Winning a case in court is, as it turns out, not the whole path to a successful outcome for the plaintiff. After the court decision comes into force, it is sent to the bailiff service for execution. At this stage, citizens are often faced with the fact that money is not received for a long time, or the deadline for execution expires altogether.
Such moments occur for one simple reason - the inaction of the bailiff. So what to do in such a situation? Are there any levers of influence on the body authorized to execute the court decision? How to file a complaint to the prosecutor's office, and within what time frame? All this will be discussed in this article.
In what cases is a complaint filed with the prosecutor's office about the inaction of bailiffs?
When communicating with bailiffs, the latter often refer to lack of time and the impossibility of high-quality prosecution of debtors. The most common complaint is about the bailiff’s inaction. What tasks are neglected by a specialist acting in the interests of the creditor:
- After the court decision was made, the bailiff missed the time to seize the debtor's assets (if this procedure was not completed at the stage of judicial proceedings);
- The defaulter owes alimony, however, more than 2 months from the date of receipt of the writ of execution, a resolution on the forced collection of part of the wages was not submitted at the place of work, a visit was not made to the debtor’s place of residence demanding an inventory and seizure of property;
- The bailiff does not pursue the debtor - does not identify free property, does not send requests to the registration chamber and the traffic police, no actions have been taken to identify bank accounts;
- The bailiff ignores any legal demands of the creditor. Including in the form of an oral report on the actions taken.
Procedure for contacting the department
If the application is submitted during a personal reception, then two copies are required.
One of them is left in the office, the other is returned to the applicant. The second copy contains the number of incoming correspondence. On the official website of the department there is an online reception, through which you can submit a petition against the bailiff’s inaction in collecting alimony or for other reasons. On the web resource of the Prosecutor General's Office, it is necessary to indicate the region of residence so that the user is redirected to the page of the prosecutor's office of the constituent entity of the Russian Federation.
In the electronic form, you must write information about the applicant and select a department of the government agency. Next, a message is written outlining the essence of the complaint. Documents confirming violations by the bailiff are attached to the complaint electronically. Their size should not exceed 5 MB. It is allowed to attach images, videos, audio files, text documents, etc.
Attention! Before sending a message, the applicant must indicate how he wants to receive a response, via registered mail to the specified residential address or email.
Copies of documents confirming the improper performance of duties by the bailiff are attached to the complaint.
Among them are:
- applicant's passport;
- resolution to initiate enforcement proceedings;
- application to place the debtor on the wanted list (if the case concerns non-payment of alimony);
- description of applications.
The complaint must be accompanied by a petition, which was sent to the senior bailiff or the head of the FSSP. When sending a response, civil servants return all documents and their copies received with the application. Attachments sent electronically are not attached to the decision of the prosecutor's office.
How to write a statement correctly
Let’s look at the main features – what a sample application for bailiff’s inaction should contain:
- To whom is the complaint addressed?
- A copy of the writ of execution;
- Preliminary appeals (oral appeals can be described);
- The essence of the conflict or complaint;
- Requirement to eliminate a violation of the law.
If a complaint is filed with an incompetent party, in accordance with the law, he is obliged to forward it to the person who will be responsible for reviewing and making a decision. In addition to the judicial authority, the court will either reject the application for reasons or refer it to the prosecutor for consideration. If there are signs of a crime.
Reasons for claims against bailiffs
Officials do not always fulfill their duties conscientiously.
If you have questions regarding the work of an employee, then first of all you need to contact your superior. Contacting the prosecutor's office is a last resort if complaints to the management of the FSSP were ignored or left without consideration. In accordance with Ch. 18 of Law No. 229-FZ of October 2, 2007, the grounds for a claim may be:
- Lack of action on the part of the bailiff regarding the execution of the court decision within 2 months.
- Violation of the rights and interests of citizens in the performance of official duties.
- Unreasonable refusal to familiarize yourself with the materials of the case of the interested person.
- Missing the deadline for execution of a court decision.
A complaint can be filed about inaction and illegal actions of a bailiff towards a citizen. If the executor of judicial proceedings does not undertake anything to search for assets, property or does not transfer the writ of execution to the accounting department of the enterprise where the debtor works, then this can be considered a violation.
Procedure for filing a complaint
A knowingly illegal decision by a bailiff can always be appealed in court. Let's consider in what cases it makes sense to sue the bailiff:
- Significant missed deadline for the forced execution of a judicial act (if the deadline for a voluntary decision has expired);
- Refusal or omission of the deadline for seizure and further collection of the debtor’s assets (for example, the bailiff provided a period exceeded by law for voluntary execution - giving the opportunity to re-register the property to third parties);
- Insufficient measures taken against the debtor regarding alimony;
- A decision was made to refuse to initiate enforcement proceedings on unmotivated grounds;
- Incorrect valuation of property (involvement of a non-core specialist, procedural deadlines and conditions for selecting an appraiser, etc.);
- Violations during the sale of pledged property;
- Other property requirements.
