DEBT RECOVERY ACCORDING TO THE NEW CIVIL PROCEDURE CODE

Abstract: The New Civil Procedure Code regulates both the default summons and the procedure for summons of a lower value. The default summons procedure is regulated by article 1013-1024 of the Civil Procedure Code and refers to the recovery of certain, liquid and payable debts. However, the new regulation stipulates that, before submitting a request for the issuance of a default summons, one must go through the prior procedure stipulated by article 1014. The summons of a lower value represents a new procedure regulated by article 1025-1032 of the Civil Procedure Code. This procedure may be applied in case of requests that refer to receivables that are below the value of Lei 10.000.

The New Civil Procedure Code entered into force on 15.02.2013. This Code has brought major changes to court procedures, especially in matters of debt recovery.

The New Civil Procedure Code makes reference to the following debt recovery procedures: default summons, summons for a lower value and the common law procedure.

Thus, the changes brought by the New Civil Procedure Code are the repeal of the Emergency Ordinance 5/2001 on demands for payment and of the Government Emergency Ordinance 119/2007 on default summons, but also the introduction of a new debt recovery procedure stipulated by articles 1025-1032 of the New Civil Procedure Code regarding summons of a lower value.

The default summons is regulated as a recovery procedure for certain, liquid and exigible debts and is stipulated by articles 1013-1024 of the New Civil Procedure Code.

Unlike the old regulation, the New Civil Procedure Code introduces the obligation to carry out the preliminary demand for payment procedure before the submission of the request for the issuance by the court of the default summons.

Article 1014 NCPC makes reference to this prior procedure, namely the creditor must send the debtor a summons, through a court enforcement officer or by registered mail with acknowledgement of receipt, informing the debtor that he must pay the debt in 15 days from the receipt of such summons.

If the debtor fails to pay the debt in 15 days, the creditor is entitled to go to court.

We believe that by introducing this prior procedure, the recovery of the debt shall take more time because the creditor can no longer go directly to court and he will have to wait 15 days for the debtor to pay such debt.

This prior procedure is mandatory and the proof must be attached to the request to be submitted to the court, together with all the other documents that prove such debt. The failure to prove the compliance with such prior procedure shall determine the court to reject the creditor’s request.

The request must be submitted to the court together with all the documents that prove the existence of such debt, the acknowledgement of the debt by the debtor and the fulfilment of the prior procedure. Both the request and the proofs shall be submitted in at least three copies, one for each party and one for the court.

The statement of defence must be submitted by the debtor with at least 3 days before the hearing. The court shall verify whether the debtor’s claim is well grounded or not. If the debtor does not submit a statement of defence, the court may regard such failure as an acknowledgement by the debtor of the creditor’s claims. According to the NCPC, the statement of defence is no longer communicated to the creditor. In this case, the creditor must access the case’s file and see whether a statement of defence was submitted or not.  Only written documents are accepted as evidence.

The court, based on the documents submitted by the parties, may approve the creditor’s request in whole or in part and may issue a default summons that will stipulate the payment deadline, which can be between 10 to 30 days from the communication of the default summons. The judge may set a different payment deadline only if the parties agree in this regard. If the creditor’s request is approved only in part, for the remaining claims the creditor may initiate a regular debt recovery procedure.

According to the NCPC, the default summons is enforceable even if appealed through an action for rescission and has the value of a temporary case law until such action for rescission is solved.

An action for rescission may be initiated by both the creditor and the debtor in 10 days after the default summons is communicated.

The action for rescission does not suspend the execution. However, the debtor may request the suspension of the court decision if he pays a bond whose value is established by the court. If the court approves the action for rescission in whole or in part, the default summons shall be rescinded in whole or in part, as the case may be, the court issuing a final resolution in this regard.

Once with the entry into force of the NCPC, it is no longer required for court resolutions to be made enforceable. Thus, it is observed that the issuance of orders of enforcement does no longer exist. Therefore, there’s only the writ of execution that is issued by the court.

Summons of a lower value is a new procedure stipulated by the New Civil Procedure Code. This procedure is regulated by articles 1025-1032 of the NCPC and is applied to those debts that do not exceed a certain value, namely Lei 10.000. This amount, Lei 10.000, only includes the main debt and it does not include penalties and interests, which will be estimated and requested separately.

According to this procedure, the creditor must fill out a form provided by the Ministry of Justice and shall include all the information necessary for solving the dispute in question.

According to this procedure, it is not necessary to appear before the judge. However, if the parties would like to, they can request to appear before the judge assigned to solve the case in the form they must fill out. Moreover, the court may as well order for the parties to appear before the judge, if it requires certain clarifications.

This procedure is not mandatory. The plaintiff has the possibility to choose between this procedure and the regular one. Furthermore, if the request can’t be solved for various reasons, the court must inform the parties in this regard. In this case, if the plaintiff does not withdraw his request, such a case shall be solved according to the regular procedure.

Unlike the default summons and regular procedures, this procedure does not stipulate the obligation to initiate a prior procedure. The plaintiff may directly submit his request to court.

Thus, the plaintiff shall fill out the form, which includes all the explanations necessary for filling such form out. The plaintiff must also submit, together with the form, all documents which prove the debt in question. These documents must be submitted in a number of copies equal to the number of parties, plus an extra copy for the court.

The defendant must fill out a special form in his defense, but according to article 1029 – paragraph 4 he is not obliged to use such form and he may answer by any appropriate means. The defendant must send his defense in 30 days from the communication of the sue petition. Later on, the court shall set a hearing date.

If the defendant does submit a statement of defense, the whole procedure will last 60 days at most.

Documents may be used as proof. However, this procedure allows the use of other proofs as well, but only if the value stated in such evidence does not have a value that is different from the value of the disputed amount.

At the end of the lawsuit, the court shall issue a court resolution that is enforceable by right. This resolution may be appealed in 30 days after being communicated. If requested by the debtor, the court may suspend the execution of the court resolution provided that the debtor pays a bond representing 10% of the disputed amount.

The value of the stamp duty for the two requests is Lei 200 for the issuance of a default summons and Lei 50 for summons of a lower value – if the requested debt is up to Lei 2.000 – and Lei 200 if the requested debt is between Lei 2000 – Lei 10.000.

Author: Lawyer Alexa Ionela