Factual Situation Leading to the Objection to Enforcement
A natural person entered into a personal need credit agreement in the amount of 16,000 CHF with a Romanian bank. During the repayment period, in 2012, the bank assigned the credit contract to a foreign banking company. Afterwards, due to financial difficulties, the borrower failed to meet the payments toward the new creditor.
The outstanding debt was assigned once more in 2018, this time to a debt-collection company with a branch in Romania and headquarters abroad. Soon after the assignment, the new creditor initiated enforcement proceedings to recover the unpaid amounts. In 2019, the judicial executor issued a decision fixing enforcement costs in the amount of 3,500 lei, issued a summons to the debtor, and ordered garnishments.
At that juncture, the borrower consulted Brisc Legal’s enforcement specialists, who filed a court objection to the execution, invoking prescription of the right to request enforcement. To assess the legal status of the debt and devise strategy, the attorneys obtained, within the 15-day term for bringing the objection, a full copy of the enforcement file directly from the judicial executor.
Course of Proceedings and Court Decision
During the trial, it was established that in a prior enforcement initiated in 2011, the objector had already been pursued by the original creditor via enforcement. That proceeding had been handled by the same executor, before and after the first assignment.
During that enforcement, the debtor requested installment payments of 750 lei/month. Following that agreement, with execution agent and creditor consent, garnishments on the debtor’s accounts were suspended.
In 2015, efforts were made to identify movable and immovable assets of the debtor. No further enforcement steps were taken until 2018, when the enforcement was terminated.
Prescription of the Right to Request Enforcement
Based on these facts, the court held that the three-year prescription period for the right to request enforcement began from the time enforcement was initiated by the original creditor, under the rules of the old Civil Procedure Code (before the new Code). Specifically, under Article 405²(1) of that old procedural law, the prescription had been interrupted by the garnishment orders and by the debtor’s acknowledgment of the debt, expressed via the installment request in 2012.
After that interruption, given failure to comply with the installment agreement, a new three-year prescription period began, which had expired by 2015, since no further enforcement acts were carried out in that period. Therefore, by the time the debt-collection company launched the new enforcement in 2019, the right to enforce was already prescribed. The Cluj Court accepted the objection to enforcement and annulled all enforcement acts in the 2019 file. It also ordered restitution of all amounts collected under that execution.