A document confirming the execution of a court decision is the basis for the initiation of compulsory actions against the debtor, seizure of property, and deduction from wages in favor of the claimant. What to do if the writ of execution for alimony is lost? How to restore official paper, and what needs to be done to do this?
Causes of loss: how to prove?
In accordance with the Arbitration Procedure Code of the Russian Federation, the court can issue a duplicate of the writ of execution if it is lost; this requires an application from the recipient.
When considering the case, the circumstances and evidence of loss are taken into account. These include certificates from bailiffs, forms that confirm the loss of a document during postal delivery (inventory). If there is no evidence, in most cases the court will also issue a duplicate if the requirements on the sheet are not met and the applicant filed the appeal in a timely manner.
Any facts are accepted into the case. Office memos stating that the document cannot be found are suitable as proof. In practice, information from the FSSP is checked that no enforcement proceedings have been initiated against this number.
There are two main reasons why you might lose important official paper. The first is the inattentive attitude of the performing service to their work. Often, bailiffs indicate the shipping details with errors; the human factor cannot be ruled out. The second is the poor performance of the post office. Therefore, when transferring a sheet, it is recommended to choose only trusted courier services with a minimum percentage of losses; the best way is to deliver the paper in person during the established reception hours.
Another factor is also highlighted - the fault of the claimant. Some people do not realize how important this procedural form is, put it away in a distant drawer, and accidentally damage it. Remember that in order to be restored you will have to go through a mandatory procedure of going to court and paying an administrative fine.
What are the risks of losing a document?
Liability for the loss of a writ of execution is provided for by the Code of Civil Procedure of the Russian Federation. In accordance with this code, the official responsible for the loss of this document is subject to a judicial fine.
For the claimant, this oversight is not so dangerous; if there is evidence that the court’s requirements were not fulfilled, a duplicate is issued. The main thing is to submit your application on time. A period similar to the validity period of the obligations has been established. An exception is cases where the loss occurred due to the fault of a bailiff or another official. With this approach, the appeal is submitted within a month from the moment the citizen became aware of the loss.
Circulation period
You can apply for an official copy of the document on the assignment of alimony payments throughout the entire period of validity of the writ of execution. That is, until the child reaches 18 years of age and for 3 years after reaching adulthood.
After receiving the original or secondary enforcement documentation, it should be sent to the bailiffs to open enforcement proceedings. Otherwise, minors will not be able to receive money. Penalties will be imposed on the alimony payer, and penalties and interest may be withheld.
Recovery procedure
To restore the writ of execution for alimony, an application is submitted to the court that made the decision. It is reviewed within 10 days, after which the authority issues a duplicate within a period of two weeks to two months, in accordance with the established procedural deadlines.
For a positive decision, draft your petition correctly. If the sheet is lost by a FSSP employee, he submits it himself. A private complaint may be filed against a court decision on restoration. As a rule, action comes from the debtor if he has reason to believe that the obligations have already been fulfilled. The complaint must be filed within 10 days from the date the person became aware of the attempted restoration. The consideration of the appeal is carried out during the same period. When drawing up an official document, the following is indicated:
- The name of the court with the address.
- Data of the parties to the process with addresses, telephone numbers.
- Title of the documentation.
- Listing of the circumstances of the case with references to regulations.
- Evidence of execution of court orders (extracts and receipts for money transfers).
FAQ
I received a letter from the bailiffs that the court foreclosure on the loan was cancelled, can the bailiff subsequently resume proceedings again?
Check on the FSSP website for what reason the enforcement proceedings were completed or terminated. If you have not repaid this debt, then most likely it will be under Art. 46 part 1 clause 3. - return of the writ of execution to the claimant. If the claimant returns the sheet back to the bailiff, the proceedings will be restored. Ask a question that interests you - use the online consultant form on the right or call (Toll-free hotline). It's fast and free!
Can the bank itself present a writ of execution to the accounting department of the organization where I work?
