Release of property from seizure (exclusion from the inventory)

The procedure for releasing property from seizure is carried out if the bailiff committed violations of the law or if the property originally belonged to another citizen and not the debtor. The encumbrance is also removed upon fulfillment of debt obligations. Cancellation of restrictions is carried out through the courts. In this case, the interested party should prepare not only a package of documents, but also an evidence base to substantiate the stated requirements.

Briefly about the seizure of property

A citizen who has a significant debt to another person and makes no attempt to repay it may fall under the procedure of forced collection of funds.
As part of enforcement proceedings, the bailiff has the right to seize the debtor’s property, guided by personal conclusions or based on the claimant’s statement. If there is a corresponding court decision, the procedure is carried out without fail. Purposes of arrest:

• safety of objects subject to sale or transfer to the creditor in case of non-payment of the debt;
• providing a guarantee that the claimant will receive the amount that rightfully belongs to him;
• motivating the debtor to repay the debt as quickly as possible.

The procedure itself involves the preparation of an appropriate act with an inventory of seized property. In relation to the latter, a number of restrictions arise in the future. The main one is the prohibition on the disposal of possessions.

The debtor has no right to perform the following actions with the seized property:

• sell;
• present;
• pass on by inheritance;
• rent out;
• exchange.

If necessary, restrictions may be established on the right to use property. Or items of property may be seized.

An encumbrance imposed by a court or bailiff is valid for the period specified in the relevant resolution. If the debtor fails to fulfill his obligations to the claimant within the established period, the seized objects will be put up for sale. And the proceeds after the sale will be used to pay off the debt.

The arrest procedure is fully regulated by Art. 80 of Law No. 229-FZ on enforcement proceedings. An arrest can also be carried out on the basis of Art. 115 Code of Criminal Procedure of the Russian Federation, Art. 140 Code of Civil Procedure of the Russian Federation, art. 77 Tax Code of the Russian Federation.

Lawyer for exclusion of property from the bailiff’s inventory in Yekaterinburg

You should not fall into depression and tear your hair out; in almost any such matter, you can free up your property. A person who is a debtor in enforcement proceedings has the right to file a claim to exclude property from the inventory. But it is worth remembering that the plaintiff is obliged to prove on what basis these things belong to him and why he owns the disputed property. You need to provide evidence of the right to own property and be able to defend your position in court.

What other actions to protect the debtor can we offer you, besides excluding property from the property inventory:

• Our lawyers are able to give useful advice even on a day off, direct the case in the right direction, and also defend the property in court in Yekaterinburg and the Sverdlovsk region and prove that the inventory of the property took place illegally. We will offer you our specially developed proposal as part of debtor protection - anti-collector.
• We will return the property to the rightful owners, and also prove that the bailiffs violated the rights of the legal owners of the property. An appeal against the actions of the bailiff gives a positive result in the case. Our law office very often encountered situations when the plaintiffs thought that the property could not be returned. However, our experience in Yekaterinburg and numerous cities of the Sverdlovsk region helped to free illegally deprived property and remove it from the inventory.

You may need the help of a highly qualified lawyer at any stage of enforcement proceedings, including when excluding property from the inventory, whether you are a claimant or a debtor, and you will especially need it in the case when a person’s property is seized and you need protection at a court hearing .

Our law office provides reliable and complete legal assistance. We will not leave you alone in trouble! Contact us, our lawyers are always happy to help you!

Release from arrest: grounds and nuances

Property can be released from seizure in the following cases:

• eliminating the grounds for arrest;
• unlawful actions of a bailiff;
• the property of the seized object belongs to another person and not the debtor.

The procedure for these situations will vary slightly.

Elimination of reasons for arrest

Most often, the basis for seizure of property is the presence of a significant debt. Fulfillment of obligations to the creditor and repayment of debt is a clear motive for removing encumbrances.

According to Art. 47 of Law No. 229-FZ, enforcement proceedings upon actual fulfillment of the claimant’s demands are completed by a bailiff. He should submit a corresponding request. In this case, the applicant is the debtor.

The bailiff is obliged to perform the following actions:

• put a mark in the writ of execution on the fulfillment of the requirements and repayment of the debt;
• prepare a resolution on the completion of enforcement proceedings and record in it the fact of debt closure.

