Resumption of enforcement proceedings: how to resume after termination, grounds, deadlines

To execute a court decision, enforcement proceedings are initiated, which, in turn, ends sooner or later. At the same time, the end of this process has its own characteristics. We talk about how the end of enforcement proceedings occurs in our material.

We also recommend that you note that interaction with bailiffs is often accompanied by certain difficulties. If you want the court decision to be executed as soon as possible (and to be executed at all), you should take care of professional legal support for this process. Qualified lawyers are ready to provide assistance at all stages of legal proceedings (including debt collection) and during the execution of the decision.

Grounds for resuming completed enforcement proceedings

There is only one reason for renewing an individual entrepreneur - it is necessary to continue the completed enforcement proceedings in order to carry out enforcement actions and apply appropriate coercive measures, including repeated ones. Simply put, if the requirement has not been fulfilled, then the issue of canceling the decision on the termination of enforcement proceedings may be considered.

An important point is the basis on which the IP was ended. For example, if the production was completed by actual fulfillment of the requirements, then it is clear that the resumption of production is impossible, and there is no need for this.

As a rule, claimants are forced to raise the question of how to resume enforcement proceedings after its completion if one of two grounds was applied:

• return of the writ of execution to the claimant in accordance with Art. 46 of the Law;
• sending a writ of execution to the place of execution to withhold periodic payments (from salary, pension, etc.).

Let's take a closer look at them.

The writ of execution is returned, and enforcement proceedings in this regard are terminated if:

• A corresponding statement was received from the claimant.
• It is impossible to force the debtor to perform actions or to refrain from performing them, but the possibility of executing a document with such requirements has not been exhausted.
• It is impossible to establish the location of the debtor, his property, funds, accounts, and it is impossible (there are no legal grounds) to declare a search for the debtor or his assets.
• The search for property did not lead to anything, and the debtor’s existing property cannot be foreclosed on.
• The claimant abandoned the debtor's property, which was not sold by the bailiff.
• The claimant interferes with the execution of the writ of execution.
• A debtor who does not pay an administrative fine is expelled from Russia.

Almost any of these grounds allows you to resume completed enforcement proceedings. They need to be known and understood, first of all, to specify the grounds for renewing the individual entrepreneur and to justify the claimant’s request and (or) the bailiff’s decision.

The easiest way to justify the need to resume production is that the basis on which it was completed has disappeared. For example, in cases of collection of funds, there is often a reference to the fact that the debtor has appeared, he has sources of income, property has been discovered that can be foreclosed on, etc.

The end of enforcement proceedings in connection with the sending of a writ of execution to the place of execution to withhold periodic payments also often subsequently becomes a reason for resuming the forced collection procedure. For example, the debtor may quit his job, lose the right to a social pension (for example, for disability), or otherwise lose the source of income from which the deductions were made.

Expert opinion

Kuznetsov Dmitry Timofeevich

Legal consultant with 6 years of experience. Specializes in family law. Knows everything about the law.

In this case, the execution is effectively terminated, and without canceling the decision to terminate the IP, nothing new or repeated can be done. Here, bailiffs, as a rule, resume production without problems and take the necessary measures.

It is important for the claimant to choose correctly where to present the writ of execution

The subject of the requirements of most enforcement proceedings is the collection of funds from the debtor. Not only the speed of collection of funds, but also the prospect of collection itself depends on a well-planned procedure for the actions of a lawyer, since already at the stage of consideration of the dispute, unscrupulous debtors take measures to conceal property (agree with counterparties to receive payment to the accounts of third parties, sell property, enter into fictitious transactions aimed at removing assets, etc.).

Preparing an application

Considering that bailiffs have a heavy workload and little motivation, usually creditors are forced to take the initiative in renewing individual entrepreneurs. In addition, decision-making is the competence of the management of the relevant OSB, and not the bailiff who issued the decision to end the enforcement proceedings.

To cancel the decision and continue the IP, it is necessary to prepare and send a written application.

The application can be made in free form - there are no official forms. To make the task easier, samples from the Internet are often used. The corresponding form can be obtained (if possible) from bailiffs.

Required data:

1. Name of the bailiff service, position, rank, full name of the senior bailiff. If the bailiff’s details are not known, it is enough to indicate the name of the required OSB. His head (he is the senior bailiff) or deputy has the right to make the necessary decision.
2. Details of the claimant (applicant). Full name or name of organization, address.
3. Number of enforcement proceedings. It can be clarified in the OSB or found in documents previously sent to the claimant, for example, in decisions on the initiation or termination of an individual entrepreneur.
4. The title of the document is “Application to cancel the decision to terminate enforcement proceedings.”
5. Circumstances of the case. The decision of the court or other body (official) on the basis of which the execution is carried out - the type, by whom and when it was made, in connection with what, when it came into force. Data on the issuance of the writ of execution - its type, date of issue, issuing authority, in relation to whom and for what requirement it was issued. When and by whom enforcement proceedings were initiated. When was it completed, who made the decision and on what basis.
6. Grounds for renewal. It is necessary to specify and justify them, and also to indicate that the deadline for presenting the writ of execution for execution has not yet expired.
7. Link to the law – part 9 of Art. 47 of the Law on Enforcement Proceedings.
8. Please cancel the decision to terminate the enforcement proceedings.
9. Date and signature.

When using various types of samples, please note that the application relates specifically to the cancellation of the decision to terminate enforcement proceedings. Application forms for the renewal of a suspended individual entrepreneur will not be suitable - this is a completely different procedure.

