Despite the eternal censure of the government, there are still noticeable shifts in the country's judicial system. The time for consideration of cases is reduced, the procedure is improved, and new opportunities for collecting the same debt appear.
What is a settlement?
Not so long ago, it became possible to conclude a settlement agreement at any stage of debt collection. The parties are given the opportunity to negotiate at any stage of the sport, both before a decision is made, or even upon enforcement.
The settlement agreement allows you to turn to the bailiffs at any time, as soon as the debtor ceases to fulfill its obligations.
Positive aspects for a recoverer
Naturally, the same law on enforcement proceedings considers the agreement as a document only that which is in writing. If the parties to the dispute have verbally agreed, and the debtor has ceased to fulfill its obligations, then such actions are not protected by the law.
For the recovering victim, the document has several advantages:
- voluntary consent of the debtor to repay debt obligations;
- the text of the document stipulates those conditions for repayment of the debt that suit the lender;
- no need to constantly monitor the debtor, he signs a voluntary repayment of the debt in a settlement agreement;
- additional protection in the form of an opportunity will appeal to bailiffs if debt obligations are not paid off.
Although all these advantages will be "erased" if the debtor wants to disappear.
Benefits for the Debtor
In fact, a settlement between the parties is much more beneficial to the debtor himself. First of all, the parties can always agree on a deferred payment, split the debt into several payments. If such a document is available, the bailiffs will not bother with phone calls, and try to describe the property.
The most important thing is that a decision is made to terminate enforcement proceedings, therefore, all restrictions on the use of property are removed.
Conclusion procedure
Despite the advantages, it is still very rare that the lawyers of the parties manage to convince the other side to sign the agreement. As a rule, the collector’s lawyer first tries to analyze the financial condition of the debtor. And if the latter has movable and immovable property, which is subject to recovery under the law on enforcement proceedings, then this is already a factor that will stimulate the parties to draw up the document.
Transaction Stages
The first step the parties must take is to file a joint application with the court. In the annexes, a writ of execution must be present, confirming that the production is already open and is under consideration by a particular bailiff.
If it is a question of collecting a debt, in the process of which the bailiff participates, the settlement agreement is approved with the involvement of a third party - a bailiff.
Then, a sample of a settlement is drawn up at the enforcement stage and a court ruling is issued. After which, enforcement proceedings are stopped. In the case where there are certain restrictions on the use of property (arrest or other restrictions), then all sanctions are lifted.
Compilation rules
No legislative act defines a form of amicable agreement. In practice, certain requirements have been formed that make it possible to pass an “examination” by a judge without any problems.
Several requirements recommended for compliance in the document:
- it is impossible to make the fulfillment of debt obligations dependent on any circumstances;
- the text of the document should be clearly worded and no ambiguity should be seen;
- no alternative debt repayment options should be provided.
A model settlement at the enforcement stage cannot affect other obligations of the parties that go beyond the scope of the trial. The document should not affect the new duties and rights of the parties. Otherwise, the court does not approve such an agreement.
There are also features of concluding an agreement depending on the type of process.
Business process
Code of Arbitration in Art. 139 provides for the possibility of signing a settlement agreement at any stage of the process, even at the stage of enforcement. The same article provides for the obligation of the parties to approve their agreement in court.
In Art. 140 The document requirements are specified:
- the agreement must be in writing;
- the text of the document must contain the details of the executive document, the terms of payment of the debt specified in it;
- The agreement may be signed by an authorized person, but with the obligatory confirmation of their authority.
To submit a sample of a settlement at the stage of enforcement proceedings must be submitted to the court of first instance where the case was examined directly. All parties to the dispute are notified of the time and date of consideration of the application. If one of the parties did not appear in court, did not submit consent to the consideration of the case without his presence, then the application is not considered. The approval of the agreement or its rejection should be carried out within a month from the date of filing the documents with the court.
The court ruling issued shall contain the following information:
- approval or denial of a settlement;
- the conditions under which the debtor will be settled;
- distribution of all costs of the process;
- information that a previously adopted decision is not enforceable.
The consequence of the failure to fulfill the settlement agreement is only one - the reopening of the enforcement proceedings. The initiator of this may be a lender or bailiff.
Civil process
The Code of Civil Procedure provides for the opportunity to fulfill its obligations by agreement of the parties (Article 39).
As in the arbitration process, the civil court may not approve the agreement if it contradicts the norms of the current legislation.
The parties may verbally agree directly in the trial. In this case, the conditions to which the parties agree are described in the minutes of the court session and signed by all participants. The parties are not deprived of the opportunity to agree outside the court. Then the application is sent to the court for approval of the agreement.
The definition approving the settlement agreement entails the termination of enforcement proceedings. The definition displays all conditions that both parties have agreed to. If the judge does not agree with the text of the document, then he makes an appropriate determination and the case is again examined on the merits.
What might the agreement contain?
A little more about the benefits. The approval of a settlement agreement at the stage of enforcement proceedings is interesting for both parties. First of all, each creditor should understand that not all bailiffs perform their duties in a quality manner, therefore, you should not rely too much on their help.
The settlement agreement may contain a clause stating that the creditor is entitled to use certain property of the debtor until the full settlement of debts. Debt can be repaid not only in money, for example, partly in cash and partly in property. Debt can be restructured, you can set a clear schedule for paying off debts.
Invalid agreement
Despite the apparent simplicity of drawing up a model amicable agreement at the stage of enforcement proceedings, the conditions that would violate the norms of the current legislation will not allow to approve such a document in the court.
Third parties cannot be involved in the fulfillment of obligations or violate other people's rights. It should be clear from the text of the document that all parties to the agreement fully agree on what they have to do.
Only one of the joint debtors is allowed to participate in the agreement. The agreement cannot contain a really non-existent legal relationship, that is, serve as a cover for other transactions.
The text of the document may contain the terms of the transfer of debt, partial or complete forgiveness of the debt.
A settlement in the process is a real opportunity to find a middle ground in the dispute.