Attorney Dragana Djordjevic » "Debt collection" (2)

Refuting debtor’s legal acts (actio Pauliana)

29. 10. 2021. Dragana Đorđević Leave a comment

The rule is that the obligatory relations between the debtor and third parties for the creditor are res inter alios acta. An exception to this rule is the possibility for a creditor to, under certain conditions, refute legal actions taken by his debtor with a third party.

The creditor refutes such actions by filing a lawsuit (actio Pauliana) against a third party i.e. by pointing out an objection against the third party’s claim against the creditor’s debtor or his legal successors, to whom the debtor has transferred certain rights.

Terms of Refuting debtor’s legal acts

The basic general premise for refutation is

that there is a creditor’s claim against the debtor due for collection (regardless of when it arose) and
that the debtor is insolvent (which the creditor is obliged to prove).

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Instruments and subject of enforcement

06. 07. 2021. Dragana Đorđević Leave a comment

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) were regulated terms and types instruments of enforcement and enforcement subjects, as well as issues related to the application of the principle of proportionality,multiple instruments and subjects of enforcement, amending and adding instruments and subjects of enforcement.

Instruments of Enforcement

Actions used to settle a claim of an enforcement creditor are instruments of enforcement.

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Unenforceability of the claims for damages

15. 03. 2021. Dragana Đorđević Leave a comment

A right to request fulfilment of an obligation shall come to an end if time barred by statute of limitations. Unenforceability due to the statute of limitations shall follow the expiration of the period specified by statute during which the creditor was entitled to request fulfilment of the obligation.

The court shall not consider the fact of an obligation being time barred should the debtor fail to invoke it. This means that the debtor must raise the unenforceability period’s objection in the dispute for the court to consider it. The unenforceability period’s complaint is substantive, and the court will, as soon as it accepts this objection, reject the claim by a judgment and not renounce the action because of procedural reasons.

A debtor shall not renounce unenforceability prior to the expiration of time set forth for such unenforceability. However written acknowledgment of an obligation expired due to statute of limitations shall be construed as the renouncing of unenforceability. Providing security or other kind of guarantee to cover a claim expired due to statute of limitations shall have the same effect.

According to the provisions of the Law of the Contract and Torts, changing the legal unenforceability time limit by the contract is expressly forbidden.

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