Recovery of receivables through the payment order procedure

The payment order is regulated by art. 1014-1025 The new Civil Procedure Code and is a special procedure for recovering certain, liquid and exigible debts consisting of obligations to pay sums of money resulting from a civil contract, including those concluded between a professional and an authority Contracting Party found in a document or determined in accordance with a statute, regulation or other enquirer, appropriated by parties by signature or otherwise admitted by the parties, as regulated by art. 1014 NCPc.

Thus, the payment order sought to facilitate the recovery of receivables, which may prove costly and difficult if the common law procedure were to be used. Moreover, the payment order replaces two special procedures previously regulated by O.G. no. 5/2001 regarding the payment procedure, respectively O.U.G. no. 119/2007 regarding the measures for combating the delay of execution of the payment obligations resulting from contracts between professionals. Currently, the payment order incorporates features of the old special procedures.

From the point of view of the admissibility of the application for the payment order, it must be pointed out that the person making such an application must first meet all the general conditions for exercising a civil action, namely: procedural capacity, procedural quality, formulation a claim and the justification of an interest, as provided by art. 32 NCPc. Since it is a special way of recovering debts, it must also comply with a number of specific conditions, namely:

1) Firstly, the payment order involves a preliminary procedure consisting in the debtor's communication to the debtor of a summons by which he is required to pay the amount due within 15 days. The non-fulfillment of this procedure by the creditor incurs the inadmissibility of the request regarding the payment order made in court, because, according to art. 193 NCPc, whenever a preliminary procedure is foreseen, it must be attended, and the court may be notified only after it has been fulfilled. The legislator wished to give the parties the opportunity to reach an agreement without the need for the intervention of a court of law. If, however, the parties do not come to an agreement as a result of the prior procedure, in the sense that the debtor fails to pay within the time prescribed by the law, then the creditor will attach the proof of the pre-trial procedure to the payment order application and will deposit it with him follow up to the court competent to hear the substance of the case in the first instance, according to art. 1016 NCPc in conjunction with art. 193 par. (1).

2) By the way of the payment order, only receivables consisting of amounts of money having as source a civil contract, statute, regulation or other written by the parties by signature or otherwise admitted by the law may be capitalized. The text of the law explicitly provides that the scope of the provisions on the payment order is excluded from the scope of the claims filed at the creditor's table in an insolvency proceedings (art. 1014, par. (2) NCPc]. For the latter, there is a special procedure following the opening of insolvency proceedings, as well as for other categories of receivables, such as receivables that have a break in an individual labor contract.

3) Secondly, the claim to be redeemed must be certain, liquid and exigible, in the conditions of art. 663 NCPc, and is arguable when "its irreducible existence results from the executing title itself" [1], is liquid "when the object is determined or when the enforceable title contains elements that allow it to be established" [2], respectively it is exigible when "The debtor's obligation is due or falls due to the payment period [3]".

4) Thirdly, the claim that is the subject of the payment order must be ascertained by a written document. In the doctrine [4], it was appreciated that since the purpose of the payment order procedure is to obtain an enforceable title, the enforceable document of the claim should not by itself be enforceable (as is the case, for example, of the consumer loan contract governed by Article 2165, in conjunction with Article 2157 NCc), since, in such a case, the issue of an order for payment would no longer be warranted.

5) Lastly, the application for the payment order must cover all the aspects prescribed by art. 1017 NCPc, including: name and surname, domicile or, as the case may be, the registered office of the creditor, name and surname, domicile or, where applicable, the debtor's registered office, or other identification data, if known by the creditor, the subject of the claim, the legal and factual basis of the payment obligation, the period to which it relates

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[1] Art. 663 alin. (2) Noul Cod de procedură civilă și Legea de punere în aplicare, 2016

[2] Art. 663 alin. (3) Noul Cod de procedură civilă și Legea de punere în aplicare, 2016

[3] Art. 663 alin. (4) Noul Cod de procedură civilă și Legea de punere în aplicare, 2016

[4] Drept procesual civil, Ed. a 3-a, Editura Hamangiu, Gabriel Boroi, Mirela Stancu, pag. 869 

Author

Alexandru Sandu

CEO
SUNA ACUM