Application to the court for the assignment of the right to claim under a writ of execution

Assignment of the right of claim, or similarly called assignment, is one of the forms of a transaction in which one party transfers to the second (other) party the right to demand the fulfillment of its obligations from a third party. If we rely on Article 382 of the Civil Code of the Russian Federation, then the assignment of a claim is a transaction between enterprises in which the initial lender (one party) cedes to another creditor (the other party) the right to collect its contractual obligations from a third party.

To briefly describe this procedure, it is a concession of the right of claim to replace the creditor in the contract.

Can an assignment take place without the consent of the debtor?

The procedure for obtaining the right to claim naturally takes place on the basis of official documents, that is, no one can verbally transfer to a third party the right to claim from the debtor the fulfillment of his obligations.

The transfer of the borrower's rights to another person requires the consent of the debtor himself. If you are one, then in such a situation the first thing you need to do is refer to the original contract. It may state that if the lender is replaced, the debtor cannot do anything, that is, the procedure will take place without the consent of the latter. Thus, we see that the borrower cannot influence the situation.

But in any case, the new or previous creditor must notify the debtor about changes in the agreement so that the funds go to the correct account.

Application for procedural succession based on an assignment agreement

Succession in the arbitration process is based on succession in civil law and is determined by succession in substantive law.

It should be noted that disputes related to the assignment of rights of claim (cession) are a complex and difficult matter, so it is always worth thinking about before starting something like this on your own.

Succession is possible at any stage of the arbitration process. Procedural succession is possible only when the process of the case is already underway and is possible at any stage of the arbitration process

(in the court of first instance, appeal, cassation and in supervisory proceedings), including at the stage of execution of the decision.

The replacement of a party by its legal successor or the refusal of this by the arbitration court is indicated in the relevant judicial act, which can be appealed.

Procedural succession arises on the basis of substantive legal succession, in connection with which the successor becomes a participant in substantive legal relations, and the legal predecessor accordingly leaves these relations.

Article 52 of the Federal Law “On Enforcement Proceedings” states that in the event of the retirement of one of the parties to enforcement proceedings (death of a citizen, reorganization of an organization, assignment of a claim, transfer of debt, etc.), the bailiff on the basis of a judicial act, act of another body or official person replaces this party to the enforcement proceedings with its legal successor

. For the legal successor, all actions performed before his entry into enforcement proceedings are mandatory to the extent that they were mandatory for the party to the enforcement proceedings that the legal successor replaced.

Thus, in the event of a replacement of a party to a writ of execution presented for collection to the department of the bailiff service, the bailiff, having replaced the recoverer on the basis of the ruling of the arbitration court, continues to execute the originally presented writ of execution. In this case, the issuance of a new writ of execution is not carried out, since the replacement of a party in enforcement proceedings is not the basis for issuing a new writ of execution. The initiators of legal succession in an arbitration case can be a legal predecessor, a successor, or a court.

The ruling of the arbitration court on the replacement of a person participating in the case on the basis of Art. 48 of the Arbitration Procedure Code of the Russian Federation and the refusal to attract a legal successor can be appealed.

This type of judicial document to protect their rights and economic interests is used very often among legal entities in order to optimize accounts receivable

When preparing these court documents, it should be remembered that the Arbitration Procedural Code of the Russian Federation does not determine the subject composition of applicants. The initiator of procedural succession can be: the party who has withdrawn from the controversial legal relationship, the successor, or the court.

The right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another on the basis of law or agreement. The debtor's consent is not required to transfer the creditor's rights to another person

, unless otherwise provided by law or contract.

It must be remembered that the transfer to another person of rights inextricably linked with the personality of the creditor, in particular claims for alimony and compensation for harm caused to life or health, is not allowed.

It is also necessary to take into account that procedural succession cannot be singular: procedural rights and obligations always pass to the successor in full. Hence, the acquirer of a part of the claim who has entered into the arbitration process acquires all procedural rights and bears procedural responsibilities associated with the assigned claim.

