Specialists of Kasyanenko & Partners Law Company will help:
- to cancel the enforcement proceedings on recovery of debts;
- remove the seizure of real estate;
- cancel the process of sale of collateral in payment of debt;
- to resolve problems with the authorities SIS and;
- exempt from the need to pay the state fee;
- not to allow to evict the debtor from his mortgage housing.
What are the possibilities for closing the enforcement proceedings in the debt case?
How to cancel the seizure of property imposed by the Executive service?
Do not panic and take rash action, even if the court ruled not in your favor. Fortunately, modern Ukrainian legislation provides debtors with a large number of options for delaying the process of enforcement proceedings and recovery of property in payment of the debt. This, in turn, allows increasing the period of delay for further credit payments. The delay time also provides an opportunity to obtain specific positive results: the removal of the property from the collateral, the repayment of the loan in full or the cancellation of part of the debt.
Kasyanenko & Partners Law Company is engaged in a complex solution to problems related to credit debts at the stage of enforcement proceedings. Our lawyers will help not only to release your property from arrest, but also to close the relevant proceedings, to minimize possible losses, etc.
You only need to sign a contract with our company to represent your interests. All other actions we will do on their own!
Based on the long-term legal practice of our company, it is safe to say that after delaying the process of debt collection for a sufficiently long time, the Bank will certainly make concessions To stop the waste of time and financial resources. In fact, if the Bank transfers the case to the Executive service, it makes a disadvantageous action for itself.
How is the process of Executive office work?
Let us imagine that the process of appealing the beginning of the enforcement proceedings in the court of first instance did not bring the desired results. How to operate the debtor’s next? What consequences should we expect? First, we will try to consider each stage of enforcement proceedings, at which the debtor under the current legislation can win for themselves additional time.
After the court decision comes into force, the Bank will receive a writ of execution and apply to the SIS at the place of residence of the debtor. After that, the relevant enforcement proceedings will be opened, based on the writ of execution and the application from the Banking institution. It is important to note that the Bank has only one year to apply to the SIS after the court decision comes into force.
If a representative of the state Executive service or a private contractor receives an application from the Bank and the writ of execution on time, then within three days a decision will be made to open the Executive office or to refuse to open it. After that, the interested party has only 10 days (from the moment when the head of SIS or the court will receive the decision) to appeal the decision of the Executive service.
If the SIS or a private contractor decides to open enforcement proceedings, the resolution will necessarily specify the period that is given to the debtor for the voluntary fulfillment of its credit obligations to the financial institution. If the debtor ignores this information and does not repay its debt at the prescribed time, the Executive service will issue a resolution in which the debtor will be obliged to pay an additional enforcement fee for the delay. The Executive fee is 10 percent of the debt. After that, compulsory enforcement proceedings of the court decision will be initiated.
In the process of enforcement, a representative of the SIS or a private contractor has the right to make requests for information about the debtor in various bodies.
Such bodies may include:
- Fiscal service. The request is made To find out the level of income of the debtor, the place of work, whether the debtor is engaged in business, the state of his Bank accounts.
- District state administration. To establish the fact of involvement of the debtor in business activities, his place of residence, etc.
- National police, land administration service, BTI. To establish the fact that the debtor has vehicles, land, agricultural machinery, etc
- The bodies of registration of acts of civil status. To find out information about whether the debtor is married. This is done so that the recovery could be carried out on the common property of the coupleinternal Affairs. For information on registration of the borrower-debtor;
- PF, employment Center. To establish information about whether the debtor is registered in these bodies
- Banking institution. For the purpose of arresting the debtor’s financial assets.
Once the above information is established, the Executive body will seize the debtor’s property, assess it and open a tender for the sale of the property in payment of the debt to the Bank.
Before proceeding to the process of delaying enforcement proceedings, it is necessary to carefully consider the next steps and find legal loopholes to protect their own interests. The main thing that the debtor needs to understand is that his actions should not contradict the law. Otherwise, the debtor may be accused of fraud and abuse of their rights. Now consider the main ways to suspend the activities of GIS-a and protect their property from sale at auction.
Method 1. Sending a complaint to the court
Of course, from the point of view of the law, filing a complaint to the court is not a reason to suspend enforcement proceedings. But in that case, if the court makes a positive decision to suspend the initiated procedure until further consideration of the dispute, the debtor will receive at its disposal a period of delay of up to 2 years.
Method 2. Appeal of the decision of the state executor on opening of office proceedings
If the complaint was rejected by the higher court, it is still possible to appeal the decision of the Executive service to open the proceedings.
As practice of Kasyanenko & Partners Law Company shows, quite often the statement of Bank and the Executive list based on which Executive office work is opened, are made out incorrectly. These documents may contain errors in the name of the debtor, its place of registration, identification code, etc.
Any inaccuracy or error in the documents may be a reason for refusing to open enforcement proceedings. This gives the debtor the right to appeal the decision of the Executive body to open proceedings.
A complaint against the actions of the Executive body or the frequent executor must be submitted to the court that issued the relevant decision. Consideration of the complaint can last about one and a half months, plus additional time to make changes to the writ of execution and transfer it to the GIS. Such a method can actually win the debtor from 3 to 6 months of time.
Method 3. Filing a complaint to the court on the actions or omissions of a representative of the state Executive service or a private contractor
Collection for repayment of the debt to the Bank is carried out in a strictly defined manner: first-in respect of the debtor’s financial resources; if they are not enough-on movable property; and only after that-on real estate (land, housing).
Often, state executors neglect these articles of the law, and, without paying attention to the debtor’s money or car, begin to recover real estate. This is a gross violation of the law, which allows you to appeal the actions of GIS-a and win up to a year of time.
