Seizure by a private enforcement officer without knowing! Is it legal? There are many questions asked in connection with the imposition of a seizure by a private enforcement officer. Thinking about this and analyzing the cases we have worked on over the past year, I seem to be convinced that people are not resentful of the seizure itself, but of the ways in which it is imposed.
The complaint: Why wasn’t I notified that I was going to be garnished?
As is known, for there to be a seizure, two parties are needed. One who is the victim of the seizure. The other, in whose favor it is imposed. The private enforcement agent is in the middle. He imposes a seizure if there is a request for it. In addition to a request, there must also be a payment. That is, the one who requested the seizure must pay the private enforcement agent to impose it. The same goes for other enforcement actions. For example: an inventory of movable property in the home, seizure of a vehicle, and others. You will not find a private enforcement agent who will go to the debtor’s home for free or perform any actions without being paid and “ordered”.
Who pays the garnishment? Who orders the private enforcement officer ?
The garnishment with a private enforcement agent is paid by the party that won the case in court. This is the party that convicted the other (opposite) party. That is, garnishment occurs when the court has ruled by a judicial act that one person is to receive money from another.
Despite the conviction, the winner of the case still has not received payment. What is left for him? He can only seek compulsory enforcement. There are two types of compulsory enforcement. The first is illegal – for example, beating the debtor. The second is legal – going to a bailiff. If he chooses the second, he will have to pay the private enforcement agent again to initiate an enforcement case. He will also have to pay for the imposition of a garnishment and probably a lawyer.
A seizure by a private enforcement officer without my knowledge?
And the main question – is it legal to impose a lien without notifying the debtor about it? The answer is clear. But the debtor will not like it. He will not like it because it is positive. That is, it is legal to impose a lien without notifying the debtor about it in advance. Since this will not please one party – the debtor, it means that it is good for the other – the creditor. He will like it because he has convicted the debtor and has given a lot of money for it, including to lawyers.
Why is that?
Why is attachment without prior notification of the debtor legal? Because that is precisely the meaning of the enforcement case that was initiated. The meaning is to obtain by force what is not obtained voluntarily. Below I will try to explain it more clearly with the help of law textbooks.
What do the textbooks say?
The enforcement process is intended to provide protection and impose a sanction for lack of voluntary performance by delivering the due to the entitled party through coercion exercised against the debtor in accordance with the procedure prescribed by law. [1]
What is a lien? What is a lien on a receivable?
In general, a garnishment is a prohibition. A prohibition on the disposal of money, property or receivables. The concept of “receipt” probably causes some hesitation. So what is a garnishment on a receivable? A receivable is what the debtor has to receive from another (to take from another – receivable). For example, a garnishment of wages . A wage is a receivable that the debtor has to receive from his employer. A garnishment of wages is a prohibition for the employer to pay the debtor. The employer is a third party obligated. He is served with the garnishment notice, prohibiting him from paying the debtor.
And the answer to the question what is a garnishment on a receivable /salary/?
A lien on a claim is an order of the bailiff, by which a certain claim of the debtor is intended for forced satisfaction of the creditor /creditor/, prohibiting the debtor from disposing of the claim, and the third obligated person /employer/ from paying the debtor. [2]
How is a garnishment imposed on a claim (of salary?)?
The imposition of a garnishment on a claim is carried out in two steps.
a. A garnishment is imposed on the debtor by indicating in the invitation for voluntary performance, respectively in the notice of garnishment, the claim subject to garnishment.
b. A garnishment is imposed on the third party debtor by serving him with a garnishment notice, notifying him of the imposed garnishment and prohibiting him from paying the debtor. The garnishment notice to the third party is sent simultaneously with the sending of the invitation for voluntary performance to the debtor.[3]
In summary: why is a seizure by a private enforcement officer without notifying the debtor legal?
Because if the debtor is notified in advance that he will be seized, there is a possibility that he will thwart the execution. That is, he can withdraw his money from the bank. Or sell the thing that is seized. In this way, the seizure will be meaningless and the creditor will still not be able to get his money.
Of course, there are cases where the debtor is notified by the enforcement officer that if he does not pay, then a garnishment will be imposed on him. But there are also cases where he is not notified and only finds out when he cannot withdraw money from his bank account.
Who is responsible for notifying the debtor?
It depends on the creditor. If someone does not pay you and you have filed an enforcement case, it is up to you what you will do. Or more precisely, it is up to you what you will order (command) the PEA to do with your debtor. And this is exactly the meaning of an enforcement case, as stated above. As the textbooks say:
The humanism of our enforcement process excludes enforcement against the person of the debtor ( to be impaled – note by my lawyer Rosen Dimitrov ) when collecting monetary debts ( obligations – note by my lawyer Rosen Dimitrov ). The only object on which the enforcement process can be directed is the property of the debtor or the person responsible for the debt. [4]
What is the debtor’s protection?
The question of what is the debtor’s protection will be discussed in a future article. Until then, I refer to the article ”A private enforcement officer convicted me without knowing! What should I do?”. I also refer to the opinion of a client, expressed publicly in a comment to my article, shared on Facebook:
M. Lozanova: It is very important for people to know that there are laws and they have rights. In any legal situation, it is important to at least consult a lawyer, since in many situations our legal rights are not enforced ex officio, but only through court proceedings.
Of course, this article is not exhaustive. It reflects the author’s personal opinion as a lawyer in Plovdiv and Sofia.
*Related topics:
– Lawyer vs. Private Enforcement Officer.?
– When does a Private Enforcement Officer come to the home?
– Salary garnishment.
– A Private Enforcement Officer convicted me without my knowledge! What should I do?
**Literature used:
[1] Stalev Zh., Mingova A., Stamboliev O., Popova V., Ivanova R., Bulgarian Civil Procedure Law – ninth revised and supplemented edition, Siela, 2012, p. 837.
[2] Ibid., p. 1026.
[3] Ibid., p. 1027.
[4] Ibid., p. 994.
