To collect debts, it is not enough to get an executive document. It is necessary to organize its execution. Companies and individuals who have received enforcement documents can send them for collection from debtors independently or through enforcement agencies. It is possible to collect debts through the enforcement agencies when the bailiff has initiated enforcement proceedings. To interact with the enforcement agencies, we recommend contacting our lawyer, who will study all the documents and act in your best interests.
What are the executive documents?
Executive documents are documents according to which money is indisputably collected from debtors’ bank accounts, electronic money from their electronic wallets. The list of executive documents is established in the Belarusian legislation. Usually, an enforcement document is issued to the recoverer or his representative after the case is resolved by a court or other state body.
Which enforcement documents can the claimant execute independently
The enforcement documents, according to which the recoverer can independently issue a payment request and send it to the bank for the undisputed recovery of money from the debtor’s account, include:
- Notary’s executive inscriptions and other executive documents.
- Decisions (orders) of authorized state bodies and banks.
- Resolutions of the bodies conducting criminal proceedings.
- Resolutions on the imposition of an administrative penalty.
- Duplicates (copies) of the documents listed above.
What executive documents are executed by the enforcement agencies
A number of enforcement documents are executed by the enforcement agencies without the participation of the claimant, upon his application for the initiation of enforcement proceedings. These executive documents include in particular:
- Writ of execution and court orders issued by the courts.
- Court rulings on the court order.
- Decisions of the bailiff in certain cases.
- Executive inscriptions of notaries on the recovery of sums of money (debts).
Where are the executive documents sent?
The recoverer is not obliged to independently send an enforcement document for collection. He can immediately apply to the enforcement agencies at the location of the debtor or his property or his business activities, when the debtor is a company. The Republic of Belarus does not provide for the automatic initiation of enforcement proceedings without the debtor’s application.
The debtor is an individual
When the debtor is an individual who has a place of work known to the recoverer, the recoverer may send an enforcement document to the accounting department at the debtor’s place of work with an application for deductions.
The debtor is a company
When the debtor and the recoverer are companies, the recoverer can send an enforcement document and a payment request to his bank. The bank transmits such documents electronically to AIS FMO. AIS FMO is an automated information system for the fulfillment of monetary obligations. With the help of this system, in particular, debts are collected from debtors’ bank accounts according to enforcement documents.
The payment claim is kept in the AIS FMO until the debt amount is fully recovered or revoked by the recoverer, but no more than 5 years. The recoverer can always withdraw the payment claim from the AIS FMO and transfer the enforcement document to initiate enforcement proceedings in the enforcement agencies.
Suspension of execution of executive documents
It should be remembered that since 04/10/2022, the execution of executive documents in favor of residents of unfriendly states has been suspended in the Republic of Belarus. Such States include, in particular, the member States of the European Union, the USA, Switzerland, Albania, Montenegro.
When the executive document should be sent to the enforcement agencies
The claimant may send the enforcement document to the enforcement agencies within three years. For example, the notary’s executive inscription can be sent to the enforcement agencies within three years from the date of its commission.
Restoring a missed deadline
When the three-year period is missed, it can be restored by the court at the request of the claimant. In such a petition, you must specify a valid reason for missing the deadline. The court evaluates the validity of the reason and, based on this, recognizes or does not recognize the reason for missing the deadline as valid and will restore or refuse to restore the deadline for presenting the enforcement document for execution. Our lawyer can prepare documents to restore the missed deadline and send them to the court.
When the court restores the deadline for submitting the enforcement document for execution, the claimant has six months to submit it for execution.
When the deadline for submission of the enforcement document for execution is interrupted
The three-year period for submitting an enforcement document for execution is interrupted when:
- The executive document has been partially executed.
- The claimant sent a payment request to the bank on the basis of an enforcement document and the bank accepted it for execution.
- The recoverer sent the document to the place of receipt of income by the debtor — an individual. In particular, to the organization where the debtor receives wages.
- The claimant sent the enforcement document to the enforcement agencies to initiate enforcement proceedings.
What does it mean to break the deadline for submitting an enforcement document for execution?
A break in the deadline for submitting an enforcement document for execution means that this period is reset to zero. In the event that the enforcement document is returned to the recoverer, since it is partially executed, or the bank returns it without execution, the three-year period for submitting it for execution begins to count from the beginning.
Initiation of enforcement proceedings
An application for the initiation of enforcement proceedings and the enforcement document itself must be sent to the enforcement agencies. If the claimant previously sent a payment request to the bank or sent an enforcement document to the place where the debtor received income, then copies of the relevant documents are attached to the application. Documents can be sent by mail or brought in person.