Method 4. Preparation of an application for installment payment of debt
Following article 35 law of Ukraine On enforcement proceedings, the executor (on its own initiative or on the initiative of the parties) the parties may apply to the court which issued the corresponding decision on granting postponement or deferral of enforcement proceedings or change of conditions of its implementation.
In fact, the debtor has the right to go to court To get installments for six months or a year, or to recover real estate and other assets belonging to the borrower. Although such an appeal is also not a significant reason for the suspension of enforcement proceedings, most often the courts take this decision to prevent the formation of any overlaps and inconsistencies.
That is, if the court makes a positive decision for the debtor, the executor can get into a very strange situation when the debtor’s property has already been sold, and the court has provided him with installments. Such a petition will help to win about 2 months, if the court will satisfy the petition-then even more.
Method 5. Filing a claim by a third party for recognition of ownership of property on which the state executor has seized
This method will be an excellent option if previously concluded a contract of sale, but the ownership was not issued properly in the BTI. The buyer has the right to file a claim in court for recognition of its owner of the property on which the Executive service has seized. This will force the court to suspend enforcement proceedings until the end of the proceedings. Even if the claim of a third party is not satisfied, it will help to win from 2 months to a year of time for the debtor.
Method 6. Appeal against the results or evaluation process of the property to be sold
The Executive body shall assess the property based on current market prices. However, there are circumstances where the valuation of property can be made only using the services of a qualified appraiser. For example, the participation of the appraiser is mandatory if the recovery occurs in respect of real estate or vehicles.
If the parties to the case do not agree with the results of the assessment of the property, they can submit their objections to the state executor. After that, the state executor will obligatorily appoint a review of the property valuation. If the review is unsatisfactory for the parties, they have the right to submit their objections to the court within 10 days. This period begins from the moment of receipt of the notification of the results of the review.
Based on the above information, and the experience of our experts in this legal field, it is safe to say that this method can really help to win up to 8 months of additional time. Since the contractor will not have documents confirming the value of the property, he will not be able to start bidding and, accordingly, to sell this property.
Method 7. Appeal against the results of the auction organized by the Executive service
The procedure following which the sale of collateral is regulated by the Resolution of the Cabinet of Ministers of 22.12.1997 year number 1448.
The provisions of this regulation indicate that the trade may be invalidated in the course of the court proceedings. Initiate legal proceedings in any of the bidders, the Bank or the debtor.
If we take into account the practice of Kasyanenko & Partners Law Company it is safe to say that the Executive service often admits two main violations: incorrect from the point of view of the law of the auction, errors in providing information about the upcoming auction.
In addition to the above, special attention should also be paid to the Protocol, which is conducted during the auction. This Protocol shall contain information on the initial and final price of the property, the bids made by the bidders and the winner of the auction, as well as information about it. The Protocol must be signed by the leading bidder and the winner (his representative) and handed over to the organizer of the auction no later than three days after their completion.
If the winner of the auction (the person who offered the highest price for the property) within 10 days does not make full payment for its acquisition, the auction must be considered invalid, and their results – invalid.
That is, if at the stage of sale of the debtor’s property will be noticed any violations, the borrower has the right to appeal the results of the auction in court. To obtain a positive decision of the court, it is necessary to prepare weighty arguments in defense of their point of view.
In that case, if the auction was held following the current legislation, then significant arguments for their cancellation will not be found. If the court makes a decision annulling the sale of the property, the debtor will receive at its disposal another delay for repayment of non-payment on the loan.
This method is the last opportunity to save the property from sale for a while. That is why we recommend that you contact professional lawyers in advance, so that your actions and actions are as effective as possible to obtain a satisfactory outcome of the case.
Of course, the best option is not to delay until the stage of bidding, and use the other methods described above to obtain additional time to pay debts. Remember that the legal settlement action from the start of the bidding process is already very limited. That is why it is better to seek legal assistance in time. Experts of Kasyanenko & Partners Law Company will do everything possible to help you save his mortgaged property from the sale. Our lawyers and attorneys are armed with the most effective methods to minimize credit debts and save property from foreclosure. Among them: removal of property from-under pledge obligations, realization of property of the debtor on favorable conditions for it, tightening of property and debt disputes.
Note that with a competent approach to the case, the debtor cannot only get rid of their credit obligations, but even earn on the sale of property! The current legislation provides for a number of procedures that allow the debtor to sell property that is worth less than necessary to repay the entire debt, and at the same time to achieve the write-off of the credit balance. If you are interested in information about these procedures-be sure to contact our company at the contacts listed on the site.
As a result, if you do not want to give the Banking institution the property that has earned hard work, be sure to use professional legal assistance. Our lawyers fight every day for the interests and collateral of debtors. In this they are helped by a significant experience in supporting cases in this legal field, the ability to work with non-standard situations and find the most effective and original ways to solve certain problems associated with debt on the loan.
For example, the lawyers of Kasyanenko & Partners Law Company were able to achieve the termination of enforcement proceedings and the abolition of the arrest imposed on the collateral.
Thus, the District administrative court in Kyiv City as of 25.05.2012 year recognized the actions of the Executive service illegal. According to the materials of the case, the Executive service opened office work, but did not notify the debtor about it. The court overturned the decision of the SIS on the search of the debtor’s property. Also, the judge focused attention that representatives of SIS are obliged to act within the Law of Ukraine On executive production. That is, representatives of the Executive service violated the 31st article of this law, without notifying the debtor about the beginning of enforcement proceedings, and thereby depriving him of the legal right to voluntary execution of the court decision to repay the debt to the Bank.
Also, taking into account the arguments of the representative of Kasyanenko & Partners Law Company, the court decided to cancel the search for the debtor’s property, as the latter was not aware of the beginning of the proceedings for the forced collection of debts through the sale of collateral. This decision gave the client of our company an additional delay for the implementation of its credit obligations.