There are frequent cases when a bailiff wrote off all the money from a salary card on the basis of a court order, but then the court order was canceled, or the plaintiff’s claim was denied, or a default judgment was made, which was executed by the bailiffs, and later it was canceled and subsequently appealed. Is it possible to return the money written off by the bailiff? For this purpose, procedural legislation provides for a procedure for reversing the execution of a judicial act. How to return the money yourself, without resorting to the help of a lawyer, we will understand in the article.
What solutions can be used to rotate the execution?
In fact, the reversal of execution can be applied to any canceled judicial act, both in full and in part. For example, execution can be reversed by a court decision in absentia, by a court order (collection of a loan, debt for utility bills), by a court ruling (collection of a state duty). A rotation of execution is applicable if the claim is partially satisfied or the court reduces the amount of the originally stated claim. In this case, it is possible to reverse the court decision regarding the overpaid amount (unjust enrichment).
However, there are cases in which execution rotation cannot be applied. In accordance with Art. 445 of the Code of Civil Procedure of the Russian Federation, which includes:
- Collection of alimony debt.
Even if the appellate court overturns the initial decision, a reversal of execution is possible only if the defendant proves that the collection of alimony was based on forged documents, or the plaintiff provided false information on the basis of which the court decision was made. - Recovery in labor disputes
(lost earnings in claims for reinstatement at work) is a similar situation. Such decisions have immediate execution, so even if the court decision is subsequently overturned and the employee’s dismissal is recognized as legal, the money paid under the court decision cannot be returned, unless it can be proven that the employee provided false information or forged documents in court. - Remuneration for the use of exclusive (copyright) rights
, paid alimony or compensation for damage to health due to the loss of a breadwinner
- reversal of execution in such disputes is also impossible.
Reason for illegal write-off
Based on law enforcement practice, there are several reasons why FSSP employees commit violations of the law during non-cash write-offs:
- Error in identifying the debtor. The actual debiting of funds occurs from the accounts of a person who is not the debtor. The fact is that until recently, bailiffs sent requests to banks without indicating the TIN, passport or other data that uniquely identified the debtor. The search was carried out only by full name and date of birth of the defendant. Writing off “full namesakes” was a frequent occurrence. Changes to the identification of defendants will take effect on March 30, 2021.
- Write-off of income that cannot be recovered by law (Article 101 of Federal Law No. 229). When debiting money from an account, the bailiff is not required to check the source of origin of these funds. In these circumstances, it is in the interests of the debtor himself to notify the bailiff in advance about the presence of accounts into which social children's benefits, compensation, alimony, pension supplements and other funds that are not subject to collection are received.
- Excessive write-off when deductions under the same writ of execution are executed repeatedly from accounts in several banks.
- Repeated write-offs are erroneous deductions in the case when the debt was repaid by the debtor earlier, but the bailiffs have not yet received information about this.
When can you get your money back through a turnaround?
The execution of a court decision can be reversed if the following conditions are met:
- the decision on the basis of which the bailiff wrote off money from the bank card was subsequently cancelled;
- according to the specified decision, execution has already been carried out - the money has been written off in whole or in part;
- the court considered the case again and adopted one of the following judicial acts: a decision to reject the claim in whole or in part;
- determination to terminate the proceedings; ruling to leave the claim without consideration.
There is an important nuance with the turn of execution by court order.
If it is cancelled, the plaintiff retains the right to go to court to collect the debt through a claim proceeding. In this case, a reversal of execution will be possible when the case on a claim for debt collection has not yet been initiated at the time of filing the application for a reversal of execution (clause 35 of the Plenum of the Supreme Court of the Russian Federation No. 62 of December 27, 2016).
In other words, the debtor should seize the moment when the court order has already been canceled by the court, and the creditor has not yet had time to file a claim for collection of the debt through litigation (or the claim has been filed, but not accepted for proceedings). It is during this period of time that you need to have time to submit an application for a reversal of execution.
Repeated debiting of money
If you paid the debt and saw that the bank wrote off the money in favor of the bailiff service, this means that without waiting for the receipt and distribution of the voluntary payment, the bailiff sent a writ of execution to the bank to collect the funds. Moreover, since the passage and distribution of the payment, as well as the paperwork with the bank, can take quite a long time, the write-off can occur several weeks after payment.