To resume proceedings, it is sufficient only to cancel the previously issued decision on the termination of the IP.

The application must be reviewed within 15 days. If you send it by mail, it will be longer, since the period is counted from the moment the application is received by the OSP (registration). Take it yourself - it will be faster.

If the application is refused or ignored, the decision made (in the first case) or inaction (in the second) can be appealed. This is done either at a higher division of the FSSP (regional level) or in court.

To go to court, a complaint (administrative claim) is prepared according to the rules of Chapter 22 of the Code of Administrative Proceedings (CAC RF).

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The period during which it is possible to renew a completed IP

This period is equal to the deadline for presenting the document for execution. It is calculated according to the rules of Art. 21 of the Law and amounts to:

1. Three years for court orders. The beginning of the period is the date of issue of the order.
2. Three years - for writs of execution issued in accordance with a judicial act, unless another period is provided by law. The beginning of the period is the entry into force of the relevant judicial act.
3. One year – for writs of execution demanding the return of a child from Russia. The beginning of the period is the entry into force of the judicial act on the basis of which such a writ of execution was issued.
4. During the entire appointed period for payment of awarded periodic payments + 3 years after the expiration of such period - for writs of execution demanding the collection of such payments.
5. Three months – for certificates of labor dispute commissions. The beginning of the period is the date of issue of the certificate.
6. Six months – for acts of government agencies on the collection of funds in the presence of a bank mark indicating the impossibility of full fulfillment of the demand due to the lack of money in the debtor’s accounts. The beginning of the period is the date the bank returns the documents with the appropriate mark.
7. Six months - for acts of government agencies on the collection of funds in the absence of a bank mark on the documents attached to the act. The beginning of the period is the date of issuance of the act.
8. Two years - according to executive documents (issued acts) in cases of administrative offenses. The beginning of the period is the date of entry into force of the relevant act.

In some cases, special deadlines may be established by federal laws.

If the debtor was granted a deferment or installment plan for fulfilling the requirements, then the start of the period begins on the day that follows the day the deferment or installment plan ends. An exception is the collection of a fine, which is imposed in a criminal case as a punishment. In this case, the period is calculated according to the general rules. The general rule does not work even if the debtor has failed to fulfill the overdue requirement more than 2 times, that is, has been late more than twice.

A special rule is established for cases of termination of enforcement proceedings on the grounds that the claimant revokes the writ of execution or commits actions that impede execution. In these situations, the time period between the presentation of the document for execution and the end of the IP is subject to exclusion from the calculation of the period.

To correctly calculate the deadline for presenting a writ of execution, you also need to see if there was a break in the deadline. The grounds for considering the period interrupted are established by Art. 22 Laws. After the break, the period resumes again, that is, the countdown must be started from scratch.

So, the deadline for presenting the writ of execution for execution is interrupted:

• On the day the document is presented for execution.
• On the day of partial fulfillment of the demand by the debtor.
• On the day the writ of execution is returned to the claimant due to the impossibility of its execution.
• On the day of resumption of execution of a court decision, act of a government agency or official, when such execution was delayed or suspended.

The rules for calculating the period in case of a break do not apply to claims in cases of administrative offenses.

In most cases, despite the fact that the total period for presenting a writ of execution for execution is 3 years, completed proceedings can be resumed after three years. This is precisely what the established rules for interrupting the passage of time contribute to. For example, if you take a writ of execution for the collection of alimony, then the period for submitting it for execution, even without taking into account possible interruptions, can last many years: the period for paying the awarded alimony + 3 years.

But even if the deadlines have expired, Art. 23 of the Law allows, in exceptional cases, to restore the missed deadline.

To restore the deadline you must:

1. so that such a possibility is directly provided for by law (for example, in the Civil Procedure Code the right to restore the term is established in Article 432);
2. so that the claimant has valid reasons for missing the deadline and can confirm them;
3. so that the claimant submits a corresponding application to the court that adopted the judicial act on the basis of which the collection is carried out.

Based on the provisions of Art. 23 of the Law on Enforcement Proceedings, restoration of the deadline for presenting a writ of execution for execution is allowed only in relation to writs of execution and court orders.

Cancellation of the decision to terminate enforcement proceedings

The grounds for termination of proceedings by the bailiff are given in Art. 47 of the Law “On Enforcement Proceedings” dated October 2, 2007 No. 229-FZ (hereinafter referred to as Law No. 229).

However, in most cases (with the exception of the actual fulfillment of the requirements of the writ of execution), the end of the proceedings does not mean the impossibility of continuing it after some time.

If the deadline for presenting the writ of execution for collection has not expired, the decision to terminate the proceedings can be canceled both on the basis of the claimant’s application and by the decision of the superior bailiff or his deputy (Part 9 of Article 47 of Law No. 229). In such cases, the bailiff is obliged to initiate proceedings again.

In particular, the proceedings end when the writ of execution (hereinafter referred to as ID) is returned to the claimant. This can happen for various reasons (they are listed in Art.

46 of Law No. 229). The most common case is the inability to establish the location of both the debtor and his property.

The bailiff is obliged to draw up a report on the existence of circumstances due to which it has become impossible to execute the court decision. Along with the act, the claimant receives a resolution to terminate the proceedings.

In practice, it often happens that the bailiff does not use all the opportunities provided to him to search for the debtor and his property, i.e.

in other words, it is inactive, unwilling to make efforts to collect the debt. If the claimant suspects negligence on the part of the contractor, he can file a complaint against his actions/inaction to a higher official or to the court.

