How to return the money written off from the card if the court decision was overturned: we understand the reversal of execution

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.

How to return overpaid money to bailiffs

According to Part 11 of Art. 70 of the Law on Enforcement Proceedings, the bailiff must return to the debtor the money received in excess of the amount owed.

If the bailiffs do not return the money on their own, you must contact them with a written application for the return of the money.

However, you should not count on the fact that the bailiffs will voluntarily return the money, since not everything is always so simple in these structures.

If the bailiffs refuse to voluntarily return the money, then you can file a complaint with the prosecutor’s office so that an inspection can be carried out; perhaps, based on the results of the inspection, the bailiffs will transfer the money.

If contacting the prosecutor’s office does not help, then you should go to court.

Written off by mistake: how the debtor’s namesake can receive compensation

Elena Voronina* – two full namesakes. They have the same middle names and dates of birth. The difference is that one lives in the Moscow region, and the other in the Leningrad region. Elena Voronina from Moscow did not pay her electricity bills. When the debt amounted to about 7,300 rubles, Mosenergosbyt went to court and in September 2016 received a court order to collect the debt. In August 2017, the bailiff of the Serpukhov district department of the Moscow region initiated enforcement proceedings. And then he asked for information on the debtor’s accounts. It turned out that an account was opened in the name of Elena Voronina at VTB 24 Bank. But it does not belong to a Muscovite, but to her namesake from the Leningrad region. The FSSP department did not pay attention to this and wrote off 14,500 rubles from the card. instead of 7,300 rub. Realizing that too much money had been withdrawn, the bailiff returned 7,200 rubles. to the account of Elena Voronina, which was opened in Sberbank. This time it really belonged to the debtor. That is, instead of removing the debt from her, the bailiffs also transferred “extra” funds to her.

The bailiffs are not to blame

After this, Voronina, who had paid off someone else’s debt, filed complaints with the bailiffs several times and asked for the money back. The last time, in November 2017, I sent a claim to the head of the Serpukhov ROSP UFSSP for the Moscow region. She explained that she and the defaulter were namesakes, so someone else’s debt was written off from her. Moreover, the bailiffs made a mistake twice: the amount withdrawn from the namesake turned out to be more than the debt. And the difference was returned to the card not to her, but to the debtor. Having not received a response to the letter, Voronina filed a claim with the Federal Bailiff Service of Russia. The woman asked to recognize the actions of the bailiff as illegal, to recover 14,500 rubles in her favor, as well as expenses for the provision of legal services (11,500 rubles), compensation for moral damages (20,000 rubles) and state fees (300 rubles). She indicated that the FSSP employee was negligent by not carefully studying the personal data of the real debtor.

The Supreme Court allowed the debtor to “register” in the apartment

After this, the money withdrawn by mistake was returned to her, and Voronina clarified her demands: she asked for a refund of 20,000 rubles. as moral damages and another 20,000 rubles, which she spent on paying for legal assistance, sending letters of claims, obtaining information from the Unified State Register of Real Estate and making copies of documents.

But the first instance rejected her claim. Judge Irina Bakonina of the Meshchansky District Court decided that the money written off from the account cannot be recovered from the FSSP, because the bailiffs themselves are not to blame. The appeal explained that an employee of the department sent the correct personal data to the bank (including place of residence), but the credit institution got something wrong and sent the wrong person’s account. Therefore, the Moscow City Court left the decision unchanged, and the cassation supported the position. Then Voronina complained to the Supreme Court.

VS: the bailiff must double-check the information

Case No. 5-КГ21-45-К2 was considered by a “troika” of judges chaired by Alexander Kiselev. The panel recalled that in cases of compensation for harm with the FSSP, the courts need to establish the very fact of causing harm, the guilt of the bailiff and the connection between the damage and the actions of the bailiff. This follows from the position expressed back in 2015 in Plenum Resolution no. In this case, the plaintiff must be refused if the defendant has proven the absence of guilt: that the bailiff did everything to exclude recovery from third parties.

The Supreme Court pointed out that the mere coincidence of the debtor’s data with a third party does not relieve the bailiff from the obligation to write off money from the debtor’s account, and not his namesake.

Troika noted that an agreement on the procedure for electronic document management was concluded between the Federal Bailiff Service and VTB Bank. It provides that debtors in the bank system are searched by last name, first name, patronymic and date of birth. Moreover, the search is automated. If several people are found using these criteria, then the bank also looks for the debtor using an identification document.