An important clarification - all cases related to the consideration of actions or inactions of the bailiff are within the exclusive competence of the court.
A complaint to a senior bailiff will allow a reprimand to be issued, a complaint to the prosecutor's office about inaction gives grounds to initiate a criminal case. The prosecutor does not have the right to tell the bailiff how to perform his official duties. Only if these actions or inactions are not in direct conflict with the Criminal Code.
The applicant must follow the following procedure:
Step one. Sending a complaint by registered mail. Complaints are not subject to state fees. You have the right to submit three complaints for one offense. The senior bailiff can issue a reprimand or oblige to perform an action, the prosecutor can issue a decision to initiate a criminal case, and the judge can stop the process.
A similar structure of the content of the complaint is described in the section “How to write a statement correctly.”
The complaint can be submitted by choice:
- At the location of the creditor and the work of the bailiff;
- If the case is accepted by the bailiff at the location of the debtor, submit an application in this territory.
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;
How long will it take to consider
An application to the prosecutor's office regarding the inaction of bailiffs is considered within 30 days. The prosecutor may extend the period if additional conditions are necessary to establish the reasons. The senior bailiff must also respond within 30 days.
In all cases, citizens are always provided with a report and explained the procedure for appealing the actions and inactions of the bailiff to higher authorities. A complaint about the inaction of the bailiff can be forwarded to the prosecutor - the basis for considering the possibility of initiating a criminal case for official negligence or abuse of authority.
The courts are not tied to specific deadlines - according to the law, the application will be considered within a reasonable time. Reasonableness includes the judge's freedom from cases and the direction and consideration of additional motions.
Articles:
Appealing the actions of a bailiff - a sample complaint and deadlines for filing it
We file a complaint against the bailiff through State Services
Is it possible to file a complaint against the boss?
Inaction is often characteristic not only of ordinary bailiffs, but also of their management. There are two ways out of the situation. The first of these is preparing a complaint to the competent court.
We recommend! How to write a complaint against police officers to the prosecutor's office for unlawful actions + statement
However, if a party wants to restore their interests without trial, they can file a complaint against the bailiff with the regional division of the FSSP. In this case, the same time period for appealing applies, i.e. ten days.
Complaints against the chief bailiff are available for free in this article. The appeal can be supplemented with your own arguments and evidence.
Why can they refuse?
There may be several reasons:
- There are no legal grounds for considering the complaint;
- The complaint against the bailiff for inaction was not supported; the stated facts were erroneous;
- The bailiff had the right to carry out such actions or had a ban on their execution. An example is a refusal to seize the debtor’s property, which is prohibited by the law on enforcement proceedings. Personal belongings of the spouse, children's toys, household items and clothing.
Filing a complaint against a bailiff: a step-by-step guide
To ensure that the appeal process is not accompanied by unnecessary difficulties, we offer you an algorithm of actions that you should take to restore your rights at the stage of interaction with bailiffs.
Step 1. Familiarization with the materials of enforcement proceedings
Each party has a legally guaranteed right to familiarize itself with the results of the bailiff’s work. To do this, you should write an application to the FSPP department to familiarize yourself with the documents of enforcement proceedings.
It is imperative to indicate your intention to make copies. At the appointed time, you can approach the bailiffs and photograph the materials of interest.
Step 2. Determining the legal position
After studying all the materials, you should have a clear idea of what work has already been done, and in what way the bailiff violated the rights of the creditor or claimant.
It is also advisable to prepare a legal basis for your arguments.
Step 3. Preparing and filing a complaint
Next, you need to correctly write out the text of the appeal and submit or forward it to the appropriate person.
You can attach previously photographed materials of enforcement proceedings to the complaint.
Step 4. Determining a strategy for further actions
First of all, you should wait for the results of the complaint. After receiving the text of the resolution, there are three main ways:
- Contact the higher authority of the FSSP.
- Start litigation with the bailiffs.
- Write a complaint to the prosecutor's office against the bailiffs.
These are the main stages of appealing against unlawful actions by FSSP employees. At all the stages described, qualified legal support will not hurt.
How a complaint is processed
In court - with the obligatory summoning of the parties. Prosecutor's office and bailiffs without notification.
Please note the following basic conditions for filing a complaint. If you write a complaint about the inaction of an official, and the facts are not confirmed, the complaint will almost certainly be rejected.