If the claimant received back his writ of execution without recovery, he may not seek to cancel the decision to terminate the proceedings, but simply re-present it within the limits established in Art. 21 of Law No. 229 term. At the request of the claimant, enforcement proceedings will be re-initiated after its completion.

How is the issue of restoring enforcement proceedings considered?

If the claimant believes that the case was terminated unreasonably, he files a complaint against the bailiff to a higher division.

The period for consideration of the application is 10 days, after which an appropriate decision is made.

The application can be submitted to the court, which will consider it within thirty days. If the claimant agrees with the opinion, the case is again transferred to the bailiff, who within a three-day period makes a decision to resume the procedure.

When considering the issue, the grounds on which enforcement actions are again allowed to be used are taken into account.

Articles:

Basic information about termination of enforcement proceedings

Filing an application for the resumption of enforcement proceedings

Resumption of production after its termination

The end of the proceedings should be distinguished from its termination, since the latter does not imply the possibility of re-presenting the ID for collection. Proceedings are terminated only if there are compelling reasons. Such a decision can be made, in accordance with Art. 43 of Law No. 229, court or bailiff.

The main reasons for termination include:

• in relation to individuals - the death of one of the parties (debtor or claimant), if the right of claims (obligations) does not pass to another person - the legal successor; in relation to legal entities - liquidation and exclusion of records about them from the Unified State Register of Legal Entities;
• loss of the opportunity to collect;
• the claimant’s refusal to receive property seized by the executors from the debtor or a complete refusal to collect;
• cancellation of ID;
• recognition of debt for payments to the budget as uncollectible.

Expert opinion

Kuznetsov Dmitry Timofeevich

Legal consultant with 6 years of experience. Specializes in family law. Knows everything about the law.

How to resume enforcement proceedings after it has been terminated? The first opportunity to resume terminated enforcement proceedings is to cancel the bailiff's order to terminate it (including upon a complaint from the claimant).

Production is also resumed if (Part 3 of Article 43 of Law No. 229):

• the court decision that served as the reason for the termination of the proceedings was canceled;
• the circumstances that formed the basis for the termination of production have changed.

The initiator of renewal in this situation can be either the claimant (for this he needs to submit an application to the FSSP) or the bailiff.

What is the protection of debtors’ rights in enforcement proceedings?

The debtor has the right to protection at the stage of judicial collection, after the initiation of enforcement proceedings. All acceptable methods of defense are prescribed in regulations and explained by judicial practice. If you defend yourself using illegal methods, instead of assistance from the state, the debtor faces civil, criminal or administrative liability.

What is the meaning of the right to defense if the debt has already been collected by the court, confirmed by a writ of execution or a court order?

The state grants such a right for the following purposes:

• so that the execution of a judicial act is controlled and complies with the law
  - first of all, this is due to the determination of the maximum amount of deductions, a clear description of the process of selling property, etc.;
• to prevent abuse on the part of the collector and bailiffs
  - for example, the debtor has the right to protect his property if it is not put up for auction, but is illegally seized by the collector;
• in order to preserve the opportunity to correct a judicial error
  - for this purpose, the debtor retains the right to appeal the judicial act even after the opening of enforcement proceedings;
• to guarantee the defaulter minimum decent living conditions when deducting debts
  - for example, the state guarantees that after writing off most types of debts, the defaulter will have at least a subsistence minimum to live on.

The right to protection guaranteed by law can be exercised through any active actions, submitting documents to the bailiff, sending complaints and petitions. The methods of defense are chosen by the debtor himself, based on their situation, the legality of the actions of the claimant and representatives of the FSSP. To choose the most effective defense options that will definitely bring results, you can and should contact lawyers.

Who has more rights - the debtor or the claimant?

Bailiffs, as employees of a government department, work “in favor” of the debtor. The FSSP ensures the execution of judicial acts and can take various measures of influence in relation to the debtor. However, if you look at Law No. 229-FZ, then most of the protection options can be used by the debtor, and not by the collector.

It is understood that it is the debtor who is in a deliberately unfavorable situation, and therefore needs additional protection.

Here are several protection options that only the debtor, but not the collector, can use:

• obtaining deferments or installment plans for debt repayment;
• providing 5 days for voluntary execution;
• restrictions on the time of day for performing enforcement actions;
• the ability to retain certain types of property after sale (for example, a single apartment);
• the right to deduction from wages and other periodic income is not higher than the amounts approved by law.

And this is not a complete list! The list of protection measures that are provided to the debtor is regularly explained and supplemented by judicial practice.

The claimant also has the right to defense. But the claimant has significantly fewer options for possible actions. Let us note once again that this is due to the main principle of enforcement proceedings - bailiffs, as representatives of the state, carry out all actions in the interests of the creditor (collector). Therefore, the claimant’s defense usually consists of appealing against the inaction of FSSP employees and stimulating them to take active action.

How to resume suspended production

In a number of cases, enforcement proceedings may be suspended by the court or the bailiff (Articles 39–40 of Law No. 229). The main reason for resuming enforcement proceedings is the elimination of the circumstances due to which it was suspended (Part 2 of Article 42).

For the court to resume in accordance with Part 1 of Art. 438 of the Code of Civil Procedure of the Russian Federation, proceedings suspended by his decision are required:

1. Submission by the claimant or bailiff of the corresponding petition.
2. The actual elimination of grounds that impede the progress of enforcement proceedings.

