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How to defend against a foreclosure order?

We would undoubtedly put foreclosure on the list of things we really don’t want to experience. It is important to remember that even bailiffs are not infallible and we don’t have to like everything. Passive acquiescence in such a case is definitely not worth it.

Žena přemýšlí o exekuci své nemovitosti
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How does your property get into foreclosure?

Of course, bailiffs don’t come for no reason and their arrival is preceded weeks and months beforehand by warnings in the form of invoices, debit notes, reminders, official and court correspondence. Therefore, few people can really be surprised by a foreclosure. It can happen, for example, to those who completely ignore such warnings or who are absent from their place of residence.

The basis of a foreclosure is an unpaid debt that you do not have the money to pay, or that you deliberately ignore or omit to pay. Your creditor must obtain a judgment or order for payment, which serves as a writ of execution, by filing with the court. Then, as part of the enforcement procedure, the bailiff will apply for a writ of execution.

If the debtor does not respond to the request, the bailiff will issue an enforcement order. In the order, the enforcement officer decides on the form of the execution. This may be by attachment of a debt, seizure of a bank account, deductions from income or sale of movable and immovable property. Together with the order ordering the execution and the subsequent execution order, the debtor receives a summons to voluntarily fulfil the enforced obligation. At this stage, it is certainly advisable to make every effort to collect the amount owed.

Execution by sale of immovable property means a harsh impact on the debtor and should only follow when the sale of other (movable) property is insufficient to settle the debt. However, enforcement should primarily be by attachment of the debt, deductions from wages and other income, the creation of a bailiff’s lien on the immovable property, or suspension of the driving licence if maintenance arrears for a minor child are enforced.

If the debtor both lives in the property and has a permanent residence there, enforcement may only take place if the amount of the debt exceeds CZK 100 000, excluding interest and other costs. This condition does not apply to debts incurred through non-payment of maintenance, damages for personal injury or damages caused by a criminal offence, or if this would be contrary to good morals.

Tip: Buying an apartment in foreclosure has its own specifics that are good to know about. That is why we have written a separate article on this topic.

How can I defend myself against foreclosure?

Perhaps it is unnecessary to write that the most important thing is to prevent a foreclosure situation. But for the sake of completeness, we will repeat it. If you find yourself in a situation where you can’t pay, contact your creditors and inform them of your situation. Making a deadbeat hasn’t saved anyone. Also remember to collect your mail and keep all your documents in one place and in order.

Passivity is not recommended even if a foreclosure has already been ordered. Especially if your property is at stake, it pays to fight. There are several procedures that can be offered, which are:

  • Appeal
  • Motion for stay of execution
  • Motion to stay foreclosure
  • Exclusion (of the property) from the inventory of assets

Remember that you are up against a person with a law degree who is relying on a decision made by the court. You may be considering sorting things out on your own, but investing in a lawyer to help you save your property is more than appropriate here.

Are you facing foreclosure on your property?

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Appeal against execution

If the execution has already been initiated, it does not help to deny and dispute the claim itself. However, we can appeal against the order of execution and the mandate of the bailiff itself. An appeal may be lodged against the order order for execution within 15 days of its delivery to the regional court superior to the district court which ordered the execution, or the appeal may be delivered to the bailiff who was authorised to carry out the execution. Importantly, the appeal may only allege facts decisive for the order of execution, the court shall not take into account the others. For example, you can argue that there is no enforcement order or that the claim was paid before the enforcement order was made.

You can also appeal against individual acts that the bailiff performs, except those that are not permitted by law.
Until the order becomes final (unless you have used the time limit for appeal or the appellate court has made a final decision), the bailiff may not sell the property. It is worth using this time to find the necessary funds to pay the claim.

Stay of execution

You can obtain a stay of execution in certain circumstances. This applies where, in the words of the law, you have, through no fault of your own, found yourself temporarily in a position where immediate enforcement would have particularly adverse consequences for you or your family and the beneficiary would not be seriously harmed by a stay of execution.

On the one hand, it could probably be argued that almost any enforcement has (particularly) adverse consequences. Therefore, this provision refers to truly exceptional circumstances where, for example, serious illness, inability to work, etc., are added to the ordered execution. However, it should be clear that the inability to fulfil one’s obligations in relation to the execution is only temporary. It cannot be postponed indefinitely.

If the bailiff does not grant the application for stay of execution within 7 days, he/she shall refer it together with the execution file to the execution court for decision, which shall decide on the application within 15 days at the latest. The execution court or the executor may postpone the execution even without a motion if the execution can be expected to be stopped.

The mere filing of a motion for stay of execution shall have suspensive effect. Until a decision is rendered on it, the enforcement officer may not take any action aimed at the execution of the execution (unless it is an arbitrary or apparently unsuccessful assertion or obstruction of the right).

Application for stay of execution

The execution may be stopped in whole or in part, in principle in situations where it should not have been done at all, for example, by mistake or oversight.

We can file a motion to stop the execution within 15 days from the day we became aware of the reason for the stoppage. The bailiff will then invite all parties to comment within 15 days on whether they agree to the stoppage. They have 30 days to do so. If the parties agree or fail to comment within the time limit, the enforcement officer shall stop the execution. If not, the bailiff will refer the proposal to the court for a decision.

Exclusion (real estate) from the inventory

The bailiff is not infallible and it may happen that a property that does not belong to you or is excluded from the execution is included in the inventory. In such a case, you can file a motion to remove the property from the inventory. You have 30 days from the time you learn that the item is on the inventory to do so.

If it is denied, we can file a foreclosure action in the court where we live within 30 days (of the denial). The action must include evidence that the item listed on the inventory does not belong to us and belongs to another person. During the proceedings, the bailiff is not allowed to sell the property, so we gain valuable time in this way.

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Author of the article

JUDr. Ondřej Preuss, Ph.D.

Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.

Education
  • Law, Ph.D, Pf UK in Prague
  • Law, L’université Nancy-II, Nancy
  • Law, Master’s degree (Mgr.), Pf UK in Prague
  • International Territorial Studies (Bc.), FSV UK in Prague

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