INTRODUCTION
OF THE STATUTE OF PERFORMANCE AND EXERCISE OF BAILIFF ACTIVITIES
The Statute of Performance and Exercise is a basic document for the everyday performance of bailiff activities, that drives, unifies and legally orientates all the procedural actions of active bailiffs, organized within the National Chamber of Private Bailiffs.
This document comes not only as the result of the legal fulfillment of General Assembly duties and competencies referred to the Article 28 (c) of the Law No. 10031 of 11.12.2008 “For the Private Bailiff Activities”, but also as an immediate need for legal orientation in this new time context, in Albania.
The 4 year experience of this public/private service has made evident all the problematic issues of this new activity for our country and at the same time has created the positive reference for its further development.
This document is the result of best practices and experiences of bailiffs that have introduced a whole development of a full procedure referred to the material and procedural law together with the normative acts.
The document is not doubling, repeating or confusing the terms of Civil Procedure Code, neither of the Law No. 10031 of 11.12.2008, but only seeks to orientate the legal implementation of these basic acts in some other ones (sample unified modulars) that private bailiffs should use in their everyday activities.
The need for same and unique procedure, timeframes, requirements, decisions and the need for formatting all necessary acts comes as a result of an actual need of the general public since it represents important interests, dealing with this sector, that aims materializing the justice.
This Statute as the first document, only fulfills the primary orientation and unification of activities that differ from bailiff to bailiff regarding to their private interests, but in terms of interpretation should be the same and with no difference.
The Statute, in all its articles is prescribing and explaining all the procedure from the putting into execution to the end (suspending, standing or dismissing)
The unified modulars, part of this Statute are ready and tested samples that will be like a guide, and will bring the innovation of unification of the public mission of bailiffs, for first time after 4 years.
Statute
of
Performance and Exercise of Bailiff Activities
Article 1
The objective of this Statute is to discipline the procedural actions of private bailiffs and the creation of modulars used by the bailiff during an enforcement procedure.
Article 2
All Private Bailiffs in Albania should be guided by the fundamental principles of the Albanian Constitution, by all legal, normative acts and by all regulatory acts produced by the General Assembly, its directing bodies and documents that will become part of this Statute.
Article 3
2.1This Statute provides the unification of all normative acts and documents through which are authorized the form, the content and the way of keeping the evidences from bailiffs.
2.2.This Statute provides and unifies all the modulars used by a bailiff officer, all the normative acts for their form, the prescribtion and legal references of the records or other acts that bailiffs undertake during their professional activities.
Article 4
Private Bailiffs licensed by the Ministry of Justice have the obligation to be committed to the National Chamber of Private Bailiffs and during their activities to comply with the rules described in the articles, directives and decisionsfor the function of this Statute
Article 5
The regulatory and normative acts of National Chamber of Private Bailiffs are obligatory only for its active membership.
Article 6
The active members of National Chamber of Private Bailiffs are developing their procedural activities under the logo NCHB (Dh.K.P.Gj.P translated in Albanian), the Personal Identity Number in full compliance of the legal principles, Ethical Code, the Statute and to the whole decision - making of the Chamber
Article 7
Putting into Execution/ Documentation
Private bailiff initiates an execution procedure, only after the the claimant(creditor) complies with the requirements of the Article No. 515 of Civil Procedure Code, through bringing the following documents:
- The written request for putting into execution the executive title
- The Executive Title (original or notarized)
- The Writ of Execution (issued by the Court, the original one) except cases when is provided by law the Direct Execution of the Executive Title
- The power of attorney if the creditor is not applying directly.
- The confirmation of Debt Amount in the moment of request depositing when this value is not indicated in a) the Executive Title or b) in the Writ of Execution
Article 8
After is checked all the above mentioned documentation, private bailiff and the claimant (creditor) proceed with the signature of Service Agreement according to the sample model approved by the Order No. 8543/2, 01.12.2010 of the Minister of Justice. After signing the Service Agreement, the private bailiff officers issue the invoice for the prepayment of the tariff of putting into execution, paid by the creditor, that becomes payable immediately, except the cases when the payment of this tariff is excluded by law.
Article 9
Initiation of the Execution
9.1.With the administriation of all the described documentation, bailiff officers start the execution procedures according to the Article No. 517, 518 of the Civil Procedure Code, in order to guarantee debtor right for voluntary fulfilling the obligation. The initial actions undertaken are identified with the modular “Notice for Voluntary Compliance”
9.2. Also in this stage the bailiff officer might use the act “Notice for Debtor Declaration”, giving the debtor the opportunity to declare his/her immovable or movable properties. The Modulars for these procedural actions are in the Annex A, attached to this Statute.