In addition, according to Part 2 of the above article of the Code of Civil Procedure, the period for which the proceedings were initially suspended may be reduced by the court.

Resumption by the court

Analysis of Art. 39 of Law No. 229 makes it possible to determine what circumstances must be eliminated in order for the court to resume suspended proceedings.

The court will decide to resume proceedings if:

• a claim for the release of seized property has been refused;
• there is a result of the court considering issues related to challenging the result of the assessment of property under arrest or the collection of an enforcement fee;
• the debtor returned from a long business trip;
• the claim to challenge the writ of execution has been rejected or the procedure for challenging the judicial act under which it was issued has been completed.

The decision to resume proceedings is made by the same arbitration court that initially issued the executive document and then suspended it (Part 1 of Article 45 of Law No. 229), or by the one that is closer to the place where the performer’s activities are carried out.

Resumption by bailiff

The bailiff may suspend the proceedings if one of the parties submits a corresponding substantiated application to him (Part 4, Article 45 of Law No. 229). To resume proceedings, you will need to make sure that the grounds for suspension of proceedings have been eliminated, or receive a corresponding application from the claimant (Part 7).

Based on the analysis of the provisions of Art. 40 of Law No. 229, we summarize the information on what grounds the executor can resume proceedings:

• the debtor or claimant returned from the combat zone or stopped performing tasks during a state of emergency (clause 3, part 1);
• the debtor completed treatment in a hospital (clause 1, part 2);
• the recognition of the debtor as missing or dead due to his appearance was canceled (clause 1, part 1);
• the debtor restored its solvency and financial solvency by exiting the bankruptcy procedure (clauses 5 and 5.1 part 1);
• the period of deferment of fulfillment of the obligation granted by the court has expired (clause 6, part 1);
• the seizure of the property of the debtor organization directly involved in the production process has been lifted (clause 7, part 1);
• lack of property from the debtor - a foreign state (clause 8, part 1);
• the previously wanted debtor was found (clause 2, part 2);
• the debtor-conscript returned from the army (clause 3, part 2).

Proceedings may be suspended by senior officials of the executive service (Part 3 of Art.

40 of Law No. 229) or the court (Part 3 of Art.

39 of Law No. 229) due to the receipt of a complaint about the actions or inaction of the bailiff. To resume the proceedings, it is necessary that the body considering the complaint of one of the parties to the proceedings or the decision of the executor does not find grounds for suspension or receives evidence of a settlement of the situation.

On the resumption of enforcement proceedings by the bailiff, also read the ready-made decision of ConsultantPlus. If you do not yet have access to the ConsultantPlus system, you can obtain it free of charge for 2 days.

Enforcement proceedings for foreclosure

The law firm ZASCHITA quite often carries out orders for conducting enforcement proceedings . The most difficult is enforcement proceedings , during which it is necessary to foreclose on the mortgaged property under a mortgage agreement. A mortgage is a security against real estate. If the debtor took out a loan and mortgaged his apartment, the one who gave the loan has the right of mortgage (mortgage of real estate). If the debtor does not pay, the creditor can foreclose on the mortgaged property. at what the process of foreclosure on mortgaged property is in this article.

To begin with, let us outline the final goals of enforcement proceedings to foreclose on mortgaged property . Enforcement proceedings in this case can end in two ways:

1. The investor holds in his hands an extract from the Unified State Register of Real Estate on the state registration of the right to the subject of mortgage.

2. The investor holds in his hands the money received from the sale of the mortgaged property.

These are the goals of the work. Let's consider all the stages of achieving them.

Submitting a writ of execution

As a general rule, a writ of execution must be filed at the place of residence of the debtor. In most cases, it coincides with the subject of the mortgage. However, a situation is possible in which the subject of the mortgage is located in one area, and the place of residence of the debtor is in another. In this case, it should be submitted at the location of the subject of the mortgage, adding to the application a reference to clause 1 of Art. 33 of the Federal Law on Enforcement Proceedings, according to which “if the debtor is a citizen, then enforcement actions are carried out and enforcement measures are applied by the bailiff at his place of residence, place of stay or location of his property.”

Having determined the district department of the FSSP, you should prepare an application for acceptance of the writ of execution for enforcement.

The application must indicate

— Name of the district bailiff department

— Full name of the claimant and his address

— Full name of the debtor and his address

— Please accept the writ of execution and initiate enforcement proceedings

— Details of the writ of execution

— If the debtor has paid any amounts after the court decision, an indication of the fact of payment

— Bank details of the claimant

— Request to impose a temporary restriction on the debtor’s departure from the Russian Federation

— Request to seize the debtor’s property, indicating the subject of the mortgage. The attachment to this application must include

— Original writ of execution a (a copy must remain in our case files) — Copy of loan agreements — Copy of mortgage agreement

— A copy of the court decision or ruling

— A copy of the representative’s power of attorney (show the original upon submission)

This application for acceptance of the writ of execution for enforcement must be submitted in two copies. One must be handed over to the FSSP department. On the second, the office puts a mark of acceptance. This ends this stage.

Initiation of enforcement proceedings

After 5-7 working days from the date of filing the application, you must go to the office during the bailiff’s office hours and find out which bailiff your case has been transferred to. If it has not yet been transferred, clarify the transfer deadlines. If transferred, you should immediately go to an appointment with a bailiff and receive a decision to initiate enforcement proceedings .

