Bailiffs are civil servants whose task is to enforce judicial decisions and orders. Of course, there are times when those responsible for enforcing the law themselves violate it. But it is obvious that without them, many judicial decisions and orders would have remained on paper without execution.
Credentials
Every citizen should know that bailiffs are not a state "with which it is useless to argue." This is a federal service endowed with a number of powers and rights. Their task is to comply with court decisions on debt repayment. Their powers include such unpleasant things for the debtor as:
- Arrest of bank accounts and property.
- Realization of property according to certain procedures.
Legal regulation
But this does not mean that the bailiff service can use any means to “knock out” debts. Their activities are carried out on the basis of two regulatory documents:
- Federal Law No. 229 “On Enforcement Proceedings”.
- Federal Law No. 11v “On Bailiffs”.
The first federal law describes all procedures for the alienation of property. The second is the rights and obligations of employees of the FSSP (Federal Service of Bailiffs).
It is important to know that wages, bonuses and incentives may depend on the amount of money that the bailiffs of the region or region can withdraw in favor of creditors. So, theoretically, citizens can face an excess of powers to alienate property. But, unfortunately, this happens in practice.
FSSP employee is not a court employee
It is not true that bailiffs are the court. Due to this misconception, many are skeptical of plans to assert their rights through the court to unlawful actions of FSSP employees. Their activities and methods may also be illegal. The regulatory framework governing these employees has already been listed above. If the federal bailiffs violated your rights, you can and even need to defend them through the courts for their actions (inaction).
Who are FSSP employees?
Bailiffs are employees of the executive law enforcement agency, along with the police, prosecutors, etc., and not court employees, as some citizens think. To ensure the fulfillment of their duties in full, federal service bailiffs carry weapons with them. Its use is also regulated by law.
Responsibilities
All responsibilities of the FSSP are designed to ensure:
- The safety of all participants in the trial - judges, clerks, witnesses, juries, applicants, etc.
- Enforcement of all decisions and decisions of the court, regardless of who the person is in respect of whom the decision was made.
- Safety of all courtrooms during trials.
Coercive Measures
If a court has been held in which the debtor is obliged to pay any amount to the creditor, a case on enforcement proceedings is opened. According to it, the department of bailiffs monitors the provision of the decision (determination) of the court and has the right to the following actions:
- Arrest of property of the debtor.
- Blocking bank accounts.
Seizure of property: main nuances
Any movable and immovable property may fall under it: a car, an apartment, a TV, furniture, as well as other things that the executive body will “like”. There are two very important points here:
- Bailiffs are not a court. They will not identify the owner of the property. Arriving at the address of the debtor, they can pick up an item of household appliances, furniture or a kitchen interior. But there are times when the seized property does not belong to the debtor. The obligation to identify the owner of the property lies with the copyright holder or debtor. In other words, it will be necessary to prove that the refrigerator is not of the husband who owed child support to his past family, but of his new wife. Therefore, it is better to present documents, technical passports, checks and other papers confirming the right of ownership, immediately, on the spot. Then the seizure will be illegal, and it is possible to sue such actions.
- The seized property is sold at very low prices. Compared to market discounts up to 10 times. The honesty and openness of the sale of such property is questioned by many. You should not expect that at least half will be written off to the debtor for a new computer worth 50 thousand rubles. 5-7 thousand - no more. And this is at best.
The arrest of the only housing
Many citizens and even some professional lawyers are still convinced that the arrest of the only housing is impossible. But this, unfortunately, is not the case.
By resolution of the Plenum of the Supreme Court of the Russian Federation, it is allowed to seize the creditor’s only housing. This is to ensure that there is no deliberate alienation of property related to obligations to the creditor. In other words, the Supreme Court forbade any transactions with a single dwelling: gift, sale, inheritance, etc.
This does not mean that the bailiff department will arrest the house, drive the tenants out onto the street, and sell the only apartment for a penny. Restrictions are associated only with legal alienation, so that the debtor could not sell or donate his only home if, in court, he owes money. But this is already enough, because after death, the house, along with the loan, will be inherited. And if the assignee has its own living space, then the FSSP will be able to actually hold the right to alienate it in favor of the creditor.
Violation of legislation related to the seizure of bank accounts
Unfortunately, there are a lot of cases when bailiffs themselves violate federal laws. Debt, of course, although recognized as such by a court decision, but this does not give the right to exceed authority. Very often, violations of the rights of citizens occur during the arrest of bank accounts.
The most common cases:
- Write-off of a larger amount than prescribed by law.
- Blocking funds that cannot be arrested.
As for the larger amount, under the Federal Law “On Enforcement Proceedings”, the bailiff department is not entitled to withhold wages or other income in the amount of more than fifty percent. It is important to know that this percentage affects absolutely all revenues. For example, if the salary is 30 thousand rubles, and the advance is only 5, many people think that withholding the entire advance is legal. This is not true. The FSSP is required to withhold no more than 50 percent of all revenues. In this example, there is a violation of the Federal Law. According to it, 2.5 thousand rubles should be withheld from the advance payment, and another 12.5 from the main salary. If this is not so, then you should safely go to court to assert your rights.
As for money that is forbidden to be written off, these include children's allowances, pensions for childcare, disability benefits, etc. Writing off these funds is a violation not only of the Law on Enforcement Proceedings, but also of a number of others.
Debtor Rights
The court decision, of course, must be enforced in a state of law. This is what the bailiffs are doing . Debt to banks, credit organizations, management companies, etc. - their object of work. Work is carried out with debtors, who also have their rights, which are often forgotten:
- Mandatory written notice before the arrival of FSSP employees. Of course, they understand that by notifying the debtor in accordance with the law, they can find little in his apartment when they visit. Therefore, using legal illiteracy, they do not. In the case of this violation, you must write an official complaint against the bailiff within 10 days. Of course, he will not be fired from work, but he will understand that he is dealing with a legally savvy citizen.
- The right to live. No matter how loud it may sound, the arrest of all available funds can be interpreted in court in exactly this way. Of course, no one will receive criminal liability for the attempted murder, but the court can carefully listen to the claims. According to them, in accordance with the civil and civil procedure codes, you can get additional funds for using someone else's money, as well as moral damage.
- The right to use basic necessities.
The last paragraph assumes that the bailiffs are not a Mongol-Tatar invasion or robbers. There are things that they are not entitled to arrest. These include:
- Cash less than a living wage.
- Animals, birds, bees from personal subsidiary plots.
- Things related to the mandatory interior for the disabled (strollers, stilts, special car).
- Property of third parties.
- Food, things and interior essentials (bed, refrigerator, stove, etc.)
- The only housing (the features of the arrest were described above).
- Property related to income-generating activities (for example, a car with a taxi driver, a computer with a programmer, etc.).
I would like to note that if the apartment was purchased under mortgage lending, and the debt is not paid off and is not paid, then the debtor has the right to evict from it. I would like to remind you that, despite all the rights of the debtor, he has one main duty - payment of debt obligations. And then the federal bailiffs will not make themselves felt.