A statement of claim for the release of property from arrest shall be filed if, by a decision of a court or a bailiff, the property rights of a person who considers himself a copyright holder are affected. In what cases is an application filed, how to draw it up and file a lawsuit?
Why the need arises
Arrest is imposed in order to prevent disposal of assets. It is impossible to conduct any transactions with property that is under arrest, for example, it cannot be sold or donated.
The acquisition of property is associated not only with the execution of the contract, but also with other documents. In particular, registration of rights to real estate or vehicles is required. Due to delays in the procedure, the new owner may be in a situation where you cannot use your own property.
This happens when an arrest is made by a court or bailiff due to a lawsuit or a recovery procedure, which the acquirer did not have information about.
Sometimes the property of family members, especially spouses, also falls into the inventory of seized property.
In practice, clients of banks face bankruptcy difficulties. The claim against the debtor who has not paid off the debt shall be transferred to another person.
Ways to challenge the arrest
Two situations are possible:
- the court or bailiff made a decision without the right to do so;
- the court or the bailiff seized assets that formally still belonged to the defendant or debtor, respectively.
In the first situation, the actions of the court or the bailiff are appealed. For example, property has been seized, which is not subject to foreclosure in principle. The complaint is filed by a direct participant in the lawsuit. In the second situation, there is a need for a statement of claim for the release of property from arrest. From the point of view of the essence of the decision of the bailiff or court from the point of view of legality is not disputed.
Normative regulation
The submission of a statement of claim for the release of arrest from property is based on the application of the norms of procedural legislation (AIC or GIC), depending on which court issued a decision justifying the recovery.
Clarifications of the Plenum devoted to the protection of property rights (published back in 2010) are also actively used in judicial practice, periodically changes are made to the document.
It is worth exploring the regional jurisprudence, it is always distinguished by the presence of nuances.
Legislation on enforcement proceedings is formally taken into account, and bailiffs are listed as participants in the trial.
Is it possible to do without court
Is it mandatory to file a claim for the release of property from arrest? The law provides the right to complain to the bailiff to his superior boss, and he, having revealed violations, has the right to cancel it in whole or in part. The practice is such that the bailiffs send citizens and representatives of organizations to the court, refusing to solve the problem on their own. From their point of view, it is better to face the annulment of a court arrest order than to do it yourself and face corruption charges.
Often, bailiffs, explaining the right to a judicial complaint, provide a sample of it, although it is not always of high quality and does not always fully comply with procedural legislation.
Claim Structure
The following points are indicated in the sample application for the release of property from arrest:
- The name of the court, its location.
- Name of applicant or plaintiff (interested person).
- Defendant - a person who, in the opinion of the bailiff, is the owner of the seized property.
- Defendant - the person in whose interests they seized.
- A third party that does not state requirements (the bailiff always acts in this capacity).
- Statement of circumstances.
- References to the regulatory framework (Civil Code, law on enforcement proceedings).
- Requirements for the court (to exclude from the inventory and release from arrest the object with an indication of its address, if it is real estate or other characteristics peculiar only to it).
- The list of copies of documents attached to the claim.
- Cost of claim (value of disputed property).
- State duty payment receipt.
- Signature and date.
Which court to apply to
There are no particular difficulties with jurisdiction. If the judicial act is issued by the arbitral tribunal, or the writ of execution is issued by the arbitral tribunal, an application for the release of property from arrest shall be submitted accordingly to the same court. An exception - the arrest was imposed on the property of a citizen who was not involved in business and did not participate in the lawsuit (typical for bankruptcy of banks). His case is pending in a district court.
A lawsuit is also filed with the district court if the case was resolved by a court of general jurisdiction. The disputes discussed do not fall under the jurisdiction of a justice of the peace.
Who is entitled to go to court
This right has, first of all, the owner of the property. The release of property from arrest at the request of other persons is not permitted. There are two reasons. First, their rights are not affected by subsequent decisions. For example, the tenant of the property, despite the change of ownership, does not lose his own rights. The second reason is that the application is not accepted, since the existence of the applicants' rights is directly tied to the powers of the owner. The owner is deprived of their rights - the others, for example, family members living in the owner’s house or apartment, are also deprived of them.
The right to action is vested in the legal representatives (trustees) of children or incapacitated by virtue of representation based on law. There is no question of protecting the rights of the applicants directly.
Defendants
The debtor and the collector appear as defendants in the claim for the release of property from arrest. The arbitration court has a strict attitude to attracting persons who have at least some relation to the subject of the dispute. Evasion of attracting a person whose presence is purely formal entails an automatic cancellation of the decision.
In general courts, this issue is not so strictly approached, but it is advisable to indicate all the alleged parties to the dispute, otherwise the decision can also be set aside in higher instances.
Third parties
The lawsuit must also indicate the department of the bailiff service and the name of the bailiff who made the decision to include the property in the inventory, his position. Sometimes courts are asked to indicate the interregional administration of the FSSP. In terms of attracting third parties, the practice in the regions is ambiguous. If the judge considers that a person should be involved in the process, he will leave the application without motion and point out the shortcomings. It is better in this part to comply with the court's request.
Description of circumstances and reference to laws
It is pretty standard. Initially, they refer to the acquisition of property, a contract, an attempt to register rights. If the property belongs to several persons, the relevant legal and actual grounds for the acquisition are indicated. Be sure to indicate the number, date of the decision, which was seized.
If the application is submitted to the arbitration court, reference is made to the rule of law. Their absence is the basis for leaving the claim without motion.
Court requirements
Upon the release of property from arrest, the only requirement is formulated - to remove (cancel) the arrest and exclude the property from the inventory and then list the arrested objects. Another wording - the cancellation of the bailiff’s decision and the removal of the arrest from the property is used in the application, where the defendant is the bailiff.
A request for recognition of ownership is made if it has not been officially registered. Applies to real estate and vehicles.
The prospects for unregistered property are vague. We will have to prove to the court that the transaction was not carried out with the aim of evading foreclosure. The prescription of the transaction and real interest in the transaction are taken into account.
Duty payment
The duty is paid based on the value of the property, in accordance with the norms of the Tax Code. For example, in a dispute over property worth 20 thousand rubles. one interest rate is paid if the price of the property is from 20 to 100 thousand rubles, the fee is already different. The higher the value of the object, the higher the size of the fee.
Some judges believe that claims for the exclusion of property from the inventory without requiring recognition of the right to it are non-property in nature and when filed with the general court are paid a fee of 300 rubles.
What to attach to the application
Copies of the claim and documents according to the number of participants. It is not worth relying on the fact that some papers are held by other persons.
Documents confirming the rights to property (contracts, extracts from banks about payment), acts on the transfer of property are attached.
The text of the claim for the release of property from arrest is formulated depending on the circumstances, as regards the list of documents attached.