What to do if you are not a Debtor and the bailiff takes your property
Many people face a situation in which their belongings are taken by a court bailiff in the course of enforcement proceedings. This is for various reasons. For example, as a result of the fact that you live with a debtor in one flat or even occupy the premises where the debtor used to be.
The court bailiff runs the so-called field activities in the course of which he occupies inter alia movables located in the premises indicated as the residence of the debtor. The bailiff then writes down a seizure report to which, of course, you can make an annotation.
That a particular item is not the property of the debtor
However, this does not automatically lead to the release of things from execution.
So what should be done in a situation where enforcement proceedings are not carried out against us, and the bailiff has taken, for example, a TV set, which is our property? Some people in this situation choose the wrong solution and file a complaint about the actions of the court bailiff demonstrating their ownership of the object occupied. This leads to losing the case and losing the right of ownership.
Meanwhile, in this type of case, as described above, it becomes necessary to bring the so-called anti-enforcement action (more precisely the variation of this action, called intervention) based on the regulation contained in art. 841 of the Code of Civil Procedure (hereinafter referred to as the Code of Civil Procedure).
According to art. 841 § 1 of the Code of Civil Procedure, a third party may, by way of an action, demand the release of a seized object from enforcement if the enforcement of the execution violates its rights. In a simplified way, it can be written that a third party is someone who is not an enforcer in this type of situation. The execution directed to a given item infringes the rights of such a third party if it is the owner of the seized thing.
The owner of the property should therefore bring an action to the common court in such a case. The de facto property of a non-debtor should be proved. This circumstance can be demonstrated by any means of proof, however, the proof of the document, and hence the purchase VAT invoice, should be the most important in this situation.
Obviously, the majority of non-business people do not have invoice proofs. Then, of course, you can use a receipt, but it certainly can not be an independent proof. Therefore, it would also be necessary to attach a bank account statement if the payment was made by means of a payment card or an indication of witnesses who could confirm the fact of purchasing a specific item by a specific person.
In the case of actions of this kind, two more issues are very important, which in some way merge. Firstly, in accordance with art. 841 §3 of the Code of Civil Procedure, in principle , an action must be lodged within one month from the date of learning about the seizure of things . Exceeding this deadline results in the dismissal of the claim, and the reason for the failure is devoid of the slightest significance. The deadline is also not subject to restoration. Therefore, it is important to keep this in mind first and fit in the given time, regardless of other circumstances.
The second issue is to call the creditor to release the seized object from enforcement
(the creditor will, in principle, be a defendant in the intervening action). For evidentiary purposes, this must be done in writing by registered mail. This is important for demanding reimbursement of costs of proceedings caused by an action based on art. 841 CCP. If the creditor did not receive the summons and would consider the action on the first action, then he could then demand, despite the actual loss of the case, reimbursement of costs under Art. 101 kpc
However, bearing in mind the monthly deadline for bringing an action, it should be remembered that the creditor should be called as soon as possible to enable him to reply within the aforementioned period, and secondly to not engage with the creditor in unnecessary polemics, not to miss the monthly deadline.
In another case (in the situation of ineffective expiry of the deadline) we no longer have any possibilities to release the property belonging to us from enforcement by way of coercion. The only thing left then is to ask the creditor politely, who does not have to give his consent.