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Considering
the debt
collecting
procedures
in Poland
the
following
procedures
shall be
briefly
described:
1.
Out of court
procedure
2.
Judicial and
execution
procedure
3.
Procedure in
front of
Arbitrating
Court
4.
Bankruptcy
procedure
-
Out of
court
procedure
Debt
collection
market in
Poland
became
developing
in the last few
years so the
debt
collecting
companies
are still
new entities
on Polish
market. The
consequence
of this fact
is lack of
legal
regulations
providing
conditions
of
establishing
and
performing
this type of
business
activity.
Usually, the debt collecting
companies
are entitled
to perform
their
activities
on the basis
of following
provisions
of the
Civil Code:
-
transferring
of debt
to a
debt
collecting
company
(cession)–
the
company
becomes
the
owner of
the debt
-
commission
agreement
between
the
creditor
and the
company
as well
as
provisions
about
power of
attorney
– the
company
works on
behalf
of
creditor
Common debt
collecting
procedure
>
the first step is
usually informing the debtor about
transferring the debt to be executed
by a debt collecting company – the
company shall do it by a registered
letter and since that moment the debt
shall be paid to the company account
>
usually the debt collecting
company sends as well a payment request
and begins negotiations with the debtor
to gain an amicable settlement; in
case the company is working on the
basis of the commission agreement
possible rating payment shall be offered
after creditor’s compliance
>
in case there is no
amicable settlement the debt collecting
company can litigate to gain the executive
title from court (creditor’s compliance
is required if the company is working
on the basis of commission )
>
after gaining the
executive title the company may try
again negotiate with the debtor an
amicable settlement
>
in case the negotiations
are not successful the application
to begin the execution shall be moved
to the bailiff, which can begin the
execution procedure
It shall be
noticed that
debt
collecting
companies in
Poland have
no right to
perform any
special
activities
or initiate
any special
procedures;
they are
entitled
only to try
to convince
the debtor
to pay the
debt. In
particular
the company
is entitled
to:
-
send payment
requests and
any other
documents,
convincing
by phone
call, as
well as,
negotiate
with debtor
-
collect
information
about
debtor, in
particular
from open
registers
-
Judicial
and
execution
procedure
In case
gaining an
amicable
settlement
is not
possible,
litigation
of the
debtor seems
to be the
only
solution. It
is useful to
calculate
earlier the
costs of the
legal
action. It
is
noticeable
as well that
court
procedures
in Poland,
especially
the ordinary
ones,
usually last
long – in
case of debt
collection
mostly
around 2
years.
To gain the
possibility
of execute
the debt
from
debtor’s
property,
the creditor
shall obtain
an
“executive
title”,
which is the
“enforceable
title”
equipped in
“execution
clause” by
court.
The
enforceable
title is for
instance
court
judgment or
payment
order, but
it can be as
well other
documents,
specified in
Code of
Civil
Procedure.
After
gaining the
executive
title, the
debtor shall
enter an
application
to the
bailiff’s
office to
begin the
execution
procedure.
The court
procedure
-
Before entering
a claim to the court an official
payment call shall be sent. It shall
include information that in case
of no payment the legal action against
the debtor will be taken.
-
In case of no payment
a claim shall be entered to proper
court
-
In court
procedure
(ordinary
or
simplified)
begins.
It will end with judgment,
which is
an
enforceable
title.
The
execution
procedure in
bailiff’s
office
-
Judgment
must be
fulfilled
with
execution
clause
by
proper
court to
become
executive
title
-
Moving
an
application
to the
bailiff
Court
procedure
The court
procedure
may be
ordinary or,
under some
conditions
specified in
Code of
Civil
Procedure,
simplified.
It is
noticeable
that the
ordinary
court
procedure is
much more
formal and
more
expensive.
Its
formality
makes it
lasts longer
than the
simplified
one and the
fact that
the appeal
measures are
considered
by the
higher court
makes it
longer as
well.
The Code of
Civil
Procedure
provides as
well three
simplified
procedures:
v
so-called
simplified
proceeding
v
command
proceeding
v
demanding
proceeding
Simplified
proceeding
It is a
proper
procedure
for most of
small
consumer
cases. The
cases that
can be
considered
within this
proceeding
are the
cases, for
which the
district
court is
competent
and:
-
the object
of the case
is payment
of rent or
-
the claiming
results from
contract,
under the
condition
that the
claiming
amount is
not higher
than 10,000
PLN (around
2500 EUR)
Note: 1 EUR
= around 4
PLN
Command
proceeding
This
proceeding
is possible
when the
plaintiff
demands
payment of a
financial
claim or
claim’s
objects are
other
replacement
things, and
his demand
is confirmed
with:
-
an official
document
-
a bill
accepted by
the debtor
-
a payment
call sent to
debtor and
his written
confirmation
about
accepting
the debt
-
accepted by
the debtor a
payment
demand,
unpaid
because of
lack of
money on
debtor’s
bank account
In this
proceeding
the court
prepares the
default
summons (the
payment
order)
instead of
the
judgment, in
which
demands from
debtor to
pay the debt
within 2
weeks or in
the same
time enter
the appeal
measure,
which in
this
proceeding
can be only
charges. In
case of
accepting
the charges
the court
quashes the
payment
order; in
other case
the default
summons
becomes
valid and
has the same
legal
consequences
as judgment
(is an
enforcement
title).
