If the interested party wins the court, he proceeds to the next step - collecting the debt under the writ of execution. Collection can be forced (through bailiffs) and voluntary. The first option is long. To collect debts yourself, you need to know about the debtor’s material assets.

How to carry out the procedure on your own?

What does the law say?

Federal Law No. 229 “On Enforcement Proceedings,” adopted on October 2, 2010, allows for several options when the claimant has the right to submit a writ of execution to the institution in which the debtor’s finances are located. These are cases of recovery of money or securities if the recoverer knows the location of the funds.

What is a writ of execution?

This is a document containing a court decision indicating the parties to the conflict, their rights and obligations, and the subject of execution. Necessary for forced collection of debt from the defendant. The sheet is issued by the court that heard the case. Issued to the claimant on the day the court decision enters into force.

Application to the Tax Service

After receiving the IL in hand, the interested party contacts the Tax Authority to obtain information about the debtor’s current accounts. It will be possible to obtain information only after submitting an official request and a writ of execution. It remains with the claimant.

Collection at the place of work

The possibility of collecting a debt through the debtor’s employer is provided for in Article 9 of the Federal Law. The writ of execution for the collection of periodic charges (alimony, etc.) is allowed to be sent to the accounting department of the organization in which the defendant works. In this case, it will be possible to recover no more than 20 thousand rubles.

Algorithm of actions:

1. Submit an application addressed to the employer company. The form is arbitrary. The document indicates the personal and passport details of the applicant, bank account details for transferring finances.
2. Collect a package of documentation. It includes 2 copies of the application, the original writ of execution, and a power of attorney (if necessary).
3. Submit certificates to the accounting department.

After submission, the employee is required to put a mark of acceptance on a copy of the application of the citizen who applied. The accountant's name, signature, date of acceptance, and company stamp are indicated. Documents may be sent by mail.

Advantages:

• there is no need to contact bailiffs;
• If an employer refuses to comply with a court decision, he will face administrative liability in the form of a fine. The amount is not small, so it is more profitable for him to agree.

This method is not suitable if the applicant does not know where the defendant works, or the amount of debt is above 20,000 rubles.

Collection via bank

You can claim money through a bank from any debtor who has an account - from a legal entity or individual, or private entrepreneur. The exception is financial institutions and government agencies.

Contacting the bank in person will shorten and simplify the debt collection process. They contact the branch where the defendant has accounts. An application is submitted to a bank employee indicating the amount of debt, the applicant’s personal data and details for transferring funds; original IL and passport of the claimant. Sample application:

In accordance with the law, the bank is obliged to immediately begin considering the case. If there is a sufficient amount of funds in the debtor’s account, they are transferred to the applicant within 3 days.

The bank will send an official notification informing you that the worksheet has been executed, or that there is insufficient money in the defendant’s account. The bank continues to collect funds in accordance with their receipt in the debtor’s account.

It happens that payments are suspended - money does not arrive to the account, it is closed or seized. In this case, it is necessary to pick up the writ of execution from the bank and bring it to another bank of the debtor. IL may remain in the institution until the debt is fully repaid. It can also be revoked by written application.

To which bank should the writ of execution be submitted?

Even if the creditor knows which bank the defendant has accounts with, the information may be out of date, the account may be empty or closed. There is only one writ of execution and its original is provided. If there are several accounts, consider the following:

• check whether the banking license to conduct operations has been revoked. If this is so, the institution will not take any action and will not pay attention to the collection application. Check here
• priority is given to information about accounts from the Tax Inspectorate. According to the law, banks are obliged to notify the Service within 3 days of opening/closing an account or changing its details. Information in the Federal Tax Service database is frequently updated and is current;
• pay attention to the age of the data;
• take into account the territorial location of the bank. If there is a department at the place of residence of the claimant, the writ of execution is first sent there.

It is allowed to send the IL (writ of execution) to any branch. Served in person or by mail.

What to do if funds are not transferred?

If the money has not been transferred within two weeks from the date of submission of the writ of execution, you must contact the bank and find out the reason. This could be the arrest of bailiffs in favor of another claimant, lack of funds in the account, or failure to use it by the defendant.

In such a situation, the writ of execution (IL) is taken away after submitting a written application - in person or via mail. When the original is returned, it can be sent to another bank.

Thus, debt collection without resorting to bailiffs is possible. The applicant applies either to the debtor's employer or to the bank in which he has accounts.

The claimant has 3 years from the date of entry into force of the court decision to present the IL.

Often, an accountant is faced with the need to withhold from an employee’s income the amount of his debt or other payments in favor of third parties. In practice, deductions based on writs of execution are most common. Let's consider the features of registration and accounting of deductions under a writ of execution.

Deductions under a writ of execution (form and samples of approval forms; order of the Ministry of Finance of Russia dated June 17, 2009 No. 237) are regulated by the following regulations:

• Law " " ((hereinafter referred to as Law No. 229-FZ));
• Methodological recommendations on the procedure for fulfilling the requirements of executive documents on the collection of alimony ((hereinafter referred to as the Methodological Recommendations)).

The writ of execution can be received by the organization both from the claimant himself, in whose favor the deductions should be made, and from the bailiff.

So, the claimant sends a document on collection:

• periodic payments (for example, for the purpose of compensation for harm to health);
• funds not exceeding 25,000 rubles ().

In this case, simultaneously with the writ of execution, the claimant must submit an application () indicating information (in particular, bank details), without which the employer cannot make deductions.

The bailiff forecloses on the wages and other income of the debtor employee:

• according to enforcement documents containing requirements for the collection of periodic payments (for example, alimony);
• when collecting an amount not exceeding 10,000 rubles;
• in the absence or insufficiency of the debtor's funds and other property to fulfill the requirements of the writ of execution in full ().

