Collection of all types of documented debts in Russian Federation is engaged federal Service bailiffs. This organization undertakes the implementation of all enforcement proceedings, ensuring the observance of the rights of claimants. The legal and legislative justification for the activities of bailiffs are Federal Laws No. 229 and No. 118. At the same time, the actions of bailiffs are strictly regulated.
Table of contents:The FSSP can begin its work on a court decision to enforce the collection of any debts. also in individual cases, it is permissible to start enforcement proceedings (IP) at the request of claimants with the presentation of relevant documents by them. Such cases may be a recovery if the recoverer has an appropriate court decision or order, or a notarized agreement on alimony payments.
The procedure for collecting debts is regulated by law. Contacting the FSSP writ of execution can be committed both directly by the judicial authority, by sending such a sheet directly to the FSSP after the announcement of the decision, and by the exactor himself, if such a sheet was issued to him.
Important fact: a writ of execution issued on hand allows the recoverer not only to apply to the FSSP to receive the funds due, but also to carry out collection actions independently. In this case, it is allowed for the recoverer to apply with a writ of execution to the debtor's bank, or at his place of work, but only in situations where the total amount of debt is less than 25 thousand rubles.
A person who has a writ of execution issued by the court, as well as other documents that can serve as a justification for starting enforcement proceedings regarding recovery from the debtor, must contact the FSSP branch. At the same time, such a department must be located:
After receiving a court order or an application for the opening of enforcement proceedings on the basis of other documents, the bailiff is obliged to issue a receipt on receipt of such an appeal, and within three days to open enforcement proceedings about which both the claimant and the debtor are notified. Wherein general term the waiting time can be six days if an application for opening enforcement proceedings is submitted to the FSSP, and not to a specific bailiff. Three days are given to the FSSP to send a writ of execution and documents directly to the bailiff (SPI), and another three days to open an IP.
Important fact: to the application and writ of execution, the recoverer is obliged to attach the details of his bank account to which the collected funds will be transferred.
Also, if enforcement proceedings for a specific debt are opened for the first time, the bailiff is given a period with the possibility of the debtor voluntarily closing the debt. Such terms are five days from the date of receipt by a person with a debt of a notification from a representative of the FSSP.
Important fact: the judiciary may set an additional period for the voluntary repayment of debts.
In the event that the IP is already operating or is not being opened for the first time, or if the debt has not been repaid within the period allowed for voluntary repayment, the IP is obliged to take measures to collect it within a two-month period. During this period, as well as at its end, the recoverer may require the bailiff to report on the collection actions taken, and in case of unsatisfactory work of the representatives of the FSSP, he may contact the prosecutor's office.
SPI for debt collection, the following actions are carried out in the prescribed manner:
The recoverer has the right to control the course of the IP and send the bailiff a request to carry out any of the above actions.
Let's look at which body the writ of execution is submitted to, necessary actions when submitting it, the deadlines for filing a writ of execution and the duties of a bailiff.
An application for filing a writ of execution is submitted to the bailiff department, at the place of residence or location of property, if the debtor is a citizen, or at the legal address, location of property or at the legal address of a representative office or branch, if the debtor is an organization. The application must be accompanied by the original and a copy of the writ of execution or other writ of execution. Also, the application states Bank details to which the collected funds must be transferred. If the recoverer (the one who submits the writ of execution) does not know in which division of bailiffs the enforcement proceedings should be initiated, then he has the right to send a writ of execution or other writ of execution along with an application for filing a writ of execution to the territorial body of the Federal Bailiff Service (Chief Bailiff bailiff of the subject of the Russian Federation) at the place of execution of enforcement actions). That is, in this case, an application for filing a writ of execution can be submitted to the Chief Bailiff of the region, the republic.
The writ of execution may be sent by the court directly to the bailiff. In this case, the bailiff independently initiates enforcement proceedings without filing an application.
A similar situation occurs in the following cases:
The court does not have the right to refuse the request of the recoverer to send a writ of execution for execution directly by the court and in other categories of civil cases.