After write-off, the money can be either in the transit account of the FSSP of Russia or be distributed and transferred to the recoverer. Therefore, when faced with such a problem, you must try to promptly provide your district bailiff with documents confirming voluntary payment for enforcement proceedings, and an application for the return of the overpaid amount, in order to have time to make a refund from the FSSP account. Otherwise, you will have to recover the amount of overpayment from the plaintiff, and this is much more difficult.
How to get a refund if the bailiffs withdrew more than necessary
The same actions as described above will be effective here:
- An application is submitted to declare the actions of the bailiff illegal.
- In case of non-repayment of funds, a claim is filed against the FSSP and the Ministry of Finance for the recovery of funds.
The return of illegally written off funds by bailiffs must be done within 3 months. However, the bailiff may seize some insurance payments. These include old-age payments, funded payments and disability transfers.
If there are minor children to support, the income must be at least the subsistence level for each family member. In addition, a court officer cannot seize children's money.
How long does it take to return
The legislation does not define an exact deadline for the return of money that was wrongfully or mistakenly written off by FSSP employees. Only the time for transferring the erroneously collected enforcement fee is specified - if there is a court decision to cancel the fee, the FSSP unit is obliged to return the funds to the payer within 30 days from the date of receipt of the application (Government Decree No. 550 of 2008).
Lawyers suggest focusing on the seven-day period provided for in Article 314 of the Civil Code of the Russian Federation for the fulfillment of obligations to the creditor in cases where the deadline for fulfilling obligations is not directly determined by law.
In practice, the return procedure is often delayed, especially in situations where the written-off money is not in the FSSP, and it is transferred to the creditor. According to the instructions, the bailiff sends a letter demanding the return of the erroneously transferred money; he does not have the right to write it off forcibly. If the creditor does not agree to voluntarily return the funds, then the FSSP does not return anything. The amount can only be claimed from the treasury in a lengthy trial (at least a month).
What funds cannot be written off?
According to the law, bailiffs do not have the right to write off funds of several categories:
- maternal capital;
— maternity benefit;
— monthly child care allowance;
- alimony;
- pension upon death of the breadwinner;
— compensation for damage caused to health;
— benefits to victims of disasters, natural disasters, terrorist attacks;
- allowance for caring for a disabled family member;
- funeral benefit;
- some other payments to certain categories of citizens, for example, those injured during service.
What is the maximum amount that can be written off?
In most cases, bailiffs do not have the right to write off more than 50% of the debtor’s income, but sometimes this percentage can be increased to 70%. This is only possible when collecting alimony, money for the death of the breadwinner, compensation for harm to the health of another person, money for damage caused by a crime.
In addition, if the debtor has dependent children, the bailiff by law cannot write off funds from him equal to the sum of the subsistence minimums of the debtor himself and the children, regardless of what percentage of his income this amount is.
After subscribing to receive information about the progress of enforcement proceedings, citizens and representatives of organizations can quickly, online, without visiting a bailiff in person, receive electronic copies of all necessary procedural documents. This service is 24/7 and free.
According to what document can bailiffs write off money?
No one, not even a bailiff, can write your money off your account just like that. To write off, you must have an official court order or a requirement from the Federal Tax Service, the State Traffic Safety Inspectorate and other departments.
. The resolution specifies the amount of debt and the percentage of income that is withheld (if there is such a condition). But most often, court decisions or requirements of the Federal Tax Service simply state the total amount - without restrictions.
The debt lien document must be on official letterhead (if available), have a number, date, institutional seal, and the signature of the department head or judge. You need to pay attention to the signature - it must be personal, not a facsimile
.
If a copy of the lien document is sent to the bailiffs, it must be officially certified.
The bailiff must notify the debtor about the withholding of funds from bank accounts. Such notification is sent by registered mail via Russian Post. If the debtor has not received the letter (it has been returned), then he is still considered notified - the next day after the letter is returned.
Only after official notification, bailiffs have the right to collect the amount of debt from current accounts
.
The bailiff will first try to collect the amount of debt from bank accounts - this is the easiest way. If money does not arrive in the debtor’s current account for a long time, then the bailiff has the right to make a decision (with the permission of the head of the FSSP) to seize the debtor’s property for further sale.
How will the return of illegally withheld funds be carried out on Putin’s instructions?
In August 2021, the President of the Russian Federation, speaking at the congress of the United Russia party, proposed resolving the situation with the return of illegally written off social benefits to citizens. Putin emphasized that the demand is addressed to banks, not bailiffs.
Let us note that legislative regulation in this area exists, and the procedure has been worked out. Banks cannot write off funds from cards and accounts on their own initiative, but only comply with the instructions of the FSSP.
