Everything or almost everything about recognizing the inaction of a bailiff as illegal (Part 1)

Dear colleagues!

I would like to share some developments in the field of recognizing through the court as illegal the inaction of a specific bailiff or an entire enforcement body within the framework of enforcement proceedings.

In this article I will describe only those types of claims that I use in my practice, no theory and unnecessary water. Also, I will not overload the text with too many references to subparagraphs and parts, but will indicate only the article of the law on enforcement proceedings. There will also be no motivation part of the claims, only a petition.

First. Recognition of violation of the deadline for initiating enforcement proceedings as illegal.

It is recommended to use this requirement in conjunction with any other violation that resulted in the loss of the ability to enforce the decision.

For example, the debtor has an account, but the debtor managed to withdraw money from it, but if enforcement proceedings were initiated in a timely manner and, as a result, a resolution was sent to the bank on time, the bailiff could “arrest” the said account and “withdraw” money from it, before the debtor does so. And so with any property, I hope you understand the direction of thought.

Also, most often, untimely initiation of proceedings leads to a violation of the deadline for sending a resolution to initiate enforcement proceedings (Article 30 of the Federal Law “On Enforcement Proceedings”).

The requirement might look like this:

1. Recognize as illegal the inaction of the enforcement agency (i.e., the bailiff department, where your writ of execution is presumably gathering dust), resulting in a violation of the statutory deadline for transferring the writ of execution FS No. 123456789 to the bailiff;

2. Recognize as illegal the inaction of the bailiff (full name of the bailiff, directly on whose desk your writ of execution is presumably gathering dust), expressed in not sending to the recoverer within the time limit established by law a resolution to initiate enforcement proceedings under writ of execution FS No. 123456789;

3. Oblige the bailiff, within five days from the moment the court decision enters into legal force, to send to the recoverer a resolution to initiate enforcement proceedings;

Important! In cases where you ask the court to oblige the bailiff to do something, be sure to indicate the time frame within which he is obliged to perform these actions.

Second. Recognition of the bailiff's inaction as illegal, expressed in failure to send a resolution to terminate enforcement proceedings.

One of the most common scenarios is when the bailiff issued a decree to terminate enforcement proceedings, naturally, due to the impossibility of executing the writ of execution due to the debtor’s lack of property, but at the same time, the bailiff forgot to send you, within the prescribed period, the decree itself and executive document (Article 46, 47 of the Federal Law “On Enforcement Proceedings”).

The requirement might look like this:

1. Declare illegal the inaction of the bailiff, full name, expressed in failure to comply with the deadline established by law for sending a copy of the resolution on the completion of enforcement proceedings with the original of the writ of execution No. dated DD.MM.YYYY to the recoverer;

2. Oblige the bailiff, within five days from the moment the court decision enters into legal force, to send to the claimant a resolution on the completion of enforcement proceedings with the original of the enforcement document No. dated DD.MM.YYYY;

Also, the second point can be stated in a different edition (more successful, in my opinion).

2. Oblige the enforcement agency to send to the claimant a copy of the resolution on the completion of enforcement proceedings No. IP dated DD.MM.YYYY with the original of the enforcement document, and in the absence of the original of the enforcement document due to the destruction of the materials of the enforcement proceedings after the expiration of the storage period or its loss during forwarding - send the claimant a certificate of the loss of the writ of execution;

Third. Recognition of inaction during enforcement proceedings as illegal.

One of the rarest scenarios and, most likely, you won’t need it at all, but I’ll also describe it just in case.

This may sound a little unexpected, but according to current legislation, the bailiff is obliged to take enforcement measures aimed at timely and full repayment of the debt, including: sending certain requests to the relevant authorities in order to establish whether the debtor has income or property.

Depending on your situation, the requirement may look like this:

Declare illegal the inaction of the bailiff, full name for enforcement proceedings No. from DD.MM.YYYY, expressed in not sending requests and not requesting answers from the Russian Guard about whether the debtor has weapons, in untimely sending requests and requesting answers from the registry office about whether the debtor has a spouse , in untimely sending of requests and requesting answers from Gostekhnadzor about the availability of self-propelled and other specialized vehicles by the debtor, in untimely sending of requests and seeking answers from the State Inspectorate for Small Vessels about the availability of relevant property at the debtor, in not contacting the debtor in order to establish his property status and the seizure of such property.