IMPORTANT

Without the mandatory details provided for by law (), the writ of execution is invalid. The accountant has no right to make deductions on it.

Let us consider the procedure for withholding on writs of execution sent to organizations by bailiffs, since this is the most common case in practice.

When a writ of execution is received

The company learns about the foreclosure of wages and other income of its employee by receiving a resolution in the form approved by the Federal Bailiff Service of Russia (k) (hereinafter referred to as the Resolution). Also attached to it:

• a copy of the writ of execution;
• resolution on the collection of enforcement fees;
• bank details for transferring withheld amounts.

Let us note that if the writ of execution was received by the organization by mistake (for example, the person indicated in it was never listed on its staff), then, in the author’s opinion, the document must be returned to the sender as soon as possible. Although the requirement to return “someone else’s” writ of execution is not established by law, it does provide for the obligation to immediately return the document in relation to, for example, a dismissed employee ().

As for the organization of document flow of writs of execution, no clear legislative norms have been established regarding their recording and storage. However, for the loss of a writ of execution or for its untimely sending (for example, upon dismissal of an employee), as well as for failure to comply with the requirements thereunder, the company and its officials may be fined in amounts from 50,000 to 100,000 rubles and from 15,000 to 20,000 rubles respectively ().

Control over the correctness of deductions according to writs of execution sent to the debtor’s place of work is carried out by a bailiff through inspections of organizations ().

Thus, in order to reduce the risk of claims from the FSSP of Russia, it is necessary to properly organize the recording and storage of writs of execution and appoint persons responsible for their registration, storage and execution. The memo approved in (hereinafter referred to as the Memo) can help with this.

Even before receiving the first writ of execution, the company should:

• appoint an employee responsible for receiving, processing and storing executive documents;
• develop and approve forms for registers of incoming correspondence and writs of execution;
• approve the procedure for document flow of writs of execution and document forms.

Upon receipt of the Decree, you must do the following.

Register it in a special journal (the form of the journal is not currently approved, so the company has the right to develop it independently ()). As an example, you can use the old form of the log of registration of writs of execution (approved).

Fill out and send to the bailiff specified in the Resolution a tear-off counterfoil (notice for enforcement proceedings), thus confirming that the writ of execution has been received and accepted for execution. Please note that the deadline for returning a notice is not established by law. At the same time, the Memo states that it must be returned on the day of delivery. In the notification, a note is made about the receipt of the writ of execution (incoming number and date), and the telephone number is indicated. The chief accountant also puts his signature. The document is certified by the seal of the organization.

Familiarize the debtor employee with the contents of the writ of execution against signature ( ; ).

Submit the registered Resolution to the accountant responsible for payroll for signature.

Store the Resolution as a document of strict accountability (in a safe) ().

As noted above, when dismissing a debtor employee, you should “immediately inform the bailiff and (or) the collector about this and return them the writ of execution with a note on the penalties made” ().

The concept “immediately” is not defined in any regulatory act. At the same time, the provisions indicate that the employer is obliged to do this within three days (when collecting alimony) (,). The author believes that the same period should be adhered to when returning other executive documents.

In this case, the writ of execution must contain a note about the deductions made (it is certified with the seal of the organization and the signature of the official who is entrusted with the responsibility for drawing up writs of execution by order), containing the following data ():

• the amount of funds withheld;
• payment order (receipt) number;
• transfer date;
• balance of debt.

The writ of execution is sent to the territorial department of bailiffs of the FSSP of Russia with a covering letter by registered mail. The claimant is simultaneously notified of the movement of the writ of execution. The procedure for notifying the creditor has not been approved, however, when sending him a letter with notification of receipt, the company retains proof of the notification.

General procedure for withholding under a writ of execution

The deduction of funds from the salary and other income of the debtor employee begins from the date of receipt of the Resolution ().

The company should submit the writ of execution to the accountant in a timely manner - before salaries are calculated and payments are made. If the Resolution is received after the next payment for the period in which deductions should be made, then they are made from the payments of the next period.

Together with the Resolution on the collection of alimony, a decree may be received on the collection of arrears (if any) (). That is, amounts that were not withheld before receiving the writ of execution are withheld from the employee’s salary on the basis of this separate writ of execution. It provides a calculation of the amount of debt.

EXAMPLE

On April 27, 2017, the company received a writ of execution - a decree from the bailiff to collect alimony. The resolution states that alimony must be withheld from April 2017. Wages for the first half of April have already been paid to the debtor.
In this situation, the employer is obliged to withhold alimony starting from the employee’s salary for the second half of April and only in the amount specified in the writ of execution.

Deductions are made each time income is paid to an employee, taking into account the requirements given below.

Calculation of deduction according to writ of execution

As a general rule, deductions from wages made by the employer due to the rights granted to him cannot exceed 20 percent ().

However, when deductions are made under writs of execution, more than 50 percent of wages and other income cannot be withheld from the employee until the collected amounts are fully repaid ( ; ; ).

When collecting alimony for minor children, compensation for harm caused to health, compensation for harm in connection with the death of a breadwinner and compensation for damage caused by a crime, the withholding cannot exceed 70 percent ( ; ).

The amount of deduction is calculated from net income, that is, after personal income tax ().

When calculating personal income tax, it must be taken into account that an employee paying child support has the right to provide him with a standard tax deduction (;).

When determining the basis for calculating alimony, the income from which it is withheld is reduced only by the amount of personal income tax that is part of this income.

EXAMPLE

The company received two orders from the bailiff service for one employee: the first - on the collection of child support in the amount of 25% of the salary, the second - on the collection of tax sanctions in the amount of 50% of the salary. The company is the employee's main place of work. The debt on property taxes is 10,200 rubles.