And one more important point in the preparation of this judicial document: material succession that took place before the initiation of the case in the arbitration court entails the replacement of the improper party, and that occurred after the initiation of proceedings in the case (at any stage) - procedural succession.

Statement of claim for succession under an assignment agreement under a writ of execution

on the obligation of CJSC PKOP “Business Meetings” to remove obstacles in the use of property belonging to the housing cooperative “Medic” by demolishing the extension located at the address: Omsk, st. Maslennikova, 9;
on the obligation of JSC PKOP “Business Meetings” to bring the land plot and the end part of the wall of house No. 9 to the address: Omsk, st. Maslennikova, 9 to the condition that existed before the start of construction, restore the asphalt surface and main wall of the house.

In accordance with Article 44 of the Code of Civil Procedure of the Russian Federation, in cases of the departure of one of the parties in a controversial or established legal relationship (death of a citizen, reorganization of a legal entity, assignment of a claim, transfer of debt and other cases of change of persons in obligations), the court allows the replacement of this party by its legal successor.

Sample application for procedural succession to an arbitration court

Source: https://urcom-kazan.ru/dogovora/zajavlenie-o-processualnom-pravopreemstve-na-osnovanii-dogovora-cessii.html

Who must notify the debtor about the assignment of the claim?

If a situation arises when the assignor changes, everything happens with the preparation of written documents. If the original agreement prohibits a change of creditor, then with such a prohibition it is also necessary to obtain the debtor’s consent to assign rights. That is, the creditor sends a notice to the debtor that he wants to transfer his rights to another creditor.

But if the debtor does not agree with the change of lender and for certain reasons is against changing the original one, then the debtor has the right to transfer funds to the account of the first lender. You can refer to Article 388 of the Civil Code of the Russian Federation, which states that the debtor, in case of disagreement in the procedure for transferring the right of claim, can transfer money to the first creditor. And the newly arrived assignor cannot make any demands on the borrower.

Sample Application for Assignment of Rights Claiming a Writ of Execution

How to assign a debt to third parties There are situations when it becomes impossible to repay the debt. If a close or well-known person took the loan, it is inconvenient to ask for a receipt, and later, when the terms of the verbal agreement are overdue, the creditors do not know how to return their hard-earned money. Moreover, the debtor can be not only an individual, but also a legal entity.

An approximate form of a statement of claim for recovery of the loan amount, in the case where the plaintiff received the right of claim against the borrower on the basis of an assignment agreement. Arbitration Court _______________________________ (indicate the name of the subject of the Russian Federation) (full name of the enterprise indicating the location address: _______________________ (full name of the enterprise indicating the Address location: _______________________ Price of the claim: _________ (_________________) rubles for recovery of the loan amount, in the case where the plaintiff received the right of claim against the borrower on the basis of an assignment agreement "__"="" ____________="" years="" between="" _____________________________________ ="" and="" (short="" name="" organization,="" enterprise)="" __________________________="" was="" concluded="" agreement="" loan="" n="" ________="" for="" amount="" __________="" (_______________)="" rubles.="" alt="Sample statement of claim for assignment under a writ of execution">

Agreement of assignment (assignment of the right of claim) under a writ of execution - sample

The agreement is concluded by two parties: the first lender and the new lender, to whom the borrower will now pay the remainder of the loan. This operation is also called cession. In this case, the first creditor is called the assignor, and the new creditor is the assignee.

The scope of the rights of the new creditor may be changed in accordance with the law or agreement, but these changes should not negatively affect the financial situation of the borrower. Therefore, the change in the number of rights of the new creditor can only decrease, not increase.

Sample statement of claim for assignment under a writ of execution

The application to the bailiffs must be written in writing so that you have confirmation of the fact of its transfer. It is better to make the application in 2 copies and submit it to the court office. In this case, a mark indicating its acceptance is affixed to one copy. The application can be written by the plaintiff, a third party or another person participating in the case.

The writ of execution indicates who is the claimant and who is the debtor. In the application that you will write to the bailiff service, indicate which debtor you are asking to initiate enforcement proceedings against. Thus, the settlement agreement will be executed voluntarily by some of the debtors (bona fide) and compulsorily against the unscrupulous.

