Five controversial issues in the area of enforcement were answered with Interpretative Decision No 3/2015 of the General Assembly of the Civil and Commercial Colleges of the Supreme Court of Cassation enacted on 10.07.2017.
The first one relates to the possibility of an entry in possession by a bailiff against a third party who is found in the property claiming to be in possession of that property prior to the filing of the lawsuit in which the decision subject to enforcement was enacted. The two colleges accepted that this action is considered unlawful, and if such an entry is accomplished, the third party in possession of the property would be able to defend its rights with a claim by virtue of art. 435 para 5 of the Civil Procedure Code (CPC) within one week of learning about the implementation of the entry. If the deadline is omitted, the third party has the possibility to initiate a possessory action under Art.75 or Art.76 of the Property Act (PA).
The interpretative decision puts an end to the existing contradictions in the case-law on whether according to Art. 435, Para 2 of the CPC all acts of the bailiffs, determining the amount of the obligation to pay the expenses of enforcement are subject to appeal, or the provision only concerns the order for the determination of the expenses. It was decided that such limitation is inacceptable and all acts of the bailiffs, determining the amount of the debtor’s expenses may be appealed.
The third question to which the SCC gave an answer, is about the enforcement mechanism by which the court-appointed regime of personal relations between a child and a parent who has not been granted the exercise of parental rights is enforced. It is pointed out that the procedure under Art. 528, para. 5 of the CPC will be applied, according to which, if the child is not voluntarily delivered, the bailiff, with the assistance of the police authorities and the mayor, forcibly takes it away and delivers it to the parent.
The decision gives clarity on the admissibility of a third party in possession of a property to which enforcement is directed to bring an action under Art. 440 of the CPC (Article 336 of the CPC (rev.)) According to the Supreme judges, the claim is also admissible in cases where the third party is in possession of the object against which enforcement is directed at the time of distraint, foreclosure or its delivery (if it is related to a chattel). The cases, in which this third party has exercised its right of appeal under Art.435, Para 4 of the CPC and the appeal has been upheld, shall be excluded.
The last question that has received an answer with the interpretative decision concerns the sending of a distraint message to a bank from which the bailiff has received an answer that the debtor has no account in. It is controversial in the case-law whether this enforceable act represents а distraint. The General Assembly of the Civil and Commercial Colleges agrees that in such cases a distraint is effectively imposed, but the debtor will not be accountable for the expenses incurred and that they remain at the expense of the creditor.
author: Kristina Vezenkova