In what cases is property seized?

When property is seized, the debtor shouts in panic, “What should I do?!” and rushes to the lawyers. He begs to be told how to get by with little blood and not allow the innocent cat Barsik to be arrested. Yes, yes, there are legends about the treachery of bailiffs. To force the debtor to pay, they resort to the most brutal methods.

If you already owe money and can’t pay it off, go to a lawyer in advance. He will explain in detail what can be property and how to protect those dear to your heart from arrest. It will also offer an option for debt restructuring and advise on how to pay it off faster.

Only property belonging to the debtor can be seized

If you are convinced that the property legally belongs to the debtor, creditors must confirm this information, then often, the need to seize property can be satisfied by the court. Lenders submit a list of documents on ownership of property, so they confirm their solvency. The debtor submitted information to the bank when the loan was issued to him; it included: copies of PTS, passports of office equipment, various household appliances and much more. All materials were not collateral, it only served as proof that you have a fortune.

In the absence of such confirmation, the court has the right to submit demands for the imposition of a legal seizure on the debtor’s property, which is located at his place of residence. Today, this happens in practice, unfortunately, not very rarely. In this case, the court will require a description of specific things that will be subject to seizure, but not just some unknown part of things in accordance with the amount of debt.

Everything is arranged this way only in order to avoid unwanted mistakes, so that it does not happen that the visiting bailiff will describe all the things in a row, even if they do not belong to the debtor. Subsequently, the entire judicial process will be disrupted, as well as the court’s work schedule, because a person who is not guilty of anything will participate in the process to defend his interests - the return of rights to legal property.

Who has the right to carry out the arrest procedure

According to Russian law, only bailiffs have the right to seize property. Neither banks, nor microfinance organizations, nor collection agencies and any other creditors can limit the rights of the owner. Therefore, fears that the bank or other financial institution where the loan was issued will come to take an inventory of the property are unfounded. First of all, the delay must be very long, and the creditor has filed a lawsuit.

Property cannot be seized without legal grounds. After the court ruling, the FSSP opens its own case and opens enforcement proceedings. To make an arrest you must:

1. A debt was registered.
2. The creditor filed a claim against the debtor to repay the debt.
3. The injured party proved the fact of causing material damage that requires compensation.

This preventive measure is often applied to individuals who have accumulated debts on loans, utility bills, taxes and fines. Moreover, if the creditor bank cannot prove the fact that the debtor has property, then the court has the right to reject the filed claim. Therefore, at the stage of considering a loan application, credit institutions request documentary evidence of ownership of movable or immovable property. Although they do not always require it to be registered as collateral.

Seizure of the debtor's car

There is also a seizure of the debtor's vehicle. If the creditor becomes aware that the debtor has a car that is registered on it, then the applicant may include in this statement of claim a demand for the arrest of such a car. To do this, the bank makes a special request, after which an official response from the traffic police is required stating that this funds belongs to the debtor. Practice shows that traffic cops often refuse to provide this information. Another thing is to find out such information with the help of a court. We can conclude that in order to protect the car from seizure, it is necessary to remove it from the register even before the creditor submits his statement of claim.

When do bailiffs get the right to seize an apartment?

The seizure of real estate by bailiffs is carried out during enforcement proceedings on the basis of a writ of execution by a court decision.

According to the procedure for conducting enforcement activities, the bailiff in this case makes requests to financial institutions about the availability of accounts issued in the name of the debtor or bank cards. If it is discovered that the debtor does not have the required amount of funds, the bailiff turns his attention to his property and real estate. When the amount of debt is too large, it is quite possible that the apartment will be seized. If a citizen only owns a share in an apartment, then only part of it will be seized.

This debt collection measure is applied in the following cases:

• The owner of the apartment has a mortgage debt or back taxes.
• A property dispute arose between the owner of the apartment and his relatives.
• There is a claim for damages or division of property.
• The presence of debts on utility bills, bank loans, unpaid administrative fines, if they are commensurate with the cost of the apartment.

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Algorithm of actions when property is seized by the court

A very important point is monitoring the situation according to your loan. When you receive a subpoena from the court, you must first carefully study it and get acquainted with it in order to protect yourself in time and do it with sufficient quality.