Application for assignment of rights of a writ of execution

The following documents must be attached to the application: - an assignment agreement between the original creditor and the applicant, - evidence of sending a notice of assignment to the debtor (usually a copy of the notification itself, an inventory and a postal receipt for its sending), - copies of the application for procedural succession with attachments for the original creditor and debtor (other persons participating in the case) or postal receipts for their direction, if this is a court of general jurisdiction, or only postal receipts for sending registered letters to the participants in the case, if this is an arbitration court. In the application itself, the petition part must contain a requirement to replace the party - the claimant under the issued writ of execution. The application is considered in a court hearing with the parties summoned, based on the results of which a determination on procedural succession is made. An important observation from the practice of YURLIGA Law Firm LLC.

The actions of the parties to the obligation do not entail any consequences for third parties (of course, unless these are actions in the interests of others or other cases when the rights and interests of other persons are involved in the obligation), therefore, for each other, the parties are the only proper creditor and debtor.

Application to the court for the assignment of the right to claim under a writ of execution

The district court justified its conclusions as follows: by virtue of the provisions of Art. 52 of Law No. 229-FZ, all actions taken before the successor entered into enforcement proceedings are binding on him to the extent that they were binding on the original party. According to Part 4 of Art. 319 of the Arbitration Procedure Code of the Russian Federation, one writ of execution is issued for each judicial act.

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When assigning rights of claim, it is not necessary to obtain a new writ of execution

In case of partial replacement, the original claimant is removed from the legal relationship in terms of claims that are assigned to the new claimant.

In this regard, several claimants may find themselves in enforcement proceedings.

This is not prohibited by the legislation on enforcement proceedings, since the claims of the collectors relate to the same debtor against whom the enforcement proceedings were initiated.

However, in judicial practice a different position is used. In the event of the retirement of one of the parties to the enforcement proceedings (death of a citizen, reorganization of an organization, assignment of a claim, transfer of a debt, etc.

) the bailiff replaces this party on the basis of a judicial act, an act of another body or official (Article 52 of Law No. 229-FZ).

This does not require obtaining a new writ of execution when assigning rights of claim (both in full and in case of their partial assignment).

Application for acceptance of a writ of execution for execution

A positive court decision and execution of a sentence are not the same thing. After you have won the court and received a writ of execution in your hands, you have grounds for forced collection of the debt and execution of the court decision.

Write an application to the FSSP for the adoption of a writ of execution according to the sample below. The sheet can be presented for execution within three years from the date of the court decision. We remind you that the unjustified inaction of a bailiff is grounds for a complaint against him to his superiors, prosecutor or judge.

Agreement on assignment of claim rights

details of the agreement that served as the basis for the primary assignment agreement (for example, a loan agreement, provision of services, etc.);
details of the primary assignment agreement itself (in which the current assignor acted as assignee).

So, an agreement on the assignment of the right of claim is drawn up in writing and must be registered in the manner prescribed by law, if the transaction on which this agreement is based requires such registration.

Sample application to bailiffs for a writ of execution

Failure to pay any type of debt often results in a lawsuit. Moreover, it is necessary not only to win the trial, but also to recover the amount due from the defendant.

According to statistics, the latter rarely do this on a voluntary basis. The plaintiff’s submission of a writ of execution to the Bailiff Service (FSSP) will help to finally resolve the material conflict.

In rare situations, the judicial authority does this on its own.

If the applicant cannot appear at the FSSP on his own, the application may be sent by registered mail. To avoid problems in the future, it is better to keep the return notification confirming delivery of the application. It is mandatory to send a corresponding request to the Bailiff Service when changing your place of residence.

Your right

Ifns filed a claim for bankruptcy against the LLC. the amount is 9 million. The defendant has writs of execution for the collection of debts in the amount of 15 million. Is it possible in court to assign rights of claim from the LLC to the Federal Tax Service under these writs of execution?

Buying debt is a common practice. The need for such a procedure usually arises among banks and other credit institutions that are faced with unscrupulous borrower clients. As a rule, an assignment agreement is concluded between legal entities, but parties to the transaction may well be individuals, including individual entrepreneurs.

