Article 323. Issuance of a duplicate writ of execution

A writ of execution is the main document on the basis of which the debt is collected. If the debt is not repaid voluntarily, only with the help of a writ of execution can the enforcement procedure be initiated through the debtor’s bank or bailiffs. Therefore, the writ of execution must be stored very carefully. Unfortunately, no one is immune from the loss of a writ of execution. In this case, the claimant may ask for a duplicate of the writ of execution. How to do it?

Why are writs of execution lost?

From my own practice I can recall the following reasons for the loss of writs of execution:

• the fault of the bailiffs - one of our sheets was lost when the enforcement proceedings were transferred to another region (the debtor company did not have a branch in our city). Our bailiffs sent the sheet, but the Samara bailiffs did not receive the sheet. Where he disappeared is unclear;
• again, the fault of the bailiffs - on one sheet they refused to initiate proceedings for us because they found an error in the sheet. The bailiffs returned the writ of execution by mail either to our address or to the court. Neither we nor the court received this letter;
• the fault of the Russian Post - a valuable letter with a writ of execution was sent to the debtor’s bank in Moscow. There was no notification of receipt; the status of the letter did not change for a long time on the Russian Post website. We filed an application to search for the letter and managed to receive a duplicate of the writ of execution. About six months later, the letter with the original sheet was finally returned to us.

How to protect yourself from losing a writ of execution?

• always make yourself a photocopy or scan of the writ of execution (only 1 page with the word “decided” is enough, a page with data about the debtor and the collector, and a page for notes on execution);
• in the application for execution, always make the “Appendix” item and indicate there the number of the Supreme Court writ of execution No. 000000000;
• If you submit an application for execution in person, always have 2 copies with you for marking. It needs to be stored;
• if you send a sheet for execution by mail, use a valuable letter with a description of the contents and a receipt. Keep the mailing receipt (with ID number), a list of the attachment with a postmark, and the mailing notification (if it is returned to you).

The bailiffs lost the writ of execution

The court that made the decision and issued the court order will issue a duplicate of the writ of execution to the applicant or the bailiff if he complies with the conditions established by Parts 2 and 3 of Art. 430 of the Civil Procedure Code of the Russian Federation.

In Part 2 of Art. 430 of the Code of Civil Procedure of the Russian Federation defines the period when the applicant or bailiff can apply to the court with an application for the issuance of a duplicate of the writ of execution if the writ of execution was lost by the bailiff.

In this case, an application for the issuance of a duplicate of the writ of execution can be submitted to the court both within the period established for the presentation of the writ of execution to the bailiff service, and after - within a month from the day when the claimant became aware of the loss of the writ of execution.

When considering an application for the issuance of a duplicate of a writ of execution, the court ascertains the circumstances indicating the loss of the writ of execution and examines the evidence confirming its loss, by virtue of Part 3 of Art. 430PK RF.

Consequently, the applicant (claimant) must prove the fact of loss of the writ of execution.

For these purposes, the bailiff issues or sends to the applicant (claimant) a certificate of the loss of the writ of execution. At the same time, it explains the right of the claimant (his representative) to apply to the court for the issuance of a duplicate of the writ of execution. The obligation to issue a certificate and explain the rights to the claimant is assigned to the bailiff, clause 2.3.1 of the Regulations on the organization of work to restore lost executive documents, enforcement proceedings or individual documents that were part of enforcement proceedings, approved by order of the Federal Bailiff Service dated 09.28.2015 No. 455.

Thus, if you have a certificate of loss of the writ of execution, which will confirm the fact of its loss, you can apply for the issuance of a duplicate of the writ of execution to the court that issued the court order. In this case, you should remember the deadlines specified in Part 2 of Art. 430 Code of Civil Procedure of the Russian Federation. If the deadline for filing an application is missed, it will be necessary to send to the court, along with the application, a petition to restore the deadline, indicating valid reasons. Also, the petition may not be drawn up in the form of a separate document, but contained in an application for the issuance of a duplicate of the writ of execution. For persons who missed the procedural deadline established by federal law, for reasons recognized by the court as valid, the missed deadline may be restored in accordance with Part 1 of Art. 112 Code of Civil Procedure of the Russian Federation.

This is important to know: Time limit for consideration of a complaint by a senior bailiff

An application for the issuance of a duplicate of a writ of execution is considered by the court at a court hearing within a period not exceeding 10 days from the date of receipt of the said application by the court.

Based on Part 3 of Art. 430 of the Code of Civil Procedure of the Russian Federation, persons participating in the case are notified of the time and place of the meeting, but their failure to appear is not an obstacle to resolving the issue of issuing a duplicate.

A private complaint may be filed against a court ruling to issue a duplicate of a writ of execution or to refuse to issue it in accordance with Part 4 of Art. 430 Code of Civil Procedure of the Russian Federation.

Are there any deadlines for requesting a duplicate of the writ of execution?

Yes, I have. A duplicate can be requested within the deadline for presenting the sheet for execution. It lasts 3 years from the date the court decision enters into legal force. This period can be viewed on your writ of execution on the page with information about the debtor and claimant.

There is 1 exception to this rule: if your original sheet was lost by the bailiffs. You must request a duplicate within 1 month from the moment you learn that the sheet is lost. In this case, you can ask the court for a duplicate of the writ of execution, even if the 3-year period for presentation for execution has already expired. This is stated in paragraph 15 of the Review of judicial practice of the Supreme Court of the Russian Federation No. 5 for 2021 dated December 27, 2017 (definition 16-КГ16-43).

