Stopping and limitation of foreclosure: How to get rid of foreclosure in a legal way

Stopping the execution is possible if the execution title is invalid, the debt has been paid, the statute of limitations has expired or there is another legal reason. You must explicitly object to the limitation of execution – the court does not automatically take this into account. The application to stop the execution is filed with the bailiff and must contain specific legal arguments and evidence. Salary garnishments can be dealt with by checking deductions, objecting to the statute of limitations, a motion to stay, or a motion to separate. However, each case is individual – specific dates, deadlines, and the contents of the foreclosure file are determinative.

What is an enforcement procedure and when does it arise

Enforcement proceedings are the phase of debt recovery that comes after a creditor obtains a so-called enforcement title – for example, a final judgment, a payment order or a notarial deed with an enforcement clause. If the debtor does not voluntarily fulfil the obligation imposed by the court decision, the creditor can file a petition for enforcement and the bailiff is in charge of the matter.

The bailiff has statutory powers. He can make deductions from wages, attach a bank account, seize real estate or movable property. It is at this stage that people often ask how to get rid of a foreclosure, because the impact on their lives is often very noticeable.

It is important to distinguish between the debt itself and the foreclosure. The debt may have been incurred many years ago, but the foreclosure proceedings may be initiated later. This is important when assessing the statute of limitations. Many debtors are also unaware that there are legal defences even after the foreclosure has been initiated – foreclosure is not a final state that cannot be reversed.

If you are unsure what your foreclosure is based on, we recommend first checking the foreclosure title itself and the course of the proceedings. This is often where the scope for stopping the execution arises. We will be happy to help you with this, just contact us.

Stay of execution: when is it possible and on what basis

The stay of execution is a legal process by which the execution proceedings are terminated. It is not a pardon or a “good faith” agreement, but a legal decision by the court or bailiff based on specific grounds set out in the law.

For example, a stay of execution may occur when:

• the debt has already been paid,
• the writ of execution is invalid or has been revoked,
• the obligation has been extinguished in another way,
• the right is time-barred,
• there is another statutory ground under the Code of Civil Procedure.

From our own experience with clients, we know that it often turns out that the execution started on the basis of an erroneous or invalid decision – typically with older arbitral awards. In such a situation, a motion to stay the execution can be a very effective defence, which may even lead to the complete termination of the execution proceedings.

However, it is important that the motion is drafted correctly and in a legally understandable manner. It is not enough to say that the debt is old or that you have nothing to pay. The court always looks at the specific reasons and evidence. If the arguments have a solid legal basis, the chances of stopping the execution increase significantly. We know how to write such a motion, and we are happy to help you.

For example, we handled the case of a client against whom foreclosure proceedings had been pending for almost ten years. In the meantime, the debt had significantly increased in costs and interest, and the client felt that there was nothing that could be done about it. However, after a detailed analysis of the file, we found that the execution was based on an arbitration clause which was invalid according to current case law. We therefore prepared a qualified motion to stop the execution, in which we justified the invalidity in detail in law. The court accepted our arguments and stopped the execution.

Such situations are not exceptional, but correct legal reasoning is crucial. If the application is not sufficiently reasoned or contains formal errors, it may be rejected – and the enforcement proceedings will be unnecessarily prolonged. Therefore, if you are thinking of stopping the execution, we recommend that you contact a specialist who will assess your chances and prepare a proposal that has a realistic chance of success.

Statute of limitations on enforcement: when enforcement can be unsuccessful

The statute of limitations on foreclosure does not mean that the debt automatically disappears after a certain period of time. It means that if the creditor has not enforced his right in time, you can defend yourself by objecting to the statute of limitations and the court can then stop the execution. But the key is to know exactly what is time-barred and when the time limit began to run.

The most common situations in practice:

1. First, a debt was incurred (e.g. an unpaid loan).
2. The creditor obtained a judgment – this created the so-called enforcement title.
3. Only then was the enforcement action initiated.

In general, a ten-year limitation period applies to the enforcement of a final judgment. This period starts to run from the date on which the judgment should have been complied with. If the creditor has not filed an application for enforcement within this period, his right may be time-barred.

Beware, however, of a crucial point: The filing of an application for enforcement interrupts the limitation period. Therefore, if the creditor has filed the petition in time, the time limit is “restarted” and starts running again.

Another common situation: a foreclosure has been initiated, but nothing has happened for years. People think that because a foreclosure is “dead” it is automatically time-barred. This is not true. As long as the foreclosure proceeding is formally conducted and there are actions towards recovery, the statute of limitations generally does not run.

How to find out if your foreclosure may be time-barred

The procedure is specific and requires working with the case file:

1. Determine the date of enforcement of the writ of execution (e.g. judgment).
2. Find out when the foreclosure petition was filed.
3. Check whether and when the time limit was interrupted.
4. Check whether a long period of inactivity without legal effect has occurred between steps.

Without these dates, the limitation period cannot be properly assessed. An experienced attorney knows what to watch for and what to check.

