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Publication date: 23.05.2024
lawyer, 23 years of experience in enforcement.
Borzhnik receive letters from banks about blocking accounts when:
- The client delays payment under the credit agreement;
- unpaid debt or fine, as well as in the execution of decisions of a non-property nature;
- The creditor applies to the notary, who makes an executive inscription on the debt document, after which the executor opens executive proceedings, makes the appropriate decision, which is sent to the bank and, ultimately, blocks the debtor's accounts, including and salary.
ТекстThe most common mistake when solving such a situation is to try to solve the problem by contacting the executor or the bank. As a result, a situation arises when the executor sends the debtor to the bank, indicating that it was he who imposed the arrest. And the bank sends the debtor back to the executor, referring to his decision. At the same time, in accordance with Part 5 of Art. 74 of the Law of Ukraine "On Enforcement Proceedings", the term for appealing actions or decisions of the executor is up to 10 days.
Analyzing court practice, one can come to the conclusion that courts detect numerous violations by notaries and executors in this category of cases.
First of all, after the court recognized as illegal and invalid the resolution of the Cabinet of Ministers of Ukraine "On making changes to the list of documents, according to which debt collection is carried out in an undisputed manner on the basis of executive inscriptions of notaries" dated November 26, 2014 No. 662, execution of an executive inscription is possible only on the basis of the original notarized contract. At the same time, there are rare cases when notaries continue to make executive inscriptions on credit agreements that are not notarized.
Secondly, quite often, notaries, without verifying the indisputability of the debt, make executive inscriptions. Or they make executive writs without paying attention to missing the application deadlines.
As for private executors, the most frequent violations here are the opening of enforcement proceedings not at the debtor's place of residence, but at the location of the debt collector.
The executors explain their position by saying that the location of the debtor's property (that is, money) is the place where he opened an account (that is, the location of the bank). Courts do not take such arguments of executors into account (decision dated November 27, 2019 No. 260/1562/19).
Regarding the seizure of salary funds within the framework of executive proceedings, here the courts note that the accounts, which are provided for the payment of salaries, are accounts with a special regime, on which the executive service, in accordance with the requirements of the law, does not impose a seizure, and the separation of such accounts belongs to the powers of the executive services The specified legal position is set out in the Supreme Court rulings dated 17.01.2020 in case No. 340/1018/19, dated 29.01.2020 in case No. 820/5422/17, dated 27.06.2019 in case No. 916/73/19.
In accordance with the provisions of Art. 251 of the Code of Administrative Procedure of Ukraine, copies of the full court decision are handed to the participants of the case who were present at the court session, immediately after the announcement of such a decision.
If a summary decision is announced at a court session, the court shall send a copy of the full court decision to the participants of the case within 2 days from the date of its drafting.
Therefore, the analysis of the current legislation gives reasons to claim that there is a direct ban on the seizure of salary funds. Moreover, the legislator defined in detail and unambiguously how the executor should act when dealing with the debtor's salary funds.
I would like to draw your attention to the fact that in the event of the seizure of salary funds, it will not be appropriate to use your right to determine the current account, because according to the current legislation, the executor has the right to withhold no more than 20% from the salary, and in the case of alimony collection, 50%.
The procedure for removing the attachment from salary funds does not take much time, but it is quite complicated. The debtor in the specified matter can count on pre-trial dispute regulation, but if the parties do not reach an agreement on the amount of compensation, then judicial dispute regulation is necessary to resolve the issue.
The procedure for removing the attachment from salary funds does not take much time, but it is quite complicated. The debtor in the specified matter can count on pre-trial settlement of disputes, but if the parties do not reach an agreement on the amount of compensation, then judicial settlement of disputes is necessary to resolve the issue.
The legal service "Consultant" will select a lawyer or an attorney who will conduct a legal analysis of the situation, form an appropriate procedural document (application, statement of claim, petition, etc.), and also help in collecting the evidence base for the most effective resolution of the issue. Service specialists will accompany the process from the beginning to the execution of the court decision. They will also provide advice and help in solving such issues as: preparation of amicable settlement with the creditor, removal of seizure from real estate and funds, arrest for inviolability, bankruptcy of an individual, debt reduction, etc.