In other cases, the writ of execution is sent to the recoverer by registered mail, or upon personal appearance of the recoverer in court, it is issued to him against receipt.
The claims of the claimant for the recovery of expenses for the commission of enforcement actions and the performance fee are not required and are imposed by the bailiff in the process of execution of the executive document.
An application for filing a writ of execution together with a writ of execution are transferred to the bailiff within three days from the date of their receipt by the bailiff unit. After the writ of execution arrives at the bailiff, the bailiff within three days makes a decision to initiate enforcement proceedings or to refuse to initiate enforcement proceedings. A refusal to initiate enforcement proceedings is issued in cases where the writ of execution contains any errors, typographical errors, there are no data required to be filled in, or there is no seal of the court or the signature of the judge.
When a decision is made to initiate enforcement proceedings or to refuse to initiate it, a copy of the decision of the bailiff is sent to the recoverer and the debtor, to the court no later than the day following the day the said decision was issued, that is, within 2 days.
If the writ of execution entered the bailiff service for the first time, then the bailiff in the decision to initiate enforcement proceedings sets a period (not more than 5 days) for the voluntary fulfillment by the debtor of the requirements contained in the writ of execution and warns the debtor about the enforcement of these requirements after the expiration of the period for voluntary execution with the recovery of a performance fee and expenses for the performance of enforcement actions.
The bailiff-executor within 3 days from the date of receipt of the executive document to him issues a decision to refuse to initiate enforcement proceedings in the following cases:
Enforcement proceedings may be terminated by both the court and the bailiff.
Enforcement proceedings are terminated by the court in the following cases:
Enforcement proceedings are terminated by the bailiff in the following cases:
As a general rule, requirements must be fulfilled by a bailiff within 2 months from the date of initiation of enforcement proceedings.
The requirements in the writ of execution for the reinstatement of an illegally dismissed or transferred employee must be fulfilled no later than the first working day after the day the writ of execution is received by the bailiff unit.
If the debtor has no work, the bailiff is obliged to search for the debtor's property. To do this, requests must be sent to the Rosreestr Department about the presence (absence) real estate, as well as in the traffic police about the presence (absence) Vehicle, to the nearest branch (branches) of credit institutions - banks about existing accounts. If the property is not revealed, it is revealed at the place of residence of the debtor. That is, the bailiff will be required to describe the property located at the place of residence of the debtor.
As for the collection of debts from legal entities, the bailiff, in addition to the measures described, sends to tax office the requirement to block funds for all open accounts debtor company. In addition to those described, bailiffs may apply other methods of debt collection.
It is also necessary to remember that the recoverer has the right, if he knows the debtor's bank, to apply with the appropriate application to the debtor's bank with the original writ of execution attached. In this case, the debtor's bank is obliged, if it has funds on the account, to debit these funds to the account indicated by the claimant in his application.
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 on writ of execution are most common. Consider the features of registration and accounting for deductions on the writ of execution.
Withholdings on a writ of execution (form and samples of forms approved; order of the Ministry of Finance of Russia dated 17.06.2009 No. 237) regulate the following regulations:
A writ of execution can come to the organization both from the exactor himself, in whose favor the deductions must be made, and from the bailiff.
So, the recoverer sends a document on recovery:
At the same time, simultaneously with the executive document, the recoverer must submit an application () indicating information (in particular, bank details), without which the employer cannot make deductions.
The bailiff-executor forecloses on the salary and other income of the employee-debtor:
IMPORTANT
Without required details provided by law (), the writ of execution is invalid. The accountant has no right to make deductions on it.
Consider the procedure for withholding on writ of execution sent to organizations by bailiffs, as this is the most common case in practice.