It is necessary to pay attention to the fact that the courts, in most cases, fairly accept claims to seize the debtor’s property, only this operation is done taking into account proportionality with the existing debt. In other words, if there is a debt of 20 thousand rubles, then a house worth 10 times more will not be seized, everything is proportional. And the positive information is that, most likely, the seizure of property will not take place until the possibility of collection from the debtor himself arises. But not every property is subject to foreclosure.

You can also delay time to protect your legal property. This can be done during the trial, or it can be done with the help of a court decision. This delay in the consideration of the case leads to: the opportunity to receive income for such property, extend the period of use of the property, and form a long-term strategy for protecting oneself from seizure of property. In addition to all this, while you are drawing up a plan for your actions and delaying the legal process, the legislation may fundamentally change, in part - the norms, the bank's policy, the financial situation of the debtor.

An important point is that recently, in order to simplify the judicial procedure, banks have been seeking to obtain court orders without the use of any measures. Orders are issued very quickly and easily, the debtor has the full right, within ten days, to appeal them. Only after these stages is a judicial procedure carried out with a full hearing and a final decision made. It should be noted that the debtor is given enough time to properly prepare for the consideration of the case, as well as to properly prepare his property, protecting it as much as possible.

Rules for bailiffs

During an arrest, FSSP representatives are required to adhere to a number of rules:

• respect the civil rights of debtors;
• do not exceed authority;
• enforce a court order if there are reasons for this;
• search for debtors and identify any property that should be seized;
• take measures for proper storage of seized valuables;
• take part in resolving disputes;
• comply with decisions made by the court and be guided by them primarily when performing official duties.

If the debtor prohibits conducting a search or other similar actions on his living space, then the bailiff cannot do this. For example, rummaging through closets, bedside tables or chests of drawers.

Tips for storing property under arrest

Often, credit debtors find themselves in a situation where bailiffs visit their home in order to describe their existing property, then seize it and transfer it to the owners themselves for safekeeping. The bailiff's officers conclude an act in which they describe and seize the debtor's property and entrust it for safekeeping. This document is valid if not only the bailiff, but also the loan borrower himself agrees with the terms of the act, has read the act of storing the property placed under arrest, and confirmed his agreement with a signature.

What can be disputed

The bailiff cannot describe things that do not belong to the debtor. However, if there is no document proving ownership, the thing, as a general rule, is considered the property of the defaulter and will be described.

Often the bailiffs are in a hurry and describe everything that catches their eye. You can appeal if:

• interior items and personal items not related to luxury;
• household essentials: refrigerator, stove;
• food, money sufficient for the subsistence level of the debtor and his family members;
• pets not intended for breeding and sale;
• coal, firewood, etc. for cooking or heating;
• state awards;
• things and transport, if the debtor is disabled;
• tools or equipment for professional activities.

Also, the only housing and the land plot on which it is located are not subject to foreclosure. An exception is housing that is pledged to the bank if the bank is the plaintiff in the case.

A complete list of property that cannot be seized is given in Art. 446 Code of Civil Procedure of the Russian Federation. You can challenge the act in court if material assets are seized in an amount exceeding the amount of the debt.

Is it possible to sell property that is under arrest?

But there are cases when a third party, not knowing about the arrest, independently sells the property or gets rid of it. The guilty person in such a situation cannot be brought to any responsibility. And the debtor himself will be found innocent, because careless handling of seized property does not lead to imprisonment.

To protect himself from such incidents, the debtor should send a letter to the bailiff in which he will ask to be relieved of the powers associated with the storage of property under arrest. The reason for refusal may be the inability to fully fulfill the associated obligations. Moreover, this must be done if the credit debtor leaves the place of residence where the seized property is located for some time. Then, in the event of an accident or even the loss of an item seized by the bailiffs, the debtor will not have to fear fines, administrative or criminal liability.

As a result, it should be noted that with full awareness and preparation, the debtor will not only protect himself, but may also win the case of seizure of property. In addition to the material in this article, there are a lot of different loopholes; in such a situation, contact a specialist. But don’t delay this either.

What property cannot be taken

The state seeks to protect citizens, therefore restrictions are imposed on the right to seize property: bailiffs do not have the right to take away something without which a person cannot live normally. Such property includes:

• the only housing, if it is not taken out on a mortgage (the mortgaged apartment is collateral);
• personal hygiene items, clothing and footwear, household utensils (except luxury items);
• animals used for household purposes;
• equipment necessary for professional activities, if its cost does not exceed 100 minimum wages;
• products;
• fuel;
• items that disabled people need to move;
• electronics and household appliances necessary for life (they can describe a mobile phone, but not a refrigerator);
• prizes, awards and medals.

