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11.01.2022

Recognition of the writ of execution, according to which funds were collected from the debtor in the execution proceedings, as unenforceable is the basis for their return

On September 8, 2021, the Supreme Court, as part of the panel of judges of the Second Judicial Chamber of the Civil Court of Cassation in case No. 201/6498/20, satisfied the cassation appeal of the plaintiff, who requested to recover funds from the defendant in accordance with Art. 1212 of the Central Committee of Ukraine.

The debtor appealed to the court with a claim against the bank, third parties – a private executor, a private notary, for the recognition of the writ of execution as unenforceable, and the return of the amount collected under the writ of execution. In the lawsuit, he noted that by the resolution of the private executor, enforcement proceedings were opened for the enforcement of the writ of execution, executed by a private notary, on the collection of debt from the plaintiff under the credit agreement. Since after the opening of executive proceedings under this executive document, his current accounts were seized, his property was seized, he was forced to pay the money, which he now requested to be recovered as property acquired without sufficient legal basis.
By the decision of the district court, the lawsuit was dismissed.
The appellate court annulled the decision of the court of first instance, recognized the executive inscription of a private notary as unenforceable. He refused the claim for the return of the money levied under the writ of execution, because contractual relations arose between the plaintiff and the defendant in connection with the conclusion of the credit agreement, which excludes the possibility of applying Art. 1212 of the Central Committee of Ukraine.
Having considered the cassation appeal of the plaintiff, the Supreme Court indicated that one of the cases of the loss of the grounds for acquisition (saving) may be the annulment by a higher instance of a court decision that has entered into force, or the court recognizing as unenforceable the executive inscription of the notary, on the basis of which it was made recovery of property (funds).
A court act on the recognition of a notary's executive inscription as unenforceable, which has entered into legal force and according to which full or partial execution took place, is a legal basis for the emergence of an obligation to return property acquired without a sufficient legal basis, since from the moment of adoption the legal basis of such a judicial act is considered to have disappeared. According to Art. 1212 of the Civil Code of Ukraine, in such a case, the acquirer of such property is obliged to return all the property received to the victim from the moment the court act enters into force.
Therefore, having established that the legal grounds for the defendant's acquisition of funds collected from the plaintiff on the basis of a notary's executive inscription, which was subsequently recognized by the court as unenforceable, have disappeared, the appellate court at the same time ignored the fact that the funds received by the defendant are subject to return to the plaintiff in accordance with Art. 1212 of the Central Committee of Ukraine.
A similar conclusion is stated in the rulings of the Commercial Court of Cassation as part of the Supreme Court dated March 6, 2019 in case No. 910/1531/18 , and dated January 28, 2020 in case No. 910/16664/18 .
Therefore, the Supreme Court recognized the conclusions of the appeals court as erroneous, since the fact that the writ of execution (on the basis of which money was collected from the plaintiff in the enforcement proceedings) was recognized as unenforceable is a basis for the return of funds.
At the same time, the circumstances of the presence or absence of the plaintiff's indebtedness to the defendant under such a credit agreement may be the subject of a separate trial.
Therefore, the Supreme Court annulled the decision of the Court of Appeal in the part of the refusal to satisfy the claim regarding the return of the amount collected under the writ of execution, adopted a new decision in this part to satisfy the claims.
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