03.07.2022
Chicago 11, Melborne City, USA
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When can they take away the last thing: an apartment, a car, money?

In 2021, 8.6 million enforcement proceedings were initiated in Russia, in which money was collected in favor of banking institutions. The total amount of loans that the FSSP managed to collect for 2021 is 1.1 trillion. rubles. Let’s add here the debts to the state, other citizens, MFIs, in favor of companies for installments, and we will understand: Russians have problems with the fulfillment of obligations.

What can be taken as part of enforcement proceedings, and what not? Is there a danger of losing the only apartment? Can they take the car, the last money from the account and anything else of value? Understanding law and practice.

The content of the article

A bit of theory

The procedure for implementing a court decision is regulated by the Federal Law “On Enforcement Proceedings” dated 02.10.2007 No. 229-FZ. If the decision is not executed on a voluntary basis, Article 69 of the Law comes into play – the collection is levied on the property of the debtor. It will either be sold by force or handed over to the claimant. The debtor is also entitled to sell property in the manner prescribed by Federal Law No. 229.

Article 446 of the Code of Civil Procedure specifies which property cannot be levied on:

  • the only living space and the land plot on which such housing is located (for example, a private house);
  • ordinary furnishingsseeds for sowing, livestock not used for business purposes, food products;
  • money in the amount of one subsistence minimum for each family member;
  • vehicle and other property of a disabled personrequired for its movement.

All other valuables can be taken on account of the debt, including all cars and “extra” apartments. But the last one is almost impossible. Here it is worth paying attention: the property must be residential according to the documents. Recently, such a format as apartments has appeared. Although they are actually used for a comfortable life, according to the papers, they are not residential real estate. In theory, such an asset could be foreclosed.

Note! On account of the fulfillment of the debt, any “last” property can be seized: an office, a shop, and even an apartment.

And when can an apartment be taken for debts?

But there is still an exception to the rule: the only housing can be withdrawn in the event that it was a pledge under a mortgage agreement (the clause is laid down in part 1 of article 446 of the Code of Civil Procedure). If the debt is not paid, the apartment (private house) is subject to sale at auction. Housing can act as collateral under mortgage loan agreements concluded with non-banking institutions. When foreclosing real estate to repay a debt, the requirements of Article 50 of the Federal Law of July 16, 1998 N 102 “On Mortgage” must be observed. The apartment is sold either at public auction, or in another manner, as agreed by the parties.

Important! According to Article 51 of the Federal Law No. 102, foreclosure of property is levied by a court decision. But Article 55 of the Federal Law No. 102 also allows an extrajudicial procedure, for example, if the mortgage agreement is certified by a notary.

What to do if they try to take the apartment?

  1. Challenge the mortgage agreement in court. The agreement may be invalidated, for example, on the grounds of bondage of the transaction. But it is useless to challenge bank mortgage agreements – the only point is to delay the process.
  2. Try to reach a settlement agreement. To do this, you need to make payments and offer a working algorithm for repaying debts. Banks most often go to a settlement agreement, and almost never moneylenders.
  3. Delay enforcement of judgment. A multi-stage appeal against the verdict sometimes delays the moment of departure for years. But the problem is not completely solved – sooner or later you will have to leave the familiar meters.
  4. Ask for a stay of execution. The moment of vacating the apartment (house) will stretch for several more months.

Arbitrage practice

By the decision of the Shadrinsk District Court dated July 30, 2021, AFK LLC refused to satisfy the claims against the bailiff. Debtor S. did not comply with the court decision, in connection with which the claimant believed that the bailiff was inactive. The court noted that it was impossible to foreclose on the only residential premises.

Source: sudact.ru

At the same time, the arrest itself, imposed on real estate, is not identical to eviction. Thus, by the decision of the Shebekinsky District Court of July 23, 2021, T.’s demands to recognize the decisions of the bailiff as illegal were rejected. In the administrative claim, T. indicated that the land and the house, which were seized, were the only living quarters. She believed that the bailiff’s actions were illegal. Rejecting the claim, the court pointed out that the seizure of real estate “does not provide for seizure and sale or transfer to the claimant.”

By the decision of the Shebekinsky District Court dated July 14, 2021, the requirements of Rosbank PJSC to V. were satisfied for recognition as having lost the right to use the residential premises, eviction, deregistration. From the verdict it is seen that by the decision of the Oktyabrsky District Court of Belgorod dated July 22, 2019, the loan agreement was terminated, with V. in favor of the bank debt collected under a loan agreementforeclosed on the mortgaged apartment.

But the debtor refused to leave the premises, indicating that this was her only home. However, the court satisfied the requirements of the bank, since the previously mortgaged apartment was already legally out of V’s possession. True, she was given a 3-month delay in eviction due to minor children.

Summary. In Russia, they can take the last – even an apartment

So, as a general rule, recovery cannot be directed to the only habitable dwelling. Unless we are talking about a mortgage agreement – with a bank, financial institution or other person. In case of delay in the execution of the agreement, the execution of an apartment, a private house, a room is levied by a court decision (with rare exceptions).

The rest of the property can be sold to pay off the debt. This applies to vehicles, furniture, money (in excess of the subsistence minimum for each family member). However, there are people who delay the implementation of court decisions to the point of absurdity. But such disputes do not add health, and sooner or later the claimant will achieve his goal.

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