Assignment of the right of claim on a sheet

Another issue is that the creditor may decide to transfer the right to the debt to another person. The reasons may be different: there is no time to collect the debt or the creditor understands that the prospects for returning the money are very vague.

Replacement of the creditor is allowed only until the execution of the court decision. In other words, if a citizen has repaid his debt by fulfilling his obligations imposed by the court, then changing the creditor no longer makes sense.

04 Nov 2020 hiurist 36

Source: https://urist-piter.ru/trudovye-spory/obrazets-zayavleniya-o-pereustupke-prava-trebovaniya-po-ispolnitelnomu-listu

Should collectors provide an assignment agreement to the debtor?

It must be remembered that the assignment agreement and the notice are different documents. The notification must reach the debtor, but the assignment agreement does not. Collectors are not obliged to provide it; they must submit it to the court, where a ruling on procedural succession will be made; it is in court that the borrower can familiarize itself with it.

The bank is also obliged to notify the debtor of the fact of the assignment. The assignment agreement does not even indicate the names of the bank borrowers, but only their loan agreement numbers.

Notice of termination of the assignment agreement

The assignment agreement concluded between the assignor and the assignee may be terminated for the following reasons:

the agreement was not supported by the necessary documents, as a result of which it cannot be considered valid;
the right to claim the debt was transferred to a person who does not have the status of a credit organization.
the agreement, the reason for which was real estate, was not registered with Rosreestr;
the assignee did not pay the compensation agreement on time;
the initial version of the agreement did not provide for the possibility of assigning the debt to a third party;
the agreement did not stipulate on what basis the relationship between the payer and the first creditor would be built;
the contract was concluded due to non-payment of alimony or damages;

01/11/2018 | New lawyer newspaper | Victoria Velimirova AG experts noted the qualitative argumentation of the definition of the RF Armed Forces. One of them also noted that the Supreme Court continues the trend of protecting bona fide participants in the turnover and refusing to protect unscrupulous persons.

The Supreme Court of the Russian Federation issued a ruling in case No. A40-172921/2016 on the impact of termination of the assignment agreement on the chain of further transactions. The Company and the Plant entered into a purchase and sale agreement for equipment for which an advance payment was made. The plant did not fulfill its part of the deal, and therefore had to return the funds to the Company.

In turn, the latter, acting as assignor, transferred the right

What the notice should include

First, you need to refer to Article 382 of the Civil Code of the Russian Federation, which outlines how to notify the debtor and then generate documents for the transfer of rights.

According to the law, the creditor transfers the debts owed to him to any legal entity after concluding an assignment agreement.

For this type of transaction, there is no need to obtain the consent of the person who is evading fulfillment of his obligations - this is described in the second paragraph of Article 382 of the Civil Code of Russia. However, the law does not oblige the debt holder to inform him of this fact.

However, it is necessary to warn the debtor - without notification, the one who borrowed the money will not be able to pay off with the new transferee. It follows that the recipient can be notified by both the newly arrived creditor and the previous one.

It should be noted that there is no template established by law, so the notice can be drawn up in free form. In this case, it is necessary that the document contain the following information:

name or organization name of the borrower;
contacts and position of the authorized employee;
notification of the fact of assignment indicating all the details of the document;
data of the previous creditor;
data relating to the new lender;
the date on which the transfer of rights took place;
a certain list of additional documents (usually a copy of the assignment agreement is sent).

The notice must be signed by the person responsible for it and the employee on whose behalf it is sent.

Below is a notification of the debtor about the assignment of the right of claim, an example sample.

Termination of an assignment agreement: procedure, consequences

The definition of the term “assignment agreement” is regulated in. The corresponding document is an agreement, according to which the right to the loan debt is transferred to another legal entity or individual. There are situations when, upon the occurrence of certain circumstances, the parties are forced to terminate the assignment agreement.

The conditions and requirements for this procedure are not clearly defined by the civil legislation of the Russian Federation.

