How can you restore the missed deadline for presenting a writ of execution for execution? The period for debt collection is limited to 5 deadlines for submitting writs of execution for collection

The material was prepared by Nowa.ru expert, private practicing lawyer Vladimir Sundakov. www.yapravo.ru

As a general rule, writs of execution issued on the basis of judicial acts can be presented for execution within 3 years from the date of entry into force of the judicial act.

The period for presenting a writ of execution for execution is interrupted by its partial execution by the debtor, but after the break, the period for presenting the writ of execution for execution is resumed. The time elapsed before the deadline is interrupted does not count towards the new deadline. At the same time, the return of the writ of execution to the claimant is not an obstacle to the repeated presentation of the writ of execution for execution within the deadline.

Thus, the claimant under the writ of execution could present an unlimited number of times to the Federal Bailiff Service of the Russian Federation and withdraw the writ of execution from the service, thus extending the statute of limitations for collection under the writ of execution for an indefinite period.

In March 2016, the Constitutional Court of the Russian Federation declared unconstitutional the provisions of the law on enforcement proceedings, which allow the claimant to repeatedly present and revoke a writ of execution, extending the 3-year statute of limitations for an indefinite period.

The Constitutional Court of the Russian Federation decided “when the claimant presents a writ of execution for execution, officials of the bailiff service, as well as the courts, resolve the issue of the existence of grounds for initiating or refusing to initiate enforcement proceedings, in particular, on compliance with the deadline for presenting the writ of execution for execution, if the presented writ of execution was previously presented for execution, but then the enforcement proceedings on it were completed in connection with the claimant’s application; when calculating this period, they are required to subtract from the total duration of the period established by law for the presentation of enforcement documents for execution the periods during which enforcement proceedings under this enforcement document were carried out, starting from its initiation and ending with its end in connection with the return of the writ of execution to the claimant at his request.”

On May 17, 2017, the federal law “On Amendments to Certain Legislative Acts of the Russian Federation” was adopted by the State Duma, and on May 24, 2017 approved by the Federation Council.

This law adopted amendments to the Arbitration Procedure Code of the Russian Federation, the CAS of the Russian Federation and the Federal Law “On Enforcement Proceedings”, which limit the possibility of extending the collection period, namely:

“if the execution under a previously presented writ of execution was completed in connection with the withdrawal of the writ of execution by the claimant or in connection with the commission of actions by the claimant that impede its execution, the period from the date of presentation of this writ of execution for execution until the day of completion of execution on it under one of of the specified grounds is deducted from the corresponding period for presenting the writ of execution for execution.”

This means that now the claimant will have to more closely monitor the action (inaction) of the bailiff service, communicate more closely with his bailiff carrying out collection under the writ of execution, actively participate in the course of enforcement proceedings, maximally exercising all his rights, including:

Get acquainted with the materials of enforcement proceedings,
make extracts from them, make copies from them,
provide additional materials,
submit petitions
participate in execution of executive actions,
give oral and written explanations in the process of performing executive actions,
present your arguments on all issues arising during enforcement proceedings,
object to the requests and arguments of other persons participating in enforcement proceedings,
challenge
appeal the decisions of the bailiff, his actions (inaction),
as well as exercise and realize other rights provided for by the legislation of the Russian Federation on enforcement proceedings.

Thus, control over the work of the Federal Bailiff Service of the Russian Federation will be strengthened by the collectors themselves, which will inevitably provoke a greater number of complaints about the actions (inaction) of bailiffs and will increase the corresponding load on the courts of general jurisdiction.

All the best to you and contact me for legal assistance in enforcement proceedings on the website www.yapravo.ru

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Question

Does the new law limiting the time limit for the presentation of writs of execution to three years apply only to newly issued writs of execution (after June 9, 2017) or to old ones too?

Answer

For old ones too, because in this case, the law did not introduce new regulation, but consolidated an existing one (see).

The rationale for this position is given below in the materials of System Lawyer .

Amendments were made to the Arbitration Procedural Code of the Russian Federation, the Code of Administrative Proceedings of the Russian Federation and the Law on Enforcement Proceedings, which limit the possibility of extending the collection period (Federal Law of May 28, 2017 No. 101-FZ).

