Enforcement

Enforcement Proceedings

In the trial stage, the focus is on protecting rights, whereas in enforcement proceedings, the emphasis shifts to coercion.

Enforcement proceedings occur only when the debtor does not voluntarily fulfill the obligation stated in the enforceable title and commence with notifying the enforcement authority.

However, the law protects the debtor’s income and assets from excessive creditor claims that may be subject to enforcement.

Moreover, procedures are complex and require impeccable persuasion by the creditor’s specialists if they wish to avoid the devaluation or erosion of the court-confirmed debt.

Consistency and quality in the asset realization process are essential for preserving the debt’s value. Typically, assets are disposed of amicably, but negotiation is critical. If auctioned, the price is set either by the executor alone or by an expert, ensuring impartiality.

CARDD can make a difference with its nationwide network of judicial executors, ensuring the expedient conduct of procedures.

At the trial stage, the protection aspect prevails, while at the enforcement stage the enforcement aspect dominates.

Enforcement takes place only if the debtor does not voluntarily perform the obligation laid down in the enforceable title – the obligation laid down by a court judgment or other enforceable title is performed voluntarily. If the debtor does not perform the obligation voluntarily, it will be enforced by compulsory enforcement, which starts when the enforcement body is notified.

The debtor’s income and assets may be subject to enforcement if they are traceable and only to the extent necessary for the enforcement of creditors’ rights.

In order for a creditor to be able to initiate enforcement, several conditions must be met: the creditor must have an enforceable title, the claim must be certain, liquid and payable, the creditor must make the request for enforcement within the limitation period of the right to obtain enforcement, the enforcement court must grant enforcement, the debtor must be given prior notice, and there must be no obstacles to enforcement. Enforceable titles are documents drawn up by the competent bodies in accordance with the law and which may serve to initiate enforcement and to enforce the rights recognised by those documents. Enforcement may be carried out only on the basis of an enforceable title.

As in the case of a judgment, enforcement is not usually initiated ex officio, but is necessary upon request by the interested party. The creditor must apply in person or by legal representative or by agreement to the competent bailiff’s office or send it by post or courier. The enforceable title and, where applicable, proof of payment of the stamp duty must be attached to the application. As soon as he receives the request for enforcement, the bailiff shall, by means of a decision, register the request and open the enforcement file or, where appropriate, refuse to open enforcement proceedings, stating the reasons. The decision shall be communicated to the creditor and, if the opening of enforcement proceedings has been refused, the creditor may lodge a complaint with the enforcement court within 15 days.

There must be no circumstances preventing enforcement. If the statute of limitations has expired, a time limit for payment has been granted or the creditor has not given security in the case of judgments with provisional enforcement, enforcement cannot be started. On the other hand, there are situations where enforcement has been started, but its natural course is influenced by circumstances which delay or even extinguish it before the debtor has satisfied his obligation: the existence of joint ownership, postponement of enforcement, suspension of enforcement, time-barring of enforcement, etc.

Also, where the creditor is pursuing at the same time several movable or immovable assets whose value is clearly excessive in relation to the claim to be satisfied, the enforcement court may, at the request of the debtor and after having summoned the creditor, restrict enforcement to certain assets.

Enforcement of Claims

Rights and Obligations of Creditors and Debtors

In the enforcement phase, the parties, referred to as creditor and debtor, maintain the same rights and obligations as during the judicial phase, with some specific distinctions. The creditor has the right to initiate or cease the enforcement process, choose the form of enforcement, and select the debtor to pursue in the case of joint obligations. Additionally, the creditor is obliged to provide effective support to the judicial executor upon request and advance necessary expenses for the execution acts.

Transfer of Creditor or Debtor Status

The status of creditor or debtor can be transferred at any time during the enforcement process, according to the law. Any creditor of the debtor can intervene in the ongoing enforcement procedure initiated by another creditor until the executor sets the date for the sale of the seized assets. After the funds from the sale are deposited, the creditor may participate in their distribution.

Valuation and Sale of Assets

As a rule, assets are amicably valued. If auction sales are necessary, the price is set by the executor alone or by an expert. The executor will determine the date, location, and terms of the auction and notify the creditor, debtor, third-party holder, and any interested party at least 48 hours before the auction date. Sale announcements and publications must be posted at least 5 days in advance in designated locations as per the law.

If the seized asset is not sold, any creditor who could legally demand enforcement may take it in account of their claim at the last set auction price. Seized assets that cannot be sold remain frozen for up to a year from the date of seizure, during which the executor can attempt another sale. If the asset still cannot be sold after this period and the creditor refuses to take it in account of the claim, it is returned to the debtor by default.

Judicial Participation

The judiciary also participates in this phase, with jurisdiction typically belonging to the court where the executor’s office is located.

Expert Analysis and Strategy

An expert must analyze the legal situation and decide on the specific strategy to be used. Our team has a national network of judicial executors, ensuring swift procedure execution.

Forced Execution

If amicable enforcement of a debtor’s obligations is not possible, the forced execution procedure is available. This procedure is secure, fast, and efficient, allowing you to recover your financial or other rights in a short time.

Enforcement can occur immediately and without prior notice

Upon the creditor’s request, if urgent need is justified or there is a risk that the debtor may evade, conceal, destroy, or damage the goods to be surrendered, the court may order immediate enforcement without prior notice, through a separate decision or by endorsing the enforcement petition. This special procedure is provided for in Article 889 of the Civil Procedure Code and can be requested through our team.

Debtor bears the costs of enforcement

To conclude a report, determining the enforcement costs to be borne by the debtor. The report serves as an enforceable title regarding the costs and is communicated to both parties (debtor and creditor). Therefore, the debtor alone bears the enforcement costs, not you. Additionally, upon the creditor’s request, the court may consider damages caused by the debtor’s failure to voluntarily fulfill the obligation before it became impossible to enforce, including the option to establish precautionary measures until the recovery of the property.

Enforcement can be based on any enforceable title, not just court decisions

Enforcement can proceed based on a court decision or another document recognized as an enforceable title under the law.
For instance, the following can be enforced through enforcement proceedings:
• Court judgments
• Authentic instruments (notarized by a notary public and establishing a certain, liquid, and enforceable debt, such as a real estate/mortgage contract)
• Promissory notes or checks
• Other documents with executive power under the law, such as leasing contracts.

When does enforcement proceedings cease

Enforcement proceedings cease in cases where:
• The creditor voluntarily waives enforcement
• The liquidated legal goods are insufficient for debt recovery or are impossible to realize
• The debt has been recovered, or a settlement has been reached between the debtor and creditor
• The enforceable title has been annulled or enforcement has been canceled.

Do you need help?

We have a trained, nationwide team with which we can handle the most complex enforcement requests, starting from the application of protective measures (judicial seizure, attachment or attachment) to the compulsory surrender of real estate (eviction) or the enforcement of obligations to do or not to do.