Assign the duty to the bailiff full name to eliminate violations of the claimant's rights by: sending requests and requesting responses from regulatory and registration authorities, including by sending requests and requesting responses from the Russian Guard, Rosreestr, Civil Registry Office, Gostekhnadzor, State Inspectorate for Small Vessels, and also making contact with the debtor in order to establish his property status and seize the debtor’s property.

In addition to the above request, you can wait for a response from the registry office and make all the same requests regarding property in relation to your spouse [1].

Declare illegal the inaction of the bailiff, full name, within the framework of enforcement proceedings No. dated DD.MM.YYYY, expressed in the failure to take measures to foreclose on the debtor's wages - full name;

If the debtor is still employed, then, accordingly, oblige the bailiff to foreclose on wages. In the same case, if the debtor is no longer employed and the possibility of collection is lost, then this is the path to a claim for recovery of damages from the “treasury”.

To recognize as illegal the inaction of the bailiff, full name, within the framework of enforcement proceedings No. from DD.MM.YYYY, expressed in evasion from the actual search for the property of the debtor, full name, namely, vehicles owned by him, including from announcing an executive search, from security safety of this property, including from the seizure of it and the commission of subsequent actions not intended to pay off the requirements of the writ of execution at the expense of the value of the specified property.

Here the situation is the same as in the first case, if the debtor still has the car, then he must be seized and sold. If the car evaporates like the morning fog, then this is again the path to a claim for damages from the “treasury”.

Assign the duty to the bailiff, Full Name, to eliminate violations of the rights of the claimant, Full Name, according to enforcement No. dated DD.MM.YYYY, by seizing vehicles belonging to the debtor, Full Name.

The above example can be used for real estate and, in general, for any property that the bailiffs for some reason do not want to seize.

It is mandatory (!) in the text of the administrative statement of claim that it must be indicated that “in the order of subordination, the action/inaction of the bailiff or the enforcement agency was not disputed by you,” if you did not appeal to a superior bailiff for the protection of your rights.

Moreover, it is recommended that if you do not have any documents, you should also indicate this in the text of the claim “a copy of the writ of execution, the resolution to initiate enforcement proceedings, etc. the administrative plaintiff does not have any” in order to cut off unnecessary questions in advance, but they always exist and will always exist.

Suggestions, comments and questions can be sent to the author's email address

[1] For those who do not know how to search for the spouse’s property and foreclose on it: article;

Grounds for appeal

In relation to individuals wishing to challenge the writ of execution, the grounds set out in Art. 330 Code of Civil Procedure of the Russian Federation. The list of grounds is extensive and includes 14 points, grouped according to certain criteria:

incorrect application of the law by the court;
violation of procedural requirements for the application of law;
unauthorized composition of the court, etc.

This article especially emphasizes that an essentially correct verdict cannot be canceled or changed on formal grounds. Since a writ of execution or an order is a form of consolidation of a judge’s act, failure to comply with non-essential requirements (for example, a technical error in the design of the text or a typo that does not affect the identification of the person in respect of whom the act was issued) cannot serve as grounds for challenge.

What is enforcement proceedings

The procedure is regulated by the federal legislation of the same name. As part of the process, bailiffs who have received a writ of execution collect money from the debtor forcibly. The money is transferred to the account of the claimant (individual, legal entity).

In addition to the material amount, other demands may be made: to vacate residential or commercial premises, search for a minor child, transfer of valuable property to the other party.

Through the court

There are two ways to express disagreement with the received document, on the basis of which enforcement proceedings begin:

try to restore the missed deadline (1 month) based on valid reasons or force majeure (force majeure);
appeal to the cassation instance if the appellate instance refuses to review the court's opinion.

Valid reasons for an appeal may include:

disease;
long business trip;
resolution of a government authority on the introduction of a state of emergency (quarantine);
hostilities.

Force majeure is a natural or man-made disaster.

Where to contact

Cancellation or modification of a court act is possible only by a higher authority. In Russia there is a three-tier judicial system. Initially, the case is considered by the court of first instance - district or city. Review or reversal may be carried out by the appellate court (second instance). Since the order or sheet is issued after the period for appealing the act of the judge (court) has expired, you can file a statement of disagreement with the court of third instance - cassation. We will tell you how to do this in the next paragraph.

Conclusion

If you have not received the awarded amounts from the debtor, recover damages from the bailiff service.
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