Counter-enforcement is a set of actions that return to the debtor what the creditor received during the enforcement procedure if there was no basis for it at the time the enforcement procedure was initiated or if the basis ceased to exist during the further course of the enforcement procedure.
The reasons for counter-enforcement, as well as the counter-enforcement procedure, are regulated by the provisions of the Law on enforcement and security interest (“Off. Herald of RS”, Nos. 106/2015, 106/2016 – authentic interpretation,113/2017 – authentic interpretation, 54/2019 and 9/2020 – authentic interpretation).
Motion for Counter-Enforcement
After the enforcement has already been carried out, the enforcement debtor may file a motion with the court for counter-enforcement.
The motion for counter-enforcement contains the request to the court to pass the writ which shall compel the enforcement creditor to return to the enforcement debtor, within the term of eight days, everything he received by enforcement and to specify the instrument and the motion for enforcement if the enforcement creditor fails to return what he received within the set deadline.
Competent Court
The motion for counter-enforcement is filed with the court with the territorial jurisdiction to implement compulsory return to the enforcement debtor of everything the enforcement creditor received. The same court also decides on the motion.
The court passes a writ to dismiss the motion for counter-enforcement, which does not contain the request to compel the enforcement creditor to return everything he received, or which failed to specify the instrument and the subject of enforcement, without prior returning the motion to the amendment.
Reasons for Counter-Enforcement
The motion for counter-enforcement shall be filed if:
- Enforceable document has been finally or absolutely repealed, reversed, annulled, or revoked or has otherwise become ineffective – within the term of 30 days from the receipt of the decision thereof by the enforcement debtor
- During the enforcement proceedings, the enforcement debtor voluntarily settled the claim of the enforcement creditor out of court, which resulted in a double settlement of the enforcement creditor – within the term of 30 days from the day when the enforcement was carried out
- Writ of execution has been repealed or reversed so that the motion for enforcement was dismissed or rejected – within the term of 30 days from the receipt of the decision by the enforcement debtor
- Final court ruling determined the illicitness of the enforcement – within the term of 30 days from the receipt of the ruling by the enforcement debtor
- Enforcement creditor received more than the amount of his claim, or if, during the enforcement against wages or other permanent monetary earnings, the provisions on the restriction of enforcement have not been observed – within the term of 30 days after the day when the enforcement has been carried out.
The enforcement debtor may not exercise a claim in a civil lawsuit before the expiry of the term in which the motion for counter-enforcement may be filed.
Procedure on Motion for Counter-Enforcement
The motion for counter-enforcement is served on the enforcement creditor, who may reply to it within eight days from the day of serving.
Contents of the Writ on Adoption of the Motion for Counter-Enforcement and Appeal
In the writ on the adoption of the motion for counter-enforcement, the court shall obligate the enforcement creditor to return to the enforcement debtor everything he received in the enforcement within eight days and specify the instrument and the subject of enforcement if the enforcement creditor fails to return within the set deadline what he received.
The appeal by which the enforcement creditor contests the entire writ or a part of the writ that compels him to return to the enforcement debtor everything he received delays the enforcement of the part of the writ which determines the instrument and the subject of enforcement only if the enforcement creditor, together with the appeal, deposits a guarantee in the amount of the enforcement debtor’s claim.
The appeal to contest only the part of the writ that specifies the instrument and the subject of enforcement does not delay the enforcement of the writ that adopted the motion for counter-enforcement.
In all other aspects, the provisions on the appeal against the writ of execution apply mutatis mutandis to the appeal against the adoption of the motion for counter-enforcement, except for the mandatory delivery of the appeal to the response.
Impossibility of Counter-Enforcement
The motion for counter-enforcement is rejected if the subject has undergone such factual or legal changes that the subject’s return is no longer possible.
In such a case, the enforcement debtor may immediately exercise his right in a civil lawsuit.
Mutatis Mutandis Application to Third Party
A third party may also file the motion for counter-enforcement if the enforcement was implemented against the subject for which the final court ruling determined the illicitness of enforcement within 30 days from the receipt of the decision by the third party.
In every other aspect, the provisions on counter-enforcement upon the motion of the enforcement debtor apply mutatis mutandis.
Read more:
Enforcement motion and writ of execution »
Reorganisation plan as a enforceable document »
Contract of Assumption of Debt »