Complaint against the actions (inaction) of a bailiff

How does an appeal against the actions of a bailiff take place? Many people know that getting a positive court decision for yourself is only half the battle. Next, it is important to begin implementing the court decision as quickly as possible.

This will be done by an employee of a specialized institution - a bailiff. And if he improperly fulfills his duties, then his inaction may become a reason for appeal.

How to write an administrative application to a bailiff in court, read in our article. We also offer a sample administrative statement of claim for the actions of inaction of the bailiff. So, in order.

Where to submit an application to challenge the actions of a bailiff under CAS

There are several ways to challenge both this or that action and the inaction of the bailiff. First of all, this is filing a complaint addressed to the official’s immediate superiors.

In it you need to indicate all the data about the enforcement proceedings, and also write about which specific points of legislation the bailiff overlooked.

The complaint should end with a specific request on how to speed up enforcement proceedings or protect your rights as a party in another way.

The received appeal is considered within ten days. This should be followed by a resolution specifying the measures to be taken in the future.

If no real measures have been taken, an effective method of protecting rights will be a complaint against the bailiff to the prosecutor's office.

The action or inaction of the bailiff has the right to appeal against all parties to the enforcement proceedings.

For example, the subject of the appeal may be:

• violation of the procedure for certain executive actions;
• applying seizure to other people's things;
• inaction in searching for the debtor and his property.

To what has been said, we can add that a complaint to court against bailiffs is also an effective method. At the moment, this procedural document is referred to as an administrative claim against the bailiff.

We will tell you in more detail about the features of appealing the actions of a bailiff under the CAS RF in just a couple of paragraphs.

How to do it

An effective way to assert your rights and protect property interests is to file a complaint against the bailiffs in court. Within 10 days, the court considers the demands, checks the actions of FSSP employees for compliance with the law and makes a decision.

After the results of the court hearing are announced, the parties are given one month to appeal, after which the decision comes into legal force. The judge has the right not only to satisfy the applicant’s demands on the merits, but also to award compensation for moral damage caused.

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Filing a claim

Expert opinion

Soloviev Andrey Yurievich

Practitioner lawyer with 6 years of experience. Specialization: civil law. Has experience in defense in court.

A positive outcome of a claim largely depends on the correctness of the document. Although the applicant is not required to prove the legality of his claims before the court, it is advisable to attach supporting documents to the application.

For example, in the case of filing a complaint about the inaction of an official, it is useful to submit a written application to the FSSP with an incoming number, which provides specific facts about the debtor’s property and demands for their arrest and sale.

Contents of the statement of claim

The complaint must clearly reflect the applicant’s demands and indicate specific violations in the work of FSSP employees. In general, the content of the claim boils down to listing the following information:

• name of the court where the petition is filed;
• applicant details;
• number of enforcement proceedings;
• data of the bailiff whose actions violate the applicant’s rights (position, full name);
• violations committed during enforcement proceedings;
• the applicant’s demands for restoration of violated rights and freedoms;
• legislative acts that are the basis for filing a claim and regulate the activities of the FSSP;
• signature, date, list of documents attached to the claim.

Sample statement of claim

The sample administrative claim below will be useful when filing a petition in court against a bailiff.

To the Oktyabrsky District Court

Ivanov Petr Petrovich;

bailiff of the OSP for the Oktyabrsky district of Rostov-on-Don Petrova M.R.

Administrative claim

During enforcement proceedings No. 0000 dated November 1, 2019, the bailiff Petrova M.R. the following legal norms were violated: list of regulatory documents.

The actions of the bailiff violated my legal rights and limited my personal freedoms in terms of describing the damage suffered.

Based on the aforesaid and guided by Article. 128 Federal Law No. 229 “On Enforcement Proceedings”, I ask the court:

1. list of demands aimed at restoring the rule of law
2. ….

State duty

The consideration of an application to challenge the actions (inaction) of an FSSP official is carried out by the court free of charge. Payment of state fees when filing an administrative claim is not provided.

Administrative application for the actions of the bailiff and appeal to the court

If complaints against the bailiff are related to the writ of execution, then you can also question his actions or inaction by going to court. This rule applies to both civil and arbitration proceedings.

