July 15, 2021 rcplegal 0 Comments

If you receive a summons from the bailiff inviting you to pay a sum of money to a creditor with whom you have had a contractual relationship in the past, you must consider a few aspects before deciding to pay that amount.

First of all, the enforcement is based on an enforceable title such as an agreement (credit agreement, loan agreement, lease agreement), a payment or guarantee instrument (promissory note, bill of exchange, check) or a court decision. The titles mentioned above, except court decisions may be the subject of an enforcement appeal by which the debtor may invoke issues related to the validity of the title, reasons for cancellation or any other impediment to execution.

Secondly, the request for enforcement must be based on a certain, liquid and due receivable. Whenever one of the 3 conditions listed above is not met, the debtor can obtain the cancellation of the forced execution for not fulfilling the conditions related to the receivable that is being executed. Unfortunately, the courts are often burdened with hundreds of such requests and there is a possibility that these conditions may not be analysed in detail, thus leaving it to the debtor to initiate an enforcement appeal to obtain the cancellation of the enforcement. 

For example, it is possible that the debt due and requested to be enforced has not reached maturity, which leads to the lack of enforceability of the receivable or there is the possibility that the amount owed is not correctly individualised in the enforceable title or the enforceable title was represented by an  addendum to the agreement that was not invested by law with executory character which leads to the lack of certain character of the receivable.

Thirdly, any debtor must take into account the fact that a receivable and implicitly an enforceable title can be enforced, in principle, within a limitation period of 3 years from the date on which the amount was due to the creditor. The practice of credit institutions and most of the time other creditors is to buy / assign the receivables they hold to other companies that deal with the execution and recovery of these amounts of money, but most of the time, they are bought in bulk. These receivables are not verified from the point of view of the period of prescription. Moreover, the prescription exception being of a private order, it cannot be invoked by the court to reject the approval of the forced execution or by the executor to refuse the opening of the execution file. Therefore, as in the case described above, it is up to the debtor to invoke the prescription of the right to request the enforcement in order to cancel the enforcement, with the consequence of the cessation of any enforcement proceedings initiated against him.

In addition to these general reasons for annulment of enforcement acts, there are reasons related to the substance of the law, namely invoking the compensation, reasons for extinguishing the obligation to pay arising from the title of execution, voluntary payment and the like, which could not be invoked before the court (when we are referring of enforceable titles that are not based on a court decision). 

Regarding the drafting of the enforcement appeal itself, it must meet the substantive and formal conditions of a genuine court request, be exercised within 15 days provided by law and be paid the related stamp duties, calculated according to government ordinance 80/2013. 

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