Demanding
proceeding
In this
procedure
court
performs as
well the
payment
order
instead of
the
judgment.
This
proceeding
is possible
when the
plaintiff
demands
payment of a
financial
claim and
the Code
specifies
conditions
when the
payment
order cannot
be prepared.
Similarly as
in command
proceeding,
the
defendant
has 2 weeks
to pay the
debt or to
enter an
objection.
The
following
procedure is
similar to
the command
procedure.
Execution
procedure
As a rule
execution
activities
in Poland
are provided
by bailiffs;
however
there are
some
activities
which shall
be provided
by court.
The apply
measure for
bailiff
activities
or lack of
activities
is a
complaint,
which shall
be entered
into a
district
court.
After
gaining the
enforcement
title in any
of
abovementioned
court
procedures,
the creditor
shall obtain
from a
competent
court
execution
clause,to gain a valid executive title, which gives a right to enter an
application
to bailiff’s
office and
begin the
execution
procedure.
An
application
with demand
to obtain
execution
clause shall
be
considered
by court
within
maximum 3
days. After
receiving
the
creditor’s
application,
the bailiff
shall inform
the debtor
about
begging the
execution.
In is
noticeable
that
administration
bodies,
revenue
offices,
banks and
other
subjects,
that are
obliged to
give all
required
information
to the
bailiff. The bailiff is entitled as well to the debtor's
apartment
and his
properties.
The debt may
be executed
for instance
from
movables and
real
estates,
bank
accounts,
salary or
other
financial
rights.
It is noticeable
that during
lasting the
execution
procedure
the debtor
is still
entitled to
defend
himself in a
way of
entering a
claim to
court to
deny the
execution
title the
execution
clause. In
case the
third party
assumes that
executing
property
violates her
rights, it may enter a claim against the creditor to
make the
property
free of
execution.
Costs of
court
proceedings
The general
rule is that
a party
loosing the
case shall
return the
other party
all costs
named as “essential
proceeding
costs”,
which
includes:
v
court costs
v
costs of
traveling to
court
v
salary lost
as a
consequence
of presence
in the court
v
if proxy of
a party is
an advocate
or legal
advisor, his
salary is
included to
essential
costs as
well
However, if
the
plaintiff’s
demands were
considered
only
partially,
costs may be
divided
between both
parties.
In special
circumstances
court may
judge as
well, that
the loosing
party is not
obliged to
return the
costs.
Salary of an
advocate
The Justice
Minister
Regulation
regulates
the minimal
advocate’s
salary. In
agreement
between the
advocate and
his client
salary may
be
established
freely;
however in
court’s
decision in
the subject
of returning
the
essential
proceeding
costs, court
may judge
returning
costs only
in amount of
4 or 6
multiply the
minimal
salary.
The minimal
salary in
general
depends of
the claim’s
value and
amounts to:
-
when claim
value is not
higher than
500 PLN (125
EUR) = 60
PLN (15 EUR)
-
when claim
value is
between 500
(125 EUR) –
1500 PLN
(375 EUR) =
180 PLN ( 45
EUR)
-
when claim
value is
between 1500
(375 EUR) –
5000 PLN
(1250 EUR) =
600 PLN (150
EUR)
-
when claim
value is
between 5000
(1250 EUR) –
10.000 PLN
(2500 EUR) =
1200 PLN
(300 EUR)
-
when claim
value is
between
10.000 PLN
(2500 EUR) –
50.000
(12.500 EUR)
= 2400 PLN
(600 EUR)
-
when claim
value is
between
50.000
(12.500 EUR)
– 200.000
(50.000 EUR)
= 3600 PLN
(900 EUR)
-
when claim
value is
higher than
200.000
(50.000 EUR)
= 7200 PLN
(1800 EUR)
The amounts
are for
instance
different in
domestic
cases as
well are
established
in detailed
way for
specified
types of
cases.
The “court
costs”
include:
a)
court fees
Court fees
shall be
paid while
entering the
handwriting
to court, as
otherwise no
legal action
will be
taken by the
court.
