No one wants to be a debtor. Yet, being a creditor is also not a pleasant thing. Especially when there are problems with debt recovery. It is a multi-stage process. In the first place, the court must resolve the case. Only when the judgement becomes final, executive proceedings are possible. Below, we discuss the legal aspects of the procedure of debt collection in Poland. From the moment the case is brought before the court, until the moment bailiff initiates executive proceedings.
Conditions for initiating executive proceedings in Poland
To start executive proceedings, a creditor must have an enforcement order. Only such a document with an execution clause makes debt collection possible at all.
Such execution warrant is a document stating that a creditor may demand specific assets from the debtor. It defines precisely what these assets consist of. An execution warrant may be, among others, in the form of:
- valid court decision,
- a settlement concluded before a court,
- a decision of a court referendary which is legally valid or immediately enforceable,
- other judgments, settlements and acts that are subject to execution under the Act, and
- notarial deed in which the debtor submits himself to an executive proceeding.
To start procedures on the basis of an enforcement order, first there must be an execution clause included.
Debt collection in Poland. What is an execution clause and how to obtain it?
If you already have an enforcement order, your next step should be to apply for an execution clause. You can get the application form for an execution clause at the Customer Service Office in court. It is also available on the court’s official website.
But, it will not always be requisite to apply for an execution clause. The provisions provide for a few exceptions in which the court issues it ex officio. This is the case, for example, in a situation where the execution warrant:
- results from the proceedings that could have been initiated ex officio,
- includes maintenance payments enforcement
- in matters relating labour law – cases when the enforcement order awards benefits for the employee and his family.
If the enforcement order is a court judgment or a settlement, the clause is issued by the court of the first instance. I.e. the court before which the case was pending or is pending. In other cases, the clause is granted by the district court of general jurisdiction of the debtor. If one cannot determine it, it is the district court in whose district execution will be initiated that issues the clause. If the creditor wants to start execution abroad, the district court issues the clause. In this case, it should be the court in whose district the order was issued.
What’s the easiest way to obtain an enforcement order to perform debt collection in Poland?
The legislator indicated two types of proceedings aiming at the earliest possible recognition of the case. Their goal is to obtain the execution warrant – i.e. the payment order. The two types refer to enforcement proceedings and writ-of-payment proceedings.
Their essence is that they have simplified character. This means that they are less complicated and time-consuming than ordinary proceedings.
Enforcement and writ-of-payment proceedings differ from others in that the court doesn’t deliver earlier the statement of claim to the defendant. It only issues the order of payment. If in the statement of claim there is evidence showing that the debt is due, the court issues a judgment on acceptance of the claim. It is done in a closed session and takes the form of an order for payment.
Yet, this does not mean, that the defendant is deprived of any rights and cannot defend himself.
The court’s payment order obliges the defendant to satisfy the claim. It must be satisfied in full within two weeks from the date of the order’s delivery. If the defendant stays abroad but in the EU, and there is no representative in Poland, the period is longer. It amounts to one month. But if he lives or is based outside the EU the deadline for payment and appealing against the order is even longer. It cannot be less than three months.
The payment order is delivered to both parties by the court. The defendant receives it together with a copy of the statement of claim and attachments. He also receives instructions on when and how to appeal against the order. He is also informed about the consequences of not appealing.
Below, we explain how to obtain a payment order in an enforcement and writ-of-payment proceeding.
Enforcement and writ-of-payment proceeding
With regard to the enforcement proceeding, you should first be aware that it is optional. The court may examine a case in this procedure only upon written request of the plaintiff. One must include the request in the statement of claim.
The plaintiff must attach to the statement of claim documents that justify the claim. This will allow the court to issue an order for payment under the enforcement proceeding. Among these documents there might be:
- all kinds of official documents,
- bills accepted by the debtor,
- written request for performance by the debtor and written statement of debt’s acknowledgement,
- a promissory note or check, unless their content is in doubt.
A special situation occurs in cases relating to commercial transactions between entrepreneurs. In this case, the basis for issuing an order for payment may be:
- an agreement attached to the statement of claim,
- proof of mutual in-kind performance, or
- proof of delivering an invoice or bill to the debtor.
The payment order issued in the enforcement proceedings allows for securing the claim. This is possible already from the moment of its issuance. Thus, even before the defendant’s appeal, it’s possible to satisfy the claim temporarily. Temporarily, because further settlements depend on the result of the defendant’s appeal.
Contrary to enforcement proceedings, the writ-of-payment proceeding is obligatory. This means that the creditor does not need to file a separate application to pursue the case in this manner. As in the case of enforcement proceedings, the court will also hear the case in closed session.
When will the court refuse to issue an order for payment?
The Code of Civil Procedure defines the cases in which the court refuses to issue an order for payment. These include situations where:
- according to the content of the statement of claim, the claim is clearly unfounded,
- factual statements are questionable,
- satisfaction of the claim depends on counter performances
In such cases, the court directs the case to ordinary proceedings or separate applicable proceedings.
How to appeal against the order of payment?
As indicated above, the defendant may appeal against the payment order. The means of appeal in enforcement proceedings are the charges and in a writ-of-payment proceedings- the objection. In the statement of charges or objections, the defendant must inform whether he appeals against the whole order or its part. He must also raise objections to the plaintiff’s claims presented in the lawsuit. If the appeal is late, unpaid or has deficiencies that were not corrected on time, the court will reject it.
In enforcement proceedings, stating charges initiates the court’s ordinary proceedings. In the final decision, the court indicates whether the order for payment is upheld or revoked. Furthermore, the objection in writ-of-payment proceedings makes the order lose its binding force. So, the case is again subject to examination from the beginning, according to general rules of law.
Debt collection on the basis of the enforceable title
A valid payment order with execution clause opens the way for executive proceedings. In other words – without an enforceable order for payment, debt collection is not possible at all. To initiate execution proceedings, the creditor must submit an application for execution. On its basis, the bailiff will carry out a number of activities aimed at recovering the debt.
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