At the same time, it is important to comply with the deadlines for filing relevant claims in court.

When the district or arbitration court was responsible for issuing the writ of execution, an appeal against the actions or inactions of the bailiffs is possible within three months, when the applicant received information about the relevant facts.

The forms of going to court also differ. If the reason for appealing the actions of the bailiff was a writ of execution issued by the district court, then an administrative claim is filed.

Expert commentary

Vladimir Roslyakov

Lawyer. More than 12 years of experience.

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When the writ of execution is signed by the arbitration court, an application is submitted to declare the actions of the bailiff unlawful. In any case, appealing the actions or inaction of the bailiff does not require payment of a state fee.

Ways to appeal a bailiff's decision

The legislation defines the procedure for appealing the decision of the bailiff. The reasons for filing a complaint can be different; often citizens do not agree with the decision to seize property (usually this is due to claims from creditors: banks, individuals, etc.). Questions arise about the exclusion from the inventory of property or the release from seizure of real estate, the registration of which is prohibited.

This procedure must be carried out in strict accordance with the law, and if any points have been violated, the person has every right to appeal the decision of the bailiff. As an example: the act could include property that is not owned by the debtor; in this case, you need to file a complaint, demanding that these things be excluded from the inventory act.

USEFUL: watch the video on the topic - how to make the bailiff work, and also ask your question in the comments to the video

Is it possible to appeal the actions of the bailiff?

Like any civil servants, bailiffs intentionally, or due to their incompetence, make mistakes in their work. They may affect both the interests of the debtor and the claimant.

In this regard, the interested party has a problem, how to appeal against unlawful actions, or, conversely, the inaction of the bailiff?

Existing legislation allows you to challenge certain steps of a bailiff in two ways.

The first is to file a complaint addressed to the contractor’s immediate superior. 10 days are allotted for its preparation and registration from the moment when citizens and enterprises became aware of the violation of their rights.

For example, you filed a request to search for the debtor’s property, but the bailiff is inactive.

If the claims are justified, then based on the results of consideration of the complaint, a resolution is issued, which will indicate what measures should be taken to restore the rights of the applicant.

However, there is a second option, in which certain actions or inactions of the bailiff can be appealed in court.

Form and content of the application

It is provided in writing and must be signed by the initiator of the appeal. If the document is submitted by a representative, then a notarized power of attorney must be attached. In a complaint against a bailiff you must indicate :

• - information about the bailiff, whose decisions (inactions) are subject to appeal;
• - information about the citizen or organization - applicants;
• - the grounds on which the applicant bases his position;
• - clearly formulated requirements.

Writs of execution, responses to requests, etc. must be attached. The bailiff has the right to request documents independently if they are important for the consideration of the case. Then the period for consideration of the application may be extended, but no more than 10 days.

A justified refusal will follow if:

• - decisions on payment of enforcement fees are appealed;
• -property assessment reports (results) are appealed;
• - its form and order of submission are not followed;
• - deadlines were missed and there was no request for their restoration;
• - a court decision has already been made on a similar dispute;
• - the actions of a person who does not work for the FSSP are appealed.

The refusal decision is made within three days from the date of receipt of the application and can be challenged administratively or in court.

The FSSP official makes a decision on the petition of a citizen or legal entity, issuing a reasoned decision on the case. It means:

1. Full name, position of authorized official of the FSSP.
2. Summary of initial requirements.
3. The validity of the decision made.
4. Formulation of the final conclusion of the joint venture.
5. Information about the appeal procedure.

The bailiff may recognize the complaint as unfounded or satisfy the requirements in whole or in part.

If the complaint is fully or partially justified, then the joint venture has the right to:

1. Cancel the decision in whole or in part that is contrary to the law or the interests of the initiator of the appeal.
2. Cancel the decision and oblige the lower official to make a new decision.
3. Cancel the previously made decision and adopt a new law enforcement act in the case.
4. Cancel the resolution and indicate the measures that must be taken to eliminate the identified violations of the rights of IP participants.

