Enforcement

 

In the trial stage, the aspect of protection prevails, and in the enforcement stage dominates the aspect of constraint.

Enforcement occurs only to the extent that the debtor does not voluntarily execute the obligation within the enforceable title - the obligation established by the decision of a court or by another enforceable title is fulfilled in good faith. If the debtor does not voluntarily execute the obligation, it will be fulfilled through enforcement, which begins with the notification of the enforcement body.

The debtors income and assets may be subject to enforcement if they are enforceable and only to the extent necessary to realize the rights of the creditors.

For a creditor to be able to trigger the enforcement, it is necessary to fulfill several conditions: to have an enforceable title; the debt is certain, liquid and exigible; to formulate the enforcement claim within the prescription term of the right to obtain the enforcement; the court of enforcement must approve the enforcement; to make a prior notification to the debtor; there are no impediments to performing the enforcement. Enforceable titles are the acts drawn up by the competent organs in accordance with the law, acts which may serve to the initiation of enforcement and, therefore, to the realization of the rights acknowledged by those acts. Enforcement may only be done based on an enforceable title.

As in the case of the trial, enforcement is not usually triggered by default, being necessary the notification of the interested person. The creditor must address through a legal or conventional representative at the competent bailiffs office or to send by post or courier. The enforceable title and, where appropriate, the proof of the stamp tax payment must be attached to the claim. As soon as the enforcement claim is received, the bailiff, through the closing, shall order the registration of the claim and the opening of the enforcement file or, as the case may be, shall justifiably refuse the opening of the enforcement procedure. The closing is communicated to the creditor and, if the opening of the enforcement proceedings has been refused, he or she can complain within 15 days to the court of enforcement.

It is necessary that there should be no circumstances impeding the fulfillment of enforcement. If the prescription intervened, a payment deadline was granted or the creditor did not give the bail in the case of decisions with temporary execution, the enforcement cannot begin. On the other hand, there are situations in which the execution has been started, but its natural course is influenced by circumstances that delay it or even cease it before the debtor satisfies his obligation: the existence of joint property, the adjournment of the execution, the suspension of enforcement, the obsolescence of enforcement etc.

Also, when the creditor pursues at the same time more movable or immovable assets having a value which is clearly excessive in relation to the claim to be satisfied, the court of enforcement, at the request of the debtor and after the creditor has been summoned, may restrict the enforcement to certain goods.

The parties, which are called, at this stage, creditor and debtor, have the same rights and obligations as in the judgment stage, but also some specific ones. Therefore, the creditor has the right to start or not the enforcement or to forgo the started enforcement and the right to choose the enforcement form or the debtor that he is pursuing in the case of the joint obligations, but also the obligation to grant the bailiff, at his request, effective support and to advance the expenses necessary for the fulfillment of the enforcement acts.

The creditor or debtor quality may be transmitted at any time during the enforcement, in accordance with the law. Upon the pursuit of a creditor, any creditor of the debtor may intervene in the ongoing enforcement procedure up to the date when the bailiff sets the deadline for the capitalization of the pursuable goods, and after depositing the sums realized within the pursuit, may participate to their distribution.

Capitalization of the goods. As a rule, goods are being capitalized in a friendly manner. If the auction sale has been reached, the price will be determined by the bailiff himself or by an expert. The bailiff shall establish, through closing, the day, as well as the place of the auction and the deadline. The bailiff shall notify the creditor, the debtor, the third party owner and any person who has a right related to the goods, at least 48 hours before the term fixed for the sale and shall display announcements and publications of sale at least 5 days before, in places and under the conditions provided by law. If the seized property could not be sold, any creditor who, according to the law, could claim the enforcement, may take it in account of his debt at the price fixed in the publications or the sale announcements for the last auction term. Seized goods that could not be capitalized remain unavailable for a maximum of one year from the date of the seizure application, time during which the bailiff may try again to capitalize these assets. If, after the expiration of the term, the goods cannot be capitalized and the creditor refuses to take them in account of the debt, they shall be, by default, returned to the debtor.

The court also participates in this phase, the competence belonging to the court from the district where the office of the bailiff is located.

It is therefore necessary that an expert shall analyze the legal situation and then decide upon the used strategy. Our team has a national network of bailiffs, ensuring the procedures are carried out with celerity.

 

SUNA ACUM