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Disclosure of the debtor's assets

An effective instrument used in enforcement proceedings is disclosure of the debtor's assets. What is it about?

Application for disclosure of the debtor's assets

Disclosure of the debtor's assets may take place by submitting an application by the creditor for their disclosure. Issues related to this topic have been regulated in the Code of Civil Procedure, Art. 913-920. The application may be submitted before, during or after the enforcement proceedings are initiated. The right to request disclosure of the debtor's assets is also exercised by the court of first instance and the authority empowered to initiate enforcement, provided that enforcement has commenced ex officio. Sometimes the request may be made by the prosecutor, non-governmental organization or bailiff.

Filing an application for disclosure of assets prior to commencement of enforcement

When submitting an application for disclosure of the debtor's assets prior to the commencement of enforcement proceedings, the creditor should provide evidence that it is not possible to obtain full satisfaction from the debtor's assets or from the six-month periodic benefits due to the debtor and that it is not possible to obtain an enforcement order.

Art. 913 Code of Civil Procedure

§ 2 The creditor may request disclosure of assets also before commencing enforcement, if:

1) it is probable that he will not obtain full satisfaction of his receivables from the property known to him or from the debtor's current periodic benefits for a period of six months;

2) after obtaining the writ of execution, he called on the debtor to pay the amount due by registered mail with acknowledgment of receipt, and the debtor failed to perform the payment within 14 days from the date of delivery of the request for payment.

Submission of an application for disclosure of assets after commencement of enforcement

In a situation where, after the commencement of enforcement, the debtor's assets seized in the execution do not promise to satisfy the enforced receivables or if, as a result of the ongoing execution, the creditor has not obtained full satisfaction of his receivables, he is obliged to prove it. How to meet the above-mentioned conditions?

The creditor may prove that he did not obtain tangible redress by attaching to the application documents showing the ineffectiveness of the enforcement. These may include, in particular:

a decision to discontinue enforcement proceedings,
request for explanations before redemption,
seizure protocols.

Disclosure of assets also applies to things

Disclosure is usually applied to cash benefits, but an application can also be used in the enforcement of non-cash benefits. This is the case when the debtor hides the item he is obliged to deliver.

Art. 1045 Code of Civil Procedure

If the bailiff did not find the goods or document to be collected from the debtor, the court, at the request of the creditor, will order the debtor to disclose where they are and to make a promise that his statements are true. The provisions for the promise at disclosure of assets apply accordingly.

Consideration of an application for disclosure of assets

The court examines whether the application does not contain any formal defects. After confirming the correctness, he calls the debtor to the meeting.

Written inventory of property

The debtor, in response to the request for disclosure of assets, is obliged to draw up a written inventory of his property and its location under the threat of sanctions. It is also permissible to submit the disclosure of property orally for the record. Importantly, during the meeting, the creditor has the opportunity to ask additional questions to the debtor. It is an important tool for the final verification of knowledge about the debtor's possible assets, so it is not worth forgetting about this privilege.

Failure to appear on call

If the latter fails to appear in court without justification or does not submit a list or refuses to answer a question asked or to make an oath, the court may impose a sanction in the form of, inter alia:

fines,
an order for compulsory bringing to court by the police,
arrest for a period not exceeding one month.

The effectiveness of the institution of disclosing the debtor's assets is determined primarily by the possibility of using coercive measures (e.g. bringing to court by the police) and penal sanctions (e.g. detention for a period not longer than a month), as well as a relatively low cost (fee court fee for submitting the application is PLN 40). Finally, it should be remembered that the application for disclosure of the debtor's assets does not interrupt the limitation period (the Supreme Court ruled in its judgment of 19 November 2010, III CZP 92/10).