The decision of the higher management must be executed within 10 days from the date of issuance. Senior management has the right to bring their subordinate employees to disciplinary and other liability. The decision on the complaint must be sent to the applicant within three days from the date of adoption.

An application to the court against a bailiff for prosecution is a document expressing the demand of an interested person in court to protect his rights or resolve a dispute. Since the bailiff is a representative of an entire service, therefore one must complain about the service as a whole in the person of a specific employee. To do this, you need to write an application to the FSSP.

It all starts after you contact the bailiff service. Time passes, but the results of the bailiff’s work are not encouraging.

It’s even better when you find out that the bailiff who is handling your case has gone on vacation. But it doesn’t end there either, what finishes it off is when, on your next visit to the bailiff service, and over time you begin to go there as if you were going to work, you find out that your case has now been given to another bailiff who does not have the information and the bailiff needs time to get acquainted with the case.

Everything is getting to the point where we are running out of patience and we are filing a statement of claim in court against the bailiff.

Resolutions and actions (inaction) of the bailiff can be appealed to a higher official or to the court. Filing a complaint to a higher official is not an obstacle to going to court.

The bailiff is responsible for misconduct and offenses in accordance with the legislation of the Russian Federation. Damage caused by a bailiff to citizens and organizations is subject to compensation in the manner prescribed by the civil legislation of the Russian Federation.

Supervision over the implementation of laws when bailiffs exercise their functions in accordance with the Federal Law “On the Prosecutor's Office of the Russian Federation” is carried out by the Prosecutor General of the Russian Federation and the prosecutors subordinate to him. Therefore, you can write a statement to the bailiff to the chief prosecutor or immediately apply to the court.

Sample application to court for bailiff

In the Kizelovsky City Court of the Perm Territory Plaintiff: Rusinova Tatyana Yuryevna Registered: ____________

Defendant: Department of the Federal Bailiff Service for the city of Kizel Address of the unit: Kizel st. Uglegeologov, 17

Appealing the inaction of a bailiff in court

How to file a claim against a bailiff for the court?

Regardless of the form in which the appeal to the court is taken: in the form of an administrative claim or a statement declaring the actions unlawful, a complaint to the court against bailiffs should have approximately the following structure.

First, the name of the court is written, as well as all information about the parties to the enforcement proceedings for alimony.

This is followed by the name of the document (administrative claim or statement), as well as its subject. The main part should begin with a description of the circumstances that formed the basis of the enforcement proceedings (link to the court decision, its essence, as well as details of the IL).

Next you need to set out what actions or inactions of the bailiffs are called into question. Your claims should be supported by the norms of legislation on enforcement proceedings.

In the final part of the document, you should indicate your requirements to the court, as well as a list of attachments. We should not forget about the date and signature of the applicant.

Pros and cons of going to court

Let's consider the positive and negative aspects of filing a claim in court against the actions of the bailiff.

pros:

• based on the results of the court decision, the applicant may receive the right to compensation for material and moral damage;
• recovery of funds to compensate for the damage caused by the bailiff comes directly from the salary of the offending employee;
• bailiffs have more motivation for the legal execution of proceedings.

Minuses

The disadvantages include the fact that it is better to start any proceedings with government agencies with a pre-trial settlement (submitting complaints to management, to the Prosecutor's Office).

In addition, the court does not impose punishment on the guilty FSSP employee, does not give instructions to the bailiffs to perform the necessary actions, and does not set deadlines for execution.

How to appeal the actions of a bailiff in court

When the debtor does not plan to execute a court decision or comply with the terms of another document, it is necessary to contact the SSP department at its location.

Guided by the levers provided by law, they carry out actions to restore the rights of the claimant.

Moreover, this may concern not only debt collection, but also eviction from an apartment, reinstatement at work, as well as the protection of other rights.

Sample complaint against a bailiff's decision to seize property

To Ordzhonikidze District Court

Yekaterinburg city

Applicant:

M.

Interested people:

Bailiff of the Bailiff Service Department for the Ordzhonikidze District of Yekaterinburg

620012 Ekaterinburg, st. Ilyicha, 2

State duty: 300 rubles 00 kopecks.