First communication with the bailiff

During your first conversation, you should do the following:

— Check the direction of requests for property availability. Interested in Rosreestr, State Traffic Safety Inspectorate, Federal Tax Service regarding salaries, Pension Fund, if there is evidence that the debtor receives a pension.

— Check the direction of the request for voluntary execution of the court decision.

— Offer assistance in terms of providing transport, preparing documents, providing security and witnesses.

- Offer to include the request for receiving F7 and F9, as well as to deliver a response to this request (if it is possible to obtain F7 and F9 on your own, these documents should already be submitted by the first communication with the bailiff).

— Indicate that you are ready to provide a custodian for the seized property.

— Propose and agree on a plan for further action.

The first communication should end with an agreement on the next step. The next step should be to receive a response from Rosreestr about the debtor’s rights to real estate, as well as a request for F7 and F9 (if it is impossible to obtain independently).

Receiving a response from Rosreestr

The bailiff must send a request to Rosreestr to obtain information about the existence of the debtor's registered rights to real estate. A response must be received from Rosreestr indicating real estate objects and registered encumbrances, in particular mortgages. Next, you should negotiate with the bailiff about the inventory and seizure of the mortgaged property.

Obtaining F7 and F9 (if it is impossible to obtain independently)

The issue of obtaining Form 7 and Form 9 for the mortgage should be resolved with the bailiff. It is necessary to invite the bailiff to issue the corresponding request in hand and immediately receive these documents from the settlement and registration department at the location of the subject of the mortgage. If the bailiff indicated that he will do this himself, it is necessary to clarify the deadlines for completion.

Inventory and seizure of pledged property

At this stage, it is necessary to obtain agreement from the bailiff on the shortest possible time for drawing up the inventory and arrest. It is advisable to carry out this event without actually visiting the debtor’s site. If it is necessary to leave, the bailiff should be provided with the presence of witnesses and transport. The end of this stage is the receipt of an act of seizure (inventory of property).

Conclusion of a storage agreement free of charge

During subsequent meetings with the bailiff, it is necessary to indicate that we have a person who is ready to enter into an agreement for the storage of mortgaged property free of charge and to act as a custodian. The bailiff should provide the custodian’s passport details and clarify when he will be able to send them to the main department. The bailiff must send the custodian's data and information about the subject of the mortgage to the Main Directorate of the FSSP at the address: st. Bolshaya Morskaya, no. 59. (for the Leningrad Region Bolshoy pr. V.O., no. 80, lit. B). A specific employee is responsible for drawing up the storage agreement. 3 days after the district bailiff sends the data to the Main Directorate, it is necessary for our custodian to call a specific employee and coordinate the time of arrival to sign the storage agreement. The mortgage collector's representative must review the execution of the custodian's custody agreement.

Transfer of seized property to auction

It is necessary to obtain a resolution from the bailiff to transfer the seized property for auction, which is addressed to the FAUGI Territorial Administration of the Federal Property Management Agency in the Leningrad Region. A bid application must also be submitted. These documents must be sent to the Main Directorate. It is necessary to check the fact that the case was sent from the district department of the FSSP, since the issuance of a decision does not yet mean the actual transfer of the case. From the main department of the FSSP, the case should be sent to the Federal Property Management Agency. The result is a notification that the seized property is ready for sale.

Preparation of tenders

The Federal Property Management Agency must transfer the object for bidding to one of the commercial organizations. The result is the issuance of an Order for the provision of services for the sale of seized property at auction. Next, the selected commercial organization must publish a message about the auction on the website https://fssprus.ru/torgi/. Bidding information must be checked at least once every two weeks. The search is best done using the original sale price of the mortgaged property. When information about the date of the auction becomes available, the director and investor should be notified.

Bidding

After the end of the primary or secondary trading date, you should check their results on the website https://fssprus.ru/torgi/. If the information does not appear on the website for more than a week, it is necessary to visit the district bailiff to obtain information. As a rule, the first auction is considered invalid. In this case, it is necessary to track the date of secondary trading. Repeated auctions may also be declared invalid. However, they can happen. Let's consider options in both cases.

The auction took place. Receiving funds

In this case, you need to make sure that the bailiff has the details of the collector to send funds. However, it should be understood that after the buyer pays money to the auction organizer, these funds go to the accounting department of the Federal Bailiff Service. It may take about one month until the proceeds are transferred to the claimant. You should track the receipt of money into the creditor's account. If necessary, arrange access to the bailiff leading the enforcement proceedings .

