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Special payment order procedure – a quick and simplified way to recover debts
By Corina Andreea Ciobanu, Collaborating Lawyer
Luca Mihai-Cătălin Law Office
Given that lately, given the economic context in which we find ourselves, more and more economic operators are having difficulty recovering their debts from bad creditors, in this issue of the magazine we set out to talk about the procedure special order of the payment order, a quick and simplified way for creditors to obtain from the courts an enforceable title by which to force debtors to execute their outstanding payment obligations.
The special procedure of the payment order is regulated in Chapter IV, Title IX, art. 1014 – 1025 of the Code of Civil Procedure and represents, in general, an alternative to the lawsuit concerning money claims, creditors having the freedom to choose between the initiation of the special procedure of the payment order or the common law procedure, depending on the factual situation they face and the risks they are willing to take, both procedures having both advantages and disadvantages.
The scope of this special procedure of the payment order is provided in the provisions of art. 1,014 of the Code of Civil Procedure, according to which the payment order applies to certain, liquid and due receivables that have as object obligations to pay sums of money resulting from the execution of a civil contract, including those concluded between a professional and an authority contracting party, ascertained by a document or determined according to a statute, regulation or other document, appropriated by the parties by signature or otherwise admitted by law. By exception, according to par. (2) of the aforementioned text of law, the payment order procedure is not admissible and cannot be used by creditors to recover the receivables entered in the debtor’s credit table within the insolvency procedure of the respective debtor.
As can be seen, the definition established by the legislator limits the scope of this special procedure and makes the admissibility of an application for an order for payment conditional on the cumulative fulfillment of several conditions which we intend to examine below.
First, as regards the legal source of the claim which is the subject of the request for payment order, it must result either from a civil contract established by a document or from a statute, regulation or other document, appropriated by the parties by signature or otherwise permitted by law.
The notion of civil contract established by a document means either a contract concluded both between natural persons and between professionals, between a natural person and a professional or between a professional and an authority of the nature shown in par. (3) of art. 1014, the condition being that this contract be concluded in written form and, of course, signed by all contracting parties.
With regard to the object of the contract, it must stipulate in the charge of one of the parties an obligation to pay a sum of money, so it can be any civil contract (services, lease, sale, mandate, etc.) that involves a “Price” in money that the debtor is required to bear in exchange for the services or goods offered by the creditor. As a result, the payment order procedure cannot be used to recover claims arising from an employment contract or from an administrative, tax or customs act.
The notion of statute, regulation or other document, adopted by the parties by signature or otherwise admitted by law, takes into account the situations in which the legal relationship between the parties is not governed by a written contract, the debtor’s obligation to pay types of acts, which in principle should either be issued or signed by him.
By way of example, we specify that this category includes the claims of the owners’ associations towards the tenants, the creditor’s claims based on fiscal invoices appropriated by signature by the debtors or even unsigned by the debtors, but which meet the conditions provided in art. 277 of the Code of Civil Procedure on documents drawn up between professionals, stating that the practice of the courts is divided as to the admissibility of a payment order based exclusively on tax invoices not signed by the debtor, statements of recognition of claims issued by or appropriated by the debtor such as accounting statements submitted and signed by debtors under OMFP 2861/2009 for the approval of the Rules on the organization and inventory of assets, liabilities and equity, as well as any other recognition of debt recorded in documents emanating from to judicial bodies, such as a witness statement or a court decision in another case.
Second, the legal provisions provide that the claim consisting of a sum of money, existing against the debtor must be certain, liquid and due. According to the provisions of art. 663 para. (2) – (4) of the Code of Civil Procedure, a claim is considered to be certain when its existence undoubtedly results even from the ascertaining documents analyzed above, to be liquid when its object is determined in a fixed amount or at least determinable, in the sense that the document establishing the claim contains sufficient elements so that its amount can be established accurately and due when the debtor’s payment obligation has matured or if he has forfeited the benefit of the payment term according to art . 1417 of the Civil Code.
With regard to the amount or extent of the claims that can be claimed by the creditor from the debtor through this simplified procedure, we would like to point out that, according to the regulations in force, the application for a payment order interest such as late payment penalties to be calculated and paid by the debtor until the date of full payment of the principal debt or any other additional costs advanced by the creditor to recover unpaid amounts on time, such as the costs of sending the notice of delay.