COMPLAINT

on the order of the bailiff to seize the debtor's property

On 02/04/2015, the bailiff examined the material of the enforcement proceedings initiated on the basis of the writ of execution dated 09/10/2010, issued by the Khamovnichesky District Court of Moscow, the subject of execution of which is an appeal for foreclosure on the debtor's pledged property, in favor of the claimant: KB "Company" retail lending" (hereinafter referred to as CB "KRK" (OJSC)), issued a resolution to seize property belonging to the debtor. Based on this resolution, on April 15, 2015, my property was seized, namely the JEEP Commander car, VIN 8H3E8206Y156, manufactured in 2006. This car was handed over by the bailiff for safekeeping to Sh., who is the representative of the claimant.

I believe that the seizure of the car was carried out illegally, and the bailiff’s decision must be cancelled:

1. 03/05/2011 Judge of the Khamovnichesky District Court of Moscow, having considered the application of CB "KRK" (OJSC) to cancel security measures in the civil claim of CB "KRK" (OJSC) against M. for the collection of debt under a loan agreement and foreclosure on the pledged property , issued a ruling to cancel the measure in the form of seizure of the JEEP Commander car, 2006, owned by M., IN CONNECTION WITH THE REPAYMENT OF DEBT.
2. (OJSC) in accordance with the order of the Bank of Russia dated July 11, 2014 No. OD-1730, its license to carry out banking operations was revoked from July 11, 2014. By decision of the Moscow Arbitration Court, a forced liquidation procedure was introduced in relation to CB KRK. The state corporation “Deposit Insurance Agency” (hereinafter referred to as GC “DIA”) was appointed as liquidator. I made a request to the DIA Group of Companies with a request to clarify whether I have a debt to CB KRK (OJSC), as well as whether Retail Lending Company LLC is the legal successor of CB KRK (OJSC). In accordance with the response from the State Corporation "DIA" dated 02/03/2015, the bankruptcy trustee does not have information about open accounts and the constituent documents of the succession of CB "KRK" (OJSC) and LLC "Retail Lending Company" are not confirmed.

Retail Lending Company LLC has nothing to do with this enforcement proceeding, since it is being conducted against me as a debtor, based on the application of CB KRK (OJSC). I believe that the bailiff did not have any grounds for arrest, as well as transfer for safekeeping to a third party who had nothing to do with the present enforcement proceedings. The order to seize the debtor’s property was handed to me directly at the time of the arrest itself, that is, on April 15, 2015, therefore I believe that the ten-day period for appealing this decision expires on April 25, 2015.

According to Part 1 of Art. 128 Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings”: “decrees of an official of the bailiff service, his actions (inaction) to execute an executive document can be challenged in an arbitration court or a court of general jurisdiction in the area of ​​​​operation of the specified person fulfills his duties."

According to Part 2 of Art. 128 of this law, in cases not specified in Part 2 of this article, the application is submitted to a court of general jurisdiction.

In accordance with Art. 254 of the Code of Civil Procedure of the Russian Federation, a citizen has the right to challenge in court a decision, action (inaction) of a government body, local government body, official, state or municipal employee if he believes that his rights and freedoms have been violated.

Guided by Art. 12 Federal Law “On Bailiffs”, Art. 80, parts 1 and 2 art. 128 Federal Law “On Enforcement Proceedings”, Art. 254 and part 1 of Art. Code of Civil Procedure of the Russian Federation,

ASK:

• recognize as illegal the decision to seize the debtor's property, issued by a bailiff in relation to the debtor of enforcement proceedings.

Date, signature

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Rules for going to court

In order to appeal the actions of a bailiff through a judicial authority, you need to remember several rules.

It is necessary to accurately determine the court where the corresponding application should be filed; in addition, such a claim is filed according to the rules of Chapter 28 of the Code of Administrative Proceedings.

So, if a writ of execution was issued by a district court, then you need to contact the appropriate judicial authority at the location of the bailiffs.

In relation to cases considered by arbitration courts, the same rules exist with one amendment that an application to appeal the actions of bailiffs is submitted to the court that made the decision (Article 128 No. 229-FZ).

In addition, you should not forget about the deadlines for filing the relevant application.