The company learns about the foreclosure on wages and other income of its employee, having received a resolution in the form approved by FSSP of Russia(k) (hereinafter referred to as the Resolution). Also attached to it:
We note that if the writ of execution entered the organization erroneously (for example, the person indicated in it was never listed in its staff), then, according to the author, the document must be returned to the sender in the shortest time. Although the legislative requirement for the return of a "foreign" writ of execution is not established, it provides for the obligation to immediately return the document in relation to, for example, a dismissed employee ().
As for the organization of the workflow of enforcement orders, there are no clear legislative norms regarding their accounting and storage. However, for the loss of a writ of execution or for its untimely dispatch (for example, when an employee is dismissed), as well as for failure to comply with the requirements on it, the company and its officials may be fined from 50,000 to 100,000 rubles and from 15,000 to 20,000 rubles respectively ().
Control over the correctness of deductions on writ of execution sent to the place of work of the debtor is carried out by the bailiff-executor 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 accounting and storage of writ 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 executive document, the company should:
Upon receipt of the Resolution, you must do the following.
Register it in a special journal (the journal form is not currently approved, so the company has the right to develop it on its own ()). As an example, you can use the old form of the registration journal of writ of execution (approved).
Fill out and send to the bailiff specified in the Resolution, the tear-off stub (notice for enforcement proceedings), thus confirming that the writ of execution has been received and accepted for execution. Please note that there is no statutory deadline for returning notices. 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), indicate the phone number. He also signs Chief Accountant. The document is certified by the seal of the organization.
Familiarize the employee-debtor with the content of the writ of execution under the signature ( ; ).
Submit the registered Decree against signature to the accountant responsible for payroll.
Keep the Resolution as a document of strict accountability (in a safe) ().
As noted above, upon dismissal of an employee-debtor, one should "immediately notify the bailiff and (or) the recoverer and return the writ of execution to them with a note on the penalties" ().
The concept of "immediately" is not deciphered in any normative 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.
At the same time, the writ of execution must contain a note on the deductions made (it is certified with the seal of the organization and the signature of the official who is responsible for issuing writ of execution by order), containing the following data ():
The writ of execution is sent to the territorial department of bailiffs of the Federal Bailiff Service of Russia with a cover letter by registered mail. The claimant is simultaneously notified of the movement of the writ of execution. The procedure for notifying the claimant is not approved, however, when sending him a letter with a notification of receipt, the company retains proof of the notification.
Withholding funds from the salary and other income of the employee-debtor begins from the date of receipt of the Resolution ().
Companies should timely submit a writ of execution to an accountant - before payroll is calculated and payments are made. If the Resolution is received after the next payment for the period in which deductions are to be made, then they are made from the payments of the next period.
Together with the Resolution on the recovery of alimony, a resolution on the recovery of debts on them (if any) () may be received. That is, the amounts that were not withheld before the receipt of the writ of execution are withheld from the employee's salary on the basis of this separate writ of execution. It calculates the amount of debt.
EXAMPLE
On April 27, 2017, the company received a writ of execution - a decision of a bailiff to recover alimony. The ruling states that the alimony must be withheld from April 2017. The salary for the first half of April has already been paid to the debtor.
In this situation, the employer is obliged to withhold child support starting from the employee's salary for the second half of April and only in the amount specified in the executive document.
Deductions are made for each payment of income to an employee, subject to the requirements below.
According to the general rule, deductions from wages made by the employer by virtue of the rights granted to him cannot exceed 20 percent ().
However, in case of deductions under writ of execution, more than 50 percent of wages and other incomes cannot be withheld from the employee until the full repayment of the amounts recovered ( ; ; ).
When recovering alimony for minor children, compensation for harm caused to health, compensation for damage in connection with the death of the breadwinner and compensation for damage caused by a crime, the deduction cannot exceed 70 percent ( ; ).
The amount of retention 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 who pays child support has the right to provide him with a standard tax deduction ( ; ).
When determining the basis for calculating alimony, the income from which they are withheld is reduced only by the amount of personal income tax that is part of these incomes.