How can you avoid having your apartment seized for debt?

• After you receive a copy of the order by mail from the bailiffs to initiate enforcement proceedings against you to collect debts, do not waste time and pay your debt. You will be given a period of several days for this.
• If the apartment has not yet been seized, but its owner knows that he has debts and the possibility of applying such a sanction exists for him, then for insurance purposes it is possible to quickly register the apartment in the name of one of his relatives.
• If you have a mortgage debt, you can also try to save the apartment. By the way, banks themselves are often not interested in terminating the mortgage. If you have a positive credit history, behave conscientiously and do not refuse to pay despite trouble, then this can be useful. No need to run from bank employees. Just tell them about the troubles you are having and ask them to make you installment payments or loan restructuring. This fact may serve as evidence of the borrower’s liability for the court. In this case, the court may decide in favor of the debtor.

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What should be the procedure?

First, it is important to determine the reason for the seizure of the apartment. If the seizure was imposed for mortgage debts, then the release of the only home will occur when its owner pays all debts.

After the owner of the apartment submits an application to the judicial authorities to lift the arrest, the document will be immediately accepted for processing.

Important! Only the real owner of the apartment can submit an application to lift the arrest. Even trusted representatives do not have this right.

• You will need to pay a state fee. This will serve as proof that the owner of the property is the owner of the apartment. Then all necessary documents must be submitted to the court confirming that the real estate belongs to this particular citizen. In addition, the owner is required to submit other documents indicating payment of the debt, fine and tax.
• The court sets a date for a hearing to consider the case. Based on its results, a decision will be made whether to lift the arrest from the apartment or not.
• If, in your opinion, the court made an unreasonable decision, then you can appeal it to a higher authority. As a last resort, you can complain about the judge and challenge him.

Procedure for calculating alimony debt

The bailiff can calculate how much the alimony payer owes in favor of the alimony recipient if all the conditions listed below are simultaneously met:

• The recipient of alimony has previously brought to the bailiff's department an agreement on alimony or a writ of execution for a court decision, according to which alimony is being collected.
• The debt arose after the initiation of enforcement proceedings.
• If it is established that the alimony provider is guilty of non-payment of alimony, then the debt is calculated for the entire period when alimony was not paid. If the guilt of the alimony provider is not established, then the debt is calculated only for the previous 3-year period.

The calculation can be made only in 2 cases:

1. The alimony recipient demanded to calculate the debt by submitting a corresponding application to the bailiff department.
2. The bailiff took the initiative on his own.

How is debt calculated? As a basis for calculations, the bailiff takes the amount of alimony maintenance specified in the alimony agreement or in the court decision. The amount of alimony can be set either as a fixed amount or as a share of earnings.

In the case of a fixed amount, the calculation is very simple. For example, the payer needs to transfer 12,000 rubles monthly to the alimony recipient. The period of time during which there were no payments was 2 months. From this we conclude that the amount of debt is 12,000 rubles. x 2 months = 24,000 rub.

In the case of a share of earnings, the situation is a little more complicated. The calculation principles applicable here are described in the table below.

The simplest situations were discussed above. However, the recipient of alimony may also be interested in collecting a penalty from the debtor. In this case, it is advisable to use specialized calculators for calculations, for example, by following this link.

The bailiff formalizes the result of the calculations in a decree and sends it to both the debtor and the recipient of alimony. If a check of the bailiff’s calculations shows that he made a mistake or calculated an amount to be paid that clearly does not correspond to the period of delay, you should contact the district court with a complaint about the unlawful actions of the bailiff.

Legal consequences of evading payment of alimony

They occur only if the defaulter knowingly and intentionally, i.e. through his own fault, avoids paying alimony, and the alimony obligation arose on the basis of a court decision or alimony agreement. According to Russian law, there is no guilt if the alimony payer did not fulfill his obligations for the following reasons:

1. He became seriously ill, and therefore could not work or earn money for alimony. The fact of the disease must be confirmed by medical documents.
2. He was drafted into the Armed Forces.
3. I was on a business trip in a remote area.
4. Got into a natural or man-made disaster zone.
5. A state of emergency or martial law was declared in the country.
6. During the transfer of money to the alimony recipient, there was an equipment failure and a power outage.
7. The accounting department did not transfer the money to the alimony recipient on time.
8. Has other dependents to support, and the amount of earnings does not allow him to meet the needs of all alimony recipients.

