The use of interim measures in relation to property can create a lot of inconvenience for their owners and owners; they can only be removed by filing a statement of claim to release the property from seizure.
The arrest is imposed either by a resolution of the bailiff or by a court ruling. If the question concerns the activities of an official of the Federal Bailiff Service, the parties to enforcement proceedings may apply within 10 days from the date of receipt of the relevant resolution. In all other cases, when the rights of citizens and organizations are violated due to the seizure of property, use the filing of a statement of claim in court.
The defendants in the case are the collectors and the debtor in enforcement proceedings; an official of the FSSP of Russia service is involved as a third party, who issued a decision to seize and included the disputed property in the inventory.
In the statement of claim, it is necessary to prove that the disputed property does not belong to the debtor, but is the property of the plaintiff (is in legal possession), and provide the relevant supporting documents.
Filing a claim in court
The claim is of a property nature, so filing a claim is accompanied by payment. The amount of the state duty depends on the price of the claim, which is determined based on the value of the property that must be excluded from the inventory and the arrest lifted. If the claim price is more than 50,000 rubles. the claim is always filed in a district court, or in a smaller case, in a magistrates’ court at the defendant’s place of residence.
When the main object of the dispute is real estate, the claim is filed at the location of such property.
Statement of claim for exclusion of property from the inventory and release from seizure
It happens that bailiffs seize property that does not belong to the debtor in enforcement proceedings, but to completely different persons. What should the owners of the seized property do in this case? Apply to the court with a claim to exclude this property from the inventory and release it from seizure.
In ___________ district court of Novosibirsk
(address)
Plaintiff: Ivanova Irina Ivanovna
address, telephone
Defendants: 1. Petrov Konstantin Mikhailovich
address, telephone
2. Petrova Elena Vladimirovna
address, telephone
3rd person: SSP Department for ____________ district of the Federal Service for Supervision of the Federal Service
in the Novosibirsk region
630___, Novosibirsk, _____________
STATEMENT OF CLAIM
(on exclusion of property from the inventory and release from seizure)
Property claim not subject to assessment
State duty – 300 rubles.
(date) debtor in enforcement proceedings No. ________________ defendant Petrov K.M. appeared before the bailiff of the OSSP in the __________ district of Novosibirsk, full name, upon her call.
Right at the reception, the bailiff made an inventory and arrest mobile phone ________________, who was with the defendant K.M. Petrov. on account of his debt to the claimant in the said enforcement proceedings, defendant E.V. Petrova. The fact of seizure (inventory of property) is confirmed by an act of seizure dated (date) attached to the statement of claim.
However, this mobile phone is not the property of the defendant K.M. Petrov, but belongs to me: it was I who purchased the phone ________________ for myself and at my own expense (date), paying for it from my credit card ________________, opened under personal account No. ________________ in PJSC "Sberbank" in my name. This fact is confirmed by the following attached to the statement of claim:
a check and a copy of the receipt for payment for the specified telephone number
mobile phone passport
report on credit card ________________
certificate from Sberbank PJSC dated (date)
agreement between the plaintiff and Sberbank PJSC dated (date) on opening a personal account No. ________________ in her name
Meanwhile, I have nothing to do with enforcement proceedings No. ________________, within the framework of which my property was seized. The defendant K.M. Petrov had the phone with him. on the day of his visit (date) of the year to the bailiff due to the fact that he lost his phone and I gave him, at his request, for temporary (for several days) free use a phone belonging to me ________________.
The measure of compulsory execution in the form of seizure can be applied only in relation to property belonging to the debtor himself, i.e., in this case, in relation to enforcement proceedings No. ________________ only on the property of the defendant K.M. Petrov. (vv. 68, 80 Federal Law dated October 2, 2007 No. 229-FZ “On Enforcement Proceedings”). If a bailiff commits a violation of federal law when seizing property, it is grounds for canceling the seizure (Clause 1, Article 442 of the Code of Civil Procedure of the Russian Federation).
