Executive inscription of the notary from "A" to "Z"

Fewer banks or collectors go to court to recover the debt owed by the debtor. After all, there is an alternative to a court decision and this is an executive notary's inscription.

The execution by a notary of a writ of execution is a notarial act, which consists in certifying the right of the claimant to collect monetary amounts or to reclaim property from the debtor. At the same time, the notary carries out his activities in the sphere of indisputable jurisdiction and does not establish the rights or obligations of the participants in legal relations, does not recognize or change them, does not decide on the merits of issues of law. Therefore, the execution notary made by a notary does not give rise to the right of the claimant to collect monetary amounts or claim property from the debtor, but confirms that such a right arose in the claimant earlier. The purpose of making a writ of execution is to provide the recoverer with an opportunity out of court to exercise his right to enforce the obligation by the debtor.

Why is a writ of execution more profitable for a lender than a court decision? There are several explanations for this:

to receive a writ of execution much faster than a court order of execution, which is issued on the basis of a court decision;
the financial costs of a writ of execution are usually significant compared to a court fee. For example, a bank pays about 2,000 hryvnias for obtaining a writ of execution, and banks usually pay at least 15,000 hryvnias for filing a claim, and this is not the limit;
bank lawyers spend more time on other management tasks;
only 20% of debtors agree to sue the bank after they find out that there is a compulsory execution to collect the debt;
other.

The moment of a pozichalnik to learn about a visonavchy writing

Although the procedure for the performance of notarial actions stipulates that the lender must provide evidence that he informed the borrower about the debt, and it is possible to contact a notary to obtain a writ of execution. However, as of now, the practice is increasingly being formed, the lender does not always decide to inform the borrower about the execution notary made by the notary.

If the borrower receives a notice from the bank, then the register of enforcement proceedings should be checked.
If not a single letter has been received from the bank, then in such cases the borrower will find out about the writ of execution against him after he was informed about the arrest on the accounts. After that, the borrower needs to contact the contractor, and get acquainted with the materials of the enforcement proceedings, which will contain a writ of execution.

Recognition of the executive inscription not subject to execution

Despite the fact that obtaining a writ of execution consists in contacting a notary, but it can be appealed by going to court with a claim for recognizing the executive inscription as unenforceable.

Before going to court with a claim, the following is important:

choose the right court;
choose the right parties to the dispute;
the amount of the court fee (mandatory payment for the consideration of this claim)
choose grounds (circumstances)
mark the correct claim;
to carry out the security of the claim.

Correct judgment
Claims against the recoverer for the recognition of the notary's executive notation as not subject to execution or for the return of the notary collected from the notary's executive notation may also be filed at the place of its execution (Article 28 of the Code of Civil Procedure of Ukraine, Article 29 of the Code of Civil Procedure of Ukraine).

The right sides
The plaintiff is the debtor indicated in the writ of execution. The defendant will be charged by (the bank). The third party on the defendant's side will be the notary who made the writ of execution. Also, sometimes the performer who opened the enforcement proceedings is involved as a third party.
If the levy WILL NOT be the defendant, the court will refuse to satisfy the claim.

The amount of the court fee
This requirement is a non-property requirement. Therefore, even if an amount of more than $ 100,000 is levied under the writ of execution, then the claim will be of a non-property nature. So, the court fee as of 2020 is 840 UAH 80 kopecks.

Grounds for recognizing the executive notation as not subject to execution
Taking into account the prescriptions of Articles 15, 16, 18 of the Civil Code of Ukraine, Articles 50, 87, 88 of the Law of Ukraine "On Notaries", the protection of civil rights by making a notary by a notary is that the notary confirms the claimant's right to collect monetary amounts or the debtor's property.
This right exists until a court finds otherwise.
That is, the debtor, who also has the right to defend his civil law in court, can challenge the executive notation made by the notary: both on the grounds of the notary's violation of the procedure for making the executive notation, and on the grounds of the illegality of the claims of the recoverer (in full or in part of the amount of debt or expiration limitation periods for claims in full or in part), with which he turned to a notary for the execution of an executive note.
Therefore, the court, when resolving a dispute on the recognition of a writ of execution not subject to execution, should not be limited only to checking the notary's compliance with formal procedures and the fact that the recoverer has submitted documents in support of the undisputed debtor's debt according to the List of Documents.

It is also important what kind of executive inscription. For example, if a writ of execution on the foreclosure on the subject of a pledge (a car), then the bank's lawyers usually forget to register information on the foreclosure on the subject of encumbrance. There is no such requirement / there is no reason if the dispute concerns a mortgage (real estate).

Correct claim
The correct claim is to recognize the writ of execution as not enforceable.
If it is indicated in the petitionary part of the claim for cancellation, the appeal of the executive inscription, then the court will refuse to satisfy the claim on the grounds that an inappropriate method of defense was chosen.

Securing a claim

Unfortunately, in spite of the fact that the borrower usually finds out about the executive note when the enforcement proceedings are open, in this case it is better to ask the court to suspend the execution of the executive note until the end of the consideration of the case.
This is due to the fact that the borrower may lose his property while the court is in progress. Then it will be difficult to recover what was lost.
In practice, judges of first instance usually grant security in 70% of cases. Courts of appeal usually grant collateral with a 95% probability.

If you need to recognize the writ of execution as not enforceable, then Novakovskaya & Partners JSC will help you with this.
The service is provided on the territory not only in Kiev, but throughout the country.

The author of the material is attorney Yanchuk Anatoly Anatolyevich