For April 2017, the employee received a salary of 12,000 rubles. The amount of personal income tax subject to withholding is equal to:

12,000 rub. x 13% = 1560 rub.

The amount of withholding under the first writ of execution was:

(12,000 rub. - 1,560 rub.) x 25% = 2,610 rub.

The amount of recovery under the second writ of execution is 50%:

(RUB 12,000 - RUB 1,560) x 50% = RUB 5,220

This is the maximum possible amount of deductions for this type of claim. However, given that 25% of the salary must be withheld as alimony, in order to pay off tax debts, no more should be withheld:

(RUB 12,000 - RUB 1,560) x 50% - RUB 2,610 = 2610 rub.

The remaining debt on the second sheet in the amount of 2610 rubles. (5220 - 2610) must be withheld in the following months after alimony is withheld.

Restrictions on deductions under a writ of execution

Withholding of alimony for the maintenance of minor children is made from all types of wages (monetary remuneration, maintenance) and additional remuneration that parents receive in cash (rubles or foreign currency) and in kind (List of types of wages and other income from which alimony is withheld for minor children, approved).

However, recovery cannot be applied to a closed list of types of income of the debtor (), in particular:

• for sums of money paid in compensation for harm caused to health;
• sums of money paid in compensation for damage in connection with the death of the breadwinner;
• compensation payments established by the labor legislation of the Russian Federation (in connection with a business trip, transfer, employment or assignment to work in another locality; amounts of money paid by the organization in connection with the birth of a child, the death of relatives, marriage registration, etc.);
• insurance coverage for compulsory social insurance, with the exception of old-age pensions, disability pensions and temporary disability benefits;
• benefits to citizens with children, paid from the federal budget, state extra-budgetary funds, budgets of constituent entities of the Russian Federation and local budgets;
• maternal (family) capital funds provided for by the Federal Law “On additional measures of state support for families with children” ();
• the amount of one-time financial assistance paid from the federal budget, budgets of constituent entities of the Russian Federation and local budgets, extra-budgetary funds, and other sources;
• the amount of full or partial compensation for the cost of vouchers (except for tourists) paid by employers to their employees and (or) members of their families, disabled people who do not work in the organization, to sanatorium-resort and health-improving institutions located on the territory of the Russian Federation, as well as the amount of full or partial compensation the cost of vouchers for children under 16 years of age to sanatorium-resort and health-improving institutions located on the territory of the Russian Federation.

In addition, deductions are not made:

• from amounts of income that are calculated solely for the purpose of calculating personal income tax (for example, despite the fact that material benefit is a type of income (), it is not included in the base for withholding penalties; this follows from the very definition of material benefit recognized as income solely for the purposes of );
• from income received by a citizen outside of connection with his economic activity, in particular, during one-time transactions for the sale of real estate (apartment, land, garden house, etc.) ().

IMPORTANT

Expenses for transferring money under writs of execution (bank commissions, postal transfer fees) must be paid at the expense of the employee ( ; ). In this case, the restrictions on the amount of deductions from wages discussed above do not apply.

The order of deductions according to the writ of execution

When withholding funds under several writs of execution issued to one employee, it is necessary to follow the order of satisfying the claims of the claimants ():

• first of all, satisfy demands for the collection of alimony, compensation for harm caused to health, compensation for harm in connection with the death of the breadwinner, compensation for damage caused by a crime, as well as claims for compensation for moral damage;
• secondly, requirements for the payment of severance pay and wages of persons working (who worked) under an employment contract, as well as for the payment of remuneration to the authors of the results of intellectual activity;
• the third - requirements for mandatory payments to the budget and extra-budgetary funds.

All other requirements are satisfied last.

In this case, the requirements of each subsequent queue are satisfied after the debt to the previous queue is repaid in full. If there are several writs of execution from different collectors, the deductions of one queue within the maximum amount of deduction are distributed among all collectors of this queue in proportion to the amounts due to them ().

Indexation of deductions by writ of execution

Periodic payments established in a fixed amount (not as a percentage of wages) are subject to indexation. Thus, established periodic payments paid in order to compensate for harm caused to life or health, under a lifelong maintenance agreement, etc., are indexed in the manner established by the legislation of the Russian Federation. The organization should issue an order (instruction) regarding such indexation, on the basis of which the accounting department will carry out indexation ().

In addition, alimony determined in a fixed monetary amount ( ; ) is indexed. If they are paid under an agreement on their payment, then indexation is carried out in accordance with this agreement ().

If alimony is collected by court decision in a fixed amount, then indexation is made in proportion to the increase in the legal minimum subsistence level for the specific region in which the claimant lives. Indexation is carried out in proportion to the increase in the cost of living for the corresponding socio-demographic group of the population established in the corresponding subject of the Russian Federation at the place of residence of the claimant. If there is no established subsistence level in a constituent entity of the Russian Federation, it is necessary to take data on it for the Russian Federation as a whole ().

IMPORTANT

The employer is obliged to index the amounts withheld from the employee, established in a fixed monetary amount, even in the absence of a special indication of this in the writ of execution or the order of the bailiff (;).

Persons paying wages or other periodic payments to the debtor are obliged to transfer the withheld funds to the claimant within three days from the date of payment. In this case, no taxes need to be withheld from the transferred amounts.

Thus, the company receiving the Decree must:

• monthly, starting from the date of receipt of the Resolution, withhold amounts from the wages and (or) other income of the debtor;
• make payments to the claimant no later than three days from the date of payment of wages and (or) income;
• transfer (transfer) them at the expense of the debtor;
• within three days, inform the bailiff and the collector about the dismissal of the debtor, about his new place of work or residence, if known, and also return the writ of execution to the bailiff department with a note on the deductions made;
• when collecting alimony by court decision in a fixed sum of money, index the alimony in proportion to the increase in the minimum wage established for a particular region.