According to Part 2 of Art. 442 Civil Procedure Code Russian Federation claims for the release of property from seizure (exclusion from the inventory) are brought against the debtor and the claimant. In accordance with the explanations given in paragraph 51 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N 10/22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other real rights,” disputes about the release of property from arrest are considered in accordance with the jurisdiction of cases according to the rules of claim proceedings, regardless of whether the arrest was imposed in order to secure a claim or in the order of foreclosure on the debtor’s property in execution of executive documents. The defendants in such claims are: the debtor whose property was seized, and those persons in whose interests the property was seized. The bailiff is involved in such cases as a third party who does not make independent claims regarding the subject of the dispute.
As follows from Art. 436 Code of Civil Procedure of the Russian Federation and clause 1, part 1, art. 39 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”, filing a claim for the release of property from seizure is an unconditional basis for suspending enforcement proceedings. According to Part 1 of Article 42 of the said law, enforcement proceedings suspended by the court or bailiff until the circumstances that served as the basis for the suspension of enforcement proceedings are eliminated.
The plaintiff also considers it necessary to ask the court to take interim measures on her claim in the form of a ban on suspending the sale of her telephone ________________, seized as part of enforcement proceedings No. ________________ (clause 4, clause 1, article 140 of the Code of Civil Procedure of the Russian Federation).
Based on the above and guided by Art. 3, pp. 4 paragraphs 1 art. 140, paragraph 2 of Art. 102 Civil Procedure Code PF, part 1 art. 119, art. 39 of the Law of the Russian Federation of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”,
I ASK:
1. Exclude from the property inventory report drawn up (date) by the bailiff of the Department of the Bailiff Service for the _________ region of the Office of the Federal Bailiff Service for the Novosibirsk Region, full name within the framework of enforcement proceedings No. ________________ and release my phone ________________ from seizure;
2. Suspend enforcement proceedings No. ________________, initiated by the Department of the Bailiff Service for the ____________ district of the Office of the Federal Bailiff Service for the Novosibirsk Region, in terms of foreclosure on the phone ________________ to pay off the debt of K.M. Petrov. before Petrova E.V.
3. Take interim measures in the form of suspending the sale of telephone ________________ within the framework of enforcement proceedings No. ________________, initiated by the Department of the Bailiff Service for the __________ region of the Office of the Federal Bailiff Service for the Novosibirsk Region;
4. In accordance with paragraph 2 of Art. 102 of the Code of Civil Procedure of the Russian Federation to recover from the federal budget the legal expenses incurred by the plaintiff in this case in the form of a state fee (300 rubles) and payment for the assistance of a representative (consultation on this case and drawing up a claim for the release of property from seizure - only 6,000 rubles).
APPLICATION:
1. Receipt for payment of state duty
2. Copy of the statement of claim – 2 copies.
3. Act of inventory and seizure of property dated (date)
4. receipt and copy of receipt dated (date) for the purchase of a mobile phone
5. mobile phone passport
6. certificate from Sberbank PJSC (date)
7. credit card report No. ________________
8. agreement between the plaintiff and PJSC Sberbank dated (date) for opening a personal account
9. receipts for payment of legal services (2 pcs.)
"____" ________ 2017
plaintiff Ivanova I.I.____________
When seizing property, a bailiff may commit actions that violate procedural legislation, which determines the procedure for enforcement proceedings (for example, when seizing property that cannot be seized under executive documents; property that is not subject to confiscation by a court verdict). In the presence of such circumstances, the debtor or other persons, regardless of their ownership of the property, have the right to file an application with the court against the actions of the bailiff and demand the cancellation of the seizure. Applications are subject to consideration in open court according to the rules established by Art. 441 Code of Civil Procedure of the Russian Federation.
However, the possibility of filing such an application is limited to certain points. So, if Art. 441 of the Code of Civil Procedure of the Russian Federation contains an indication that an appeal against the actions of a bailiff can be made within the established ten-day period from the date of commission of a specific action or inaction, then an application to cancel the seizure of property can be filed with the court only before the sale of the seized property.
After the sale of the seized property, third parties may apply to the court to demand the return of the property on the grounds that it belonged to them by right of ownership before the sale. Under such circumstances, a dispute arises about the ownership of the property that is being foreclosed on, i.e. dispute over civil law (claim for the release of property from seizure). The dispute that arises is subject to consideration by the court according to the rules of claim proceedings.