Consequently, the annulment of the agreement is carried out in accordance with generally accepted rules, but taking into account the rules on assignment of claims and transfer of debt. Referring to articles -, the assignment agreement can be terminated either by mutual consent or unilaterally at the initiative of one of the parties.

Grounds for termination of an assignment agreement drawn up between the assignor and the assignee: the agreement was concluded due to failure to pay alimony obligations or compensate for moral and material damage; the necessary package of documentation was not attached to the agreement, as a result of which it cannot be considered valid; the motive for its preparation was property that was not registered with Rosreestr; the original version of the agreement did not provide for the option of assigning the debt to a third party; the agreement did not establish clauses in accordance with which the relationship between the debtor and the first creditor should be built; the successor did not pay for the consideration transaction within the agreed time frame;

Termination of the assignment agreement, recognition of it as invalid unilaterally, by agreement of the parties

is an agreement on the assignment of the right to claim the fulfillment of debt obligations, concluded in favor of a third party.

, individuals and, accordingly, between a legal entity and an individual. The need for its application arises when the debtor, who has assumed obligations, evades their fulfillment for a certain period of time. But the creditor cannot collect the accumulated debt on his own and legally.

It is important to know here that the assignee, i.e. the person to whom the right of claim was assigned, does not have the right to make changes to the conditions and the outstanding amount of the original agreement.

But it is worth considering the fact that the new creditor will have the right to claim payment of the penalty.

The object of claim under the assignment agreement is different, but necessarily, it is a material obligation. The most common are: the developer’s obligation to the buyer of real estate and the debt under a loan agreement.

Such agreements may have may cease to operate:

When all parties involved reach such a decision;
On the initiative of one of the participants in this contract;
Or, due to the recognition of the assignment agreement as invalid for reasons such as:

Conclusion of an agreement, the subject of which is the right to claim obligations that are not subject to assignment. Namely:

for compensation of moral or material damage caused;
which resulted from divorce;
for the payment of alimony;
arising from the reorganized company to its employees;

Assignment of rights under an assignment agreement

Initially, the agreement from which the obligations between the parties arose is studied. If this document does not contain a clause in which the assignment agreement is prohibited or the debtor’s consent must be obtained, there are no obstacles to the assignment. However, in any case, the most important condition for concluding such an agreement is that the debtor must be officially notified in writing.

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If the tenant received a property for a certain long period, but before its expiration the need for it disappeared, there are two solutions:

Application for assignment of the right to claim under a writ of execution

The bank transfers rights under the writ of execution to collectors under an assignment agreement.
Is the writ of execution subject to replacement if the creditor has changed (under an assignment agreement)?
Debt collection under a writ of execution under an Assignment agreement.
What needs to be filed with the court when concluding an assignment if there is a writ of execution.

If you find it difficult to formulate a question, call, a lawyer will help you: Free from mobile and landline Free multi-channel telephone If you find it difficult to formulate a question, call a free multi-channel telephone, a lawyer will help you 1. What needs to be filed in court when concluding a cession in the presence of a writ of execution.

1.1. Hello. You should submit an application to establish legal succession, attaching a copy of the agreement and the writ of execution. It is necessary to draw up this application in three copies: for the court, for the debtor and for the bailiffs.

Best wishes to you. 2. The bank transfers the rights under the writ of execution to the collectors under the assignment agreement. 2.1. The bank transfers rights under the writ of execution to collectors under an assignment agreement Good evening!

There is nothing surprising. What is the question anyway? 2.2. Good afternoon, dear Andrey.

This is permissible in accordance with the civil code of the Russian Federation. Don’t worry. Good luck to you and your loved ones!!

2.3. The bank transfers the rights under the writ of execution to the collectors under the assignment agreement. Is this a question or a statement of fact?

Ask a question. 3. Is the writ of execution subject to replacement if the creditor has changed (under an assignment agreement)?

3.1. Yes, definitely the bailiff, otherwise he won’t even talk 3.2. Yes, the creditor needs to apply to the court to replace the claimant in the writ of execution.