EXAMPLE

The company received two writs of execution for one employee:
- the first - to withhold alimony for a minor child in the amount of 25% of income;
- the second - for the maintenance of the spouse until the child reaches the age of three - in the amount of the subsistence minimum for the subject of the Russian Federation in which she lives.

In total, deductions under these two enforcement documents will amount to more than 50% of the debtor’s income after withholding personal income tax.

Thus, for April 2017, the employee received a salary in the amount of 24,000 rubles.

Amount of income after personal income tax withholding:

24,000 rub. - 24,000 rub. x 13% = 20,880 rub.

The amount of deductions under the first writ of execution is:

RUB 20,880 x 25% = 5220 rub.

Let us assume that the cost of living for the working population as of April 2017 is 9,962 rubles.

The amount of deductions for both writs of execution will be equal to:

9962 + 5220 = 15,182 rubles,

that is, more than half of the debtor’s income (more than 10,440 rubles). Since both requirements are satisfied first, each must be partially satisfied.

According to the first writ of execution:

(5220: 15,182 x 10,440) = 3,589.57 rubles,

according to the second:

(9962: 15,182 x 10,440) = 6850.43 rubles.

Olga Tkach, expert of the Legal Consulting Service GARANT

Debt collection under a writ of execution from a legal writ is a set of measures aimed at the debtor in order to force him to fulfill his obligations under the contract. Since methods of debt collection under a writ of execution provide for refusal of voluntary repayment of debt, they include measures of forced debt collection and for this reason are strictly regulated by current legislation. We will analyze the features and nuances of debt collection under a writ of execution in our article.

What is a writ of execution, when and how do you receive it?

A writ of execution is a document of the established form, which is issued by the judicial authority considering the case of debt collection and gives the right to the plaintiff and bailiffs to take measures aimed at:

• collection of debt under a writ of execution from a legal entity forcibly after a decision in the case is made;
• securing claims during the consideration of a dispute in court.

After the court has made a decision, a writ of execution may be issued immediately after the court decision enters into legal force at the request of the plaintiff. The purpose of the document is to collect the debt at the expense of the property and funds of the obligor.

When securing claims, a writ of execution serves as a guarantee that the plaintiff’s demands, if satisfied by the court, can actually be fulfilled. For this reason, such writs of execution are not a document against which a debt can be claimed. The purpose of the document is to prohibit the defendant from disposing of property and funds. Applications for securing a claim are accepted by the court from the moment the proceedings begin until the decision is made.

A writ of execution may also impose obligations on third parties if the plaintiff’s funds are in their possession by agreement with the defendant.

Methods of collection under a writ of execution

You can collect debt from a legal entity either independently or with the help of a bailiff service. Each method has its own advantages and disadvantages. When collecting the debt independently, the plaintiff saves time, since if there are funds in the defendant’s account, the procedure for forced debt collection takes no more than 10 days, whereas when initiating enforcement proceedings, the bailiff will only accept the application within 3 and begin proceedings on it and 2 months are provided for forced execution, unless a different period is specified in the court decision. The main disadvantage of independent debt collection is the limitation of the plaintiff’s ability to obtain the necessary information about the defendant’s property, if the legal entity does not have money in the account, and to carry out other methods of enforcement of a court decision provided for by law. Seizure and foreclosure of the debtor's property can only be carried out by order of bailiffs or a court.

Independent collection under a writ of execution

Independent debt collection involves the creditor contacting a financial organization serving the legal entity to foreclose on the debtor's funds in favor of the creditor. Information about the current account may be contained in an agreement concluded between the parties. If there are no funds in the account or it is not being serviced, then to obtain current details you can refer to the following sources of information:

1. The official website of the company, as a rule, in the “Contacts” or “Details” section contains information about the details, including account numbers.
2. The website of the Federal Tax Service in the section “Unified Register of Small and Medium-Sized Businesses” in the search line you must enter the OGRN or ORGNIP of the legal entity. There you can also find out information about the territorial tax authority in the section “Information on registration with the tax authority,” which you can contact for information.
3. Court case materials, which contain official documents of the enterprise provided by the defendant during court proceedings. For example, for payment of examinations or a power of attorney issued to a representative.
4. Specialized websites containing information about ongoing tenders or trades in which the defendant may participate based on his field of activity.
5. The official website of the unified registration of legal entities https://egrul.nalog.ru/index.html

In addition, you can use the services provided by the tax service and make a request and receive up-to-date information about the legal entity.

Contacting the tax office to obtain information about the debtor’s accounts

The right to contact the Federal Tax Service is provided for in Part 8 of Art. 69 No. 229-FZ. To do this, you must send a request, accompanied by a certified copy of the writ of execution. The request can be sent by registered mail with notification, or via the Internet, if the applicant has a qualified electronic signature. Using a request, you can find out information about:

• banks and other credit organizations in which the debtor’s accounts are opened;
• account numbers, amount of funds and their movement both in rubles and in foreign currency;
• other valuables in storage.

You should be aware that such information is confidential and the tax office may refuse to provide it. In such a situation, you can resolve the problem by contacting the bailiff service.

Contacting banks where the debtor has accounts

After receiving information about current accounts, in accordance with Article 8 No. 229-FZ, the plaintiff has the right to submit an application to banks and credit organizations servicing the debtor. The statement states:

1. Full name, TIN and passport details of the applicant.
2. Details of the defendant’s bank account from which the debit will be made and details of the recipient.

A certified copy of the writ of execution is attached to the application. According to Article 70 of the above law, the bank is obliged to make a write-off within 3 days. If there is any doubt about the reliability of the information, the financial organization has the right to verify it within 7 days, but the debtor’s account is “frozen”.

