What is the procedure for suspension of enforcement proceedings in the case of filing a lawsuit on release from the imposed arrest (exception from the inventory)?
In accordance with paragraph 1 of Part 1 of Art. 39 of the Law on Enforcement Proceedings, enforcement proceedings are subject to suspension by the court in whole or in part in the case of filing an action for release from the imposed seizure (exclusion from inventory) of property foreclosed on the enforcement document.
The procedure for suspension of enforcement proceedings is regulated by art. 440 CCP of the United States. It provides that the basis for suspension of enforcement proceedings is a statement filed by the recoverer, the debtor or the bailiff-executor. The application is considered by the court, in the area where the bailiff performs his duties. The term of consideration is 10 days. Following the consideration of the application, the court issues a ruling that can be appealed to a higher court. Despite the fact that the law contains an opportunity to appeal against the court ruling on suspension or termination of enforcement proceedings (Part 3, Article 440 of the Code of Civil Procedure of the United States), participants in civil proceedings should not be discouraged in appealing against the refusal to suspend the enforcement proceedings. Suspended enforcement proceedings are renewed by the determination of the same court after the elimination of the circumstances that entailed its suspension.
What measures of securing the claim for release from the imposed arrest (exclusion from the inventory) provide for the current legislation?
According to paragraph 4 of part 1 of Art. 140 of the CCP of the United States in the event of a suit for the release of property from arrest (exclusion from the inventory), a measure to secure a claim may be a suspension of the sale of property. The basis for the suspension of the sale of property is the statement of persons participating in the case (Article 139 of the Code of Civil Procedure of the United States). The decision on the adoption of interim measures is taken by a judge or court and sent to the bailiff-executive.
Is it possible to conclude an amicable agreement on the claim for release of property from seizure (exclusion from the inventory act)?
In accordance with Part 1 of Art. 39 CCP US plaintiff has the right to change the basis or subject matter of the claim, to increase or reduce the amount of claims or to withdraw from the claim, the respondent has the right to recognize the claim, the parties can end the case by an amicable agreement. According to the rule established by Part 2 of Art. 39 of the CCP of the United States, the court does not accept the refusal of the plaintiff from the claim, the recognition of the suit by the respondent and does not approve the settlement agreement of the parties if it contradicts the law or violates the rights and legitimate interests of others.
As the case of the release of property from the imposed arrest (exclusion from the inventory) is considered in the order of the lawsuit, then the rules of Art. 39 CCP of the United States. There are no legislative obstacles in concluding an amicable agreement on the claim for release of property from the imposed arrest (exclusion from the inventory). This means that if the settlement agreement is signed by all parties to the case (plaintiff, defendants: debtor, recoverer) and does not violate the legitimate interests of others, there is no reason to refuse to approve a settlement agreement.
However, the court must clarify to the parties that, according to Art. 173 of the CCP of the United States, when approving a settlement agreement, the court issues a ruling that simultaneously terminates the proceedings (Article 220 of the CCP RF), stating that the repeated recourse to a court on a dispute between the same parties, on the same subject and for the same grounds are not allowed (Article 221 of the CCP RF). At the same time, enforcement of an amicable agreement, the subject of which is the duty of anyone to release property from arrest (exclude from the inventory act), may become impossible, since only a bailiff can perform this duty, and he can not be presented with an enforcement sheet. Thus, it is possible that the plaintiff will not be able to compel the execution of the amicable settlement or return to the court again.
Is it possible to file a claim for the release of property from seizure (exclusion from the inventory record) after the sale of the seized property?
From the point of view of science and theory of law, the presentation of a claim for the release of property from seizure (exclusion from the inventory record) after the realization of the arrested property is hampered by the fact that it can not be considered to be under arrest (included in the inventory). In addition, serious obstacles in the theoretical justification for the possibility of filing a claim are caused by the fact that the acquisition of property at auction, as we have already pointed out, is the original way of acquiring property rights, since according to Art. 235 of the US Civil Code enforcement of property for liabilities is one of the forms of forced withdrawal of property and grounds for termination of ownership. The property right to the property foreclosed is terminated from the owner from the moment of the emergence of the ownership of the seized property from the person to whom this property is transferred. For these reasons, the right of the person who acquired the property at the auction, as well as other persons whose right was derived from it, could be considered protected from the claims of persons whose rights with respect to the property arose before the moment of sale at the auction, including claims, vested in the form of the claim for the release of property from seizure (exclusion from the inventory act).
However, the law (para 2, part 2, article 442 of the CCP RF) provides for the possibility of filing a suit for the release of property from seizure (exclusion from the inventory record) and after its implementation. In this case, as the defendant, in addition to the debtor and the creditor, the property acquirer must be engaged. Thus, the courts must accept and consider such claims on the merits and satisfy them in the established set of the same circumstances as in claims filed before the sale of property. It should be borne in mind, however, that the purpose of presenting the claim in question can not be considered to be achieved only by passing a decision on the release of property from attachment (exclusion from the inventory act). It is also necessary to consider the issue of rights to disputed property, i. an action for the release of property from seizure (exclusion from the inventory act) must be accompanied by a claim for recognition of ownership.
Are there specific features of reimbursement of court costs for a claim for the release of property from seizure (exclusion from the inventory act)?
When considering claims for the release of property from seizure (exclusion from the inventory record), courts need to pay attention that according to Part 2 of Art. 102 of the CCP of the United States in the event of satisfaction of the claim for the release of property from arrest to the plaintiff, the legal expenses incurred by him are reimbursed at the expense of the corresponding budget. The position of the law is substantiated by the fact that in the case of recognition of the imposition of seizure (inclusion in the act of inventory) as illegal, neither the debtor nor the creditor must suffer, since they did not commit unlawful actions.
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