4. Collection of debt under a writ of execution under the Assignment agreement. 4.1. Start yourself (or entrust someone else) to monitor the financial condition of the debtor.

When establishing his place of work (individual) or current account (for legal entities), quickly submit the writ of execution there.

5. The bank offered a cess to my relative. But he doesn’t want to revoke the writ of execution from the bailiffs either. He says that he will prepare the Documents so that I can go to the bank myself and revoke the writ of execution, is this even possible?

5.1. Good afternoon - no - only the bearer can revoke a writ of execution. 5.2. Yes, after the assignment is concluded you can do this. 5.3. Only the claimant can revoke the writ of execution.

6. I was recognized as a guarantor for my ex-husband's car loan. The court ordered the two of us to pay the debt. Ex-husband on the run. The bank did not present my writ of execution to the bailiffs (the bank took the car from my ex-husband because...

I helped with this)

Sample assignment agreement based on writ of execution

Collection of overdue debts on credit obligations is a long and costly process.

To prepare documents for judicial collection, it is necessary to pay for the services of lawyers and other specialists.

These costs are only recovered in the long term. For organizations that do not have the money to sue debtors, there is a way to get some of the debt funds back.

To do this, use an assignment agreement. One legal entity assigns the right to claim a debt to another for a certain fee (the process is reminiscent of a change of persons in an obligation, but there are differences).

Another case where assignment is used is during the process of reorganization in an institution.

As judicial practice shows, the assignment agreement is widespread.

The subject of its conclusion may be existing and future rights to assign debt. But it is worth remembering that the assignor’s ability to make claims against the borrower (under the assignment agreement) arises only when the assignee has a claim.

Provided that the borrower is notified in a timely manner in the manner prescribed by the Civil Code of the Russian Federation, the assignment is not gratuitous. Even if the document does not describe the assignee's remuneration, it is necessarily implied. Such a document cannot be declared invalid, as judicial practice proves.

An agreement on the assignment of a right of claim may be declared invalid if the subject of the transaction itself is imaginary. Such items of the transaction include sublease. The assignment of the right to claim debt between legal entities can be carried out at the request of the borrower himself, but for this it is necessary to obtain the consent of the new creditor.

He has the right to demand documents for review and make a decision at his own discretion.

In addition to obtaining consent from the new creditor, it is necessary to obtain consent from the legal entity that is the original creditor. The consent of the debtor himself can be formalized both in writing and orally.

The consent of legal entities must be documented in appropriate documents.

It is necessary to reach an agreement on the amount of remuneration under the contract. If one of the parties is against the transfer, it is impossible to conclude an agreement on the assignment of the right of claim. The tax consequences of the assignment of debt between legal entities are expressed in the payment of VAT.

Tax accrual occurs if the contract was concluded on a refundable basis.

Tax on the profit received is paid by the original creditor. The amount of tax deductions is equal to 13% of the profit received in excess of the principal debt.

If, when preparing the documents, the assignee did not receive a profit from the transaction, no tax is charged. Legal entities have the right to enter into an agreement on the assignment of debt after the original creditor receives a writ of execution.

The procedure for drawing up an agreement for the assignment of the right to lease a land plot

For citizens - a passport, for legal entities - an extract from the Unified State Register or Unified State Register of Legal Entities;
Confirmation of registration with the tax office;
A stamped certificate indicating the code of all-Russian classifiers (for legal entities only);
Original and copies of the lease agreement;
Cadastral map of the allotment;
A certified copy of the certificate of registration of land rights;
Plan of the ceded area, made on a scale of 1:500.

Statement;
Passport;
When a representative acts instead of an individual, a power of attorney on the basis of which he acts must be presented;
Title documents for land;
Papers confirming that the issue has been agreed upon with the Land Resources Committee (needed when transferring agricultural land on which the harvest will be harvested);
Two signed versions of the assignment agreement;
Consent of the spouses of the parties to the disposal of the site;
Confirmation of the fact of notification of the owner of the allotment or his consent (executed in the form of an application reviewed by us earlier);
Consent of the pledgee (in the case where the plot becomes pledged).

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