If the funds are not enough, you can wait until the account is replenished or contact another credit institution that services the legal entity.

Collection under a writ of execution by bailiffs.

You can contact the bailiff service immediately after receiving a writ of execution, or you can even after you have failed to collect the debt yourself. It is necessary to take into account that the statute of limitations for a claim is 3 years. To initiate legal proceedings, the plaintiff must submit an application to the bailiff service at the place where the court decision was executed. A writ of execution is attached to the appeal. In addition, documents containing information about the debtor’s funds and property can be attached to the application.

What does a bailiff do?

After receiving an application from the plaintiff and checking the data contained in it, the bailiff must issue a ruling on:

• initiation of enforcement proceedings;
• refusal and return of documents in accordance with Art. 31 No. 229-FZ.

Within the framework of enforcement proceedings, the official conducting the case has the right:

1. Oblige the defendant to provide all information about the state of his bank accounts and property. In case of refusal or false information, penalties may be imposed on the offender.
2. Send requests to any state, municipal and private institutions in order to obtain information about the debtor’s funds and property.
3. Carry out a search for the debtor and his property.
4. Seize the property and funds of a legal entity.
5. Make a decision to foreclose on the debtor’s property and funds.

You should know that the bailiff is an official and all his actions are regulated by laws and by-laws.

How to speed up recovery of IL by a bailiff?

According to Art. 36 No. 229-FZ, the general period for carrying out enforcement proceedings for debt collection is 2 months. However, legislation or a court decision considering the case may provide for a special period. So in some cases the decision must be implemented immediately, and in others with a delay in implementation. In addition, the period of enforcement proceedings may be interrupted, for example, when appealing the bailiff's decision in court.

In order to speed up the procedure for collecting debt under a writ of execution by bailiffs, the plaintiff must actively participate in the process:

• contact the contractor with requests to take the necessary actions;
• provide information about the debtor, if available, and provide any other assistance to speed up obtaining a result;
• Constantly monitor the progress of enforcement proceedings.

If the bailiff ignores the statements and petitions of the creditor, then his inaction can be appealed to a higher authority and the court.

What to do if the bailiff was unable to recover funds within a year?

The writ of execution can be used for 3 years. If, after the period specified by law, the enforcement proceedings are completed due to the lack of property to collect the debt, then you can submit the application again, if there is information about the appearance of funds or property from the legal entity.

However, in practice, legal entities that have debts and are unable to meet their obligations are declared bankrupt. Therefore, if during enforcement proceedings for debt collection it turns out that the company’s accounts are not active and there is no property, then the best option would be to initiate bankruptcy proceedings.

Initiation of bankruptcy proceedings

The bankruptcy procedure can be initiated by the debtor himself, state fiscal authorities or creditors. The procedure involves filing an application with the arbitration court. It is important to know that the process of declaring a legal entity bankrupt is regulated by a special federal law “On Insolvency (Bankruptcy)” and takes a fairly long period of time.

The first stage of the bankruptcy procedure is called observation and consists, among other things, in identifying creditors. As a rule, such companies have several creditors and the best option is to obtain information about the beginning of the bankruptcy procedure at the very beginning. You can find out such information from the enforcement service, since during the insolvency process all measures of enforcement proceedings are carried out only through the arbitration authority leading the case.

Bringing founders to subsidiary liability

As a general rule, the founders of a legal entity are not liable with their property for the obligations and debts of the company. However, recent changes in legislation make it possible to hold such persons accountable in the event of:

1. A court decision to declare a legal entity bankrupt.
2. Recognition in court of the founder as a person who controlled the activities of the company.
3. The presence of such person's guilt in bankruptcy.

The issue of bringing to liability is resolved in court, after the bankruptcy procedure. In this case, the applicant is not required to prove the guilt of the founders. But the defendant must prove his innocence.

Foreclosure of a share in the authorized capital

Foreclosure of a share in the authorized capital is provided for in Art. 25 No. 14-FZ for limited liability companies only if the debtor is a member of the LLC and he, as an individual, has an outstanding debt. In such cases, the collection of debt under a writ of execution from a legal entity means that the company pays the cost of the share or part thereof. Since the share refers to valuable property, when collecting a debt from a person who has a share in the LLC, foreclosure may be brought against him in the absence of other opportunities for the payer to answer for the obligations.

Debt collection is never an easy task.

After the completion of the trial, a writ of execution is issued, according to which you have the right to receive your money from the debtor. However, a court decision does not guarantee that the debtor will immediately voluntarily return all the money. Often you have to resort to compulsory order and turn to bailiffs.

How to collect debt under a writ of execution?

After receiving the writ of execution, you have two options:

1. engage in debt repayment yourself by presenting a document for collection;
2. contact the bailiffs.

A writ of execution does not guarantee a full refund.

Independent debt collection under a writ of execution

To repay the debt yourself, you need to find out which bank the debtor keeps the money in and where he works. The information will help determine where to send the writ of execution.

By law, the creditor has the right to obtain all information from the tax office. It is necessary to present a writ of execution with an unexpired validity period.

Having found out where the debtor has open accounts, you should contact the bank. The institution will seize the money in the account regardless of whether the owner of the funds agrees to this or not.

The debtor may keep funds in several financial institutions. In this case, make several duplicates of the writ of execution, have them certified by a notary and send them to the banks.

Another way is to contact the debtor’s place of work. In this case, part of his income will go towards paying off the debt every month.

You know where the debtor keeps the money - submit a writ of execution to this bank.

Bailiff services

Even if the debtor promised to repay the debt in the near future, but you doubt his honesty, present the writ of execution to the bailiff service. Attach a statement requesting acceptance of the document for execution.

