We continue below our list of possible problems and solutions that might come up in the enforcement procedures and debt collection, including garnishment of bank accounts, according to Romanian law.
Can we be executed without any kind of prior payment summons?
As a rule, forced execution cannot be done without summoning. The payment summons has a double role: to notify the debtor that he will be executed and to give him the option of paying the sums voluntarily, usually within 15 days, before his accounts are blocked or begin selling his goods. Therefore, the absence of a summons violates the debtor’s right to information and possible voluntary payment.
However, there are cases when you can “jump” over the debtor’s summoning. For example, if there is a risk that the debtor may evade, hide or destroy his property. But these are cases of the greatest exception and should be treated as such. This potential danger cannot be used as a pretext to avoid summoning in all cases but only when there is concrete evidence that this danger is real. For example, the debtor began selling the assets of a relative to avoid execution or began to transfer money to offshore accounts.
If you are not in the above cases but have been executed without summons, you can appeal to execution within 15 days. You can also request suspension of execution, against bail. If you do not request suspension, the forced execution will continue even if you have requested suspension, because the suspension does not automatically discontinue forced execution.
What can I do if I lend money to somebody and they do not pay me back?
The loan can be recovered voluntarily by requesting the amount from the debtor. And if this option does not work, you can sue him. If the amount is less than 10,000 lei, the procedure is much simpler as you can introduce a small claim court. It consists of a form, which is practically a sue petition, but much easier to do even by a person without a legal education. If the amount is higher than 10,000 lei, a normal sue petition should be made, possibly a payment order.
The sue petition is filed with the local court if the requested amount is up to 200,000 lei. If the amount is higher, the request will have to be filed by the tribunal. A trial may take several months to over one year, depending on the court’s agglomeration level.
In such a trial, the most important thing will be to prove that a loan has indeed been made. It is preferable to have a contract signed between the parties with the essential details of the agreement. In the absence of a contract, any other evidence, such as a bank order with a clear payment description, e.g. a three-month house repair loan, or a written receipt by the borrower that mentions the amount and duration of the loan.
What should I keep in mind when lending money to somebody, in order to get it back as easy as possible?
If you lend money to your relatives or friends, however, close the relationship is with them, it is very important first of all to have proof that this amount was offered as a loan, not a donation. Otherwise, if you have unpleasant surprises at the maturity date, and the person refuses to return the loan, the chances of you recovering your money in other ways are minimal.
The ideal option is to sign a loan agreement in two copies, one for each party, mentioning at least the essential elements: the creditor and the debtor identification data, the amount borrowed, the duration of the loan, the date of signing, possibly delay penalties. This ensures that each party knows exactly what the elements of understanding are, and the chances to respect it are much greater. Such a contract must not necessarily be concluded with the notary, but it is perfectly valid with the simple signature of the parties. If you want to end the contract with the notary, you have the advantage that it is an enforceable title and you can recover the money much later.
In the absence of a contract, another written proof of the loan is the payment order or extract from internet banking, which shows the amount sent and has a description that clearly shows that it is a loan. If the amount in cash, not through the bank, you will make a signed receipt for the borrower’s receipt and the lender will retain to secure the loan.
All the above documents may be used in any trial against the debtor for the return of the amounts. If there is no written evidence, the loan can also be proved by witnesses, but only if the amount is less than 250 lei.
How do I recover fines canceled in court, but which I have already paid?
There are two options for the recovery of fines. If you have outstanding obligations (unpaid tax, previous fines, etc.), only the amount left after the compensation will be refunded. For example, if you have an outstanding amount of 200 lei from parking fines, and the canceled and paid fine is 500 lei, you will be able to get back just 300 lei. But if the remaining amount is 200 lei, and the canceled and paid fine is 100 lei, you will not be able to get anything, because it will compensate the 100 lei.
If you do not have past outstanding amounts, you can apply for full refund to either the local tax authority (ANAF) where the fine has been registered if it is an amount paid to the state budget (such as a road traffic police fine) or an application local government (city hall), if it is an amount paid to the local budget (e.g. a fine by the local police). The application should be accompanied by supporting documents: the legalized sentence requiring the cancellation of the fine and the repayment of the sum, the report, the receipt attesting payment of the fine, etc.
If the authorities refuse to reimburse the amounts, the payer may use the forced execution of the state on the basis of the final court decision whereby the report of the contravention was canceled. Entitlement to enforcement is time-barred within 5 years from the date of the final ruling on the annulment, which runs from January 1 of the year following that in which this right came into being. For example, if the court sentence to cancel the report was definitive in March 2017, the limitation period would run from January 1, 2018, and will be January 1, 2023, when the right to enforce the state will be extinguished.
In all cases, it is very important that in the sue petition you ask for both the cancellation of the report of the contravention and the refund of the amount paid under it. If you omit the second part, you will have to initiate a new special process for money recovery, which involves additional effort and expense.