The time when the bailiff conducted proceedings on the writ of execution will be deducted from the three-year statute of limitations.* The changes are due to the fact that the Constitutional Court of the Russian Federation, in its Resolution No. 7-P of March 10, 2016, prohibited the claimant from repeatedly presenting and revoking the writ of execution.

How will this affect work?

Claimants will no longer be able to use one of the popular ways to protect their interests: file a petition for the return of the writ of execution, and then initiate new enforcement proceedings. The meaning of this procedural action was as follows.

The general period for presenting a writ of execution is three years from the date of entry into force of the judicial act (Part 1 of Article 21 of the Law on Enforcement Proceedings). If, during this period, the writ of execution is presented for collection, the period of limitation was interrupted (Clause 1, Part 1, Article 22 of the Law on Enforcement Proceedings). Often the debtor’s property is not enough to pay off all the claims of the creditor. In these cases, the claimant revoked the writ of execution. Then, within three years from the date of initiation of the first enforcement proceedings, he again presented the sheet to the bailiffs. This again interrupted the statute of limitations. And so on ad infinitum. As a result, the collector constantly kept the debtor in uncertainty.

The legality of this practice was questioned in the Constitutional Court of the Russian Federation in 2016.

The term in enforcement proceedings should be understood as the period of time during which the bailiff and other participants in this proceeding must perform the necessary procedural actions.

The legislation establishes the following deadlines:

• Time limits for execution of enforcement actions. As a general rule, the requirements contained in the executive document must be fulfilled within two months from the date of initiation of enforcement proceedings (Part 1 of Article 36 of the Federal Law “On Enforcement Proceedings”).
• Deadlines for presentation for execution. As a general rule, writs of execution issued on the basis of judicial acts can be presented for execution within three years from the date the judicial act enters into legal force or the end of the period established when granting a deferment or installment plan for its execution. Writs of execution issued on the basis of judicial acts of arbitration courts, for which the missed deadline for presenting the writ of execution for execution has been restored, can be presented for execution within three months from the date the court issues a ruling to restore the missed deadline.

Being independent executive documents, they can also be presented for execution within three years from the date of their issue.

Enforcement documents containing demands for the collection of periodic payments may be presented for execution during the entire period for which the payments are awarded, as well as within three years after the end of this period. Certificates issued by labor dispute commissions can be presented for execution within three months from the date of their issue.

• The three-day period for transmitting the claimant's application to the bailiff from the date of its receipt by the bailiff department (Part 7 of Article 30 of the Federal Law “On Enforcement Proceedings”).
• The bailiff, within three days from the date of receipt of the enforcement document, is obliged to issue a resolution to initiate enforcement proceedings or to refuse to initiate enforcement proceedings (Part 8 of Article 30 of the Federal Law “On Enforcement Proceedings”).
• If the writ of execution is subject to immediate execution, then upon receipt by the bailiff department it is immediately transferred to the bailiff whose powers extend to the territory where the execution is to be carried out, and in his absence - to another bailiff. The decision to initiate enforcement proceedings or to refuse to initiate enforcement proceedings must be made by the bailiff within one day from the date of receipt of the enforcement document by the bailiff department (Part 10 of Article 30 of the Federal Law “On Enforcement Proceedings”).