Reference!
The resolution must include a note indicating the lifting of the restrictive measures imposed on the debtor. As a result, the property is released from seizure. On the day the decision is made or the next day, a copy of it is sent to all parties to the process - to the judicial authorities, the debtor, the collector. Within 3 days, the document is also transferred to Rosreestr to record the fact of removal of encumbrances.

Violation of the law by a bailiff

The commission of actions by the bailiff that violate the regulations for the seizure of property in enforcement proceedings is recognized as a reason for appeal. The procedure requires going to court.

As Art. 441 of the Code of Civil Procedure of the Russian Federation the following persons have the right to submit an application:

• debtor;
• claimant;
• other persons if their interests were infringed as a result of the arrest.

According to Art. 360 CAS RF, the challenge procedure is carried out within the framework of administrative proceedings. The procedure is established by Chapter 22 of the CAS.

You can appeal the bailiff's arrest order within 10 days after it is issued. At the same time, according to Art. 442 of the Civil Procedure Code, it is necessary to go to court strictly before the sale of property.

The grounds for appeal are violations:

1. Seizure of property, the value of which is significantly higher than the debt presented for collection.
2. Insufficient amount of debt to place restrictions on the property. According to Art. 80 of Law No. 229-FZ, arrest is possible for debts of more than 3 thousand rubles.

Some pieces of property cannot, in principle, be seized. If encumbrances are imposed, then the interested person has the right to challenge the actions of the bailiff.

According to Art. 446 of the Code of Civil Procedure, property that cannot be foreclosed upon includes:

• apartments, land plots with a house, if the object is the only place suitable for residence of the debtor or members of his family;
• personal items (clothes, shoes), basic household items;
• objects necessary for the debtor to perform professional duties;
• livestock and buildings used for their habitat, if the purpose of keeping animals is not related to business;
• food products costing above the subsistence level;
• fuel required by the debtor or his family for heating the home and cooking;
• technical means necessary for a citizen due to disability;
• prizes, badges of honor awarded to the debtor.

The list of grounds is not considered closed. If the interests of the debtor or another person are infringed, then it is worth going to court in any case.

Seizure of property not belonging to the debtor

There are many cases recorded in judicial practice when an encumbrance is imposed on property owned by another person, and not the debtor. There is a property dispute here. According to Art. 119 of Law No. 229-FZ, in such a situation, an interested person has the right to apply to the court with a claim to release the object from seizure and exclusion from the inventory.

The parties to the proceedings in this case will be:

• the plaintiff is the legal owner of the seized property who did not take part in the debt collection case;
• The defendants are the debtor and the claimant.

To eliminate doubts regarding the question of who the defendant is in cases of removal of seizure from property, it is worth turning to clause 2 of Art. 442 Code of Civil Procedure. Also, explanations are contained in the Resolution of the Plenum of the Supreme Court No. 10 and the Plenum of the Supreme Arbitration Court No. 22 of 04/29/2010.

Attention! It is possible to file a claim for the release of property from encumbrances within 3 years from the moment the legal owner learned of the arrest.

However, you can file a claim even after the sale of the seized property. Another defendant in such circumstances will be the acquirer of the property. In this case, the court will decide the issue of returning the property to the plaintiff, replacing it with a commensurate sum of money or an item of similar value.

What other documents are there:

• All documents from the “Application” section
• Categories of all standard samples and document forms

What else to download on the topic “Application”:

• Statement of claim to the arbitration court for the return of the deposit to a person not allowed to participate in the auction for the sale of a land plot or the right to conclude a land lease agreement
• Application form for provision of municipal
• Statement of claim to eliminate violation of the rights of the owner of a land plot not related to deprivation of possession (sample)
• Sample form of application to the head of the Ramensky municipal district for the acquisition of rights to a land plot in the territory of the Ramensky municipal district of the Moscow region
• Statement of claim to the arbitration court for termination of an investment partnership agreement concluded with the purpose indicated as a severable condition

• Important nuances when buying a company
• The process of transferring an apartment to another person
• US Visa Process
• Car selling process
• Garage construction process (from a bureaucratic point of view)
• Construction of a private house in the city

The procedure for lifting arrest through court

As for how to free property from seizure through the court, the procedure includes several stages.
Among them:

• preparing a claim;
• collection of documents and evidence;
• payment of duty;
• submitting a statement of claim to court;
• participation in court hearings;
• obtaining a court decision.

Before filing a claim, it is recommended to verify the reasonableness of the grounds used. If there are no legitimate reasons to lift the arrest, the court will refuse to consider the request. The restrictions will remain in force.

