Case Study – Bank Litigation Lawyer Cluj: Lawsuit against CEE COLLECT LIMITED
Achieved Objectives
BRISC LEGAL assisted a client in a lawsuit against CEE COLLECT LIMITED, assignee of a claim from BCR SA, in which the court granted the request to declare the prescription (statute of limitations) of the right to request enforcement, with the consequence of final erasure of the debt of approximately €4,200.
Presentation of the Case
In 2007, the client entered into a personal needs credit contract for about €5,000 with Banca Comercială Română (BCR).
After some time, the client failed to pay the installments on time. The bank declared the credit prematurely due and, in 2011, assigned the claim to the collection company CEE COLLECT LIMITED. The assignee began enforcement proceedings at the end of 2012.
The BRISC LEGAL team analyzed the enforcement file closely and identified that the assignee’s passivity could be challenged in court, aiming to obtain a decision that would eliminate the enforcement and permanently erase the debt.
Moreover, because the enforcement procedure was governed under the old Civil Procedure Code, they invoked prescription (peremption) of the enforcement, arguing the time limits had expired.
Under Article 389 of the 1865 Civil Procedure Code, “If the creditor allows six months to pass from any enforcement act without further pursuit acts, the enforcement is perempted by law, and any interested party may request its annulment.”
During enforcement between 2012 and 2018, although CEE COLLECT LIMITED attempted enforcement measures (garnishments on the client’s bank accounts or wages, requests for urging the execution), these were ineffective. The BRISC team identified a period of 6 months and 11 days of creditor passivity, and requested the court to acknowledge peremption of the enforcement.
BRISC LEGAL’s Approach
They argued that acts such as requests for urging execution or for indicating the updated amount of the claim do not interrupt the peremption period. They also rebutted the notion that peremption does not apply when enforcement is by garnishment: the enforcement in this case was conducted in all its forms, not just garnishment; moreover, the garnishments instituted were inefficient and did not satisfy the creditor.
The court adopted all these arguments and declared the peremption of the enforcement.
Further, under Article 405²(3) of the Civil Procedure Code, “prescription is not interrupted if the execution request was rejected, annulled, perempted or if the one who made it gave it up.”
Therefore, the peremption of enforcement leads to annulment of all enforcement acts and exclusion of the enforcement request itself, as if the enforcement never existed. It also removes retroactively any interruptive effect those acts had on the prescription of the right to request enforcement.
Since this was an unsecured debt, the prescription period for the right to request enforcement was 3 years. Because enforcement was perempted, the court held the right to enforce was extinguished.
Controversial Aspect
One point of contention was that the lawsuit was filed as an action in declaration (constatare), not as a contestation of enforcement.
Initially, the court classified it as a contestation of enforcement because the petition invoked peremption and prescription. But at the first hearing, the court accepted the BRISC Legal team’s reasoning.
Because the client had missed the 15-day deadline for contestation of execution (and thereby lost the right to file that action), BRISC introduced an action in declaration under the new Civil Procedure Code, showing the intervention of peremption and prescription consistent with the rules of the old Code under which enforcement started.