Opposition to Enforcement Proceedings

The New Civil Procedure Code (NCPC) came into force on 15 February 2013 and is applicable to all enforcement proceedings that commenced after this date.

Any interested person may challenge the enforcement procedure if it infringes their rights. However, the opposition to enforcement does not constitute an appeal as no grounds for appeal may be invoked against a judgment serving as enforceable title. Any of the parties involved in the enforcement procedure may file such opposition: the debtor or the creditor or any of their successors, the third party guarantor or the garnishee, any of the intervening creditors, the public prosecutor, or the enforcement officer.

The interested party may seek either to annul the procedural acts that led to the enforcement or to clarify the meaning and determine the scope of the enforceable title. If the enforcement officer refuses to either begin or continue the enforcement procedure, the court may compel him to act in a certain manner e.g. to cease enforcement over certain assets. Commonly it is the creditor who reacts against the refusal of the enforcement officer to begin the procedure.

By means of opposition to enforcement, the debtor generally tries to render null and void the judgment approving the forced execution against him and any procedural act issued by the enforcement officer leading to the sale of the debtor’s assets. However, if the movable asset was sold to a third party in an open tender and consideration was paid, the asset cannot be returned to the debtor unless the third party buyer was fraudulent. Finally, the debtor may invoke the extinction of the enforcement procedure or of the right to obtain forced execution.

Third parties are normally required to file an opposition to enforcement if they wish to protect their real rights over assets in the enforcement against the debtor. They must act quickly i.e. within 15 days from when the asset was delivered to the buyer. For immovable assets, the interested party may file an opposition within one month from the date the sale was temporarily registered with the Land Book. Otherwise, third parties may seek to defend their assets by means of an ordinary claim.

The claim to challenge the enforcement shall be heard in an emergency procedure before the first court, whose decision is subject to final appeals. As a subsidiary claim, the interested party may also obtain the stay of the enforcement proceedings until the challenge is settled. In addition, the debtor will usually continue by requesting the reversal of all acts and enforcement measures and, as a consequence, the return of his assets or revenues.

The right to challenge the enforcement proceedings must be exercised in good faith, otherwise, if the claim is rejected, it is highly likely that the claimant will be liable for damages incurred as a result of delaying the enforcement procedure. Also, he may be fined for acting in bad faith.