We can distinguish 4 groups of negative consequences for alimony payers who do not fulfill their obligations properly:

1. Property.
2. Restrictions imposed by bailiffs.
3. Administrative.
4. Criminal.

Property

These consequences vary depending on the basis on which alimony was collected: by agreement or by court. In addition, bailiffs are obliged to find out the motives of behavior that guided the defaulter in order to determine the degree of his guilt.

Restrictions imposed by bailiffs

Their list with explanations is given in the table below.

Administrative

Undesirable consequences for the alimony may occur if he does not pay alimony intended for disabled parents or minor children for more than 2 months from the start of enforcement proceedings and through his own fault. The process begins at the initiative of the bailiff or on the basis of an application from the alimony recipient, a sample of which can be downloaded here.

Next, the bailiff examines the circumstances of the case and the facts available to him and draws up a protocol, which, together with other evidence, for example, a resolution on the calculation of the debt, is sent to the magistrate for trial. The magistrate gives a final assessment of the actions of the debtor on the basis of the materials transferred by the bailiff and assigns the alimony payer one of the following penalties:

• Up to 150 hours of mandatory work.
• 10-15 days of administrative arrest.
• 20,000 rub. fine It should be noted that this type of punishment is applied only to firefighters, police officers, investigators from the Investigative Committee, customs officers, employees of the Russian Guard, military personnel, and disabled people.

Criminal

Consequences in the form of criminal prosecution may arise if:

1. The alimony holder did not fully fulfill the administrative punishment imposed on him and, at the same time, again did not pay alimony intended for his disabled parents or minor children, through his own fault for more than 2 months.
2. The alimony worker, within 1 year after he had fully executed the administrative punishment, again committed an administrative offense consisting of deliberate failure to pay alimony for more than 2 months.

How is a violator held criminally liable? According to the sequence of actions described below:

• The bailiff conducting enforcement proceedings against the alimony recipient, on his personal initiative or at the request of the alimony recipient, transfers the evidence in his possession (administrative case materials, calculation of debt) to the investigating officer for inspection.
• If there are legal grounds, i.e. repeated administrative offense, the investigating officer initiates a criminal case.
• An investigation is conducted against the accused within 1 month. Its results are documented in an indictment.
• Then the investigator sends the case materials to the prosecutor for study.
• The indictment with a positive conclusion from the prosecutor is handed over to the magistrate for sentencing.

According to the Criminal Code, the guilty person may be sentenced to one of the following penalties:

1. Up to 1 year of forced labor.
2. Up to 1 year of correctional labor. This is the most commonly used type of punishment.
3. Up to 1 year of imprisonment. This punishment is applied to the worst debtors.
4. Up to 3 months of arrest.

What to do if the apartment is seized?

The resolution also states that the seizure of the debtor's apartment is carried out in order to ensure the rights of the creditor. In other words, so that the debtor cannot complete a purchase and sale transaction, fictitiously or real, donate housing, or find another method of alienation that would allow him to exclude the apartment from the list of property subject to possible recovery in favor of the creditor. Now the court has the right to decide to seize the only residential premises. The debtor will be prohibited from selling housing, including partial sale, or renting it out. He will also not be able to move in, register a new tenant or evict someone. Carrying out any legally significant action in relation to real estate is strictly prohibited. However, all residents of the apartment who are registered in it and lived before the court decision on the arrest will still be able to live here.

If the owner of the property, in addition to the debtor, is his wife, the entire apartment as a whole is still seized. The wife's share can be released from arrest after this share has been determined and allocated by legal means.

Can a single residence be seized?

In accordance with the resolution adopted at the plenum of the Supreme Court of the Russian Federation on November 17, 2015, number 50, the arrest of the only housing suitable for living (namely, an apartment) is possible. And the ban imposed on the disposal of this property is completely legal. But the debtor and family members have the right to use the property. And they cannot be prohibited from doing so.

As the resolution indicates, this measure is intended to ensure enforcement proceedings or a court decision. That is, it will not be possible to sell an apartment “under the hammer” at an open auction. But if this is a private house, and the land under it belongs to the debtor as a property owner, then a part of the land plot that exceeds the minimum size of the land plots provided can be cut off and sold. The proceeds will be used to pay off debts.