What documents you should take
In case of personal submission of documents, you need to take your passport with you.
In addition to a passport or residence permit, the director of the applicant organization needs to take with him a document confirming the status of the head. For example, an appointment order or a contract or an extract from the appointment decision.
A representative of the applicant organization, who is not its head, must have a power of attorney in addition to a passport or residence permit.
Resolution on the initiation of enforcement proceedings
The bailiff issues a decision on the initiation of enforcement proceedings no later than three days after receiving the application and the enforcement document from the claimant. The recoverer can receive the decision of the bailiff personally. Otherwise, it will be sent by mail.
How to interact with the bailiff
Interaction with the bailiff can help speed up the recovery of the enforcement document.
What the claimant can do
The recoverer has the right to:
- Personally communicate with the bailiff. Personal communication is possible during office hours, which can be specified in the enforcement agencies, or by phone number, which was reported by the bailiff.
- Assist the bailiff. For example, to share information about the debtor’s new sources of income, about his debtors, to provide transport for the transportation of his property, etc.
- To get acquainted with the materials of the enforcement proceedings. It is better to inform the bailiff in advance about the intention to familiarize himself with the materials in order to arrange a visit to the enforcement agencies.
- To inform the bailiff of information about the debtor’s property. Such information is usually indicated in the application for the initiation of enforcement proceedings. But the recoverer can find out about the debtor’s property even after the initiation of enforcement proceedings. To speed up execution, we recommend informing the bailiff of information about the planned receipts of money to the debtor and about the debtor’s shares in the property of organizations, about receiving inheritance, about changing the place of income when the debtor is an individual. It is useful to provide information about the debtors of the debtor organization. In this case, you can use the bailiff to arrange for the transfer of the debt directly to the recoverer.
Application for interim measures
The recoverer has the right to send a request for interim measures. Interim measures are measures taken by the bailiff to ensure the possibility of execution. He may take such measures on his own initiative and at the request of the claimant. The petition must specify the justification: to argue why the claimant requests the application of a certain interim measure.
There are interim measures, the application of which must be requested by the court, and not by the bailiff. This is a restriction on the right of the debtor — an individual or officials of the debtor — organization to leave the Republic of Belarus and a restriction of the debtor in visiting gambling establishments.
Types of interim measures
The interim measures that can be requested by the bailiff include:
- The seizure of the debtor’s property, including cash, which is held by him or other persons.
- Restriction of the right of the debtor — an individual to drive a motor vehicle or to hunt.
- The seizure of the debtor’s funds that are in bank accounts.
- Prohibiting the debtor from using his property.
- Prohibition of other persons from transferring property to the debtor, etc.
The application for the application of interim measures is considered within three days. Based on the results of the review, the bailiff issues a resolution on the adoption of interim measures or on the refusal to take them and sends the resolution to the recoverer.
How to interact with the debtor
It is usually difficult for the claimant to constructively interact with the debtor at the stage of enforcement proceedings. However, at this stage, it is possible to come to an agreement with the debtor on the conclusion of a settlement or mediation agreement, in which, for example, an installment repayment of the debt can be agreed. With the conclusion of each of the agreements, enforcement proceedings are terminated, and a compulsory fee is collected from the debtor not in full, but half of the amount of the fee. Our experienced lawyer in enforcement proceedings, if necessary, will represent your interests in negotiations with the debtor.
Offset options
Various offset options can be discussed with the debtor. For example, the acceptance of property to offset the debt under the executive document. When the debtor is a manufacturing organization, it is possible to consider taking off the debt of the manufactured products.
How does a bailiff act in enforcement proceedings
After the initiation of enforcement proceedings, the bailiff informs the debtor about the initiation of enforcement proceedings and gives seven days for voluntary execution. If during this time the debtor has not begun to pay the debt, the bailiff begins debt collection at the expense of funds and other property of the debtor.
Debt collection by the bailiff at the expense of the debtor’s funds
The bailiff acts on the basis of information about the debtor’s bank accounts and cash. He sends the executive document to the bank to collect the debt from the debtor’s bank accounts and deposits. The recovered money is credited to the enforcement agencies’ bank account. First, Belarusian rubles are collected, and if they are not enough to repay the debt, then funds in foreign currency are collected. The debtor’s cash is described, withdrawn according to the act and deposited into the enforcement agencies’ bank account.