EXAMPLE
The company received two decisions of the bailiff service per employee: the first one was for the recovery of child support in the amount of 25% of the salary, the second one was for the recovery of tax sanctions in the amount of 50% of the salary. The company is the main place of work of the employee. Debt under property taxes is 10,200 rubles.
In April 2017, the employee received a salary of 12,000 rubles. The amount of personal income tax to be withheld is equal to:
12 000 rub. x 13% = 1560 rubles.
The amount of deduction under the first writ of execution amounted to:
(12,000 rubles - 1560 rubles) x 25% = 2610 rubles.
The penalty for the second writ of execution is 50%:
(12,000 rubles - 1560 rubles) x 50% = 5220 rubles.
This is the maximum possible amount of deductions for this species requirements. However, given that 25% of the salary must be withheld as alimony, in order to pay off tax arrears, no more than:
(12,000 rubles - 1560 rubles) x 50% - 2610 rubles. = 2610 rubles.
The remainder of the debt on the second sheet in the amount of 2610 RUB. (5220 - 2610) must be withheld in the following months after alimony is withheld.
Withholding of alimony for the maintenance of minor children is carried out from all types of wages (cash 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 maintenance is withheld for minor children, approved).
However, execution cannot be levied on a closed list of types of income of the debtor (), in particular:
In addition, deductions are not made:
IMPORTANT
Expenses for transferring money under writ of execution (bank commissions, payment for Postal transfer) must be made at the expense of the employee ( ; ). In this case, the above restrictions on the amount of deductions from wages do not apply.
When withholding funds for several writ of execution that came to one employee, it is necessary to follow the sequence of satisfying the claims of claimants ():
All other requirements are satisfied last.
At the same time, the requirements of each subsequent turn are satisfied after the repayment of the debt to the previous turn in full. If there are several writ of execution from different claimants, holding one queue within maximum size deductions are distributed among all recoverers of this queue in proportion to the amounts due to them ().
Periodic payments set in a fixed amount (not as a percentage of wages) are subject to indexation. Thus, fixed periodic payments are indexed, paid in order to compensate for harm caused to life or health, under a life maintenance agreement, etc., in the manner established by the legislation of the Russian Federation. An organization should issue an order (instruction) on such indexation, on the basis of which the accounting department will carry out indexation ().
In addition, alimony, defined 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 a court decision in a fixed amount, then indexation is carried out in proportion to the increase in the amount established by law living wage for the specific region in which the claimant lives. Indexation is carried out in proportion to the increase in the subsistence minimum 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. In the absence of an established subsistence minimum in the subject of the Russian Federation, it is necessary to take data on it as a whole for the Russian Federation ().
IMPORTANT
The employer is obliged to index the amounts withheld from the employee, set in a fixed amount of money, even if there is no special indication of this in the executive document or the decision of the bailiff ( ; ).
Persons paying wages or other periodic payments to the debtor are obliged, within three days from the date of payment, to transfer the withheld cash claimant. There are no taxes to be withheld from the transferred amounts.
Thus, a company that has received the Ordinance must:
EXAMPLE
The company received two writ of execution per 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 constituent entity of the Russian Federation in which she lives.
In the amount of deductions under these two executive documents will be more than 50% of the debtor's income after withholding personal income tax.
So, for April 2017, the employee was accrued wage in the amount of 24,000 rubles.
The amount of income after withholding personal income tax:
24 000 rub. - 24,000 rubles. x 13% = 20,880 rubles.
The amount of deductions under the first writ of execution is:
20 880 rub. x 25% = 5220 rubles.
Suppose that the subsistence minimum for the able-bodied population for April 2017 is 9962 rubles.
The amount of deductions for both writ 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 of them must be partially satisfied.
For the first writ of execution:
(5220: 15,182 x 10,440) = 3589.57 rubles,
on the second:
(9962: 15,182 x 10,440) = 6850.43 rubles.
Olga Tkach, expert of the Legal consulting service GARANT
“When should the bailiff finally leave us alone?” This question is often asked, knowing that the law has some statute of limitations on debt collection.
