defendant. Thus, the Company's obligations to comply with the court order on compulsion remain unchanged.

In accordance with Article 52 of the Federal Law of 02.10.2007 N 229-FZ (as amended on 05.05.2014) “On Enforcement Proceedings”, in the event of the departure of one of the parties to the enforcement proceeding (death of a citizen, reorganization of an organization, assignment of the right of claim, transfer debt) the bailiff replaces this party to the enforcement proceedings with its legal successor.. The bailiff replaces the party to the enforcement proceedings .. on the basis of a judicial act on the replacement of a party to the enforcement proceedings by a legal successor under an executive document issued on the basis of a judicial act or which is a judicial act .

Thus, the law allows for the replacement of a claimant in enforcement proceedings on the basis of an agreement for the assignment of claims after the issuance of a writ of execution, but before the actual execution of the court decision.

“ The issue of replacing a party with a successor is considered by the court upon the application of an interested person or a bailiff at a court hearing, the time and place of which is notified to the parties and the bailiff. Based on the results of consideration of the application, a determination is made against which a private complaint can be filed.

If the court recognizes the succession, the bailiff is obliged by his decision to replace the relevant party in the enforcement proceedings with a successor.

Thus, the replacement of a party in enforcement proceedings is carried out by a bailiff on the basis of a court ruling” (Review of the judicial practice of the Supreme Court of the Russian Federation dated 01.03.2006 “Review of the judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2005”)

Based on the above, I ask the court:

to replace the claimant party Galina Ivanovna Mladentseva, passport series ... No. ..., issued ... ... 2001 by the Department of Internal Affairs No. 2 for the Central Administrative District of the city of Omsk, registered at the address: Omsk, st. Maslennikova, 9, apt. ... to the successor, the Medic Homeowners Association, in connection with the conclusion between these persons on November 17, 2014 of an agreement for the assignment of the right of claim under writ of execution No. 2-6498/2010 dated February 22, 2011. issued by the Kuibyshevsky District Court of Omsk with the subject of execution:

— to oblige ZAO PKOP “Business Meetings” to remove obstacles to the use of property owned by the housing cooperative “Medic” by demolishing the extension located at the address: Omsk, st. Maslennikova, 9;

- oblige PKOP Business Meetings CJSC to bring the land plot and the end part of the wall of house No. 9 to the address: Omsk, st. Maslennikova, 9 to the condition that existed before the start of construction, restore the asphalt surface and main wall of the house.

Signature _________/Stepanova N.P. – representative of the HOA “Medic” by power of attorney

Applications:

1. A copy of the agreement on the assignment of the right of claim (cession) dated November 17, 2014; 2. Power of attorney of the applicant’s representative dated “___” _________ 2014; 3. Copies of this application by number of parties.

What to do if the bailiff does not want to allow the successor

If the new claimant is faced with the fact that the bailiff refuses to transfer all rights to him, then the stage of appealing the relevant decision may follow. It can go in different directions.

The first of them is that the actions of the bailiff can be appealed to his immediate superiors, who are higher in the order of subordination on the career ladder.

If succession is related to the execution of a court decision, then it makes sense to file a complaint with the appropriate court. Moreover, this applies to both civil courts and arbitration.

For example, if the writ of execution initially came from the arbitration court, then the actions of the bailiff will be appealed there.

A complaint about the inaction of the bailiff to the prosecutor's office may also be effective. Based on the results of its consideration, the prosecutor may oblige the relevant FSSP body to allow the replacement of the claimant.

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In any case, it is advisable to challenge the actions (inaction) of the bailiff within a ten-day period. Otherwise, problems may arise with the consideration of the complaint or application.

How to fill out an application correctly?

The official paper indicates the details, data of the parties, the name of the court, information about the bailiff, and the grounds for the transfer of rights. There is no strict form for the form, however, if important information is not indicated, it may be left without consideration and returned to the party.