Expenses of the debtor in enforcement proceedings
In enforcement proceedings, the debtor’s expenses are higher than in voluntary execution, since the bailiff collects, in addition to the debt, the costs of enforcement actions and 10% of the amount of the fulfilled claim, but not less than 0.5 of the base amount.
Recovery of debt by a bailiff at the expense of other debtor’s property
The bailiff collects the debt at the expense of other debtor’s property when the debtor does not have enough money to pay the amount under the enforcement document. According to Belarusian legislation, money is a type of property.
The statement of the recoverer on the foreclosure of the debtor’s property
When the recoverer realizes that the debtor does not have money to pay the debt, and the bailiff has not yet foreclosed on the property, the recoverer may submit an application to the bailiff for foreclosure on other property of the debtor. The bailiff considers such an application within 10 days.
At the expense of which property of the debtor — an individual, it is impossible to collect the debt
They do not collect debt at the expense of property that cannot be foreclosed on according to enforcement documents. Such property includes, in particular, the property of citizens: one apartment in which the debtor permanently resides, except in cases of collecting a loan for this apartment, household items and other property that are necessary for the debtor and his family members.
At the expense of what property of the debtor can the debt be recovered
You can collect the debt at the expense of the debtor’s own property, as well as at the expense of property that is jointly owned.
Allocation of the debtor’s share in common ownership
If the debtor’s share in joint ownership has not been allocated, then the recoverer will need to file a claim with the court for the allocation of the debtor’s share in the common property in order to foreclose on it. It is necessary to apply to the court within a month from the date of receipt of the relevant notification from the bailiff, otherwise the bailiff will return the enforcement document.
Recovery at the expense of property that has been pledged to the recoverer
When the debtor has pledged the property to the recoverer, the bailiff shall recover such property regardless of whether the debtor has funds in the bank or cash. After the arrest, such property is put up for sale. The debt under the enforcement document is paid to the recoverer from the money received from the sale of the mortgaged property.
The debtor’s property, which is held by other persons
The bailiff may recover property that belongs to the debtor, but is not with him, but with other persons.
Sale of the debtor’s property
The debtor’s property is arrested, assessed and transferred for sale to a trade organization. The sale may be handled by a bailiff or the debtor himself. The money from the sale of the debtor’s property is transferred to the enforcement agencies’ bank account, and the bailiff transfers it to the debtor.
Debt collection at the expense of the debtor’s salary
When enforcement proceedings are initiated against an individual who has a place of work, the bailiff sends there an enforcement document and an order. The order specifies to withhold the required amount from the debtor’s salary and transfer it to the recoverer or to the enforcement agencies’ bank account.
Along with the salary, the debt under the executive document is collected from the debtor’s other income. Such income includes, in particular:
- The author’s remuneration.
- Scholarships.
- Pensions.
- Unemployment benefits, temporary disability, pregnancy and childbirth, and child care for up to three years.
As a rule, no more than 50 percent of the amount that remains after deduction of taxes and mandatory insurance premiums from the debtor is withheld in favor of the recoverer. No more than 20 percent of the pension is withheld. Upon dismissal of the debtor, the executive document is returned to the recoverer.
Termination of enforcement proceedings
Enforcement proceedings are terminated in the following cases:
- The claimant refused to execute and sent a statement to the bailiff.
- The recoverer and the debtor have concluded a settlement or mediation agreement.
- The debtor, an individual, has died.
- The debtor is an individual entrepreneur excluded from the Unified State Register.
- The court reversed its decision, on the basis of which the executive document was issued.
- The bailiff issues a resolution on the termination of enforcement proceedings and sends it to the recoverer.
How we can be useful in protecting your interests in enforcement proceedings
Our lawyers and attorneys are experienced specialists in the field of enforcement proceedings and speak English. We can:
- Advise on the opening of enforcement proceedings, participation in it;
- Prepare a package of documents for the opening of enforcement proceedings and send them to the bailiff;
- Represent your interests in enforcement proceedings, monitor its movement and contact the bailiff in a timely manner to speed up the recovery;
- Resolve other issues in your interests in the enforcement proceedings by a power of attorney.
Contact us
If you have any questions about the protection of your interests in enforcement proceedings — we will be happy to help you! Our long-term experience in the field of judicial practice and enforcement proceedings will help you in resolving any disputes in this area.
Phone and email communication options are available for your convenience:
- +375293664477 (WhatsApp/Telegram/Viber);
- info@ambylegal.by.
