Relevance of the Case. Prescription of the Right of Action
When a creditor seeks enforcement of an obligation, it is important first to check whether the action was brought within the statute of limitations. However, prescription does not operate automatically; it must be expressly invoked before the judge.
If the creditor’s right of action is time-barred, then the debtor is not obligated to fulfill the obligation, which is most often a monetary payment.
This case is relevant because, in practice, financial-banking institutions or debt collectors often promote and continue enforcement proceedings even though their right of action is prescribed, and the debtor makes payments or tolerates enforced execution unaware that the limitation period has expired.
Summary of the Factual Situation
In fact, the contesting party (debtor) entered into a credit contract with the bank in 2008, the total loan value being 5,000 euros. At a later point, the credit was declared due in advance (accelerated maturity) for failure to pay installments on time.
After the credit was declared due in advance, between the bank and a debt collector there occurred an assignment of the receivable, by which the bank transferred to the debt collector the debt arising from the credit contract.
The new creditor filed the request for enforced execution, claiming that the debtor had not voluntarily paid the sum of 37,634.85 lei, and requested registration of the enforcement request and opening of an enforcement file against the debtor, following which, after completing the necessary formalities, enforcement would proceed by any of the legal means.
PROCEEDINGS ON THE MERITS, BEFORE SIBIU JUSTICE COURT
By way of a contestation of enforcement, the debtor, represented by Brisc Legal attorneys, requested a declaration that the statute of limitations of the right to request enforced execution based on the 2008 credit contract has expired; annulment of the 2022 Notice issued in the enforcement file; annulment of the 2022 Notice setting up the garnishment; annulment of the 2022 Court Order concerning the enforcement expenses in the enforcement file; as well as annulment of the enforced execution itself, as a consequence of ascertaining that the limitation period for the right of enforced execution has expired.
The attorney specialized in enforcement actions argued that prior to the opening of the enforcement file there existed no interrupting act of prescription, and that in the three years preceding the filing of the enforcement request no payment had been made to the creditor’s account. Thus, he asked the court to find that there was no voluntary act of enforcement of the obligation under the enforceable title nor any other recognition of the debt in any way.
Also, the attorney in enforcement contestations argued that, due to the creditor’s passivity and omission to file the enforcement request within three years from the date the credit was declared due in advance, the limitation period to request enforced execution has been fulfilled, and therefore all the acts carried out in the enforcement file are null and void.
Moreover, the Brisc Legal team showed that although there was an assignment of receivable between the bank and the debt collector, this assignment was not communicated to the debtor, thus being non-opposable to them.
The creditor assignee asked for the contestation to be dismissed, arguing that the debtor had waived the right to invoke statute of limitations because voluntary payments were made, and that a payment made after the limitation period of 3 years expires is equivalent to a waiver of prescription. The creditor also argued that the assignment of receivable concluded with the bank is opposable to the debtor.
The Sibiu Justice Court granted the contestation of enforcement, annulling the enforced execution and all enforcement acts carried out in the enforcement file. In keeping with the debtor’s arguments, represented by Brisc Legal, the court held that the limitation period began to run from the date the credit was declared due in advance, namely 2013, and that it expired in 2016.
The court, in agreement with the attorney’s arguments, held that even in the hypothetical case that voluntary payments were made, they would not have been capable of interrupting the prescription in this case, since they were made after the limitation period had expired.
Regarding the non-opposability of the receivable assignment, the court stated that failure to communicate the assignment is of such a nature as to lead to a retention of the illegality of the enforced execution; and although an assignment of the receivable can be validly concluded without the consent of the debtor, the debtor is not obligated to pay the assignee until the assignment is notified to them.
PROCEEDINGS ON APPEAL, BEFORE SIBIU TRIBUNAL
The decision was appealed by the creditor, who asked for the appeal to be granted and for the contestation of enforcement to be rejected as untimely, re-raising the arguments from the merits.
Following the reasoning advanced by Brisc Legal attorneys, the Sibiu Tribunal dismissed the creditor’s criticisms, finding that the statute of limitations is fulfilled in this case, as well as the fact that the supposed partial payments made in 2021 would not have been capable of interrupting the limitation period, as they were made after the limitation period had already passed.
The appellate court concluded that, contrary to the creditor’s claims, there can be no question of express waiver of the statute of limitations by the debtor (since it is the statute of limitations itself that the debtor invoked in the contestation of enforcement), and that tacit waiver was not proven by unequivocal manifestations, which must be indubitable.
The Sibiu Tribunal upheld the favorable ruling whereby the contestation of enforcement was admitted, and all acts of enforced execution were annulled.
As an effect of this decision becoming final, separate from the cancellation of the enforced execution, the creditor will not be able to successfully initiate a new enforced execution, since the debtor may rely on res judicata in relation to the prescription of the right to request enforcement.