The auction did not take place. Leaving property behind

If the repeated auction for the sale of the pledged property does not take place, it is extremely important to timely declare your consent to retain the property in the manner provided for in clause 4. Art. 58 Federal Law “On mortgage (real estate pledge)”. According to the norm of this law, the claimant-mortgagee may choose to acquire ownership of the mortgaged property. The price in this case will be determined by the formula: the price of real estate at the first auction - 25%. That is, if at the first auction the apartment was offered at a price of 4,000,000 rubles. At the second auction, the price is reduced by 15% (in this case, the price at the repeated auction will be RUB 3,400,000). And if the re-tender does not take place, the price at which the property can be retained will in this example be 3,000,000 rubles. At the same time, the claimant-mortgagor can use the offset to purchase this real estate. That is, if by the end of the repeated auction the total amount of the debtor’s debt (including all interest, fines, expenses) exceeded the amount of the initial sale price minus 25%, then the debtor does not need to pay anything through the bailiff service. You can simply declare that you retain the property, and the debtor will still owe the difference between the total amount of debt and the price of retaining the property. If the amount of the total debt is lower than the price of abandonment of the property by the mortgagee-collector, then the debtor will have to pay the difference between the price of abandonment and the total amount of the debt. When conducting enforcement proceedings to foreclose on the pledged property, it is necessary to calculate in advance what the amount of debt of the mortgagor-debtor will be by the end of the repeated auction. Ideally, the amount owed should be greater than the price of reserving. In this case, no additional payments will be required. When retaining mortgaged real estate, it is extremely important to comply with the deadlines established by law. In accordance with paragraph 5 of Art. 58 of the Federal Law “On Mortgage (Pledge of Real Estate)”, the claimant can retain the pledged property only within one month from the moment the repeated public auction is declared invalid. If this deadline is missed, the pledge of real estate is terminated. In fact, this will mean the impossibility of collecting the debt. In this case, it is extremely important to receive a notification from the bailiff as soon as possible after the repeated auction with a proposal to retain the property that was not sold at the auction. After receiving this document, you should immediately send to the bailiff and the auction organizer an application to reserve the mortgaged real estate. Also, the bailiff must submit a calculation of the debt of the debtor-mortgagor on the date of leaving the property behind. This is especially true if the writ of execution indicates an open amount of interest and penalties.

The text of the application to reserve the pledged property may be as follows:

STATEMENT

On the retention of the debtor’s property that was not sold during the execution of the writ of execution.

Based on the claim of the Claimant... dated 08/06/2015, enforcement proceedings were initiated No. 74835/15/78024-IP dated 08/14/2015, the bailiff was Alexandra Vladimirovna Fedorova. Initiated on the basis of the writ of execution No. FS No. 006079718 dated 08/05/2015, issued by the Primorsky District Court in case No. 2-4283/2015, which entered into force on 07/28/2015, subject of execution: foreclosure on mortgaged property 1/3 share, by selling it at public auction, the sales price upon its sale in the amount of 1,300,000 rubles, in relation to the debtor: ..., ... year of birth, debtor's address: ... St. Petersburg, Russia, 197374, in favor of the claimant: ..., address of the collector: ... St. Petersburg, Russia, 197341.

On 05/12/2016, during enforcement proceedings ... represented by a representative by proxy... Notification dated 05/11/2016 No. 16/4507427 was handed over with a proposal to leave for... the following property: 1/3 share of an apartment at the address:... for 975,000 rubles ., since the specified property was not sold at public auction. For the claimant, this property is of interest and value, based on the above

ASK:

1. Accept the consent of the claimant... to leave the debtor’s property..., within the framework of enforcement proceedings No. 74835/15/78024-IP dated August 14, 2015.

Application:

1. A copy of the representative’s power of attorney.

2. Calculation of debt as of the date of application

This application must be submitted to the bailiff and the executor, putting an acceptance mark on the copy. Similarly, this application must be submitted to the auction organizer. At the same time, submitting an application to retain the unrealized pledged property should be submitted by mail. It is necessary to send registered letters to the auction organizer and the bailiff with acknowledgment of delivery. It is mandatory to draw up an inventory of the postal item and save the receipt for sending the letters.

Receiving from the auction organizer a set of documents for registering ownership of the pledged property

To register ownership of the pledged property, you must obtain the following documents from the auction organizer:

1. An order for the provision of services for the sale of seized property at auction (taken from the auction organizer, such as a power of attorney from Rosimushchestvo);

2. Printout from a periodical about the start of the first auction;

3. Protocol on the first auction;

4. Printout from a periodical about the start of re-tendering;

5. Protocol on re-tendering;

6. Notification of the auction organizer about the retention of the debtor’s property that was not sold during the execution of the writ of execution.

Receiving from the bailiff a set of documents for registering ownership of the mortgaged property

After submitting an application to the bailiff to retain the pledged property, you must agree with him on a day to receive the registration kit. To register ownership of mortgaged real estate that was not sold at the repeated auction, we need the following set of documents from the bailiff:

1. Resolution of the bailiff on the transfer of property for sale;

2. The act of transferring seized property for sale;

3. Resolution of the bailiff to reduce the price of property transferred for sale by 15%;

4. Notification of failed tenders;

5. Act of return of property to bailiffs from the auction organizer;

6. An offer to the claimant of unrealized property to retain the property;

7. Application for retention of the debtor’s property that was not sold during the execution of the writ of execution;

8. Resolution on the abolition of measures banning registration actions in relation to property;

9. Resolution on the transfer of unrealized property of the debtor to the claimant;

10. Resolution to lift the seizure of property by a bailiff;

11. The act of transferring unrealized property to the claimant.

After receiving sets of documents from the bailiff and from the auction organizer, the next stage begins - registration of ownership in Rosreestr for the mortgaged real estate. And we will talk about it in the next article.

Kuznetsov Mikhail Vladimirovich - General Director

LLC "Legal

Procedure for filing a complaint against a bailiff

If the claimant has received an unsatisfactory resolution to terminate/end/suspension of enforcement proceedings, he can file a complaint. A complaint drawn up in writing according to a standard form with the necessary justification is submitted to a higher bailiff or sent to court.

After this, the body that received the complaint, within the framework of the available materials of enforcement proceedings, will study:

• whether the bailiff fulfilled his duties within the framework of the law;
• whether he sent writs of execution to all authorities to ensure the collection (to the work of the debtor-individual, to the bank to seize an account, to the tax office or the registrar to seize property);
• whether the actions necessary to search for the debtor and his assets have been completed;
• whether acts of impossibility of collection were properly drawn up.

