The Brisc Legal team, specializing in banking litigation and objections to enforcement, obtained admission of an enforcement objection in dispute with EOS Finance GmbH as a result of establishing that the right to request enforced execution had been prescribed during the course of the enforced execution. Accordingly, all enforcement acts carried out after the moment the prescription matured were annulled, the enforced execution ceased, and the debt was definitively erased.
Presentation of the Facts
In fact, on June 21, 2005 a credit contract was concluded between the client and Raiffeisen Bank. Later, on November 20, 2009, the bank assigned the non-performing loan to a debt recovery company. The credit agreement, which served as the enforceable title, was invested with enforceability by the Cluj-Napoca Court on October 10, 2015.
The enforced execution was authorized in 2015, and various enforcement steps were taken subsequently, but none proved effective.
Thus, on January 7, 2016, a notice of execution was issued, putting the debtor on notice to pay the debt plus enforcement costs; on the same date a garnishment order was placed on all the debtor’s accounts. Those steps did not recover the claim, and the debtor failed to file an enforcement objection within the 15-day term provided by law.
In 2022 the debt recovery company filed a request for continuation of the enforcement, and the judicial executor issued a decree updating the debt owed, including bringing enforcement expenses up to date. This decree was communicated to the debtor, who immediately contacted Brisc Legal attorneys specializing in enforcement objections, who initiated the judicial procedure within 15 days.
Course of the Proceedings
During the case the court established that from the moment the garnishment was imposed in 2016—which was the last enforcement act—and until 2022, no new enforcement acts were carried out by the judicial executor, and the bank account garnishment had been ineffective.
In this regard, the court expressly noted that the garnishment imposed in 2016 upon the debtor’s accounts would only serve to interrupt the running of prescription successively if the accounts had been funded and sums deposited in them placed at the disposal of the judicial executor, but between 2016-2022 no money was actually garnished from the objector’s accounts.
In conclusion, the court adopted the arguments presented by the Brisc Legal attorneys in Cluj-Napoca and ordered the nullification of all acts performed after the year 2019, as absolutely null, since they were carried out after the expiration of the three-year prescription period. It was held that, with reference to Article 704 of the Civil Procedure Code, since between January 7, 2016-January 7, 2019 no acts of enforced execution were issued, on August 22, 2022, when the request for continuation and the update decree of the debt was issued—which represents the enforcement act in relation to which the objection was made—the three-year limitation period for the right to obtain enforced execution had already lapsed.
Regarding the effects of prescription, it was further held that according to the provisions of Article 707 paragraph 2 of the Civil Procedure Code, prescription of enforced execution extinguishes the right to obtain enforced execution, and any enforceable title loses its enforceability. Therefore, the enforcement acts executed after the prescription period expired are void, having been made in absence of an enforceable title, leading implicitly also to cessation of enforcement and definitive erasure of the debt.
Also, the court ordered the reimbursement of judicial stamp duty to the objector and obliged the defendant assignee of the claim to bear the court costs.