After 3 days, the bailiffs will open enforcement proceedings. A copy of the resolution will be sent to you and the debtor. We'll have to wait another 5 days. This period is given to the debtor to voluntarily repay the debt. If he ignores it, the debt will be collected forcibly.

Contact the FSSP department at the place of registration of the debtor.

Bailiffs have much more powers than ordinary citizens. Therefore, you can get your money back faster. They have the right:

• freeze the debtor's accounts;
• describe property for subsequent sale;
• introduce a ban on traveling abroad;
• set restrictions on driving a car;
• send documents to the debtor’s place of work to withhold part of his income.

Due to the heavy workload, bailiffs often do nothing for a long time. To avoid this, control the process - call the department and ask how the collection is progressing. You can also involve an experienced lawyer in the process.

Submit the writ of execution to the FSSP - monitor the progress of debt collection.

What documents will be required?

Provide your passport and the following papers:

• Application for fulfillment of requirements under a writ of execution

In it, indicate information about the collector, account details for transferring the debt, the amount of debt, and information about the writ of execution.

• Second copy of the application

If you transfer the first one to a credit institution, then the second one will remain with you. It will be marked with acceptance.

• Performance list

The original of this document will be required. You shouldn’t submit a copy, even a certified one, as they will refuse you.

• Power of attorney

It is necessary if a representative is acting for you. Remember that it must be certified by a notary.

After the funds are returned, the bank will put a mark on the writ of execution about the collection.

What to do if there are not enough funds in the debtor’s accounts?

If the debtor has nothing to pay, foreclosure may be applied to his property. But not everything can be realized. For example, if the apartment in which a debtor lives is the only place for his family to live, it cannot be auctioned off.

If the debtor works, a certain amount will be deducted from his salary every month. In the event that there is nothing to take from a person at all, .

Enforcement proceedings are initiated on the basis of a writ of execution, which is issued after the court decision enters into legal force. The procedure for collecting debt by court decision is strictly regulated by law. In fact, it is the most lengthy and practically complex part of civil proceedings. As part of his work, the bailiff is vested with a number of powers, which he can use in a certain sequence.

Stages of debt collection by bailiffs

Debt collection by court decision consists of several stages:

1. Initiation of enforcement proceedings.

Within 6 days after the writ of execution is received by the FSSP unit, the bailiff issues a decision to initiate enforcement proceedings. It indicates the name of the civil case, the names of the parties involved, the amount of the debt and the period within which it must be returned to the collector. By law, this period is 5 days. Copies of the resolution are sent to all parties to enforcement proceedings. If the debtor has not taken any action within the allotted time, the bailiff initiates a forced collection procedure.

1. Discovering sources of income and assets.

For this purpose, the executor sends requests to all authorities that are in one way or another related to the ownership rights of subjects to movable and immovable property:

• banks - when information about the availability of existing accounts is required;
• Unified State Register - its response will confirm the debtor’s ownership of real estate, participation in the founders of a legal entity, etc.;
• Pension Fund of the Russian Federation - will provide information about the availability of pension contributions and the debtor’s place of work;
• The traffic police will provide information about the availability of vehicles;
• Cadastral Chamber, etc.

To clarify the circumstances, the bailiff has the right to visit any residential and non-residential premises and become familiar with any objects allegedly belonging to the debtor. He can also interview the debtor’s neighbors, relatives and colleagues in order to find out whether the debtor has any property.

1. Seizure of property and travel ban

At this stage, the bailiff is obliged to seize all permitted property that he discovered earlier. Bank accounts, real estate, shares in the authorized capital, etc. are subject to seizure. This performance action is aimed at ensuring the safety of property. The arrest does not deprive the debtor of the opportunity to use the car or housing for its intended purpose, but limits the right to sell or otherwise alienate.

At the same time, the bailiff approves a ban on leaving the Russian Federation for the debtor. This measure is applied in cases where the amount of the awarded debt is more than 10 thousand rubles.

1. Direct collection.

This is done in several ways:

• debiting money from bank accounts;
• withdrawal of cash from cash registers of organizations;
• foreclosure on the debtor's income;
• forced sale of property with subsequent transfer of proceeds to the claimant.

Objects put up for auction are subject to mandatory assessment. It is carried out by a certified appraiser at the initiative of the bailiff. An independent assessment carried out by a bailiff without the participation of a specialist is illegal and can be appealed. The bailiff carries out all activities related to the sale of property on his own. If the debt does not exceed the limit of 30 thousand rubles, the defendant, if desired, has the right to sell the property himself for this amount.

1. Executive fee.

The enforcement fee is 7% of the debt amount. It is collected after full repayment of all obligations of the debtor to the claimant. The funds received go to the federal budget.

1. End of production.

After the debtor has paid the collector everything that the court has awarded, the bailiff issues a decree to complete the enforcement proceedings. Such a decision is also made in cases where the debtor does not have the means to fulfill the obligation or to fulfill it in full.

Possible difficulties in debt collection

It can be considered that the difficulties of enforcement proceedings begin from the moment of its initiation. First of all, this is a practical search for the debtor. It is associated with the production of events to which the bailiff does not have the right. These include:

• verification of documents;
• bringing the debtor;
• detention;
• some operational-search activities.

The status of a bailiff does not allow him to carry out these actions in a timely and quick manner. Many will say that this is why there is an interrogating officer. Yes, he has the right to carry out operational investigative activities, but there are only a few such staff positions in the FSSP unit, especially in small towns - 1-2, while hundreds of debtors are being sought.

The second common difficulty is locating the property that belongs to him. Many debtors take all possible measures to remove their property from the attention of bailiffs. Most often, fictitious alienation transactions are concluded for this purpose. For example, in favor of your close relatives. The debtor, in fact, remains the owner of the house or car, but according to the documents, “you can’t find fault.” The bailiff must prove the fictitiousness of such a transaction, and in this case he is obliged to carry out lengthy and complex work.

