Securing claims and injunction proceedings

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The privilege to refer a case for examination in a writ of payment proceedings is related to the fulfillment of specific conditions provided for by law. The fundamental condition is that the creditor must have such evidence that will convince the court to issue an order for payment. As a rule, the injunction proceedings are purely optional - this means that it is up to the creditor to decide in which type of court proceedings he wishes to pursue his claims. If a case is to be heard under the injunction, the creditor must meet two obligatory conditions:

  1. the demand that is made in the statement of claim must be a monetary claim or provision of other things,

  2. Evident proofs of its validity must be presented to confirm the claim pursued, e.g. an official document, a bill accepted by the debtor (invoice), an agreement with the debtor.

The institution of securing claims is to guarantee the protection of the rights and interests pursued by the creditor, for example in relation to the waiting time for the setting of the date of the hearing, at which the debtor could take steps to liquidate his property. The general rule adopted in the Polish legal system is that in order for the court to grant security, the creditor must submit an appropriate application. Such an application for a security may be submitted both before the initiation of the proceedings (i.e. before the filing of the claim) and during the pending proceedings against the debtor.

Methods of securing claims

A payment order issued following an order for payment in itself is already a security for claims without the need for an enforcement clause. Among the methods of making collateral, the following can be distinguished:

  • attachment of movable property, remuneration for work, receivables from a bank account or other receivables or other property rights;
  • encumbering the obligated property with a compulsory mortgage;
  • prohibiting the sale or encumbrance of real estate that does not have a land and mortgage register or whose land and mortgage register has been lost or destroyed;
  • a ship or a ship under construction is encumbered with a maritime mortgage;
  • the establishment of a ban on the disposal of the cooperative ownership right to the premises;
  • establishment of compulsory administration over an enterprise or a farm of the obligated person or an establishment forming part of the enterprise or part thereof, or a part of the farm of the obligated person.

Security of claims - when can precautionary proceedings be opened?

After issuing the order for payment, the creditor may initiate security proceedings, indicating the manner of securing the claims (from the ones listed above). Such a procedure facilitates the taking of enforcement activities by the bailiff, and at the same time provides a security for the creditor in the event of the debtor's obstruction of the enforcement of claims. The initiation of security proceedings must be initiated by the creditor's application, and such an application may be submitted even before the order for payment becomes final. The amounts awarded in the order for payment are secured by the court bailiff. This authority collects the debt and places the amount specified in the order in court deposit. The bailiff is obliged to determine the fee for the application for securing claims (its amount depends on the amount of the security). It is worth remembering that the court, at the request of our debtor, has the right to limit the security at its discretion.

The basics of security are:

  • the existence of a claim to be secured,
  • legal interest in obtaining security.

Both of the above-mentioned elements must be met jointly and substantiated by the creditor in the submitted application for security. In order to make the existence of the claim plausible, the creditor should attach to the application e.g. an invoice or an agreement with the debtor, while the legal interest in obtaining the security exists when the failure to secure the security will make it impossible or significantly impeded the execution of the judgment issued in the case (e.g. making the application more probable may consist in joining the the application of the letter received from the bailiff that the debtor does not have valuable property on which the enforcement could be conducted).

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