There is no clarifying regulatory act yet on the refund procedure. Therefore, it is difficult to evaluate the algorithm of actions on the part of the debtor and bank employees. It is also unclear how long after the retention date it will be possible to return the written-off funds. We recommend waiting until the authorities describe the exact return procedure.
If you have any questions related to the return of illegally withheld funds or overpayments, please contact our lawyers. We will help even in the most difficult situation!
Return Application
Despite the fact that the application does not have an established form, its preparation is fraught with a number of difficulties:
- Correctly specifying the addressee affects the speed of processing the application (remember the deadline is 5 days!). If you need to return money that was written off in excess, it is better to immediately contact the head of the FSSP unit. If the return is due to errors accidentally made in the collection order, address the application to the bailiff, he will be more likely to understand the nuances of the case.
- Description of reasons sufficient for return. For income that is not subject to withholding, this will be Article 101 of the Federal Law “On Enforcement Proceedings”; for funds written off in excess - Article 70 of the same regulatory act.
- Attachment of documents sufficient for a refund. Certificate of accrued financial assistance, agreement on payment of alimony, bank statements, etc. - in case of unlawful deduction. Copy of passport, SNILS and INN - in case of identification error. Payment documents – for multiple payments.
How to remove a seizure from a card
You can remove the seizure from a bank account in the following cases:
- when the debt is fully repaid;
- if the claimant revoked the writ of execution (for example, when a new agreement was concluded between the debtor and the claimant);
- when the debtor challenged the legality of the collection through the court;
- if the debtor is declared bankrupt.
Only a bailiff or a court can give an order to remove a block from a bank account.
It is worth noting that the only way to prevent the bailiff from seizing the card is to repay the debt on time. The FSSP has the right to request from banks information about all open accounts belonging to the debtor.
If funds that are not subject to recovery have been debited from the card, or the account to which social payments are received has been blocked, all prohibitions can be lifted without the listed grounds. To do this you need:
- Contact the bank and get an account statement.
- Receive a certificate of the amount of social benefits, pensions, etc. and the date of their transfer to the organization that carries out their transfer (PFR, FSS, etc.).
- Submit an application to the bailiff to remove the seizure from the account.
Please note that if the bailiffs refuse to remove the arrest from the salary card, as well as from the pension account or cards to which benefits are received, their decision must be appealed through the court. To do this, we advise you to seek help from a qualified lawyer.
Marina Aksenova Lawyer, website author
Expert commentary
It is worth noting that it makes no sense to issue a new card in order to bypass the seizure of a salary or any other card by bailiffs, since the FSSP will be able to seize it in this regard as well.
You can check the seizure of a bank account on the FSSP website in the “Data Bank of Enforcement Proceedings” section.
Withdrawal terms
The Ministry of Justice states that in case of a positive decision, canceling the seizure of the account takes no more than a day. It will also take up to 2 business days for the bank to remove restrictions. Thus, the period for removing the seizure from the account by the bailiff is 3 business days.
Debt with error
Write-off of social money is not the only problem that debtors face. In practice, lawyers say, there are situations when funds continue to be written off after the completion of enforcement proceedings. On forums dedicated to protecting consumers of financial services, you can find complaints from people from whom they want to collect debt on an already closed loan or repaid debt for housing and communal services and alimony.
As in the first case, first the debtor needs to contact the district bailiff department. As Vasily Malinin notes, if we are talking about a debt that has already been repaid, the citizen must provide evidence of full payment of the debt (receipts, receipts for payment). If the return of money is refused, you will have to go to court.
Usually, according to Grigory Kolesnikov, a lawyer at the Moscow City Bar Association, the duration of such proceedings does not exceed six months.
Ekaterina Buldakova says that problems often arise for people who have several accounts in different banks. “Bailiffs send demands to several banks, and all banks fulfill them. Therefore, in fact, several times more is confiscated from a person than the amount that is due from him by court decision,” says the lawyer. For example, a person owes 50 thousand rubles. to pay the utility debt. He has accounts in three banks, each of which contains 100 thousand rubles. As a result, the bailiffs send a demand to each bank to write off 50% of the income - it turns out that the amount written off is three times the debt.
According to Buldakova, in this case, the bailiffs themselves are obliged to return the excessively written off funds automatically (the entire unclaimed balance is stored in the account of the FSSP unit), but due to bureaucratic delays this most often does not happen. Then the person should contact the bailiffs with an application for the return of excess funds written off, attaching bank statements to it. Such a trial will take up to six months.