Court fees
include:
The fee
shall be
paid while
entering the
handwriting
(for
instance
claim), as
otherwise
the
handwriting
will be
returned
without
taking any
legal
action.
The
registration
fee might be
permanent,
relative,
basic or
temporary.
-
The
permanent
fee shall be
paid when
the case
subject is
non –
financial
right or
some of
financial
rights. This
fee does not
depend of
the claim
value. The
minimal
amount of
the fee is
30 PLN (7,5
EUR); the
maximum
amount is
5.000 PLN
(1250 EUR).
-
The relative
fee is paid
in cases
which
subject is
financial
right and it
amounts to 5
% of the
claim value;
however not
less than 30
PLN (7,5EUR) and not
more than
100.000 PLN
(25.000 EUR).
-
The
temporary
fee amount
is
established
by the
president of
the court in
cases, in
which
estimating
claim’s
value in the
moment of
initiating
the court
procedure is
impossible.
However, it
may not be
less than 30
PLN (7,5 EUR) and not
higher than
1.000 PLN
(250EUR).
-
The basic
fee is paid
in any other
cases and
its minimal
amount is 30
PLN (7,5
EUR).
The
abovementioned
fee might be
full or
partial
when
entering the
handwriting
to the
court:
-
The full
payment is
in general
paid of the
claim and
application
measures.
-
? (but not
less than 30
PLN / 7,5
EUR) is paid
of claim in
command and
demanding
proceeding.
In the
simplified
proceeding
the fee is
strictly
connected
with claim
value and
amounts:
-
when claim
value is not
higher than
2000 PLN
(500 EUR) –
the fee
amounts 30
PLN (7,5 EUR)
-
when the
claim value
is between
2000 – 5000 PLN
(500 - 1250
EUR) – the
fee amounts
100 PLN (25
EUR)
-
when the
claim value
is between
5000 – 7500
PLN (1250 -
1875) – the
fee amounts
250 PLN (62
EUR)
-
when the
claim value
is higher
than 7500
PLN (1875) – the
fee amounts
300 PLN (75
EUR)
-
Other
fees,
which
are paid
for
instance
for such
activities
as
giving
the
execution
clause
or
copies
of
document.
Its
usual
amount
is 6 PLN
(1,5 EUR)
for
every
page of
document.
b)
court
expenses
As
abovementioned
expenses
include for
instance
salary and
travel
expenses of
judges and
other court
employees in
case of
performing
their
activities
out of
court, costs
of
translators
or
witnesses,
their amount
depends of
circumstances
of
individual
case.
In some
cases
return of
already paid
costs is
provided,
for
instance:
-
All costs
are
returned,
when court
returns the
handwriting
entered
because of
formal
defects.
-
? of costs
are returned
in case of
making a
court
settlement
by parties.
A natural
person can
benefit
from court
costs
providing that they cannot afford the
costs of
legal
proceedings
without harm
to her/his
or her/his
family
maintenance.
A legal person can benefit if it has no
recourses to
afford court
proceedings.
Benefit from
costs in
court
proceeding
is as well
valid during
the
execution
proceeding.
It is
noticeable,
that person
entitled to
benefit from
court costs
is still
obliged to
return
essential
proceeding
costs in
case being a
loosing
party.
Costs of
execution
proceedings
Those costs
include:
-
execution
fees
-
bailiff’s
expenses
-
expenses
for
proxy
Execution
fees
are
regulated in
the Act
of Costs in
Civil Cases
as well as
in the
Act of
Bailiffs and
Execution.
The Act
of Bailiffs
and
Execution
includes
rules as
following.
Bailiff
gains fees
for
performing
any
execution
activity.
The fee may
be
relative
– in case of
executing
financial
amounts due,
or
permanent
– in case of
executing
non
financial
amounts due
and in
situations
detailed in
the Act of
Bailiffs and
Execution.
The whole
relative fee
amounts to
15 % of the
value of
executing
amount due;
however it
cannot be
lower than
1/10 and not
higher than
30
multiplying
the average
monthly
salary in
Poland.
Payment of
the relative
fee is
executed
from debtor.
Initiating
the
execution
depends of
paying by
the creditor
the
permanent
fee,
which amount
is
percentage
of the
average
monthly
salary in
Poland;
percentage
rate is
different
for
different
types of
activities.
Not paying
the fee
within 7
days from
bailiff’s
payment
demand will
cause return
of
creditor’s
application
to initiate
the
execution
without
taking any
activity.
The creditor
shall pay as
well advance
payments to
bailiff,
when they
are required
by bailiff
to cover
execution
expenses.
The Act
of Costs in
Civil Cases
includes as
well
regulations
about fee
amounts for
execution
activities,
which are
performed in
court, for
instance
obtaining an
execution
clause
against
debtor’s
spouse costs
50 PLN (12,5
EUR).