Hotline for citizen consultations: 8-804-333-70-30

Sample form of applying to the arbitration court to replace the defendant

The claimant can apply not only to the instance of general jurisdiction, but also to arbitration for legal succession in the consideration of economic and commercial disputes. The sample includes the following:

Name of the authority and details of the applicant.
Number of the court case, writ of execution, proceedings, date of the decision, price of the claim and the amount to be recovered.
Reasons for succession (for example, an indication that the debtor did not fulfill its obligations, after which a reorganization of the legal entity occurred).
Please make a replacement in accordance with the procedure established by law.
List of applications serving as evidence.
Signature, date.

How our resource can help

First of all, these are legal consultations on the topic under what conditions it is permissible to replace a party to enforcement proceedings and the claimant in particular.

In addition, on our portal there is an application to replace the claimant in enforcement proceedings, a sample of which can be taken as a basis or downloaded in any convenient format.

If you have questions about the form or need additional clarification, then to dispel all doubts, just come to our office or order a free call back.

It should be remembered that changing the claimant in enforcement proceedings is a purely technical process. However, even within this framework, difficulties and unforeseen situations arise that can be resolved jointly with a lawyer.

Application for replacement of a party in enforcement proceedings

Which court should I go to?

Send the form to arbitration or general jurisdiction to consider the request. If the case concerns an economic dispute involving legal entities, the application is submitted to the Arbitration Court. This is due to reorganization, liquidation, and merger of enterprises. The official paper is delivered to the applicant’s location.

As a general rule, the applicant applies to the authority issuing the writ of execution. This is the court of first instance. In this case, filing an application with the appellate authorities is not provided.

You can submit the form in person at the office, electronically, or by mail. Help from a legal representative is possible; for this purpose, a power of attorney is issued.

Who can become a new claimant?

Most often, a change in the alimony claimant occurs due to the death of the parent (guardian/trustee) with whom the child lived.

If a child moves permanently to live with the second parent, the payment of alimony stops, since the payer and recipient of alimony become the same person.

But if this does not happen, the new claimant may become...

Guardianship and trusteeship authority;
A relative (grandparent, aunt or uncle, brother or sister) appointed as the child's guardian/trustee;
An orphanage or other educational, training or medical institution where the child has been transferred.

Can a child become a debt collector?

If a child is left without parental care (due to death or deprivation of parental rights) and is transferred to full state support, the court may decide to deposit alimony, which is paid by the parent/parents for the maintenance of the child located in a children's educational or medical institution.

The applicant may be a bailiff or a child care institution, but the claimant in enforcement proceedings will be the minor child himself.

Funds that will be paid for child support are not spent. They are deposited in a bank or fund, and after reaching the age of majority and leaving the institution, they are paid to the child. Until this moment, access to them will be closed.

Arbitrage practice

As judicial practice shows, the process of replacing a claimant is a simple and formal procedure that does not cause difficulties. Of course, if the stated requirement is legal and justified.

When considering a case, the court takes into account all documents and other evidence submitted to it. If the request is justified, the court will grant it. If it is impossible to replace the claimant, the court will refuse to satisfy the application, making sure to set out the reasons for the refusal in the decision.

As a rule, the court refuses to replace the claimant due to the incomplete procedure for registering guardianship/trusteeship and the lack of relevant documents. But exceptions are allowed. If the circumstances and the totality of evidence speaks in favor of the applicant interested in receiving money for the maintenance of the child.

The court's refusal can be appealed to a higher judicial authority.

The grandmother of a minor child, O. Lezhneva, appealed to the Bailiff Service with a request to appoint her as alimony collector, indicating that her own daughter, the child’s mother, had died. After the death of the child's mother, child support payments from the father stopped.

The bailiff refused to replace the claimant because custody of the child had not yet been formalized. Lezhneva O. went to court. The court took into account all the circumstances of the case: the child’s cohabitation with his grandmother, the process of registering guardianship of the child, the need for funds to support the child due to the financial situation of his guardian. The application was granted, the writ of execution was transferred to the Bailiff Service for forced collection of payments.

Difficulties may also arise in connection with the alimony payer. For example, if he starts hiding, refuses to provide funds, or hides income.