Mandatory period – 10 days. During this period, the applicant has the right to file a complaint against the bailiff. The period is calculated from the moment the decision is made, refusal of enforcement proceedings or other unlawful actions.
Hotline for citizen consultations: 8-804-333-70-30
How else can you influence
There are several methods to counteract unlawful actions or inaction of the performer.
The first of them is extrajudicial. Initially, it may involve a personal visit to the bailiff and conducting a constructive dialogue with him. Technical support will help move the process forward.
For example, a creditor can provide his own transport so that the bailiff can go to the place of inventory and seizure of the debtor’s property.
If cooperation could not be established, then the solution would be to file a complaint with the senior bailiff, that is, the direct superior of the civil servant involved in enforcement actions.
The work of the bailiff and his inactivity can be appealed to the court (if the conversation turns to problems with the implementation of the judicial act). A complaint against a bailiff's decision is addressed to the justice authority (district, arbitration) located on the territory of the FSSP department.
The time for filing a complaint is established by Art. 122 Federal Law “On Enforcement Proceedings” (hereinafter Federal Law No. 229). According to it, you have ten days from the date of violation of the law to challenge the actions (inaction) of an employee of the OSB.
The legislation allows the deadline to be renewed due to objective circumstances. To do this, along with the complaint, an application justifying the reasons for the delay is submitted. It is useful to attach supporting documents to it.
What other actions can you take?
Court
He has the authority to challenge the bailiff if connections between him and the debtor or creditor are revealed: indirect interest, family ties, etc.
Ask the bailiff to present the entire case for review. Surely a deadline was missed somewhere or all the data was not filled out. Any incorrectly compiled document breaks the entire structure of the process. You can file a complaint with the court if you have the following goals:
- Removal of the bailiff and annulment of decisions made;
- Temporary suspension of the collection process (if you are acting on the side of the debtor).
Is it possible to appeal the actions of the bailiff?
Like any civil servants, bailiffs intentionally, or due to their incompetence, make mistakes in their work. They may affect both the interests of the debtor and the claimant.
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In this regard, the interested party has a problem, how to appeal against unlawful actions, or, conversely, the inaction of the bailiff?
Existing legislation allows you to challenge certain steps of a bailiff in two ways.
The first is to file a complaint addressed to the contractor’s immediate superior. 10 days are allotted for its preparation and registration from the moment when citizens and enterprises became aware of the violation of their rights.
For example, you filed a request to search for the debtor’s property, but the bailiff is inactive.
If the claims are justified, then based on the results of consideration of the complaint, a resolution is issued, which will indicate what measures should be taken to restore the rights of the applicant.
However, there is a second option, in which certain actions or inactions of the bailiff can be appealed in court.
How to write a complaint
Judicial authority
For the court, it is necessary to take into account the procedural design. For example, an exact indication of the parties to the case, data from the act, a factual description of the plot of the case, a link to a regulatory source.
Sample statement of claim to court against bailiff
Prosecutor supervision
There is no need to observe formalities; it is enough to indicate the general grounds. The prosecutor's office will not adhere to the 10-day review period, but will check the entire legality of the actions.
We recommend following the following procedure when filing a complaint:
A court decision can instantly stop the execution of the bailiff's act. If such a request is made. Moreover, this right can be indicated directly in the complaint. The prosecutor's office does not have such a right.
Try to file complaints with targeted impact: most likely, the senior bailiff will not satisfy your request, but this refusal will be an additional argument for inaction in the prosecutor’s office or court. Of course, if the law is on your side. Always appeal the bailiff's acts in court. If they conflict with violations of the law and your interests. The court has exclusive competence to eliminate any actions or inactions of the bailiff.
EXAMPLE OF COMPLAINT TO THE PROSECUTOR'S OFFICE
Sample of appealing the actions of the bailiff to the prosecutor's office
How to file a claim
A claim must be filed in a district or city court. The filing takes place at the location of the FSSP branch where the bailiff works. The claim must be filed in two copies.
Payment of state duty in this case is not required. If the statement somehow affects the interests of other persons, you need to indicate them, as well as how the actions of the bailiff affect them. If there are witness statements or other evidentiary documents, you must attach copies of them, or enter information that people are ready to speak in court.
How to appeal the actions of a bailiff in court
When the debtor does not plan to execute a court decision or comply with the terms of another document, it is necessary to contact the SSP department at its location.
Guided by the levers provided by law, they carry out actions to restore the rights of the claimant.
Moreover, this may concern not only debt collection, but also eviction from an apartment, reinstatement at work, as well as the protection of other rights.
Consideration of claims in court
Administrative claims are considered by the court according to the general rules of public proceedings. This means that the period for consideration of the complaint is 10 days from the date of receipt of the application by the court. The legality of his actions must be proven by the bailiff himself.