-
Procedure
in front
of
Arbitrating
Court
In this
procedure
the civil
case is not
considered
by the
common
court, but
by different
body, named
as
Arbitrating
Court. The
court may be
established
for a
particular
case or
permanent –
for instance
the
permanent
Arbitrating
Court is
established
by the
National
Economic
Chamber.
To make the
case
considered
by the
Arbitrating
Court an
agreement is
required (or
a proper
clause in
already
existing
agreement),
made in
written
form. The
Arbitrating
Court may
only
consider
cases,
object of
which is a
financial
right. As
long as the
agreement is
valid the
parties
cannot
demand
considering
the case by
the common
court.
The parties
may choose
the track of
considering
the case, as
well as the
arbiters.
The common
court judge
cannot
perform
activities
as an
arbiter. The
Arbitrating
Court is not
obliged to
perform
procedures
according to
the
provisions
of the Code
of Civil
Procedure.
The judgment
of
Arbitrating
Court has
the same
force as
common
court’s
judgment –
it is as
well an
enforcement
title, which
after
obtaining
the
execution
clause
becomes a
valid
execution
title.
An apply
measure from
Arbitrating
Court
judgment is
a complaint
entered to
the common
court, which
would be
competent
according to
provisions
of the Civil
Procedure
Code. It
shall be
entered
within 1
month from
receiving
the
Arbitrating
Court
judgment.
4.
Bankruptcy
law
The
bankruptcy
procedure is
regulated by
the
Insolvency
and Repair
Act, of
28 February
2003.
The main aim of this Act is to make it possible
to pay the
debts and at
the same
time make
possible to
allow the
debtor
performing
still his
business
activity.
The
condition to
start this
procedure is
insolvency
of the
debtor.
Insolvency
means that
the debtor
stopped
paying his
obligations
and in case
debtor is a
legal person
or entity
without
legal
personality
but having
legal power,
insolvency
means as
well
situation
when the
entity’s
debts are
higher that
property
amount, even
if the
entity did
not stop
paying its
obligations.
The Act
provides
three forms
of
announcing
bankruptcy:
bankruptcy,
bankruptcy
with
possibility
of
arrangements
with
creditors
and
bankruptcy
connected
with
liquidation
of debtor’s
enterprise.
·
An
application
to begin the
bankruptcy
procedure
may be
entered by
creditor, as
well as by
debtor.
However the
debtor is
obliged to
move an
application
within 2
weeks of
event which
is the basis
for
insolvency
as otherwise
can be
punished
with a fee.
An
application
shall be
moved to the
economic
department
of competent
district
court. Fee
amount for
entering an
application
for
initiating
bankruptcy
procedure is
1000 PLN
(250 EUR).
·
After
receiving
the
application
court shall
establish a
temporary
supervisor
over
debtor’s
enterprise.
·
In case
there are
basis to
announce
insolvency,
the court
organizes
preliminary
meeting of
creditors,
excluding
situation
when the
bankruptcy
will be
connected
with
liquidation.
If creditors
present at
the meeting
represent ?
of general
debt’s
amount, they
are entitled
to make an
arrangement
with debtor.
Arrangement
is available
only under
the
condition
that in
result of
the
arrangement
creditors
will be
better
satisfied
with
payments
than in
result of
liquidation.
In
particular
the
arrangement
may provide
postponing
the term of
payment,
payment in
rates,
reducing the
debt.
·
Court
considers
the
bankruptcy
application
within 2
months. When
there are
basis to
announce the
bankruptcy,
court gives
the term for
creditors to
submit their
debts. The
term shall
be not
shorter than
1 month and
not longer
than 3
months.
After
collecting
information
about all
debts a list
of creditors
is prepared.
·
Finally, if
there are
basis for
announcing
bankruptcy,
court
announces
decision
about
bankruptcy,
bankruptcy
with
possibility
of
arrangement
or about
bankruptcy
connected
with
liquidation.
·
The court
decision
shall be
published in
Monitor
Sadowy i
Gospodarczy.
Consequences
of
announcing
bankruptcy
Entrepreneur
is obliged
to give his
property to
the trustee
in
bankruptcy,
as well as
all required
documents
and
explanations.
Debts which
were not
required
become
required at
the moment
of
announcing
bankruptcy.
Non –
financial
debts become
financial
ones.
Since
announcing
bankruptcy
debtor’s
property
shall be
used for
paying debts
and costs of
bankruptcy
procedure.
If it is not
enough to
cover the
procedure
costs, the
costs shall
be paid by
the debtor.
While
bankruptcy
procedure is
lasting the
execution
procedure
cannot begin
and in case
the
execution
procedure
has already
begun it
shall be
suspended,
and executed
amounts of
money shall
be entered
into
bankruptcy
property.
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