Article 10
The Enforcement Warrant/Orders of Seizure
10.1.After 10 days (time term prescribed in the Article 517 of Civil Procedure Code, bailiff officers pass in to the enforced execution procedure by communicating to the parties “The Warrant of Execution” according to the modular indicated in the Annex A.Through this act, bailiff officer aknowledges the debtor and the creditor for the initial of the enforced execution procedure and for the consequences that this act brings.
10.2.This decision is associated with “The Orders of Seizure” of all the immovable, movable of the debtors and on his/her accounts receivables. These orders are sent in all the state and private institutions that administer the ownership documentations or have under possessions the movable or immovable goods of the debtor and also are sent to the commercial banks that keep the debtor accounts. Modulars can also be found in Annex A.
10.3. Private bailiff officer has the right not to respect the time terms prescribed in the Artcle No. 517 of Civil Procedure Code and to immediately start the execution when a)becomes aware of the getaway of the debtor b)when it states the circumstance of hiding the assets by the debtor or parties related to him/herc) when ex officio or by creditor information administers facts and circumstances that bring real inability for further enforcement procedures.
10.4.In this moment is required the payment of the full tariff charged to the creditor in order to be prepaid.
Article 11
After the Private Bailiff Officer administers all responses by all the institutions, and when the possessions of the debtors are confirmed (bank accounts, movable or immovable properties), he proceeds with the enforced executive procedures, while evaluating all the responses and the procedural interest on behalf of the debt fulfillment.
Article 12
The executions on bank accounts, deposits,and credits
12.1If from the responses of commercial banks is confirmed the existence of debtor bank accounts and credits, the private bailiff officer proceeds with “The Transfer Order of the Identified Amount” always referring to bank response.
12.2.If bank responses are negative or the debtors have not sufficient amounts, these acts are still active and when these amounts become available, the sequestrations become applicable without the need of repeating the order by the Bailiff. After the order of Seizure is applied, the bailiff can require information by the bank any time for the account balance of the debtor.
12.3.If by the bank reponse, are identified revenues from wages, immediately the bailiff directs to debtor employer and proceeds with the execution according to the Articles 587 and 588 of Civil Procedure Code.
12.4.For the execution on bank accounts, bailiff is acting according to the Article 593 of the Civil Procedure Code and to the prescribtions of the Guideline No. 2, 27.03.2014 of Bank of Albania. Modulars for the actions on bank accounts can be also found attached in the Annex A.
Article13
Executions related to General Directorate of Road Transport Services/physical blockage of the vehicle
13.1.If from the answers of General directorate of Road Transport Services, is confirmed the seizure of vehicles owned by the debtor, left as collaterals for guaranteeing the debt fulfillment, bailiff proceeds with “Request for Physical Blockageof the Vehicle ” while asking to competent State Police, to make the physical blockage of the vehicle.
13.2.In any case, bailiff officer can perform even actions ex officio, related to the physical blockage of vehicles. Private Bailiff Officers, can operate directly with the seizure, any moment he has the information of the location of the vehicle, always keeping “The record of Performing Bailiff Actions”in which are clearly expressed all the circumnstances such as the moment of finding the location of the movable good, people who have attented, and the fact that the debtor or the owner of the vehicle is aware for the seizure of the property documents.
13.3.Related to all the procedures, after the seizure and physical blockage of vehicles, bailiff officer should comply according to the articles no. 540-559 of the Civil Procedure Code, proceeding with “Notice for Sale of the Vehicle”, “Decision of Vehicle Valuation”, “The Sending of the item for sale at free store sale or at auction”. If the seized vehicle cannot be sold or the creditor does not accept its ownership, bailiff officers take off the seizure by sending to the General Directorate of Road Transport Services “The order for Seizure Removal” and at the same time returns to the debtor the vehicle possession.
13.4The respective forms and the modulars for the above mentioned actions that mostly are referring the actions performed on movable goods according to articles no 540-559 of Civil Procedure Code, are located in the Annex A of this Statute.