The court is not bound by the arguments of the complaint, but is bound by the subject of the stated requirements. When considering an administrative claim, the court is obliged to check the contested action for full compliance with the law, including the procedure for its application. Typically, in such cases, the court immediately schedules a hearing at which it makes a decision without postponing the case.
The court's decision can be appealed. All persons participating in the case (collector, debtor, bailiff) have the right to file such a complaint. If the complaint is not received within 1 month, the court decision enters into legal force and becomes binding on the bailiff.
Contents of the administrative claim
Below we provide a sample statement regarding an appeal against the actions or inaction of a bailiff. It can be used as a basis for filing a lawsuit in any jurisdiction. So, the document begins with an indication of the court, as well as information about the claimant and the debtor.
After this, you should describe the circumstances in connection with which the writ of execution was issued (details of court decisions, as well as other information).
Next, you need to refer to the fact of opening enforcement proceedings, indicating the number and date of the relevant resolution.
The next block of the document should contain a description of what exactly the unlawfulness of the bailiff’s actions or inactions consists of. Your position in this part should be supported by the norms of legislation on enforcement proceedings.
The final part should contain a request to restore the rights violated in one way or another. In addition, documents confirming the position of one or another party may be attached to the application.
An example of an administrative claim can be downloaded below.
Who and where to file a complaint
There are two ways to appeal: administrative and by filing an application in court.
An appeal is allowed within 10 days from the date:
- making a controversial decision;
- performing an action;
- establishing the fact of inaction;
- refusal to challenge;
- by a person who was not notified of the time and place of the action, the complaint is filed within 10 days from the day when this person learned or should have known about the adoption of the decision or the commission of actions (inaction).
The period begins to run from the next day after the specified event. The period does not include non-working days. If the last day of the deadline falls on a non-working day, it is transferred to the first working day following it. If you miss a deadline for a valid reason, you must submit an application for its restoration, indicating the reasons and attaching supporting documents.
The administrative procedure for appeal occurs in the order of subordination:
- the senior official subordinate to the bailiff against whom the complaint has been filed;
- on the senior bailiff (on his actions/inaction or on a document approved by him) or his deputy - to the chief bailiff of a constituent entity of the Russian Federation;
- to the chief bailiff of a subject of the Russian Federation or to his deputy - the chief bailiff of the Russian Federation.
To the decision of an official of the FSSP - both directly to a higher official, and through the official whose decision is being appealed.
An application to the court is submitted after compliance with the administrative procedure; it is accompanied by a decision to refuse to satisfy the requirements in an administrative manner. An application for appeal is submitted to arbitration or to a court of general jurisdiction, depending on the nature of the legal relationship.
The case is within the jurisdiction of the arbitration court in the following cases:
- execution of a writ of execution issued by an arbitration court;
- fulfillment of the requirements contained in the executive documents specified in clauses 5, 6, part 1 of Art. 12 Federal Law “On Enforcement Proceedings”, in relation to an organization or individual entrepreneur;
- execution of the decision made in accordance with Part 6 of Art. 30 of the specified Federal Law, if the debtor is an organization or individual entrepreneur;
- in other cases specified in.
In all other cases (as a rule, if the enforcement proceedings are not related to business activities), the application is submitted to a court of general jurisdiction. The case is considered by the court within 10 days. The case is being considered as a special proceeding according to the rules of the Caspian Arbitration Court of the Russian Federation. The application is submitted at the location of the FSSP official (division, department of the FSSP). Cases of compensation for damage caused by an official are not considered in this order; the standard procedure in accordance with the norms of the Civil Code of the Russian Federation and the Code of Civil Procedure of the Russian Federation applies here.
State duty
When submitting such applications, no state fee is charged. But if the plaintiff wants to draw up a claim according to all the rules, then he can contact a professional lawyer for a fee. Expenses may also be required for notarization of the power of attorney if the plaintiff's authorized representative will appear in court.
The activities of bailiffs can be easily appealed in court. You don't even need to pay legal fees to do this. As a result, the violator may be removed from service, his decision canceled, or, conversely, the SSP may be required to fully fulfill its debt collection obligations.
Application methods
An application to the court must be made in writing. The administrative justice system allows two ways to file a private complaint:
- personally;
- through a representative (trusted person);
- by registered mail with a list of attachments;
- on the court's website on the Internet.
Site Expert
Fasakhovva Elena Alexandrovna
Member of the Russian State Duma Committee on Non-Bank Credit Institutions. Has been involved in bankruptcy proceedings since 2015.
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When filing an electronic appeal to the Arbitration Court, the applicant is required to sign the document being sent with an enhanced electronic signature.
