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Publication date: 02.05.2024
lawyer, 23 years of experience in enforcement.
Executive documents on debt collection for consumer loans can be executive letters issued on the basis of court decisions, court orders in individual cases, as well as executive writings of notaries.
As of today, the majority of such documents are executed by private executors, but a small part of such documents is also being executed by the bodies of the state executive service.
Quite often there are cases when the debtor learns about the forced collection of debts from him, while his accounts are seized, or he starts receiving wages that are less than usual.
Before the beginning of the war, a fairly widespread executive document on the basis of which borzhnik was collected for consumer loans, or loans issued by MFIs, was the executive inscription of a notary public. In most cases, collection companies acted as debt collectors for such documents. As a rule, such situations deprived the debtor of the right to pre-trial settlement of disputes.
To date, during the period of martial law, it is forbidden to open proceedings on executive inscriptions of notaries executed on credit agreements that are not notarized, but a considerable number of such executive documents, which were presented before the beginning of the full-scale invasion, remained in execution.
I pay attention! Such writs of execution were quite often committed in violation of the norms of the current legislation, and therefore it would be appropriate to apply for an appeal against such documents.
In addition to writs of execution, for such categories of cases, there may also be court orders or writs of execution issued on the basis of court decisions (in most cases, these are court decisions in absentia). In such cases, the court, as a rule, does not understand the process of calculating interest, penalties or fines and accordingly makes a decision based on the documents submitted by the creditor. Therefore, it will not be difficult to appeal such a decision, while Judicial dispute regulation of disputes will provide an opportunity to reduce the amount owed, sometimes quite significantly.
When presented for execution of such an executive document, provided that such document meets the requirements of the Law of Ukraine "On Executive Proceedings", the executor opens executive proceedings and immediately imposes a seizure on the debtor's funds and property, as well as checks the presence of accounts, workplaces, vehicles and other registered property belonging to the debtor and, upon discovery of such property, applies for enforcement against him.
When enforcement proceedings are opened, the debtor is automatically entered into the Unified Register of Debtors.
I pay attention! foreclosure on the debtor's single home is possible only in cases where the debt is greater than the total amount of 20 minimum salaries (as of April 1, 2024 – UAH 160,000), if the amount is less than UAH 160,000. foreclosure on such property is prohibited.
Seizure of the debtor's funds and property is imposed within the amount to be recovered, taking into account the enforcement fee and costs of enforcement proceedings. If the seizure is imposed on all the property or funds of the debtor, it can be appealed, since such seizure is illegal.
According to executive documents of this category of case, the state executor is obliged to check the property at the place of residence or the location of the debtor.
Importantly! The executor has the right to enter the debtor's home in order to foreclose on the debtor's property if the debtor himself has allowed the executor into the premises, or if there is a reasoned court decision.
The description of the debtor's property must be carried out with the involvement of witnesses in a mandatory manner, in the case of execution of a court order on forced entry, then with the involvement of police officers.
The executor imposes a seizure on the debtor's funds automatically using the automated system of enforcement proceedings, which is why decisions on such seizure reach banking institutions quite quickly. Simultaneously with the seizure of the debtor's funds, the executor checks the balances on open accounts, which also happens automatically, and information about the availability of funds on the accounts also reaches the executor quite quickly. If there is a sufficient amount on the accounts to repay the fine (taking into account the enforcement fee and costs of enforcement proceedings) for enforcement proceedings, the seizure of property in such proceedings will be unlawful.
I pay attention! As for the automated exchange of the performer's data with banking institutions, as of today, not all banking institutions are connected yet, in connection with which there are some banks from which the information does not reach the performers. It is worth noting that with some banking institutions there is a problem of late processing by them of resolutions on the seizure of the debtor's funds and, accordingly, the removal of such seizure. Some banking institutions may process orders on seizure of funds several months after the end of enforcement proceedings.
When performing the specified categories of cases, it is possible to limit the debtor's right to travel abroad, only by reasoned decision of the court. It is illegal to issue a decision of the executor to restrict travel abroad.
When carrying out this category of executive proceedings, the executor can independently levy a debt for the debtor's wages in the event that the amount owed is no more than 50 minimum wages (as of April 1, 2024 - UAH 40,000), or in the absence of the debtor's property and funds for which can be charged. Such deductions cannot exceed 20% after taxes.
If the executor receives information about the presence of the debtor's vehicle registered with the debtor, the executor can declare such property wanted.
I pay attention! In cases where the vehicle is in the possession of other persons, or alienated under a mandate, there are no legal grounds to stop the search or remove the seizure of such property.
Importantly! At any stage of execution of the executive document, it is possible to conclude an amicable agreement with the creditor. A professional lawyer or attorney will provide the necessary assistance in preparing a settlement agreement with the creditor.
It is also worth noting that it is also possible to reduce the debt at any stage of execution and at the same time avoid paying the enforcement fee, but it is worth remembering that in the event of an agreement regarding the reduction of the debt, it will be necessary to make, in most cases, the entire payment in one go.
It is worth remembering! The decisions of this category of cases are being executed and the arrests on them remain in effect until the funds for them are paid or such decisions are canceled in a court of law.
Therefore, in the presence of such executive proceedings, the help of a lawyer is essential, because sometimes situations arise that violate the rights of the debtor, and in some cases create difficult life situations. A lawyer or attorney will provide legal services during such executions that will help preserve and protect the debtor's rights. Legal advice or legal services can be obtained at the Legal Service "Consultat", and accordingly, the managers will select a specialist who will help provide support in the execution of this category of cases, as well as in case of illegal withdrawal of funds from your accounts, help them return.