• Ten-day period for consideration of an application for clarification of an executive document (Part 2 of Article 32 of the Federal Law “On Enforcement Proceedings”).
• A three-day period for consideration by the senior bailiff or his deputy of the issue of challenging the bailiff (Part 3 of Article 63 of the Federal Law “On Enforcement Proceedings”).
• A two-month period within which the tender must be held. This period is subject to calculation from the day the auction organizer receives the property for sale (Part 1, Article 90 of the Federal Law “On Enforcement Proceedings”).
• A two-month period during which an application for sale may be submitted at an auction organized by a trade organizer on the securities market (Part 6 of Article 89 of the Federal Law “On Enforcement Proceedings”).
• The sixty-day period during which the bailiff must fulfill the requirement contained in the writ of execution to collect a fine for (Part 4 of Article 103 of the Federal Law “On Enforcement Proceedings”).
• The ten-day period during which a complaint is filed against the decision of an official of the bailiff service, his actions (inaction). The period is calculated from the day the bailiff or other official issues a resolution, performs an action, establishes the fact of his inaction or refusal to challenge. A person who was not notified of the time and place of action shall file a complaint within 10 days from the day when this person learned or should have known about the adoption of a resolution, the commission of actions or inaction (Article 122 of the Federal Law “On Enforcement Proceedings”).
• Time limit for consideration of a complaint filed in the order of subordination. Such a complaint must be considered by an official of the bailiff service authorized to consider the said complaint within 10 days from the date of its receipt (Part 1 of Article 126 of the Federal Law “On Enforcement Proceedings”).
• The one-month period for the bailiff to engage an appraiser to conduct an assessment, which is calculated from the date of discovery of the debtor’s property (Part 2 of Article 85 of the Federal Law “On Enforcement Proceedings”).

The deadlines for presenting other executive documents for execution are established by federal laws that define the conditions and procedure for issuing the relevant executive documents.

Missing the deadline established by law for presenting a writ of execution for execution is grounds for refusal to accept the writ of execution for execution (Clause 3, Part 1, Article 31 of the Federal Law “On Enforcement Proceedings”).

A missed deadline for presenting a writ of execution for execution can only be restored by the court that adopted the relevant act. The right to apply to the court to restore this period is granted only to the claimant (Clause 1, Article 23 of the Federal Law “On Enforcement Proceedings”). The missed deadline can only be restored upon presentation of a writ of execution and a court order, i.e. executive documents issued only on the basis of judicial acts. According to other executive documents listed in Art. 12 of the Federal Law “On Enforcement Proceedings”, missed deadlines cannot be restored.

The bailiff may set the following deadlines:

Time limits set by the bailiff

1. The period for voluntary execution, which is determined by the bailiff, however, as a general rule, cannot exceed five days from the date the debtor receives the order to initiate enforcement proceedings (Part 12, Article 30 of the Federal Law “On Enforcement Proceedings”).
2. The period for postponing enforcement actions and applying enforcement measures. The bailiff has the right to postpone enforcement actions and the application of enforcement measures at the request of the claimant or on his own initiative for a period of no more than 10 days (Part 1 of Article 38 of the Federal Law “On Enforcement Proceedings”).
3. Duration of suspension of enforcement proceedings. Enforcement proceedings are suspended, including by a bailiff, until the circumstances that served as the basis for the suspension of enforcement proceedings are eliminated (Part 1 of Article 42 of the Federal Law “On Enforcement Proceedings”).

Enforcement proceedings: Video

Commentary on Article 14

1. This article resolves two main issues: the timing of presentation of executive documents for execution and the procedure for calculating them.

Enforcement documents must be presented for execution within the time limits established by law.

Violation of these deadlines entails the return of the writ of execution without execution (Article 10 of the Law under comment).

When applying paragraph 1 of Art. 14 of the Law, it must be borne in mind that with the adoption of the new Arbitration Procedure Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, as well as the Federal Law "On Arbitration Courts in the Russian Federation", the deadlines for the presentation of executive documents issued on the basis of decisions of arbitration courts, on the basis of decisions of arbitration courts, as well as resolutions have changed bodies (officials) authorized to consider cases of administrative offenses.

According to Art. 321 of the Arbitration Procedure Code of the Russian Federation, a writ of execution issued on the basis of a judicial act of an arbitration court may be presented for execution within the following terms:

1) within three years from the date of entry into force of the judicial act, or from the next day after the day of adoption of the judicial act, subject to immediate execution, or from the date of expiration of the period established for deferment or installment execution of the judicial act;

2) within three months from the date of the ruling to restore the missed deadline for presenting a writ of execution for execution in accordance with Art. 322 of this Code.

If the execution of a judicial act was suspended, the time for which the execution was suspended is not counted towards the time limit established for presenting the writ of execution for execution.