If it is submitted to the district court, then the relevant article is given 10 days from the moment the applicant learned of his violated rights. In relation to the arbitration process, these periods are longer and amount to 3 months.

However, in any case, the statement regarding the actions of the bailiffs does not require payment of a state fee.

Don't have time to read the article?

You can challenge the bailiff's decision in court within 10 days from the date of its receipt. You can appeal the inaction of a service employee within the same period, but it is counted from the day when you became aware of it.

If you do not have time to file a complaint within 10 days, the court will not consider it. Therefore, there is no need to delay preparing the document. However, in exceptional cases, you will be able to restore the missed deadline. For example, if you prove that due to illness you were unable to do this earlier.

You can file a claim for compensation in court within 3 years. The period is counted from the moment the damage occurred or when you became aware of it.

The complaint must be filed with the court at the location of the district (city) department of the bailiff service. If you are preparing a claim for compensation for damage, then you have the right to file it with the judicial authority where the management of the SSP is located. This is due to the fact that the statement of claim must indicate two defendants: the district department and the department.

For example, the bailiff of the Traktorozavodsky district of Chelyabinsk issued a resolution to arrest the account of Miklukhin Maclay. However, he has already repaid the debt. Thus, Miklukhin will send a complaint against the SSP employee to the Traktorozavodsky district court of Chelyabinsk.

Among other things, Maclay suffered losses due to the actions of the bailiff. The seized account was a mortgage account, and therefore Miklukhin was unable to pay the loan on time, and the bank charged him a fine and penalty.

He can recover this money from the state by filing a claim with the Traktorozavodsky District Court or the Leninsky District Court of Chelyabinsk (the SSP office is located in this area).

Contents of the administrative claim

Below we provide a sample statement regarding an appeal against the actions or inaction of a bailiff. It can be used as a basis for filing a lawsuit in any jurisdiction. So, the document begins with an indication of the court, as well as information about the claimant and the debtor.

After this, you should describe the circumstances in connection with which the writ of execution was issued (details of court decisions, as well as other information).

Next, you need to refer to the fact of opening enforcement proceedings, indicating the number and date of the relevant resolution.

The next block of the document should contain a description of what exactly the unlawfulness of the bailiff’s actions or inactions consists of. Your position in this part should be supported by the norms of legislation on enforcement proceedings.

The final part should contain a request to restore the rights violated in one way or another. In addition, documents confirming the position of one or another party may be attached to the application.

An example of an administrative claim can be downloaded below.

Normative base

The activities of bailiffs in executing court decisions are regulated in detail by law:

• Federal Law of July 21, 1997 No. 118-FZ “On Bailiffs”;
• Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”.

Once enforcement proceedings have been opened, the bailiff must take all actions necessary to ensure execution of the decision. The list of all actions that the bailiff must perform, if necessary, is contained in Art. 64 Federal Law “On Enforcement Proceedings”:

• request the necessary information from banks, employers, Rosreestr and other bodies and organizations that have information about the debtor’s property;
• request and verify financial documents related to the execution of a court decision;
• enter non-residential premises used by the debtor or other persons;
• enter the debtor’s residential premises - if the decision to move in or evict is executed;
• seize property, accounts, securities, and also confiscate property;
• evaluate property. If the value of the property during the assessment is greatly underestimated or overestimated, this is a reason to file a complaint;
• search for the debtor and his property, and also involve the police for this purpose;
• consider applications and petitions from the claimant and the debtor;
• establish temporary restrictions on travel abroad for the debtor;
• establish temporary restrictions on the use of a special right, for example, the right to drive a vehicle;
• perform other necessary actions.

At the same time, all necessary measures must be taken within 2 months from the opening of enforcement proceedings. Otherwise, we can talk about inaction or delay in enforcement proceedings.

In addition, every action of the bailiff is strictly regulated by law. So, if bailiffs withhold from wages an amount in excess of the maximum established 50% or do not notify the debtor about the initiation of enforcement proceedings, this is a violation of the Federal Law “On Enforcement Proceedings”.

Thus, any failure by FSSP employees to comply with these standards, including inaction, abuse of power, red tape, etc., can be appealed by both the creditor and the debtor.