Contents of the claim

There is no strict form for a statement of claim to lift the seizure of property. However, when preparing a document, you should be guided by the provisions of Art. 131 Code of Civil Procedure.

A standard claim template includes information on the following points:

• name of the court;
• information about the plaintiff - full name, place of residence;
• details of the defendant (debtor and claimant) – full name, registration address;
• the cost of the claim, equal to the value of the seized property;
• document's name;
• the main part - details of the arrest order, a list of property, grounds for filing a request to lift the arrest, links to legislative acts;
• demands - removal of the arrest from the property, exclusion of it from the inventory, recognition of the ownership rights of the plaintiff;
• a list of items in respect of which the removal of restrictions is requested, their value;
• list of attached documents;
• date of filing the claim;
• plaintiff's signature.

When drawing up a claim, you should avoid emotional expressions, swear words, blots, and corrections. The text should be concise. At the same time, the essence of the situation and the requirements must be reflected as clearly as possible.

The application is prepared in a quantity equal to the number of participants in the process.

Package of documents

The statement of claim must be supplemented with:

• a copy of the plaintiff’s passport;
• a receipt for payment of the duty;
• decree on seizure of property.

Additionally, evidence is prepared to certify the existence of grounds for lifting the arrest. For example, if the reason for going to court was that the object belonged to another person, then he will need to present title documents. This could be an extract from the Unified State Register of Real Estate, or a purchase and sale agreement.

State duty

The amount of the state duty is determined by the value of the seized property. The procedure for calculating the amount is regulated by paragraphs. 1 clause 1 art. 333.19 Tax Code. The percentage applied for each specific case is also indicated here.

In this case, the amount of the duty cannot be less than 400 rubles and exceed 60 thousand rubles.

Drawing up a statement of claim

In addition to complying with the rules for consideration by a certain court of the presented case, it is necessary to comply with all the nuances of drawing up a claim in order for the application to be accepted by the court office.
The header of the application indicates the full name of the court to which it is sent, as well as full information about the applicant, indicating his full name and feedback. Next, you should describe all the circumstances of the case indicating a violation of the plaintiff’s rights and describe the evidence of your case. Sample claim for exclusion from the inventory

All of the above is supported by the rules of law governing the presented sphere of legal relations; below it is necessary to clearly state the requirements that the applicant wishes to achieve. At the very end of the claim, you should indicate a list of all documentation submitted to the office along with the application and directly related to the case.

About jurisdiction

It is necessary to file a claim to lift the seizure of property in a court of general jurisdiction.
It could be:

• magistrate court, if the price of the claim is less than 50 thousand rubles;
• district court - in all other cases.

According to paragraph 1 of Art. 30 of the Code of Civil Procedure, the claim should be sent to the judicial authority on whose territory the seized object is located. It is also possible to apply at the place of registration of the defendant.

It is recommended to submit an application to appeal the actions of the bailiff to those authorities where the debt collection case was previously considered.

Appeal procedure

Today, quite often, unfair court decisions are made banning the use of property assets. To this end, the legislation provides for a procedure for appealing such decisions.

Example: a civilian’s apartment was arrested at his place of residence, whose property it is not.

To prove his own case, the defendant must present the following supporting documents to the judge:

• contractual agreements;
• acts of acceptance/transfer of real estate;
• checks for payment (cash documents);
• invoices (invoices);
• other civil and accounting documents.

Important! There is no need to confuse the procedure for lifting a property seizure and the process of appealing a court decision.

What's the result?

If the court decision is positive, the fact of cancellation of the arrest will need to be recorded in Rosreestr.
To do this, you should personally visit the registration authority, having your passport and court order with you. After completion of the procedure, the citizen’s rights to property will be restored in full. From this moment on, he will be able to use and dispose of the property as he wishes.

In addition, after the removal of encumbrances, it is possible to submit a request for compensation of losses on the basis of clause 2 of Art. 119 of Law No. 229-FZ. In this case, a new claim is prepared, which reflects the current requirements.

In most situations, property is released from seizure through the courts. In case of violation of the law by the bailiff, a request for appeal is submitted by the debtor or another interested citizen. If the seized object belongs to a third party, then the claim is filed on his behalf. Here the debtor and the collector will act as defendants. It is important to adhere to deadlines. It is possible to challenge the actions of the bailiff within 10 days from the date the restrictions were established, but no later than the moment of sale of the property.