In Art. 31.9 of the Code of Administrative Offenses of the Russian Federation states that a resolution on the imposition of an administrative penalty is not subject to execution if this resolution was not enforced within a year from the date of its entry into legal force.

All deadlines specified in paragraph 1 of Art. 14 of the Law are determined by a period of time, therefore the presentation of executive documents for execution can be carried out during the entire period specified in the Law.

Special rules apply to the deadlines for presenting for execution writs of execution for the collection of periodic payments (collection of alimony, compensation for harm caused to health, etc.). Such execution documents remain in force for the entire time for which payments are awarded. A similar procedure applies to a notarized agreement on the payment of alimony. The introduction of such rules into the Law is explained by the ongoing nature of these legal relations. The deadlines for presenting writs of execution for execution in cases of this kind are also calculated in a unique way - for each payment separately.

2. Clause 2 of the commented article sets out in detail the issue of the beginning of the deadline for presenting writs of execution for execution.

Particular attention should be paid to the contents of subsection. 1 item under consideration.

The three-year period established for the presentation of writs of execution issued on the basis of judicial acts of courts of general jurisdiction and on the basis of acts of arbitration courts begins from the day the judicial act enters into legal force. If the debtor applied to the court with an application for a postponement, installment plan for the execution of a judicial act, or for the restoration of the deadline missed for the presentation of a writ of execution for execution, then the specified time period begins from the day of the ruling on the restoration of the deadline missed for the execution of the writ of execution.

In cases where a judicial act by force of law is subject to immediate execution, the time limit for presenting a writ of execution for execution begins to be calculated from the next day after the day of its issuance.

The decisions of the International Commercial Arbitration and other arbitration courts do not apply to judicial acts. Writs of execution based on decisions of these bodies are issued by courts of general jurisdiction and arbitration courts. The court must make a ruling on the issuance (refusal to issue) of a writ of execution. When presenting for execution writs of execution issued by a court of general jurisdiction or an arbitration court on the basis of a decision of the International Commercial Arbitration or other arbitration courts, established by sub. 2, paragraph 1 of this article, the three-year period must be calculated from the date of entry into force of the decision of a court of general jurisdiction or an arbitration court to issue a writ of execution.

According to Part 2 of Art. 121 of the Code of Civil Procedure, a court order has the force of an executive document. Collection on it is made after the order is issued. Based on this, the three-year period established for its presentation begins from the next day after the day the order was issued, and not from the day it was issued.

Upon presentation of the requirements specified in subparagraph. 3 p. 1 art. 14 of the Law, the six-month period is calculated from the day the enforcement documents are returned by the bank or other credit organization to the recoverer or sent to the bailiff.

The one-year period for presenting a resolution of the bodies (officials) authorized to consider cases of administrative offenses begins from the day the relevant resolution enters into legal force.

For all other executive documents specified in paragraph 1 of this article, the period for presentation for execution is calculated from the next day after the day of their issuance, unless otherwise established by federal law.

More on the topic Article 14. Deadlines for presenting writs of execution for execution:

1. Enforcement proceedings as an independent stage of the civil process. Executive documents, the procedure for their issuance.
2. Basis of execution. Executive documents, their types. Deadlines for presenting writs of execution for execution (duration, break, restoration).
3. 12.3. The procedure for executing judicial acts on the recovery of budget funds
4. Question 2. The procedure for presenting writs of execution for execution and the consequences of non-compliance
5. § 3. Regulation of the implementation of administrative penalties of a non-property nature in the system of execution of requirements that do not involve the transfer of property
6. 1.3. Time limit for voluntary fulfillment of requirements that do not involve transfer of property
7. Restoring the deadline for presenting a writ of execution
8. § 3. Functions and powers of the court in relation to executive documents
9. § 1. Conditions and procedure for presenting enforcement documents for enforcement

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Hello, friends! I hope you liked the previous articles. More precisely, it's not a matter of sympathy. They will definitely be useful to you if you are faced with enforcement proceedings. Despite the fact that they are quite boring and sometimes incomprehensible, this information is very important and extremely useful. and I talked about the deadlines for enforcement proceedings, their restoration, calculation, and so on. Don't be lazy to read it if you haven't already.

