Forced execution (Enforcement) – a procedure extremely common among the population, which undoubtedly represents additional stress for the person being executed.
What is Forced Execution?
Forced execution is the judicial procedure through which a creditor forcibly obtains the claim they hold against a debtor, through the mediation of a court bailiff.
In practice, if the debtor does not voluntarily pay their debt, the creditor can obtain the sum of money through the coercive power of the State.
There are various situations where forced execution may occur: if the creditor wins a lawsuit against the debtor in court, or if the creditor signs a document with the debtor that has the character of an enforceable title, etc.
What are Enforceable Titles? (Documents based on which forced execution can be initiated)
According to the Civil Procedure Code the following are enforceable titles:
- Judgments with provisional execution;
- Final judgments;
- Notarized authentic instruments;
- Credit titles (negotiable instruments);
- Any other documents for which the law provides enforceable status.
Who are the Participants in the Execution Procedure?
The essential parties for any execution file are: THE CREDITOR (the one who has the right to recovery/fulfillment of the obligation), THE DEBTOR (the person obligated by the enforceable title), THEIR HEIRS (as applicable) and THIRD-PARTY GUARANTORS (persons third to the main obligation who guaranteed the debtor's debt and who are liable with their own assets in place of the debtor).
Now that we’ve cleared that up, let's see how you can actually get out of it!
Your most common and effective weapon in this situation is the Your most common and effective weapon in this situation is the Challenge to enforced execution. This is essentially a procedure through which you contest the existing documents in the execution file or the execution in its entirety.This is essentially a procedure through which you contest the existing documents in the execution file or the execution in its entirety.
What is the Deadline for Filing a Challenge?
According to legal norms, the general deadline for filing a challenge to execution is 15 days from the moment you were served the summons or became aware of the execution act.
Unfortunately, there are many situations where clients do not mobilize to respect those 15 days; consequently, their challenge is later rejected as being tardy (late).
What Can You Invoke in a Challenge?
Generally, any irregularity regarding the forced execution itself can be attacked by filing a challenge, provided the legal deadline is met.
Examples include: Lack of jurisdiction of the court bailiff; Lack of or irregularity of the enforceable title; Lack of approval for forced execution; Failure to communicate execution acts to you (as the debtor); Prescription of the right to obtain forced execution; Peremption of the forced execution; Incorrect determination of the debt/penalties/interest; Incorrect communication of execution documents.
As you can see, there is a wide variety of situations where an execution file may contain errors that you could later use to promote a challenge.
The Statute of Limitations (Prescription)
Depending on the type of claim in question, the limitation period is:
- 3-year term - the general term for most civil and commercial debts;
- 5-year term The fiscal term, which applies to tax/budgetary claims (taxes, duties, etc.)
- 10-year term The limitation period regarding "real rights" (property-related)
What happens if you request the court to establish that the statute of limitations has passed?
Prescription extinguishes the right to obtain forced execution, and the enforceable title will lose its power. Essentially, your file is "extinguished," as the claim is barred by the statute of limitations.
If you suspect you are being executed for a prescribed debt, the next step is to promptly contact your lawyer to check if there were any causes for the suspension or interruption of the limitation period.
What is „Peremption”?
In short, peremption of forced execution is a procedural sanction. It results in the extinction of the execution acts if the creditor, through their own fault, fails to fulfill the necessary steps for a period of 6 months. Essentially, if the file remains inactive for 6 months due to the creditor's passivity, it perishes.
Abusive Clauses in Credit Contracts
Very often, forced execution originates from a credit contract. Sometimes, banking institutions include clauses that are not entirely clear or do not respect the balance between the parties (risk clauses, extra commissions, interest calculated/modified at the bank's whim, etc.).
In this case, you can petition the execution court to declare those clauses null and void, which leads to subsequent benefits like recalculating the debt or canceling interest.
How Can I Help You?
An absolutely essential first step is the study of your execution file by a lawyer to identify all possible problems that may have arisen or been neglected by the bailiff or creditor.
From there, we can create a clear analysis and a "battle plan."
IMPORTANT! Time is not on your side when discussing a challenge to execution. The moment you receive a summons or become aware of a garnishment (poprire), contact me to determine the next steps.
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