When the request from the bailiff does not contain such data, the credit institution must clarify it with the FSSP. In Voronina’s case, VTB looked for the debtor using the information provided by the bailiff (full name and date of birth). Since they coincided with one client, an automated search using other details was not performed. Therefore, the courts’ reference to the bailiff’s lack of guilt is untenable, the Supreme Court decided.

Moreover, in the event of an erroneous debit from the debtor’s namesake, it is the bailiff who must restore the rights of third parties violated by him. But the money was not returned to the plaintiff, despite Voronina’s repeated appeals. The Supreme Court indicated that the courts did not establish for what reason the bailiff transferred the excess money written off from the plaintiff at VTB Bank to another account in another bank (that is, to the debtor’s own card). As a result, the Supreme Court canceled the acts of three instances and returned the case to the Moscow City Court. The dispute has not yet been reconsidered.

Experts: It will become easier to collect compensation

Back in 2021, the FSSP recognized the difficulties in resolving this problem, says Alina Nurtdinova, consultant at Law Firm Lemchik, Krupsky and Partners Lemchik, Krupsky and Partners Federal Rating. group Tax consulting and disputes (Tax disputes) group Arbitration proceedings (medium and small disputes - mid market) group Tax consulting and disputes (Tax consulting) group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions group Labor and migration law (including disputes) 9th place by number of lawyers 16th place by revenue 20th place by revenue per lawyer (more than 30 lawyers) Company profile. In its letter dated August 25, 2021 No. 00011/17/82639-OP “On issues of interaction with banks and other credit institutions,” the service indicated that cases of complaints about debt write-offs from namesakes have become more frequent. The document says that in such situations it is necessary to return the money withdrawn by mistake as quickly as possible.

Chest of drawers under arrest: the Supreme Court decided the fate of furniture from a rented apartment

But in practice, problems continued to arise with this. Andrey Kolbun, lawyer at Law Firm Lemchik, Krupsky and Partners Lemchik, Krupsky and Partners Federal rating. group Tax consulting and disputes (Tax disputes) group Arbitration proceedings (medium and small disputes - mid market) group Tax consulting and disputes (Tax consulting) group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions group Labor and migration law (including disputes) 9th place By number of lawyers 16th place By revenue 20th place By revenue per lawyer (more than 30 lawyers) The company profile says that it was possible to prove the bailiff’s guilt only if he provided the bank with incorrect data about the debtor. That is, if the mistake was precisely in the actions of the bailiff (for example, cases No. 33-3083/2021 and No. 02a-0277/2020). So in Voronina’s case, three authorities decided that the bailiff was not to blame, because the data in the request was correct.

According to Olga Rogacheva, lawyer at AK Borodin and Partners Borodin and Partners Federal rating. group Dispute resolution in courts of general jurisdiction group Criminal law, lower authorities did not take into account that the bailiff is obliged to check the information received from the bank. This follows from Art. 12 Federal Law “On bailiffs” (“Duties and rights of bailiffs”). According to the norm, the bailiff can receive all the necessary information, including personal data, explanations and certificates. And the agreement between the FSSP and the bank PJSC VTB Bank confirms that it is not limited in the methods of identifying the debtor and his identifying data.

Therefore, it is logical that if an erroneous write-off of funds is detected, it is the bailiff who is responsible for restoring the rights of third parties violated by him.

Olga Rogacheva, lawyer at AK Borodin and Partners Borodin and Partners Federal rating. group Dispute resolution in courts of general jurisdiction group Criminal law

Nurtdinova believes that thanks to the decision of the Supreme Court, the controversial judicial practice on the issue of unlawful debiting of money from unprotected bank clients by bailiffs will finally find the right direction.

Thanks to the position of the Supreme Court, the chances of restoring the violated rights of debtors' namesakes by bringing bailiffs to justice increase.

Alina Nurtdinova, consultant at Law Firm Lemchik, Krupsky and Partners Lemchik, Krupsky and Partners Federal rating. group Tax consulting and disputes (Tax disputes) group Arbitration proceedings (medium and small disputes - mid market) group Tax consulting and disputes (Tax consulting) group Bankruptcy (including disputes) group Corporate law/Mergers and acquisitions group Labor and migration law (including disputes) 9th place by number of lawyers 16th place by revenue 20th place by revenue per lawyer (more than 30 lawyers) Company profile

*—names and surnames have been changed by the editors

• Anastasia Sinchenkova

• Supreme Court of the Russian Federation
• Civil process

The procedure for returning money from bailiffs

How to proceed so that the bailiffs return the money?