Of course, the most effective way to get rid of the "annoying bailiff" is to fully pay off your debts. But what if there is no way to find the right amount of money?
Closing enforcement proceedings without payment is not so easy. But still, there are a few exceptional cases where the law prohibits the collection of debts, despite the fact that they are still outstanding.
The Federal Tax Service writes off debt from citizens-debtors if:
But if the debtor deliberately "plays for time", evading the payment of the fine, then the expiration of 2 years will not help him: the period is suspended until the obstacles to the collection of the fine are removed.
By law, you can not withhold more than 50%, and only for debts for alimony or compensation for harm to life or health, the allowable percentage of deduction is increased to 70%.
Therefore, from a debtor who has already been deducted from his earnings or pension maximum percentage, it is impossible to collect other debts (unless it is a mortgage - then they sell the apartment).
For example: the debtor is deducted from the salary by 70% for the payment of alimony to children. Until this debt is paid off (and this, as a rule, not soon - until the child turns 18), the rest of his creditors will have to wait in line.
This also includes those cases where there is property, but according to the law it cannot be foreclosed on debts (the only housing, a survivor's pension, a monthly cash payment on account of federal benefits, etc.).
Enforcement proceedings will be terminated in only one case: if the creditor misses the 3-year period for presenting the sheet for execution.
And this period is renewed if the bailiff returned the sheet due to the impossibility of recovery. Having received the writ of execution back, the recoverer has the right to present it to the bailiffs again, but not earlier than after 6 months.
And this can continue indefinitely, if the creditor observes the 3-year period.
Only in one case this period is not renewed: if the recoverer himself withdrew the writ of execution. Then 3 years are counted from the day when he presented the sheet to the bailiffs.
Or his creditors have the right to apply if the amount of debt exceeded 500 thousand rubles and there have been no payments for more than 3 months.
How to start the collection process?
Debt collection is handled by the Federal Bailiff Service (FSSP). You can apply there with a writ of execution - it gives the right to execute a decision of a court or other body to collect a debt. The FSSP will initiate enforcement proceedings and, if necessary, contact the bank.
If your debtor is a client of Sberbank, you can contact the bank directly, bypassing the FSSP. Come to any with the original document of execution, passport and application according to the model:
The application may be submitted by the claimant's representative. Then you will also need a power of attorney certified by a notary. If the claimant is entity, the head of the organization can certify the power of attorney.
Is it possible to provide a copy of the executive document to Sberbank?
No, Sberbank only accepts originals of executive documents. The same rule applies to other banks. Therefore, you will not be able to contact several banks at the same time on your own.
When a writ of execution is provided to the bailiffs, the recovery will be carried out for all banks in which the debtor has accounts, until the requirements are fully met.
What to do if the bank refused to fulfill the requirements?
The bank may refuse to fulfill the requirements if there is something wrong with the documents - for example, there are no details in the application or they are incorrect. In this case, you can correct the errors and submit the set of documents again.
The reason for the refusal may also be that the debtor does not have an account with Sberbank. Then you should contact another bank or bailiff service.
You can find out the exact reason for the refusal from cover letter, which the bank will send along with the original of the executive document to the postal address indicated in the application.
How long does it take to collect a debt?
How is money debited from the debtor's account?
If there is not enough money on the account to pay all the requirements, debits will be processed in the order of priority.
More details about each queue - in the text of the law. Within each queue, the write-off is made in the order of the calendar order of receipt of documents.
What to do if the money was collected, although the debt was paid?
Contact the authority that issued the executive document. You can find out which body it was in Sberbank Business Online on the page of the account from which the money was debited. When contacting the authority, you will need to provide proof of payment.
How is an arrest removed?
The arrest will be removed if the executive document is revoked. To influence this, contact the person who sent the writ of execution to the bank or made the decision to arrest. The procedure and set of documents that you will need may be different in each case. The bank cannot influence the decision on the arrest and its removal.