He must initiate a civil lawsuit, find evidence, and most importantly, he must initially be sure that the purchase and sale is fictitious. Practical proof of this circumstance is one of the biggest difficulties of the process. In fact, it is almost impossible to establish the reality or fictitiousness of an agreement concluded “according to the letter of the law.” After all, the transaction has been certified by a notary and registered with the justice authorities, and the money has been transferred (this is what the seller and buyer will argue in court), they will certainly provide the court with a receipt or invoice as proof.

How to collect a debt if the debtor has no property

The answer to this question can be attached to the previous section, since this is another difficulty faced by the parties to enforcement proceedings. Although this difficulty is only for the creditor himself, who in the end will be left with nothing. The actions of the bailiff in this case are quite clear. If the debtor does not have an objective opportunity to pay the debt, enforcement proceedings are terminated, and the bailiff issues a corresponding resolution.

However, if the claimant later discovers that the debtor has money or property, he can send the bailiff an application with a request to resume proceedings.

Debt collection from the debtor - physical. Persons

Debt collection from individuals occurs according to a generally established scheme. The bailiff performs the actions that we described in the previous sections. The bailiff initiates enforcement proceedings, seizes the debtor's wages and property, and, if necessary, sells it at auction. However, the status of the debtor introduces some peculiarities into the standard procedure.

Debt collection from individuals: features of enforcement proceedings

The features of this type of enforcement proceedings include:

• the possibility of malicious evasion - unlike an enterprise, it is easier for an individual to evade fulfillment of an obligation. A person can change his address, not sign for mail notifications, or not answer phone calls. In addition, it is easier for an individual to alienate his property. To do this, it is enough to find a buyer, give him the item and collect the money. Such a transaction does not leave any “traces”, unlike transactions made by legal entities;
• the possibility of bringing to criminal liability - punishment for failure to comply with a judicial act is provided for in Art. 315 of the Criminal Code of the Russian Federation. According to the comments to this article, the subject of this act can only be an individual over 16 years of age.

Otherwise, the course of enforcement proceedings initiated against individuals is no different from proceedings to collect debt from legal entities.

Collection from a debtor - legal entity

Debt collection from a legal entity begins with the bailiff identifying all the property on its balance sheet and identifying the presence of funds in bank accounts. For this purpose, he sends requests to the Tax Service, to all second-tier banks located in the Russian Federation, to the traffic police and Rossreestr. The bailiff also ascertains the existence of dependent enterprises, since they may use property belonging to the debtor company.

The bailiff immediately seizes the existing accounts and property of the company, then makes an inventory of it. By agreement with the bailiff, the company management can independently describe things and equipment within the amount of the debt. Then the items to be sold are assessed. Seizure of bank accounts involves the direct debiting of funds received on them and their transfer to the recoverer. If the accounts are “empty” for a long period of time, the bailiff makes a decision to sell the property.

Sometimes at this stage the debtor fulfills the debt obligation, then all enforcement actions are canceled and enforcement proceedings end. If this does not happen, the bailiff puts the seized objects up for auction. The proceeds from the sale, within the amount of the obligation, are transferred to the claimant. The rest of the money is returned to the debtor.

If, during enforcement proceedings, a bankruptcy procedure is initiated against a legal entity, the bailiff is obliged to suspend execution and lift the arrests from the accounts and property of the debtor. When the bankruptcy procedure enters the bankruptcy management stage, enforcement proceedings are terminated.

Some enterprises with large debts make attempts to hide current profits during litigation and enforcement proceedings. To do this, bank accounts are “reset” if they have not yet been seized, and new accounts are opened for shell companies. Also, when concluding small transactions, debtor companies use cash payments. Finding out the presence of fake accounts is very difficult, and sometimes impossible. Therefore, to find out about the presence of profit, the bailiff will only be able to study the financial and economic documentation. This is a long and labor-intensive work, especially if the debtor is a large enterprise.

How bailiffs collect debts

The debt collection process is regulated by Federal Law No. 229-FZ. It consists of a series of procedural actions aimed at executing a court decision and restoring the violated rights of the claimant. The primary task of the bailiff is to obtain “real” money from the debtor in order to transfer it to the collector.

If this can be done within a reasonable time, enforcement proceedings are terminated in connection with the fulfillment of the obligation. However, in practice this rarely happens. The bailiff has to resort to various enforcement measures - from seizing accounts and wages to foreclosure on movable property.

This procedure is used when the debtor has no other opportunity to repay the debt.

Foreclosure of movable property

Foreclosure of the debtor's movable property is carried out with the written consent of the creditor. It involves not only the sale of objects, but also their direct transfer as debt.

There is property that is not subject to seizure:

• the only home of the debtor and his family, as well as the land plot on which the home is located;
• personal belongings - clothes, shoes, hygiene items;
• necessary furniture and household equipment, without which normal human existence is impossible;
• things and equipment with the help of which the debtor carries out his professional activities;
• pets, livestock, bees, as well as feed for their maintenance, provided that they are not objects of commercial activity;
• children's things - clothes, textbooks, toys, etc.

Before foreclosure of movable property, the bailiff issues a ruling, then he goes to the debtor’s place of residence and begins to inventory the seized items. After its preparation, the objects are removed from the debtor’s home to a place determined by the bailiff.

What to do if the debtor is in prison

First of all, the bailiff checks whether the prisoner has the right of ownership of any property, including funds in his accounts. If the debtor has money and property, the executor seizes them. After which the standard collection procedure begins with an inventory, assessment, putting up for auction, etc. The bailiff is obliged to notify the debtor about the events taking place. To do this, he or the claimant sends a notice to him with copies of all decisions and the writ of execution.