How the statute of limitations applies in practice

The court does not automatically assess the statute of limitations. You must specifically object to it, typically through a motion to stay the foreclosure, stating:

• specific dates,
• legal provisions,
• the calculation of the time limit,
• a claim that the right is time-barred.

It is not enough to write “the execution is old”. It is necessary to calculate precisely the running of the time limit and to prove why it was not interrupted.

A properly pleaded statute of limitations defense can indeed lead to a stay of execution. However, an incorrectly calculated time limit means the rejection of the application and the continuation of the execution proceedings.

Therefore, if you are dealing with how to get rid of a foreclosure and are considering the statute of limitations, we recommend a detailed review of the file and an accurate legal calculation first. This is where the success or failure of the entire defense is often decided.

Motion to stay execution: how to proceed

A motion to stop the execution is filed with the executor who is conducting the execution. As a rule, the debtor must file it within 15 days from the date on which he became aware of the reason for the stay (e.g., the debt has been paid, the title has been cancelled, etc.). The bailiff shall request the opinions of the other parties to the application and, if they agree to the stay, may also stop the execution himself; otherwise, he shall refer the application to the execution court for a decision.

The application should include:

• the serial number of the execution,
• the name of the executor,
• a precise statement of the reason for the suspension,
• legal argumentation,
• evidence (e.g. proof of payment),
• draft decision.

The court will then invite the other party to comment and make a decision. If the application is insufficient or incorrectly worded, it may be rejected.

In practice, we see that lay motions often fail because they do not contain sufficient legal reasoning. Yet a properly filed application can mean the end of the enforcement proceedings.

If you are unsure how to proceed, it is advisable to seek help with foreclosure. A professionally prepared motion greatly increases the chances of success.

Stay of execution for lack of means

Stopping the execution for lack of means comes into consideration when it is clear that the debtor has no recoverable assets and further pursuit of the execution is impractical. After a certain period of unsuccessful enforcement, the executor may propose that the proceedings be discontinued.

However, it must be stressed that the discontinuance for lack of capacity does not mean the extinction of the debt. Under certain circumstances, the creditor may reinitiate the execution if the debtor’s financial situation improves.

In practice, this institute is mainly used for long-term foreclosures without any proceeds. For the debtor, this may mean relief from the costs of further proceedings.

However, it is always necessary to assess individually whether the conditions are met. Not every lack of income automatically leads to a stay.

How to get rid of a wage garnishment

One of the most common forms of enforcement is deductions from wages. If you are dealing with how to get rid of a wage garnishment, you should first check that the deductions are being made correctly.

The law provides for a so-called non-forfeitable amount that must remain with the debtor. Furthermore, a distinction is made between priority and non-priority claims. In the case of multiple enforcement actions, the deductions are distributed according to the statutory rules.

Solution options include:

• filing a motion to stop the execution,
• a statute of limitations objection,
• agreement with the creditor,
• filing a petition for insolvency.

If the deductions from wages are made in violation of the law – for example, the amount not to be withheld is incorrectly calculated or the claims are misclassified – you can defend yourself. In practice, it is very often the case that the employer or the accountant uses inaccurate documents and the debtor is left with less money than he or she should be entitled to under the law.

Checking the calculation of deductions and assessing whether the bailiff’s procedure is correct are among the most common reasons why clients seek our help in foreclosure. We will review your situation and suggest a course of action – whether it is correcting a miscalculation, filing a motion to stay the foreclosure, or some other form of defense.

Every situation is different. Sometimes it is realistic to achieve a complete halt to the foreclosure, other times the goal is to at least reduce the impact of the deductions on the family budget.

What options do you have

The question of how to get rid of foreclosure does not have a universal answer. The options depend on the legal reason, the age of the claim and the debtor’s financial situation.

The main ways include:

• stopping the execution on the grounds of illegality,
• objection of limitation of execution,
• payment of the debt or agreement,
• insolvency,
• stopping the execution for lack of means.

It is important not to wait passively. Execution proceedings can take years, but a proactive approach often brings a solution. Every foreclosure has a legal story. If you want to know how to get rid of foreclosure in your particular case, write to us – we will quickly assess the situation and propose a specific solution.

Summary

A foreclosure proceeding arises after a creditor obtains a writ of execution and turns to a debt collector, who may make wage garnishments, levy an account, or seize property. However, it is possible to get rid of the execution – most often through a stay of execution, a statute of limitations objection, an agreement with the creditor or a debt settlement. Stopping the execution is an option, for example, if the debt has been paid, the execution title is invalid or the right has become time-barred; however, it is always necessary to file a well-prepared motion to stop the execution with specific legal arguments and evidence. In the case of a statute of limitations, it is crucial to correctly calculate the running of the time limit, determine whether it has been interrupted and expressly raise the objection, otherwise the court will not take it into account. A specific variant is also the suspension of execution for lack of capacity, which does not, however, automatically extinguish the debt. If you are dealing with how to get rid of a wage garnishment, it is necessary to check the correctness of the deductions and the calculation of the amount to be garnished.