1. Prepare an application for a refund.
2. Submit or forward an application to the appropriate unit of the bailiff service.
3. Clarify information about the receipt of the application by the bailiffs, if the application was not submitted in person with a mark on the applicant’s copy.
4. Contact the bailiff or come on the reception day to clarify the information on your application and when the refund will be made.
5. In a situation where the bailiff refuses to return the money, ask to give you a written refusal or wait 30 days from the date of filing the application.
6. If a response from the bailiffs is not provided, file a complaint with the prosecutor's office about the violation of the deadlines for considering your appeal, as well as the non-return of funds.
7. Wait for the results of the prosecutor's investigation.
8. You can appeal the bailiffs' refusal in court.

In a situation where the bailiffs agree to return the money, they must do this as soon as possible. The law does not specify such deadlines, but, as a rule, transfers from the bailiffs’ deposit are made within 5 business days.

Procedure for writing off money

There are the following procedures and rules that bailiffs must follow to withdraw money from a debtor’s bank card:

• Bailiffs search for the debtor, his property and bank accounts;
• They inform the debtor that they can withdraw his funds by sending him a writ of execution;
• Bailiffs can withdraw money only from one of the debtor's accounts; they can change the account to another by revoking the writ of execution and redirecting it again, also notifying the debtor about this. At the same time, accounts from which funds are not debited may be frozen to ensure the safety of funds while obligations are fulfilled;
• If there is not enough money on the card or account to fully comply with the bailiffs’ requirement, the writ of execution remains on the account, and the bank writes off the money as it is received until the entire debt is covered;
• Bailiffs have the right to collect only up to 50% of pensions and salaries to pay off debts (in some cases with alimony - up to 70%), but they do not see whether a salary or social account in a bank or a regular one, so illegal write-offs may occur if the debtor does not will inform you from which account you can withdraw money;
• Bailiffs can send a writ of execution to an account in any foreign currency, not only in rubles.

Terms for returning money after the arrest is lifted

After the arrest is lifted from the account, the bailiff must return the money that was excessively written off or paid. Any specific deadlines for return are not specified in the law, but according to current practice, if the bailiffs return the money, the transfer occurs within a week.

When the money is returned, the bailiffs issue appropriate decisions and forward them to the accounting department for execution. In addition to the bailiff service, this process also involves the bank in which the debtor’s account is opened.

Taking into account the above, the applicant needs to monitor this issue and constantly check with the bailiff about whether the money has been returned, since the human factor also plays a certain role, and therefore the bailiff may simply forget to take steps to return the money due to the large amount of work.

When writing a statement to the bailiffs, you can refer to Art. 314 of the Civil Code of the Russian Federation, which specifies a reasonable period for fulfilling obligations, which is 7 days.

At the same time, in Art. 110 of the Law on Enforcement Proceedings specifies 5 business days for transferring money to the recoverer when it is received in the account of the bailiffs. Taking this into account, it is possible to apply the provisions of this article by analogy to the return of money to the debtor.

Account blocking

According to the law, after voluntary payment of debt under enforcement proceedings, the blocking of the debtor's bank accounts must be lifted. Having received the voluntary payment, the FSSP bailiff must send information to the bank about the receipt and the need to unblock the accounts. However, in practice, making and distributing payments to FSSP accounts and subsequently sending information about lifting the block to the bank can take a very long time.

If you have paid the debt and you need access to your accounts, then the fastest way to “unfreeze” the account is to come to your district bailiff with a document confirming your voluntary payment (a payment order with a note from the bank confirming the execution of the payment for enforcement proceedings), and obtain a decree from the bailiff to lift the arrest. After this, the easiest way is to go to any branch of your bank yourself, where they will be happy to unblock your account - the bank is interested and is obliged to immediately unblock the account.

Application to bailiffs for the return of funds

In an application for the return of money overpaid to bailiffs, you must indicate the following information:

• The application is submitted to the head of the FSSP unit;
• Information about the applicant is indicated, i.e. Full name, address, telephone number;
• The document is called an “application for refund”;
• Directly in the text of the application it should be stated under what circumstances the money was transferred to the bailiffs by mistake;
• In the pleading part of the application, indicate that the applicant is asking to return such and such an amount of money using such and such details to such and such an account
• In the appendix, list the documents that are attached to the application in support of the applicant’s arguments and the circumstances of the excessive payment of funds;
• At the end of the application there is a date, signature and transcript of the signature.

