The creditor’s filing of an enforcement application after the debtor’s death has financial consequences due to the inexpedient initiation of enforcement proceedings within the meaning of the Bailiffs’ Costs Act.
Enforcement proceedings in the event of their inexpediency. In the case law two quite different positions have been developed concerning the answer to the question of whether discontinuance of enforcement proceedings due to the debtor’s death or insolvency is a basis to refrain from collecting enforcement fees.
The above problem arose, inter alia, in one of the enforcement proceedings conducted on the basis of the creditor’s application dated 15.04.2020. The enforcement proceedings in question were discontinued by the bailiff due to the death of the debtor, which occurred in 2019. The discontinuance took place pursuant to art. 824 par. 1 pt. 2 of the Code of Civil Procedure, and the creditor was charged with the costs.
The District Court in Wrocław had doubts as to the legitimacy of charging the creditor with the costs
and submitted a legal issue to the Supreme Court in order to obtain an answer to the question: ‘whether, if the creditor submits an enforcement application after the debtor’s death, there is a basis for charging the creditor with the enforcement fee referred to in Article 30 of the Act of 28.02.2018
on bailiff costs (i.e. Journal of Laws of 2019, item 2363 as amended)?”.
The Supreme Court in a resolution dated 27.01.2022, ref: III CZP 36/22 came to the conclusion that: “The submission by the creditor of an enforcement application against the deceased debtor constitutes a manifestly inexpedient initiation of enforcement proceedings within the meaning of Article 30 of the Act
of 28.02.2018 on bailiffs’ costs”.
The Supreme Court’s resolution therefore does not raise any doubts that it is up to the creditor to determine the material and personal scope of the execution, and thus he should bear the consequences of any oversights in this regard.