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Publication date: 18.04.2024
lawyer, 23 years of experience in enforcement.
A notary's executive inscription is a document drawn up by a notary on a credit agreement, mortgage or pledge agreement for extrajudicial collection of debt from the debtor in favor of the creditor. An executive inscription can be made if the submitted documents confirm the indisputability of the debt or other liability of the debtor to the debt collector and on the condition that no more than three years have passed since the date of the right of claim, and in relations between enterprises, institutions and organizations - no more than one year
Article 87 of the Law of Ukraine "On Notaries" stipulates that in order to collect money or claim property from the debtor, notaries shall make executive inscriptions on documents establishing the debt. The list of documents, according to which debt collection is carried out in an undisputed manner on the basis of executive inscriptions, is established by the Cabinet of Ministers of Ukraine.
According to the Resolution of the Cabinet of Ministers of Ukraine dated 29.06.1999 No. 1172, as amended by the Resolution of the CMU dated 26.11.2014 No. 662, such documents are, in particular, mortgage contracts that provide for the right to foreclose on the subject of the mortgage in case of late payments on the main obligation before the end of the term fulfillment of the main obligation, as well as Credit Agreements under which debtors are allowed to delay payments on obligations.
Since loans in microfinance institutions are issued online, there are many cases of fraud on the part of microfinance institutions themselves. Namely, the distribution of a person's personal data to third parties, who in turn issue loans, the consequence of non-payment of which could again be a notary's executive inscription.
There was also a large number of collection (factoring) organizations that did not legally initiate execution of notary's executive inscriptions. In addition to the fact that the notary's executive inscription itself had no legal grounds, collection (factoring) organizations, as a rule, did not have evidence of a monetary claim.
Regardless of the fact that there were no legal grounds for the execution of such writs, until February 24, 2022, hundreds and thousands of them were executed every day. As a rule, the consequences of such inscriptions are an amount that is several times higher than the actual amount of the loan.
Before the start of the full-scale invasion and the declaration of martial law, it was a fairly common practice for credit institutions to turn to notaries to execute writs of execution. Thus, notaries were approached not only by banking institutions, but also by collection (factoring) organizations and microfinance institutions (MFIs). From August 25, 2022, it was legally prohibited to execute such executive orders, as well as to accept them for execution during the period of martial law. As of 05/06/2023, the enforcement of writs of execution was resumed, while prohibiting the acceptance of writs of execution executed on credit agreements that are not notarized.
So, if your accounts and property were seized and it turned out that the basis for this was the executive writ of a notary, then you need to apply to the court with a statement of claim for the cancellation of the writ of execution.
When preparing a lawsuit to contest an executive writ, it should be understood that the writ of execution was made by a notary on the basis of a package of documents that was provided by the creditor. As a rule, bank employees do not scrupulously treat the preparation of documents that are submitted to the notary, as well as their quality. If you carefully analyze the documents submitted to the notary and the executive inscription itself, you can discover many violations committed during the execution of the executive inscription. Here are the most common mistakes:
- a full and undisputed calculation of the notary's debt has not been submitted
arrears from the determination of fines in foreign currency
- before the execution of the writ of execution, the debtor submitted to the creditor written statements of disagreement with the debt or notarized
- before the execution of the writ of execution, a dispute was raised between the debtor and the creditor about the collection of the debt or about contesting the order of its calculation
- the writ of execution was made after the statute of limitations had expired
- the writ of execution is not drawn up on the basis of a document that defines obligations or is not attached to such a document
- the amount of debt specified in the writ of execution differs from the amount specified in the demand for early repayment of the debt
To write a statement of claim and collect additional materials, it is advisable to contact a lawyer, this will allow you to quickly and efficiently solve this problem and, within a reasonable time, to obtain a positive court decision on the cancellation of the writ of execution.
Also, I would like to note that the cancellation of the writ of execution will provide an opportunity for pre-trial settlement of disputes, such as an preparation of a settlement agreement with a creditor it will be possible to prepare a settlement agreement with the creditor, removal of attachment from real estate, and remove the seizure from accounts.