The application can be sent by e-mail, registered mail, or delivered under a mark on your copy.

If you have any questions regarding enforcement proceedings related to the return of funds from bailiffs, you can always turn to our lawyers for help.

Sequence of payments when seizing an account

In accordance with Article 855 of the Civil Code of the Russian Federation, there are five write-off stages. First of all, debts under enforcement documents for the collection of alimony and compensation for harm caused to the health of another citizen are written off from the bank account.

Secondly, transfers for wages of employees (if any) and royalties are withheld.

Thirdly, funds are debited from the account for payment documents (to pay employees), to pay off tax debts, and to transfer insurance contributions to extra-budgetary funds on behalf of government agencies.

Fourthly, penalties for administrative fines, legal costs, etc. are withheld according to executive documents.

Fifthly, for the remaining payment documents.

Debts you can't sell to collectors

The law provides a list of debts that are prohibited from being sold to collectors. These include:

• utility debts;
• alimony arrears;
• an obligation to a former spouse arising during a divorce or related to compensation for harm to health or life;
• compensation for moral damage.

These debts cannot be sold to a collection agency, nor can they be written off through bankruptcy.

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How to collect a debt from a defaulter?

If an individual does not intend to repay the money borrowed, a debt collection procedure can be initiated. How is this done legally? According to the legislation “On the protection of the rights of individuals when carrying out activities to repay overdue debts,” an unscrupulous debtor can be influenced in three ways:

• agree on voluntary repayment;
• sue;
• pay off debt to collectors.

There are small nuances. A private individual has the right to go to court if he took a receipt from a person and the amount of debt is at least ten thousand rubles. If you owe more than fifty thousand rubles, you can contact a debt collection agency.

When a debtor is declared bankrupt

If a debtor is declared bankrupt, this does not mean that the debt cannot be repaid. Money will not be recovered only if there is complete financial insolvency: lack of property and sources of income. Some borrowers specifically transfer property to distant relatives and trusted friends and work unofficially so as not to repay the debt. Often such schemes are advised by lawyers during bankruptcy proceedings.

In any case, you need to try to go to court to get your money back.

You can check a debtor or a group of debtors for bankruptcy using integration with the Fedresur service in the collection program “BIT.Debt Management”.

This integration will allow you to:

• monitor current information on bankruptcy.
• do not miss the deadline to submit an application for inclusion in the creditor register.
• terminate the court case in a timely manner and begin working with the bankruptcy trustee.

The most common mistakes

It is possible that the bailiffs are mistaken.

1. Identification error. The previously mentioned Sergei was confused with another debtor. Error of the bailiff related to the identification of individuals. person, occurs when the personal data of citizens coincides. It turned out that Sergei’s full name coincides with the name of another debtor.

2. Repeated write-off. Often, performers withhold the wrong amount: they write off money several times from one account or in parallel from different cards.

3. Collection is not according to the law. Some noted that bailiffs wrote off money from the card, which according to the law cannot be withheld. List of untouchable incomes:

• alimony;
• maternal capital;
• child benefits;
• compensation for caring for disabled people;
• social benefits in case of harm to health.

4. Write-off in excess of the required amount. Bailiffs do not have the right to deprive the debtor of his means of subsistence. The law allows you to withhold up to 50% of your salary, old-age pension and other earnings. Sometimes, for example, when collecting alimony, the write-off amount is up to 70%.

5. Retention after debt repayment. Due to incorrect calculations, funds may be debited from the salary card upon completion of production. In practice, the loan has already been closed, but the money continues to be withheld.

Funds not intended for collection

Bailiffs cannot demand that the debt be closed using the following funds received on the card:

• As social benefits related to children, their birth, maintenance, as well as alimony received by a parent for children;
• Various social benefits and payments, for example, in connection with the loss of a breadwinner, funeral benefits and others;
• Benefits for military and law enforcement officials who have lost their ability to work while performing their official duties;
• Benefits for which the debtor purchases vital items, medicines, etc.

In order to avoid unnecessary withdrawal of money or withdrawal of money from amounts not intended for write-off, the debtor should notify the bailiffs in advance about the accounts he has and their purpose. Or agree with them and the prospector on the procedure and deadlines for independently repaying the debt and comply with them.