Article 14
The executions related to the Immovable Property Registration Office/Auctions/Help provided by the governmental institutions
14.1.After the confirmation provided by the Immovable Property Registration Office, of the District in which is located the immovable property, bailiff officer proceeds with the steps prescribed by the articles 560-580 of the Civil Procedure Code. Initially, the bailiff officer notifies the creditor and the debtor for a possible agreement for the property valuation assessment, and in the absence of which, determines the property price by communicating the parties the following procedures:
Request Announcement for Voluntary Agreement of Assessment of Real Estate property
Decision of Assessmentof Real Estate Property
Decision on Determining the value of the object based on Act of Expertise
14.2.After dhe determination of the value of the property the bailiff officer communicates to the debtor “Announcement for the sale of the seized and evaluated property”by giving the opportunity that within 10 days he fulfills all the debt amount by avoiding the sale at auction.
14.3.Over 10 days, aiming the sale of the sequestered immovable property, bailiff officer can develop 2 public auctions. In the first auction, the initial sale price is 80% of the sale price setted by the bailiff officer. In case when in the first auction there is no sale, the bailiff develops the second auction and the initial price can be decreased up to the 30% of the first auction price.
Announcement for sale of Real Estate Property at Auction
Notice of the creditors of same debtor(if other creditors possess mortgage rights on the property)
Record for the development of the Auction
New Assessment decision of the Real Estate Property (after the first auction)
Announcement for sale of Real Estate Property at Second Auction
Records for the repeated (second) auction.
14.4.In the event that in any of the auctions will be presented a potential buyer and the sale will take place, the private bailiff will proceed with “Notice of the Auction Winner” and will require the full payment of the price of the property bought in the auction within 15 days. After the payment of full price by the winner of the auction, the bailiff officer performs with “Ownership Transfer Decision”
14.5.If the buyer does not pay the full price value, the bailiff officer reasserts the sale of property at the auction and passes in favor of the State Budget the guarantee amount equal to 10% deposited by the winner bidder.
14.6.When the sale cannot be fulfilled in both auctions, private bailiff sends to the creditor “Request Proposal for Admitting the Ownership of the Real Estate” against the credit, up to the value of the price of second (repeated) auction. If the creditor disagrees with this request, bailiff officer proceeds with “The order for Seizure Removal”
14.7.In any case, the decision of transferring the ownership is sent to the Immovable Property Registration Office associated with the copy of all the execution procedure performed by the bailiff officer. This copy is sealed by the bailiff officer. From this moment, the new owner of Real Estate Property should be presented in the Registration Office for making the application for the transfer of ownership, and the payment of tax on acts for this procedure.
14.8.After the new owner, is provided by Registration Office with the ownership document, voluntary release of the property through sending “Notice of Voluntary Release of the Property”by specifying the date and hour when the property should be released, otherwise this procedure will be performed by the bailiff officer even in the absence of the debtor or third party that possesses this property. If when and where specified, is stated the lack of cooperation by the debtor or by the third party possessing the property, bailiff officer should notify the local government representative and any time he considers necessary, should notify the State Police. To both of the above mentioned institutions is sent the “Request for Support for the Enforced Execution Procedure”
Article 15
Execution on the movable goods owned by the debtor
15.1After administering all the responses of the seizure orders and other informations, if it results that the debtor has movable goods that can be object of executive procedures, he can perform with “Notice for Seizure on Movable Goods”. Through this act, to the debtor is given the opportunity to collaborate, by self delivering the goods within a time period of 5 or 10 days, or by being present in the time and place indicated by the bailiff officer.
15.2Over the time period described in 15.1, private bailiff goes to the location of these goods, for the identification, seizure and making the inventory of the goods owned by the debtor. For this purpose, private bailiff keeps “The Record for the Seizure and Inventory” in which in a detailed way are described all the seized objects, people that have been present, and the fact if the goods are left for storage to the debtor or to an other person.
15.3.After the seizure and inventory process for the movable goods, according to the record kept for this purpose, the private bailiff officer continues the procedures with the aim of selling these objects, and collecting the debt amount. After the bailiff, has stated the non accordations of values of seized and inventoried goods, proceeds as follow:
Decision for Valuation of Movable, Inventoried, Seized Goods by the Expert
Decision for Pricing the Movable Inventoried and Seized Goods
Final Announcementfor Sale of the Inventoried and Seized Movable Goods
15.4.According to the nature of the movable goods, the bailiff officer decides if the goods can be sold in free stores sales or at auctions. The Private Bailiff Officer, respects the right of the debtor for determining the ranking order for sale of the seized an inventoried items. In case of an auction procedure, the bailiff officer proceeds with:
Announcement for Sale of the Movable Goods at Auction
The Record of Sale at Auction
Decision of New Pricing of the Movable Goods after the First Auction