The debtor's rights in enforcement proceedings, or how to defend your arguments

Bailiff enforcement is the last stage in a creditor's recovery of debts. For the debtor, this involves a compulsory settlement of the obligation ordered by a legally valid court judgment. Nevertheless, it must not be forgotten that during its duration the debtor has his rights. The following article will present how the debtor's rights in enforcement proceedings look like in practice.

The debtor's rights in enforcement proceedings - grounds for levying enforcement

The basis for the initiation of enforcement is the so-called an enforcement clause, which is issued at the request of the creditor or ex officio following court proceedings. After examining the case thoroughly, the court issues an order for the debtor to pay a certain amount of money. Then it is up to the creditor to decide on which course the case will be brought, in other words - whether to start bailiff enforcement.

If the creditor decides to initiate bailiff enforcement against the debtor, he submits an application for enforcement, including a detailed description of the actions that the bailiff should take to recover the debt. Further proceedings by the bailiff is a pure formality. As a government official, he or she is responsible for enforcing the amount of money, and does not examine the grounds and substantive scope of the case.

Anti-enforcement action

One of the basic rights of the debtor in enforcement proceedings is the so-called anti-enforcement action, which is divided into two types: deprivation of enforceability of the writ of execution (opposition action) and release from enforcement (exclusionary action).

The right reserved exclusively for the debtor is the demand to revoke the enforceability of the writ of execution, that is, to discontinue the execution in full. The basis for bringing such an action is:

• the occurrence of an event as a result of which the claim has expired or cannot be enforced,
• the obligation has been repaid by the debtor,
• proving the spouse that the enforced obligation is not owed to the creditor (has already been repaid).

The exemption from enforcement is available to third parties if their rights have been violated in the course of the exemption. An example is the execution of someone else's property (company laptop, car, etc.). It is important that the application for exemption from enforcement is possible within one month from the date of violation of rights, usually from the moment of learning about the seizure of a given item by the bailiff. After that time, the claim will be dismissed by the court.

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Action against the bailiff

The debtor has the right to question the manner in which the enforcement is carried out by the bailiff. The bailiff is a public official, which does not mean that he does not make mistakes. The basis for questioning his actions is prolonged execution and any violation of the provisions on enforcement proceedings, for example:

• failure to notify about the commencement of enforcement,
• incorrect calculation of enforcement costs or interest,
• occupation of things necessary for everyday life or work,
• preventing voluntary repayment of accrued costs (e.g. charging costs while seizing the remuneration for work).

The complaint may be filed within 7 days from the date on which the infringement occurred.

What cannot be grounds for enforcement?

A detailed list of things that cannot constitute grounds for enforcement is described in Art. 829 of the Code of Civil Procedure. These are, among others:

• everyday objects, also considered personal (bedding, underwear, clothes), and also used in the performance of work,
• food,
• items necessary for study, documents, objects of religious worship and items subjectively valuable to the debtor,
• anxieties,
• necessary items used by a disabled person.

Attention! The bailiff has the right to confiscate an item belonging to a third party if the debtor uses it. Only after the owner applies for exemption from enforcement, she is excluded from the enforcement proceedings.