Today we will begin a more interesting, from a practical point of view, topic - the deadline for submitting writs of execution for execution. In Russian, we are talking about the deadlines for submitting writs of execution, court orders and other enforcement documents to the bailiff service for forced execution.

Deadlines for submitting writs of execution

Let's start with the most common document - writ of execution. Such sheets are issued by the courts, and only by the courts, on the basis of a decision that has entered into force. More specifically, writs of execution are issued by courts of general jurisdiction, magistrates, and arbitration courts. If you have heard about such an institution as the arbitration court, then I will mention it. The fact is that arbitration courts make a decision on the case, however, the writ of execution is already issued by a court of general jurisdiction or an arbitration court.

So, they can be presented for execution to the bailiff service within 3 (Three) years from the date of entry into force of the judicial act, that is, the decision.

By the way, there are several cases when the deadline for presenting a document for execution is shorter. We need to talk about them too.

Case one. Writs of execution that contain demands for the return of illegally displaced children outside the Russian Federation can be submitted for execution within 1 (One) year from the date of entry into force of the judicial act.

Case two. I hope you won't need it, but just in case, let it be there. In the event that an arbitration court issues a writ of execution, according to which the arbitration court has restored the missed deadline for determining this writ for execution, then such writs can be presented for execution within only 3 (Three) months from the date the court issued a ruling to restore the missed deadline. term. I understand that it’s complicated.

Let me rephrase it more simply. You received a writ of execution from an arbitration court, and for some reason you did not have time to submit it for execution within 3 years. You can go to the arbitration court and ask for the restoration of the deadline. And if the court meets you halfway and recognizes the reasons for missing the deadline as valid, it will make a ruling and issue you a new writ of execution, the validity of which will no longer be 3 years, but only 3 months.

The next document is court orders. You may have encountered a court order if you were collecting alimony, or if banks collected loan debt from you in this way. A court order, as you probably know from my previous articles, is itself already a document of execution, and in addition to it there is no need to obtain a writ of execution. So, a court order can be submitted for execution to the bailiff service also within 3 (Three) years from the date of issue of this court order.

But there is a slight exception here. Documents that contain demands for the collection of periodic payments can be presented for execution during the entire period for which payments are awarded and, moreover, within 3 years after the end of this period.

Let me give you an example. This is a court order for the collection of alimony. Alimony is collected monthly, as you know, until the child in whose favor it is collected turns 18 years old. And here we are talking about periodic, monthly payments. In this case, the court order can be submitted for execution any time before the child reaches 18 years of age and during the next three years. But in practice it is better not to play like that. It is better to immediately present such documents to the bailiff service so that the bailiffs are directly involved in the execution. Otherwise, what is the point of receiving a court order if it lies at home without execution?

Another type of executive document is certificate issued by the labor dispute commission. To be honest, I have never come across such documents, but perhaps it will be useful to you. Such documents can be presented for execution within 3 (Three) months from the date of their issue.

Further, as an executive document, the acts of bodies exercising control functions. These are acts of collection of funds with attached documents containing marks from banks and so on. In general, you can find them in the original source, this is part 6 of article 21 of the Federal Law “On Enforcement Proceedings”. The main thing you need to know is that such documents are presented for execution within 6 (Six) months.

I personally have never worked with such documents, so I will not develop a theory.

The next type of document is judicial acts and acts of other bodies and officials in cases of administrative offenses. They are presented for execution within 2 years from the date of entry into force.

Also, Article 21, which I am talking about, provides that all other executive documents that are not described here are presented for execution within the time limits specified in these documents. So, carefully read all the documents that come to you. It is generally interesting to read, especially if we are talking about collecting money from you or in your favor.

Installment plan for execution of a judicial act

And one more important point. We are talking about a postponement or installment plan for the execution of a judicial act. In the event that the debtor is granted an installment plan or deferment of execution of a court decision, then when issuing a writ of execution to the claimant, the writ of execution must indicate the presence of this installment plan and indicate its duration.

