We file a claim. A payment dispute lasts years, bringing stress and court and legal costs. Finally, a favourable judgment arrives. We begin enforcement. The finish seems close. Unfortunately, this is often only the start of further difficulties.
Is a final judgment awarding a debt the ultimate victory, or the beginning of new challenges?
Enforcement is often when a creditor discovers that the debtor has no assets, or insufficient assets for full recovery.
It frequently extinguishes the enthusiasm of obtaining a final judgment. The bailiff seizes assets as requested and, sometimes for an additional fee, searches for them. Despite intensive, extensive enforcement, recovery may prove impossible: we are dealing with a difficult debt.
What are difficult debts?
There is no statutory definition. Simply put, these are financial obligations whose recovery, including compulsory recovery through a bailiff, is substantially hindered or impossible because of the debtor’s finances.
Ultimately, they may be called irrecoverable receivables: all available legal recovery measures have been exhausted without success.
They most commonly result in discontinuance for unsuccessful enforcement or continued ineffective proceedings, for example recovering only a fraction of one percent each month.
What causes them?
The cause is a deterioration in the debtor’s financial position, either (i) for reasons beyond its control, such as key customers paying late or contracts with substantially deferred payment, or (ii) deliberate steps to avoid paying.
What is a disloyal debtor?
A debtor deliberately avoiding payment is described as disloyal. Protecting assets from enforcement becomes the priority, at creditors’ expense. If assets are hidden, creditors cannot reach them.
Such a debtor may be an experienced player skilled in concealment, transferring assets to nominees or encumbering them with often fictitious security.
Ways to recover difficult debts
How can we pursue these debts and improve repayment prospects? The principal measures are:
- entry in a debtors’ register;
- renewed enforcement;
- an actio pauliana;
- bankruptcy and restructuring proceedings;
- an action against management board members under Article 299 of the Commercial Companies Code;
- notification of a suspected criminal offence.
Some are a nudge to the debtor; others are heavy artillery with far-reaching effects on both the debtor and third parties.
Register entries and renewed enforcement are undoubtedly nudges.
A register entry may hinder borrowing or contracting and encourage repayment. It does not guarantee recovery. Making life difficult is also a questionable argument where a debtor prospers through trusted intermediaries.
Renewed enforcement can disrupt the debtor’s normal activity while protecting the claim against limitation and preserving future enforcement. Financial circumstances may improve over the years, so renewing proceedings every few years is worthwhile.
The other measures—actio pauliana, bankruptcy, restructuring, board-member and criminal proceedings—are interconnected. One may naturally follow another, they may run together and sometimes several should be pursued. I will discuss them in subsequent articles.
Finding the debtor’s assets
Searching for a dishonest debtor’s assets is difficult and multifaceted.
You can search independently using:
- public registers such as KRS, the LEX IPG database, the Central Register of Beneficial Owners and land registers;
- information obtained by the bailiff during enforcement, including a commissioned asset search;
- information from litigation against the debtor.
An alternative is a private investigation or business intelligence agency.
Assessing information from any source requires strong analytical skills. Findings determine which legal measure will bring recovery closer.
Time works against the creditor
For difficult debts, time works doubly against creditors. Besides the obvious limitation period, a disloyal debtor has a head start and superior information: assets may be moved before the creditor realises. Creditors also face statutory limits on particular remedies, such as the five-year final deadline for an actio pauliana.
