Nikolay was unable to pay at the store: there were unexpectedly insufficient funds on the card. The bank reported that bailiffs wrote off all the money from the account. And the account itself is now blocked, since the amount on it turned out to be less than what the bailiffs require. But Nikolai had no unpaid debts. We figure out how this could happen and what to do in a similar situation.
In what situations do bailiffs write off money?
The bailiffs take up the case only by a court decision. For example, a person did not return a loan debt and the creditor filed a lawsuit against him. If the claim was satisfied in favor of the creditor, then the debtor is obliged to comply with the court decision or challenge it within the prescribed time frame — usually from 5 days to a month. If during this time the borrower does not pay off the debt and does not file an appeal, the creditor will receive a writ of execution in court and will be able to collect the debt forcibly.
The writ of execution gives the creditor the right to immediately contact the debtor’s bank (if, of course, he knows where he has an account) and demand payment. Or he can act through the Federal Bailiff Service (FSSP) so that the FSSP employees help to return the debt.
The bailiffs act strictly according to the scheme prescribed in the law “On Enforcement Proceedings” .
When the bailiff opens proceedings, he informs the debtor about it — he sends him a court order by registered mail and gives him a few more days for the person to pay the money himself.
If the debtor ignores this requirement, then the bailiff tries to collect money from the ruble or foreign currency accounts and deposits of the debtor. An employee of the FSSP finds out in which banks the borrower has money. When a person has several accounts, the bailiff must decide from which account the amount set by the court should be debited.
The bank is obliged to fulfill the requirement specified in the writ of execution. He will send the money to the lender directly or through the FSSP.
When the production goes through the bailiffs, they have the right to first arrest the amount of debt on the account or even block the entire account, for example, until they finish searching for all the person’s accounts, and only then send a write-off order to the bank.
It often happens that there are not enough funds on a person’s accounts to fully pay off a debt. In such cases, as soon as new amounts are credited to the account, the bank will write them off until it fully fulfills the requirement of the creditor or the bailiff — or until they cancel this requirement.
When the bailiffs cannot find a person’s bank accounts or there is no money on them, they have the right to arrest and sell the debtor’s property.
When is it illegal to write off funds?
It happens that the bailiffs are wrong. For example, Nikolai was confused with another debtor. Sometimes bailiffs incorrectly calculate the amount of payment or write off the required amount several times — from different accounts.
It happens that money is sent to the bailiffs, which, according to the law, cannot be taken. Protected funds include child support, survivor’s pension, benefits, and other social benefits and compensations .
From June 1, 2020, all receipts to the account must be marked so that the bank understands the type of income. Money protected from write-off is assigned Code 2. The bank will not transfer it to the FSSP.
In addition, the bailiffs have no right to completely deprive a person of income. Wages, pensions and other earnings are assigned Code 1. Of these receipts, the bank is allowed to send no more than 50% to the FSSP. Only in some cases, for example, when a parent owes alimony, they can deduct not up to 50, but up to 70% from his income.
How to prevent erroneous collection?
There are several things you can do.
Watch out for debts . Periodically check whether your debts have entered the database of enforcement proceedings , or subscribe to the mailing list of the bailiff service — then you will receive a notification by mail if proceedings are opened against you. In the event that someone else’s debts are attributed to you by mistake, you will immediately find out about it and can quickly challenge them.
If you really have to pay off the debt and the bailiffs have notified you about the start of write-offs, warn them about the accounts to which your salary, pension and other regular income come to you . This will reduce the risk that you will be deducted more than required by law.
Keep social benefits, compensations, alimony and other non-recovery funds in a separate account and do not transfer them to other accounts, otherwise they will lose their status as inviolable. Do not enable automatic debiting of payments from this separate account, including for payments for utilities, communications and other services.
Do not consent to the withdrawal of money from your account. When issuing a loan, banks are often asked to sign an agreement that in the event of a delay in payment, they can write off money to pay off the debt from any of your accounts, including those to which social benefits come. You have the right not to give this consent, and if you have already given it, withdraw it. In cases where the bank insists on signing such an agreement, ask not to include in it the account to which social payments are received. The bank cannot deny you this. But even if social benefits have already been written off, for example, on the basis of your earlier consent, you can apply for a refund. The bank refuses to meet halfway — complain to the Internet reception of the regulator .
Follow the labeling . Businesses and government agencies usually indicate the income code in the purpose of payment. It is difficult to control this issue with regard to pensions and social benefits, but it is worth checking with your employer’s accounting department if it marks your salary.
When a spouse transfers money to you for a child from a personal account, ask him to also indicate the income code “2” in the purpose of payment and ascribe that this is alimony. Some banks have a separate field for the income code in the payment order.
If the bank nevertheless transferred protected money or a larger share of income than it should be to the bailiffs, you can challenge the wrong collection.
How to return the money that was illegally transferred to the bailiffs?
To begin with, you should contact your bank to find out on what basis the write-off occurred. If it turns out that the bank complied with the order of the bailiffs, ask for a copy of this order and an account statement showing the amount to be debited. Further actions depend on the situation.
1. An error has occurred, you owe nothing to anyone.
Contact the FSSP. Write an application for the return of an unjustified write-off to the name of the bailiff who is in charge of your case. The document can be drawn up in free form. Indicate the number of enforcement proceedings (it must be indicated in the order for money transfer) and the amounts that were written off unreasonably. Attach a bank statement to the application, as well as a copy of your passport — so that the bailiff is convinced that the debtor is not you.
Ask to cancel the order to collect money from your account, and also to return the amounts withheld to you. The application must be written in two copies and handed over to the office of the bailiffs department. Your copy must be marked that the document was accepted and the date must be indicated.
2. The court actually made a decision to recover the debt from you, but the bailiffs wrote off the wrong amount.
In a statement addressed to the bailiff, inform that you have been deducted more than it should be. Attach the court decision, which indicates the amount of the debt, and extracts from all accounts from which money was transferred to the FSSP. Ask to return what was debited by mistake, and indicate to which accounts you need to transfer the money.
3. You have been debited with money that is legally protected from collection.
For example, the bank sent your benefits or your entire salary to the FSSP. In this case, first try to solve the problem through the bank.
Write a request for a refund. Explain that money was debited that cannot be collected under the Law on Enforcement Proceedings . Ask the bank to check the labeling of these receipts.
If the income code was specified correctly and the bank wrote off the money by mistake, it can itself submit an application for a refund to the bailiffs.
But if the sender did not indicate the code in the purpose of the payment or filled it in incorrectly, then the bank will not help. You will have to independently contact your bailiff and prove to him the origin of this money. For example, a certificate from the employer that you have been transferred exactly the salary is suitable. If the transfer was written off to the child from the ex-spouse, you can provide the details of his account and a certificate of divorce.
4. You disputed the debt, and the court canceled the writ of execution, but the bank continues to send money to the FSSP.
Perhaps the bank simply did not receive a notification that the debt was canceled. It is necessary to request from the bailiff a resolution to revoke the writ of execution and submit it to the bank. The write-offs will stop.
To get back the money that has already been transferred to the FSSP, write a statement to the name of the bailiff who was in charge of your case, with a request to return it to your account.
I don’t get my money back. What to do?
If the bank refuses to return to the account protected from collection funds that have been correctly marked, contact the Bank of Russia.
When the bailiff does not respond to your statements or does not correct the mistake made during the write-off, file a complaint with the FSSP Internet reception .
If the consideration of the application is delayed or the FSSP refuses to transfer the money back, you have the right to go to court with a claim against the bailiffs for the return of the illegally debited funds.