The claimant has the right to present a writ of execution to the bailiff, to the bank where the debtor's accounts are opened, or to the employer's accounting department if the debtor is an individual. Ask a question that interests you - use the online consultant form on the right or call (Toll-free hotline). It's fast and free!
According to the writ of execution, 50% of the salary was withheld, but I did not know that the bank had filed a lawsuit. What can be done in such a situation?
If the amount of debt does not exceed 500 thousand rubles, then most likely the court issued a court order. It is necessary to go to court to cancel the court order and obtain an appropriate determination, which will be the basis for terminating the individual entrepreneur. But after the court order is canceled, the bank has the right to go to court to collect the debt. Your right to be present at this process and request a reduction in the penalty. Ask a question that interests you - use the online consultant form on the right or call (Toll-free hotline). It's fast and free!
Legislation
Let's consider the sequence of actions. The civil procedural legislation proposes the following:
- The decision to issue a duplicate copy is made upon application. Not only the claimant has the right to make a request, but also the bailiff who worked specifically on this sheet. But most often it is the person in whose favor alimony was awarded who goes to court. This could be the mother of the child or elderly parents, if maintenance was assigned to them.
- You can submit an application before the end of the execution period if this copy was lost by the person in whose favor the alimony is being sent. If - by the bailiff who collected money from the debtor, then you need to submit an application within 30 days.
- The application is considered no more than 10 days. The countdown starts from the day the applicant writes the request. Previously participating parties are notified of the meeting. The absence of a claimant and executor does not affect what decision will be made.
- The court examines the circumstances of the loss and the evidence presented.
Based on the above, the issuance of the second copy occurs on the basis of a copy of the previous judicial act. If the document is lost by the claimant, he must report the circumstances under which he lost the document.
This is important to know: Document confirming the powers of the sole executive body
Sample application to the court for restoration of a writ of execution
Please provide detailed information when applying. All names are written in full, without abbreviations. Sample applications for the issuance of a duplicate writ of execution can be found on the Internet; if you encounter any difficulties with registration, contact a lawyer. The appeal includes:
- Full name and address of the court that made the decision (written in the upper right part in the form of a column).
- Data of the parties involved in the case, indicating their full names, addresses, contact numbers. Indicate your legal representatives if they represent your interests.
- Title of the document in the central part of the page (application for the issuance of a duplicate of the writ of execution).
- Number and date of the court decision.
- The amount of debt to be collected.
- The name of the court to which the writ of execution was presented for execution.
- Information about the circumstances under which the official paper was lost (for example, during postal delivery).
- Indication of Article 323 of the Arbitration Procedure Code of the Russian Federation and a request to send a duplicate of the document.
- List of attachments (receipt confirming payment of the state fee, confirmation of sending the appeal to the persons participating in the case).
- Date and signature.
If there is other evidence of loss, they also need to be indicated in the appendices (documents from the bailiff, notes, drawn up acts).
Application deadlines
The general period is three years from the date of the court decision. If you lose a sheet of alimony payments, other periods apply. You can apply for a duplicate before the child reaches the age of majority; another three years are added to this period. If a person receives alimony for a disabled person, a replacement can be received at any time before the restoration of working capacity.
If the bailiffs themselves lost the sheet and conveyed the information to the applicant, you can file an appeal within a month after you learned about your violated right.
Results
We will briefly summarize what was said in the article, and also analyze the process of obtaining a duplicate step by step. If you lost the writ of execution, nothing too bad happened. Of course, you will need to spend some time getting a duplicate, but that’s all. And it won’t take that much time, so no statute of limitations on court cases will be violated, only if you have already delayed this too much. The case will be reopened after you receive a new document and the decision will not change.
A duplicate is obtained in the same court where the original was received, and if we are talking about an agreement on the payment of alimony, from the same notary who certified the original, since he does not have the right to issue duplicates certified by other notaries.
