Considering the debt collecting procedures in Poland the following procedures shall be briefly described:
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:
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 creditors compliance
> in case there is no amicable settlement the debt collecting company can litigate to gain the executive title from court (creditors 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
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 debtors 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 bailiffs office to begin the execution procedure.
The court procedure
The execution procedure in bailiffs office
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
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
This proceeding is possible when the plaintiff demands payment of a financial claim or claims 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 debtors 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).
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.
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 bailiffs 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 creditors 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 plaintiffs 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 advocates salary. In agreement between the advocate and his client salary may be established freely; however in courts 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 claims 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:
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 claims 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)
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 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 bailiffs payment demand will cause return of creditors 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 debtors spouse costs 50 PLN (12,5 EUR).
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 courts 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.
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 entitys 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 debtors 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 debtors 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 debts 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 debtors 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.