If the debtor does not have any property at large, the bailiff gives the colony management a writ of execution demanding deductions from the prisoner’s wages. This event makes sense if the colony provides prisoners with work. Otherwise, the proceedings are terminated due to the impossibility of executing the judicial act.

Is it possible to collect a debt from the debtor's relatives?

The answer to this question is negative. Third parties, including relatives, are not liable for the debtor’s obligations. The exception is situations when spouses or parents act as guarantors under bank loan agreements. Only under this condition can the bailiff make claims against them.

Minor debtor

Minor children have limited legal capacity. Until a certain age, they do not have the right to participate in civil legal relations - to enter into transactions, receive money from third parties, etc. This means that the child cannot incur independent financial debt.

The only case when a minor becomes a debtor is the transfer of an obligation by inheritance. However, even under such conditions, the obligation must be repaid by his parents or persons replacing them.

Debtor pensioner

In essence, debtors receiving pensions are no different from other categories of debtors. Since an old age or disability pension is included in the list of income that can be levied. The law prohibits withholding funds only from those pensions that are paid to citizens in connection with the loss of a breadwinner and caring for incapacitated dependents.

As in other cases, the bailiff sends a writ of execution to the local PFR unit and seizes the pensioner’s account. By law, the amount of deduction cannot exceed half of the accrued benefit. The Pension Fund will carry out the order of the executor until the obligation is fully repaid.

How to collect a debt if the debtor has died

In the event of the death of the debtor, the heirs are responsible for his obligations. To do this, they must officially enter into inheritance rights. After this happens, the bailiff issues a resolution to replace the debtor and makes demands on the heirs.

If the deceased does not have legal successors, but has property that belonged to him by right of ownership, the obligations are satisfied from the specified property. If such property is not identified, the bailiff makes a decision to terminate enforcement proceedings.

How long can bailiffs collect a debt?

According to the law, the total duration of enforcement proceedings is 60 days. However, in fact, this period depends on the circumstances of the particular case and the solvency of the debtor. Collection may occur over several years. This happens when the debtor does not refuse the obligation, but repays it in extremely small shares.

How to speed up the process

There are several ways in which a lender can expedite collection:

• control of the deadline, because often the application to initiate enforcement proceedings is considered by the bailiff for longer than the required 3 days;
• assistance in identifying sources of income and property of the debtor;
• independent search for his place of residence or address.

In addition, the collector has the right to demand the seizure of accounts and property if the bailiff for some reason does not do this.

Debt reset

To put it simply, the debt collector himself can cancel the debt, and he must notify the bailiff about it. After receiving such a statement, he closes the enforcement proceedings. Subsequently, the creditor will no longer be able to demand its renewal, since voluntary write-off of the debt is irreversible.

There is an opinion that a debt is reset if it is considered hopeless, i.e. non-refundable due to the debtor's lack of financial resources. This opinion is wrong. Bad debts are not written off; they are, as it were, preserved until the moment when the debtor becomes solvent again.

If the bailiff cannot collect the debt

The impossibility of debt collection can be caused by two circumstances:

• the debtor lacks property and money;
• the inaction of the bailiff himself.

In the first case, the claimant will not be able to influence the situation. As for the actions (inaction) of an official, the claimant has the right to complain about him. A complaint can be submitted to the higher management of the FSSP, to the prosecutor's office, or to the court. It is compiled in free form, according to the general rules of official document flow. The main thing is that the essence of the matter is stated clearly and concisely.

Two identical complaints can be made to the management of the FSSP and to the prosecutor's office. The only way they will differ is the name of the recipient in the “header”. In accordance with the jurisdiction, the appeal is considered within 10 days; for the prosecutor’s office, this period is 1 month.

The filing to court has the form of an administrative claim. It is drawn up and filed taking into account the rules of civil procedure. Such a claim is considered in a court hearing, to which all interested parties are summoned:

• claimant - plaintiff;
• bailiff - defendant;
• debtor - a person who does not make independent claims (can be brought in at the initiative of the plaintiff).

A decision on an administrative claim is made by the court no later than 2 months after it was accepted for proceedings.

What actions do bailiffs have the right to perform during enforcement proceedings?

The list of enforcement actions is established in Art. 64 FZ-229. It includes:

• calling the debtor and the collector to give explanations on the case;
• sending requests to any public and private organizations in order to obtain information necessary for the execution of a court decision;
• checking the financial and economic documents of the debtor;
• instructions to individuals and legal entities to perform certain procedurally significant actions with the opportunity to insist on their execution;
• without the consent of the debtor, but with the written permission of the manager, enter any premises actually or supposedly belonging to the debtor;
• seize his funds and property;
• establish a travel ban;
• put property up for auction and sell it;
• organize a search for the debtor, etc.

This list is given in abbreviated form. In total, the bailiff is authorized to perform 17 enforcement actions.

The bailiff collected more than was required. What to do

First of all, the debtor turns to the official with a written demand to return all overpayments. If the bailiff's reaction is positive, nothing more needs to be done. You just need to provide the account details to which the required funds will be transferred.

If there is no response to the application, the debtor has the right to do one of the following:

• file an administrative claim demanding that the actions of the bailiff in collecting the excess amount be canceled or declared illegal;
• file a claim in a court of general jurisdiction and demand the return of overpaid funds through a lawsuit.

In both cases, copies of the following are attached to the complaint:

• receipts for payment of state duty (the claim in question is of a property nature and is therefore subject to state duty);
• the contested decision;
• bank account statements or other documents confirming the debiting of funds;
• writ of execution.

The debtor can challenge an illegal collection within 10 days from the moment he became aware of the commission of this violation. Otherwise, no court will consider such a complaint.