What is the legal force of the bank enforcement order?
Banks as public institutions are characterized by enormous trust on the part of customers, state authorities and the whole society, and therefore have numerous powers. One of the powers granted to banks is the possibility of issuing a bank enforcement order based on their bank books or other documents related to the performance of activities by the bank.
What is a bank enforcement order?
A bank enforcement order has the legal force equal to an ordinary enforcement order issued by a court, namely it guarantees the possibility of conducting enforcement proceedings. The purpose of introducing such an institution was to grant banks the privilege of being able to enforce receivables bypassing the court and without the need to obtain an enforcement title in the form of a final court judgment. Since the bank enforcement order has the force equal to a legally valid court decision, it can be stated that it also replaces the action.
Grounds for issuing a bank enforcement order
A bank enforcement order may be issued only on the basis of books kept by the bank or other banking documents related to the performance of banking activities. Detailed regulations in this matter are included in the Banking Law of August 29, 1997.
Banking activities should be understood as:
- accepting cash deposits payable on demand or upon a specified date and keeping accounts of these deposits;
- keeping other bank accounts;
- granting credits;
- granting and confirming bank guarantees and opening and confirming letters of credit;
- issuing bank securities;
- carrying out bank money settlements;
- performing other activities provided for exclusively by the bank in separate acts.
Banking activities also include the following activities, provided that they are performed by banks:
- granting cash loans;
- check and bill of exchange operations as well as operations the subject of which are warrants;
- providing payment services and issuing electronic money;
- timely financial operations;
- purchase and sale of cash receivables;
- storage of items and securities and the provision of safe-deposit boxes;
- purchase and sale of foreign exchange values;
- granting and confirming sureties;
- performance of commissioned activities related to the issue of securities;
- intermediation in making money transfers and foreign exchange settlements.
Formal requirements for the bank enforcement order:
Designation of the bank that issued the title
Designation of the bank for which the enforcement is to be conducted
Designation of the debtor
Indication of the amount of the debtor's obligation, including interest and payment date
Indication of the date of issue of the bank enforcement order
Designation of the banking activity from which the asserted claims arise,
A note about the maturity of the claim pursued.
Affixed with the seal of the issuing bank
Signatures of persons authorized to act on behalf of the bank.
In the absence of any of the above-mentioned elements of the bank enforcement order, the court in the clause proceedings should dismiss the application for issuing an enforcement clause to the bank enforcement order.
What if the bank enforcement order is wrong?
The debtor has the right to bring an action against the bank for establishing the existence or non-existence of a legal relationship before the bank issues such an enforcement order. It is important that even if the bank enforcement order has been provided with a court clause, the debtor has the right to appeal against the court's decision to issue an enforcement clause. Another right of the debtor is the possibility of bringing an anti-enforcement action before the court demanding that the bank enforcement order be revoked in the event that the debtor does not agree as to the amount of debt calculated by the bank or completely questions the existence of the debt. It is worth mentioning that the debtor against whom enforcement has been initiated on the basis of a bank enforcement order violating his right, has a claim against the bank for compensation.
|Important! The Constitutional Tribunal ordered the act to be changed, which in practice meant that for half a year the banks were rather they no longer issue BTE, even though they have the right to do so (until the end of the year).|