If violations are found in the process of studying these issues, the relevant resolution will be cancelled. After this, enforcement proceedings will continue as usual.

Appeal against refusal to restore the deadline for submitting a sheet for execution

If the court refuses to restore the deadline to file the writ for execution, then it is worth taking the opportunity to appeal the corresponding court ruling on the refusal. When appealing, you must indicate why the court's decision to refuse is illegal, what violations were committed by the court when considering the application, and what was not taken into account by the court.

The court's ruling on refusal must indicate the period for appeal. The appeal period may be 10 days or 15 days, so you should study the provisions of the ruling on the appeal period and do not miss this period.

To appeal a refusal to restore the deadline:

1. prepare a complaint (private complaint) to a higher court
2. send a copy of the complaint to other participants in the process
3. file a complaint with the necessary attachments to the court of first instance
4. wait for the decision on the complaint from a higher court

Procedure for resubmitting a document

If the recovery documents were returned to the claimant in connection with the end of the proceedings, he can resubmit them for execution within the limitation period.

According to Part 1 of Art. 21 of Law No. 229, in general cases, the period for presenting documents for execution is 3 years from the date of entry into force of the judicial act on the basis of which the ID was issued. The peculiarity is that this period does not run while the proceedings are open (Part 1, Article 22 of Law No. 229).

If these are periodic payments (for example, alimony), then the claimant can apply for execution again and again both during the period for which the ID was issued and within three years after its completion (Part 4 of Article 21 of Law No. 229).

If the documents were returned to the applicant within this period, he has the right to resubmit them for execution, as many times as he likes. The bailiff who has received the corresponding application must open a new enforcement proceeding on a general basis.

His refusal can be appealed by the applicant in court. As part of the new enforcement proceedings, the bailiff is obliged to use the full range of powers granted to him to enforce the court decision.

If the enforcement proceedings are completed and the documents (writ of execution, court order) are returned to the claimant, this does not necessarily mean that the proceedings are closed forever, because

it can be resumed. It is important to take into account how much time is left before the deadline for presenting documents for execution.

If three years have not yet expired from the date of entry into force of the court decision or notary signature, the applicant has the right to re-submit documents to the FSSP. In the same case, when the bailiff violated the law and groundlessly ended (or terminated or suspended) the proceedings, the claimant can file a complaint against him.

Sources:

• Federal Law “On Enforcement Proceedings” dated October 2, 2007 No. 229-FZ
• Civil Procedure Code of the Russian Federation

Resumption of enforcement proceedings is a procedure accompanied by a corresponding document from the bailiff. During the process, it is possible to use compulsory actions to collect debts and take interim measures. On what grounds is this possible, and what does the law say about re-initiating the procedure?

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1. Legislative reasons for suspension and termination of individual entrepreneurs
2. Renewal period
3. Grounds for resuming completed enforcement proceedings
4. Who has the right to renew?
5. Statement
6. Legal consequences of filing an application
7. How is the issue of restoring enforcement proceedings considered?
8. Possible problems and nuances

What does termination of execution mean?

So, you found out that the bailiffs stopped the enforcement proceedings - what does this mean? This means that bailiffs previously took measures against you to forcibly collect the debt.

The reasons for the penalty could be:

• credit debts, including microloans or mortgages;
• payments for taxes, contributions and to the budget;
• alimony;
• fines;
• payments aimed at compensating for damage to property or health.

Termination of enforcement proceedings means the unconditional cancellation of the penalty with the impossibility of its renewal within the framework of this court decision.

In other words, if the collector decides to re-collect money from the debtor, he will again have to go to court for a new decision. This conceals the fundamental difference between the procedure for terminating enforcement proceedings and its return or suspension.

Now let’s figure out what “collection on the card has been stopped” means - this message is sent by the bank at the end of enforcement proceedings. It means that the arrest placed on it by the bailiff has been removed from the card, and all funds on it have been unblocked. From this moment on, the citizen can freely use the bank card - until new enforcement proceedings are initiated based on other court decisions.

Legislative reasons for suspension and termination of individual entrepreneurs

The procedure is regulated by the federal law on enforcement proceedings, the norms of the Code of Civil Procedure and the Arbitration Procedure Code of the Russian Federation. Upon suspension, all actions are suspended temporarily until the circumstances that impede debt collection are eliminated.

The case is subject to temporary termination by court decision in the following cases:

• The debtor or plaintiff disagrees with the valuation of the property.
• The claimant objects to the resolution on the appointment of an enforcement fee.
• Cancellation of the seizure of assets that are subject to seizure.
• The parties are challenging the court decision on which the writ of execution was issued.
• Objections to the act of an administrative offense.
• Challenging the actions or inaction of the executor, a decision made during the consideration of the case.
• Appeal requesting clarification of provisions from the executive documentation.
• The defendant is on a business trip for a long time.

By decision of the bailiff, the case may be suspended on the following grounds:

• Death of the debtor, recognition of him as missing, if it is possible to carry out the succession procedure.
• Loss of capacity.
• Loss of license to operate (if the defendant is a financial organization).
• Bankruptcy.
• Participation in hostilities as part of the Russian armed forces.
• A case is being considered regarding the postponement of enforcement proceedings or the payment in installments under a writ of execution.
• Seizure of the defendant's property.
• Lack of property that can be seized (if the party is a foreign state).
• Search for the debtor, his assets, and a minor child.
• Being treated in an inpatient department.
• Request from a debtor undergoing military service under urgent conscription.