Even despite the existence of a unified electronic document database, thanks to which we will very likely arrive at this soon.
This is important to know: Time limit for consideration of an application to terminate enforcement proceedings
To obtain a positive decision in court, it will be necessary to prove that the original documents were lost, and this is not the applicant’s fault. Hiring a qualified lawyer can simplify the whole process, but if you have the time and energy, you can do it yourself. Nothing wrong with that!
Required documents
The application is supported by official documents, which include the following:
- Photocopy of receipts for payment of state fees.
- Confirmation of sending the document to participants in enforcement proceedings.
- Evidence of the loss of the sheet (for this you can contact the post office employees, who will write a corresponding report on the loss).
- Power of attorney, if the petition is submitted on behalf of the claimant by his legal representative.
The court may require additional documentation, but in most cases the list is exhaustive.
Hotline for citizen consultations: 8-804-333-70-30
Procedure for obtaining a duplicate
The judge is obliged to consider the plaintiff's appeal within 10 days; extension of the period is not allowed. Based on the results of this, a decision is made, photocopies are sent to the parties. If the answer is positive, you can receive a replacement within 2 weeks to 2 months. After serving the duplicate, hand it over to the bailiff to begin enforcement proceedings.
Without this document, the FSSP representative does not have the right to initiate enforcement actions against the debtor. Do not miss the deadline for presenting official paper, if it concerns a minor child, this must be done before he reaches 21 years of age.
Site Expert
Beloborodova Yulia
From 2004 to 2012 she worked as a bailiff. Specializes in the field of procedural, civil, financial, family and labor law.
Ask a Question
It is recommended to submit the form to the territorial unit at the place where compulsory actions are carried out, that is, at the address of the location of the defendant’s property and his work activity. The document can be presented to the bailiff personally during the reception, by mail or sent electronically. Try to prevent the important basis for starting the procedure from being lost again.
The FSSP employee gives the party five days to voluntarily transfer the alimony debt and sends a resolution on enforcement proceedings. If there is no response, the notice is sent to the employer if there is an official place of work. After coordinating the actions with the bank, the funds will be automatically debited from the ex-spouse’s salary card. In addition, if the amount is insufficient, the bailiff may take the following interim measures:
- Seizure of other bank accounts with write-off of assets (no more than 70 percent of the balance).
- Prohibition on driving a vehicle, confiscation of a driver's license or car.
- Visits to the debtor's home with inspection of the premises, inventory of property, seizure for subsequent sale at auction in favor of the claimant.
- Ban on traveling abroad.
Resumption of alimony payments
The applicant may agree with the alimony payer to make payments and not issue a second document to renew them. But the agreement must be written. Also, the document should be notarized and submitted to the judge for approval so that neither party can change the terms of the agreement.
If an agreement cannot be reached, then you should pick up a copy of the executive documentation. After receiving the secondary writ of execution, you should present it to the following organizations:
- FSSP branch;
- to the accounting department at the place of work of the payer;
- to the pension fund department;
- other organizations responsible for withholding alimony in favor of minors.
After the presentation of duplicate enforcement documentation, the collection of alimony payments will be resumed.
Penalty for loss
The reasons for the loss of a writ of execution may be respectful or disrespectful. This does not affect the results - the recovery procedure is the same in both cases.
Responsibility for improper actions is provided for the executive service, employees of banking organizations, legal entities, and officials. Individuals can also pay a fine.
The mildest sanction is provided for those who keep the document - up to 2 thousand rubles. When resubmitting an application, you will need to pay a state fee.
For bailiffs, fines under the APC do not exceed 5 thousand rubles. Additionally, there is administrative liability, the amount of which reaches 20 thousand rubles.
Thus, when restoring a document, the debtor will have to pay 1,500–2,000 rubles if the loss occurred through his fault as a result of careless storage.
Articles:
How to restore a writ of execution if it is lost
How to correctly revoke a writ of execution for alimony without consequences