In this case, the period for presenting this writ of execution is increased by the period for which the deferment or installment plan was granted. Example. The creditor collected the debt from the borrower in court. The debtor found good reasons not to pay right away, he went to court and received a ruling on installment execution of the decision for a period of 6 months. In this case, the period for presenting a writ of execution, which the bank still has the right to receive, will no longer be three years, but three and a half years, that is, taking into account this six-month deferment period.

What is a break in the deadline for submitting a writ of execution?

In principle, here the word itself already gives the answer to this question, but I will not rely on the fact that my readers know everything about everything. Otherwise you wouldn't read my blog, right? You came here for information, and you will receive it. Again, if you already know everything and haven’t found anything new here, you can always return to your favorite tank game, or what else you can play now, I don’t know. But I digress.

A break implies that the deadline for presenting the sheet for execution is interrupted or suspended. And here there are two options, and both options are provided for in Article 22 of the Federal Law, which I have been talking about for the second week.

First option. The period for presentation of the writ of execution is interrupted when the writ of execution is presented for execution. Let me explain. The claimant submitted a writ of execution to the bailiff service to initiate enforcement proceedings, at which point the three-year period is suspended, that is, it is not calculated further.

Second option. The period is interrupted in the event of partial execution by the debtor of the judicial act. Moreover, after the break, the period for presenting the document resumes, but does not start over. The time that has already passed from the moment the term was interrupted to the break is not counted towards the new term.

However, there are exceptions that are used by both banks and debt collectors. These are cases when the writ of execution is returned to the claimant due to the impossibility of its execution. This is the most popular reason for returning writs of execution. In the case when the debtor has no real estate, no funds in accounts and deposits, no official source of income, the bailiff has no choice but to complete the proceedings with the wording: due to impossibility of execution.

In this case, the bank that received the writ of execution back from the bailiff will be able to submit it for execution again after 6 months, and, in this case, the period for presenting the writ will again be 3 years and will be calculated from the date of its return by the bailiff.

Again, if we talk about installments or deferment. It itself suspends the effect of the executive document. Here, the date of suspension of the period for presenting the writ of execution will be the date of entry into force of the determination on installment plan or deferment, and the date of renewal of the period - accordingly, the end date of the installment plan (deferment).

At the same time, if you plan to receive an installment plan, you must understand that if you violate the terms of the installment plan more than twice, your creditor will be able to submit a writ of execution for execution. Such a sheet will be accepted by the bailiff service, enforcement proceedings will be initiated, and in this case your installment plan will be cancelled. Therefore, please be so kind as to fully comply with the payment schedule that you have set for yourself, otherwise the court is unlikely to grant you a new installment plan, taking into account your violations.

How can you restore the missed deadline for presenting a writ of execution for execution?

And again we are talking on the restoration of a missed procedural deadline. As I have already said more than once, this procedure is quite complex and requires very compelling justification and very good reasons. However, the validity of these reasons in each specific case is determined by the court. I cannot tell you in advance which reasons will be recognized as valid and which will not be recognized as valid. Here everything is decided in the moment, and a lot depends on the judge himself.

But, nevertheless, a claimant who has missed the deadline for presenting a writ of execution for execution has the right to apply to the court to restore the missed deadline. It must be sent to the court that issued the writ of execution; accordingly, it is a court order or a writ of execution.

Moreover, restoration of missed deadlines is possible only for those executive documents that I spoke about in this article. I repeat, this is a writ of execution, a court order, a certificate from the labor dispute commission, acts of bodies performing control functions (about which I have only theoretical knowledge), acts of bodies in cases of administrative offenses. All. For all other executive documents, restoration of missed deadlines is not provided.

Thank you for reading to the end! I am sure that if enforcement proceedings are initiated against you, the information contained in my articles will be very useful to you. Although, of course, if you have not yet encountered such problems, reading these articles may be boring and uninteresting for you. I understand you, this is not entertaining literature, this is a purely practical law, the norms of which are needed only by those who are faced with similar issues. Tomorrow you will find an article about notifications and summonses in enforcement proceedings, and we will gradually move on to issues of initiating enforcement proceedings. There is still a lot of interesting things ahead.