Creditor
In enforcement proceedings, a creditor (from the Latin) is someone who, on the basis of an writ of enforcement, may demand obligatory fulfilment of a liability – pecuniary or non-pecuniary – stated in the writ of which the debtor is under an obligation to fulfil. To realise the writ of enforcement, the creditor has certain rights.
The creditor has the right to:
- Court (bailiff) enforcement
- Choice of bailiff
- Ask the bailiff to search for the debtor’s assets
- Choose the manner of enforcement
- Secure the claim
Right to court enforcement
Court enforcement is a procedure, performed on the basis of the code of civil procedures, to execute a writ of enforcement and the liability stated therein which the debtor should fulfil. The court bailiff is the person competent to initiate and conduct enforcement proceedings for pecuniary and some non-pecuniary claims.
The right to court enforcement proceedings, i.e. the right to pursue receivables in compliance with the binding rules of law, is the basic right of each creditor. The bailiff guarantees the fulfilment of court orders issued in the name of the Republic of Poland, as well as other writs of enforcement.
The basis for initiating enforcement proceedings is an application stating the liability which the debtor should fulfil and the manner of enforcement. The writ of enforcement should be attached to the application.
The right to choose a bailiff
The creditor has the right to choose a bailiff on the territory of the Republic of Poland to whom he wishes to apply for enforcement proceedings. Exceptions to this are enforcement proceedings upon real estate, cases where the regulations governing enforcement proceedings upon real estate apply as appropriate, and cases where the bailiff has a six-month backlog with enforcement proceedings. Mr Paweł Żurawski, bailiff at the District Court of Gorzów Wielkopolski, has no backlog with enforcement proceedings. When choosing a bailiff, the creditor encloses with his application for enforcement proceedings a separate statement that he is availing himself of the right to choose a bailiff pursuant to Article 8 of the Court Bailiffs and Enforcement Act.
Instruction to search for assets
The creditor should tell the bailiff about the debtor’s assets and sources of income. Providing as much information as possible about the debtor will make the enforcement proceedings much more efficient. But in most cases, the creditor has no information on the debtor’s assets. In such a case, it is expedient to ask the bailiff to undertake a search of the debtor’s assets. The search instruction may be included in the text of the application for enforcement proceedings, or may be submitted in a separate letter. Normally, the search instruction assumes the following text: “Pursuant to Article 7971 of the Code of Civil Procedures I hereby instruct the bailiff to search for the debtor’s assets”. In such a case, the debtor promptly takes the necessary action to identify the debtor’s assets in order to seize them and satisfy the creditor, or notifies the creditor of the action he has taken so that the creditor may file the relevant applications for enforcement proceedings, for example enforcement upon real estate.
If the bailiff receives an instruction to search for the debtor’s assets pursuant to Article 7971 CCP, he collects a fixed charge from the creditor amounting to 2% of the average monthly salary, this amount currently being PLN 61.62. This charge, as a cost of enforcement proceedings, is reimbursed to the creditor first.
Although many of the actions performed in searching for the debtor’s assets are gratuitous (e.g. enquires about the debtor’s vehicles –CEPIK, establishing the ownership of vehicles – Geoportal, enquiry to the Census Bureau, enquiries to the Central Record of Businesses, Commercial Law Handbook and a series of others), not all of them are gratuitous, and some involve additional charges, such as:
- an enquiry to ZUS – PLN 40.11
- an enquiry to the Tax Office – PLN 45.00
- an enquiry to OGNIVO about the debtor’s bank accounts – enclosed is a list of banks and scale of charges for enquiries.
Creditors who decide to instruct the bailiff to search for a debtor’s assets and submit payable enquiries ay, without being asked by the bailiff to do so, pay the relevant charges into his bank account, which certainly smoothen the enforcement proceedings and eliminate unnecessary correspondence.
Manners of enforcement
In his application for enforcement proceedings, the creditor should indicate the manner of the proceedings, in other words specify the debtor’s assets under which the enforcement should be performed. The CCP provides the following manners of enforcement: under real estate, earnings from work, receivables (including benefits and other revenues), bank accounts, other property rights and immovable property. The creditor is a client of enforcement proceedings and may ask for the enforcement to be performed in all the above manners and under the debtor’s entire assets.
During the enforcement proceedings, the creditor should provide as much information as possible about the debtor’s assets and choose the manner of enforcement that will best satisfy his claims.
Securing claims
To secure future claims which have not yet been covered in a writ of enforcement, the creditor, referred to in such a case as the entitled party, may secure the claims due to him by means of security proceedings which may precede any future enforcement proceedings. Pecuniary receivables gained as a result of security proceedings are transferred to a court escrow account and are payable to the creditor when he has obtained a writ of enforcement and initiated the enforcement. Security proceedings are conducted on the basis of an application by the entitled party which is submitted in a manner similar to that for enforcement proceedings, to which a title of security is attached. This may take the form of an unconfirmed writ of enforcement which the law permits in some cases, or a court injunction on the subject of enforcement.