When terminated, production ends completely and further resumption is not possible. In this case, the goal may not be achieved, the property may not be sold, and the money may not be transferred to the claimant. This is possible in the following situations:

• Obtaining a judicial act to terminate compulsory actions.
• Refusal of the claimant from his claims against the debtor.
• Conclusion of a settlement agreement between the parties in accordance with the procedure established by law.
• Cancellation of the judicial act for which the writ of execution was received.
• Termination of an administrative resolution.
• Exclusion of an entry about the debtor from the register of legal entities, liquidation of the organization.
• Termination of alimony obligations as a result of the child reaching the age of majority, adoption, death, or the entry of a person with a disability into a new official marriage.
• Recognition of a debt as uncollectible.

Is it possible not to pay debts and what are the consequences?

Ignoring the bailiff’s demands and not taking any action to repay the debt is not the best defense option. The debtor may be held liable:

• for attempting to conceal property, its intentional damage or destruction, or transfer to other persons;
• for malicious and deliberate evasion of debt repayment, if the defaulter had a real opportunity to do so;
• for the use of physical force or threats against the bailiff;
• for other actions falling under the Criminal Code of the Russian Federation or the Code of Administrative Offenses of the Russian Federation.

Bailiffs have the authority to initiate criminal and administrative cases for a number of offenses related to non-payment of debts. In such cases, the FSSP conducts an investigation, after which the documents will be submitted to the court for consideration.

You can only be completely free from debt through bankruptcy. This is not the simplest procedure, which entails additional risks for the debtor. But with the support of a lawyer, you can achieve a positive result in bankruptcy, write off all or part of your debts.

Renewal period

Restarting the procedure is possible even after returning to the claimant all the documents on the basis of which compulsory actions are carried out. Their validity period is 3 years. During this period, representatives of the FSSP are obliged to resume the process.

In cases of alimony, different procedural periods apply. The case can begin at any time before the recipient reaches the age of majority. If this concerns a child with a disability, until it is removed and their ability to work is restored.

Statement

The restoration of the deadline for presenting a writ of execution for execution and the resumption of proceedings in the case are carried out on the basis of a petition. The document is submitted to the court that made the decision in this case. It states the following:

1. The name of the court without abbreviations with the exact address.
2. Applicant's details with full name, place of residence, telephone number.
3. Information about the debtor.
4. The title of the document in the central part of the sheet in large letters.
5. Number of the writ of execution, information about the decision, its essence.
6. Production number according to the document.
7. Information about the determination of suspension.
8. An indication that the reasons and circumstances preventing debt collection have been eliminated.
9. Link to legislation on enforcement proceedings, Code of Civil Procedure of the Russian Federation.
10. The word “please” is in the center of the page.
11. Request to consider the issue of resuming proceedings by executive order (specify the number).
12. List of attachments (photocopy of the writ of execution, resolution on the commencement and suspension of the process, documents confirming the reason for the repeated procedure, copy of the petition).
13. Date and signature.

Restoring the deadline for submitting a writ of execution for execution

If you did happen to miss the deadline for presenting the writ for execution, you don’t need to get upset ahead of time, because you can try to restore this deadline.

To restore the missed deadline in question, you must apply to the court.

At the same time, the Arbitration Procedure Code of the Russian Federation and the Code of Arbitration Procedures of the Russian Federation simply state that the claimant may ask for the restoration of the term, and the Code of Civil Procedure of the Russian Federation states that the term can be restored by the court if the reasons for missing it are considered valid. In any case, the issue of restoring the deadline in order to present the execution for execution will be decided by each judge individually, and the chances of restoring the deadline are greater in cases where it is missed for valid reasons that are duly confirmed.

USEFUL : for more information about the restoration of procedural deadlines, follow the link on the website of the Law Office “Katsailidi and Partners”, Yekaterinburg, as well as in the video

Legal consequences of filing an application

Expert opinion

Kuznetsov Dmitry Timofeevich

Legal consultant with 6 years of experience. Specializes in family law. Knows everything about the law.

If the court agrees with your arguments, it will restore the deadline for submitting the writ of execution for execution. As a result, the bailiff issues a resolution, photocopies of which are sent to all participants.

After this, the official has the right to take compulsory, interim measures to search, seize, and sell property. These include:

• Visits of FSSP representatives to the debtor’s home for inspection and inventory of assets, including visits to residential and commercial premises without his consent, in his absence.
• Car seizure, driving ban.
• Automatic debiting of money from a bank card to pay off debt.
• Ban on traveling abroad.
• Search for property or a minor child.

How many times can a writ of execution be submitted for production?

Taking into account the fact that enforcement proceedings can be terminated by bailiffs, including, unreasonably, the enforcement officer can return, the question arises, how many times can a writ of execution be submitted to the proceedings? The answer to this question is very simple: as much as you like, as long as the deadline for presentation for execution has not expired.

When re-submitting a writ of execution for proceedings, take into account the deadlines when the presentation deadline is interrupted if you are worried that the deadline has been missed.

It is better to present the writ of execution again, if necessary, without thinking about the timing of presentation, so as not to accidentally miss it. If the bailiff suddenly returns the writ, considering that the deadline for presentation has been missed, then you need to look at the first time you presented the writ and the subsequent times when the deadline was interrupted, and then appeal the bailiff’s actions.