As explained by the Plenum of the Supreme Court of the Russian Federation, disputes about the release of property from seizure are considered according to the rules of claim proceedings, regardless of whether the seizure is imposed in the order of applying measures to secure a claim, foreclosure on the debtor’s property in pursuance of a court decision or sentence, or when a notary has made an inventory of how a measure to protect inherited property and in other cases provided for by law.
Requests for the release of property from seizure are subject to a three-year limitation period, which begins from the day when the interested person learned or should have known about the seizure of his property.
The court does not have the right to refuse to accept a claim for the release of property from seizure if the case in connection with which the property was seized has not been resolved. Having declared it impossible to consider the claim until another case is resolved, the court is obliged to suspend the proceedings in this case.
A claim for the release of property from seizure may be brought by the owner, as well as by a person who, by virtue of law or contract, owns property that does not belong to the debtor. Claims in defense of the property interests of the minor children of the debtor (convict) may be brought by another parent, their guardian (trustee) or a prosecutor.
A claim for release from seizure of an unfinished house can be brought by the debtor’s spouse who participated in its construction, family members of the developer and other persons who together with him built the house in order to create common property.
The debtor (convict) does not have the right to file such a claim in court. His application to cancel the arrest on the grounds that the bailiff has seized property that cannot be seized, regardless of whether the property belongs to the debtor or other persons, is considered by the court within the scope of appealing the actions of the bailiff.
The defendants in such claims are the debtor whose property was seized, organizations or persons in whose interests the property was seized, as well as organizations that received the property free of charge.
If the property is seized due to its confiscation, the defendants will be the convicted person and the financial authority.
If the debtor (convict) is in prison, the judge, when preparing the case for trial, must notify him of the day of the hearing, send him a copy of the statement of claim and find out his opinion regarding the claim.
To the statement of claim mentioned cases a copy of the act of seizure (inventory) of property, a copy of the verdict, decision or other resolution in pursuance of which the seizure was imposed, and other documents confirming the claims made by the plaintiff (donation agreements, purchase and sale agreements, wills, checks, invoices, etc.) must be attached. p.).
In the event that property subject to exemption from seizure is sold, the court, if it is actually possible, may, with the consent of the plaintiff, make a decision on the transfer to him of equivalent property of the same kind, and if this is impossible, on the payment of the proceeds from its sale.
B (name of court)
Plaintiff: (last name, first name, patronymic),
Defendant: 1. (last name, first name, patronymic),
resident: (postal code and full address)
2. (name and address of the body in favor of
which is being collected)
Statement of claim for the release of property from seizure (exclusion from the inventory)
By the verdict of (name) of the court, dated "__" ____________ 200__, the defendant - my son, was convicted under Part ____, Art. _____ Criminal Code to _____ years in prison with confiscation of property.
"__" ____________ 200__, the bailiff (specify by whom) made an inventory of the property at the address of our joint residence.
The inventory included the following items: (indicate the name, cost and time of acquisition of the property).
The specified property was acquired by me personally, since my son did not have his own income and had just graduated from school.
The following witnesses can confirm the above: (surnames, first names, patronymics; full addresses).
Based on the above in accordance with Art. 442 Code of Civil Procedure of the Russian Federation
exclude from the inventory and recognize my ownership (list the things that are subject to exclusion from the inventory and their value) for a total amount (amount in figures and words) RUB.
Application:
1. A copy of the court verdict.
2. A copy of the property inventory act.
3. Evidence confirming the acquisition of the disputed property.
4. Copies of the statement of claim according to the number of defendants.
5. Bank receipt for payment of state duty.
"__" ____________ 200__ Signature
More on topic 23.6. Release of property from seizure:
- 1. Subject and object of the claim for the release of property from seizure
- 2. Grounds for a claim for the release of property from seizure
- 2.10. Peculiarities of consideration of cases on claims for the release of property from seizure
- 3.2. Imaginary transactions aimed at releasing property from seizure
- 3. Imaginary transactions aimed at releasing property from seizure
- Suspension of the sale of property in the event of a claim for the release of property from seizure (exclusion from the inventory) and suspension of collection under a writ of execution contested by the debtor in court