What to do if you lose a leaf

When identifying the fact of loss of a writ of execution, you must be guided by the norms of the Code of Civil Procedure of the Russian Federation, Federal Law No. 229-FZ, Order of the FSSP dated September 28, 2015 No. 455. All necessary actions are described in the order of the FSSP “On approval of the Regulations on the organization of work to restore lost writ of execution, writ of execution proceedings or individual documents that were part of enforcement proceedings"

The claimant can apply to the court to obtain a duplicate, or demand it from the bailiff. To do this you need to do the following:

• apply for a personal appointment with the bailiff or submit a written request for the issuance of a certificate of loss of the sheet;
• send to the bailiff a request to restore the writ of execution by the FSSP;
• demand an internal investigation to establish the causes of the loss (if the head of the FSSP department did not conduct such an inspection himself).

This is important to know: Covering letter to bailiffs for a writ of execution: sample

If the bailiff himself discovered the fact of the loss or destruction of the sheet (for example, when accepting and transferring cases between employees), he is obliged to immediately notify the claimant about this. The notice explains the right to go to court to obtain a duplicate of the sheet, and also indicates a list of actions that the bailiff himself will perform to obtain a document to replace the lost one.

If you decide to go to court yourself, you need to fill out a written application and indicate the reasons for issuing a duplicate. If there is evidence of the direction or delivery of the sheet to the bailiffs, or an official certificate from the FSSP. There will be no problems when receiving a new document. There is no need to pay a state fee for issuing a duplicate if you confirm that the reasons for the loss of the original are valid.

If a bailiff goes to court, the claimant is brought in to consider the application by an interested party. If the lost document has already been recovered, the bailiff will restore the relevant information through the AIS of the FSSP of the Russian Federation (electronic database of all initiated proceedings).

How to request a duplicate of a writ of execution from the court?

1. Make an official request to the bank or bailiff department where you sent the lost writ of execution. Provide information about the sheet, ask to know its fate and confirm the lack of execution in your favor.

1. Submit an application for the issuance of a duplicate writ of execution to the court that made the decision and issued the original writ of execution. If your case was considered in appeal or cassation, the application must be submitted to the court of 1st instance. The application can be submitted in person or sent by mail.

The application must be accompanied by:

• copies of the application for a duplicate for all persons participating in the case (defendant, third parties, etc.);
• a copy of the representative’s power of attorney (if the application is submitted by a representative of a citizen or organization);
• evidence of loss of the original writ of execution. We usually attached: a copy of the writ of execution itself (1 page and 3 pages with data about the debtor and the claimant), a copy of the application for execution to the bank or bailiffs, a copy of the postal receipt or register of sending the letter with the sheet, a copy of the delivery notice and/or a printout from the Russian Post website about tracking the letter; a copy of the list of attachments in the valuable letter; response from the bank or OSB regarding the fate of the writ of execution;
• The arbitration court will also require copies of postal receipts for sending your application to all participants in the process.

There is no need to pay a state fee when requesting a duplicate of a writ of execution.

An application for the issuance of a duplicate writ of execution to the arbitration court can be submitted through the official My Arbitr service.

1. Within 10 days from the date of receipt of your application, the court must schedule a hearing on your application. In practice, this deadline is not always observed. All participants in the process will be notified about the meeting. But even if no one comes to it, the court will still consider your application. The judge will examine your documents and make a decision: issue a duplicate or refuse to issue a duplicate.
2. If you are denied a duplicate, you can appeal the court's decision. To do this, you must, within 15 days from the date of the determination, file a private complaint with a higher court through the court that refused to issue a duplicate (for courts of general jurisdiction). For arbitration courts, the deadline for filing a complaint against a refusal to issue a duplicate is 1 month.
3. If the court decides to issue a duplicate sheet:

• in the arbitration court they can make you a duplicate “immediately”, because the rulings of the arbitration court are, as a general rule, subject to immediate execution.
• in a court of general jurisdiction, you will have to wait 15 days for this determination to come into force (unless other participants in the process appeal it). After this, the office will be able to produce and issue you a duplicate.

The speed of issuance in practice depends on the efficiency and workload of the office. On average, in a court of general jurisdiction (magistrates, city court), the issuance of a duplicate from filing an application to receiving the duplicate in our hands took us 1-2 months.

photo: vk.com

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Editor of the website Odolgah.com, I share useful tips on how to collect debts yourself without the help of a lawyer.

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Refusal to issue a duplicate writ of execution - possible reasons

To obtain a copy of the personal identification document, it is important for the claimant to prove in court the fact of its loss. This is necessary to eliminate the possibility of fraud.

The writ of execution is issued to the plaintiff in a single copy. The document can be submitted to the FSSP, bank or employer of the debtor for the purpose of forced collection of debt. If the claimant succeeds in fraudulently obtaining a duplicate of the IL while he has the original, he will be able to submit both documents to different organizations. As a result, the debtor may be deducted double the amount of obligations. In order to suppress such actions, the court imposes strict requirements on the availability of evidence of the fact of the loss.

Refusal to issue a copy of the writ of execution is possible for the following reasons:

• lack of convincing evidence of the loss;
• presence of errors in the claimant's application;
• distortion of data or indication of knowingly false information in submitted documents.