Thirdly, in addition to the conditions of admissibility regulated by art. 1014 Code of Civil Procedure, by art. 1015 of the same normative act, provided the condition of sending a summons by the creditor to the debtor, prior to the formulation of a request for payment order. Thus, the creditor has the obligation to communicate to the debtor, through a bailiff or by registered letter, with declared content and acknowledgment of receipt, a summons / payment notification by which he will consider to pay the outstanding amounts within 15 days. from its receipt. If the debtor does not pay within the time allowed, the creditor may submit the request for payment order, having the obligation to submit attached to his request and the proof of transmission of the summons.
We would like to point out that the non-transmission of this payment notification or the non-annexation to the request for payment order of the evidence regarding its communication to the debtor, may lead to the rejection by the court of the action filed by the creditor as inadmissible, given the mandatory preliminary procedure of the summons.
According to para. (2) in art. 1015 of the Code of Civil Procedure, the summons has the value of a delay of the debtor and interrupts the extinctive prescription. According to the general rule of common law, the term of extinctive prescription is 3 years, after its expiration the receivables can no longer be recovered by court. However, by sending the summons to the debtor, this period is interrupted, and a new limitation period of 3 years will begin to run, but this regulated benefit in favor of the creditor will take effect only if the application for a payment order is submitted within a period of maximum 6 months from the communication of the summons to the debtor, as stipulated in art. 2540 of the Civil Code.
Regarding the procedure for judging an application for an order for payment, the Code of Civil Procedure stipulates that the court competent to resolve the application is the one that has jurisdiction over the merits of the case at first instance, both in matter and value and from a territorial point of view. From a material point of view, if the claim deduced to the court, without taking into account the delay penalties, is up to 200,000 lei inclusive, the competence will belong to the court, and for the amounts exceeding this threshold, the competence will belong to the court. With regard to territorial jurisdiction, if the parties have not established by contract the jurisdiction of a particular court, in which case the action will be brought before that court, the general rule of territorial jurisdiction will apply in principle, the application for payment order following to be brought to court at the debtor’s domicile/headquarters.
The request for payment order is stamped, according to art. 6 para. (2) of GEO no. 80/2013 on judicial stamp duties in the amount of 200 lei, regardless of the value of the claims made, which is an advantage compared to the common law lawsuit which is stamped by applying a percentage of the value of the claim deducted to the court, which often causes stamp duties, considerably higher than the amount of 200 lei.
The request for an order for payment must include, in addition to the identification data of the parties, the amount which is the subject of the claim, the factual and legal grounds for the obligation to pay, the period to which they relate and the time limit the payment. The application for a payment order will be accompanied by the documents attesting the amount due.
The judgment of the request is made quickly, according to the provisions regarding the urgent cases, the court panel establishing the first trial term before the communication of the request for payment order to the debtor defendant. In this regard, the summons will be handed to both parties at least 10 days before the trial period. The debtor defendant will be notified of the request for payment order together with the summons and will have the obligation to file an objection at least 3 days before the trial term, following that the creditor plaintiff will acknowledge the objection from the case file.
An important point to note is that, unlike the common law procedure, in the special order for payment procedure, the debtor’s failure to lodge a complaint may also be considered, depending on the circumstances of the case, a non-challenge of the claim and a recognition of the claims. formulated by the creditor. Failure to file the objection does not automatically lead to the debtor’s forfeiture of the right to challenge the claim, but although the debtor may challenge the claim throughout the trial, if he did not file an appeal or did not comply with the legal deadline for filing it, he will be deprived of to adduce evidence in support of its defenses and to invoke exceptions other than those of public policy.
According to the provisions of art. 1023 of the Code of Civil Procedure, if the debtor does not contest the claim by default, the court will issue the payment order within 45 days from the introduction of the application by the creditor, without taking into account the necessary period for the communication of procedural documents and delays caused by the creditor. The legislator provided this deadline to ensure the speedy settlement of the request for payment order, in addition to the special provisions on summons and communication of procedural documents, in the particular case where the debtor does not contest the claim by default, he also administered evidence in support of his defenses.
In terms of the evidence that can be administered, we show that, unlike the common law request, in the special procedure of the payment order can be administered only documents, not admissible other means of evidence, such as testimonial evidence or forensic expertise. This limitation of the evidence is a disadvantage of the payment order, because if in the stage of the judicial investigation, if the substantive defenses formulated by the debtor involve the administration of an extended evidence that would be admissible in the common law procedure, the court will reject the request. the creditor regarding the order for payment by conclusion, which can be challenged by the creditor which the way of the request for annulment according to art. 1024 para. (2) of the Code of Civil Procedure, within 10 days from the communication of the conclusion.
However, in the event that the creditor’s claim is rejected for the reason stated above or because the debtor’s defenses are considered justified by the court, the decision rejecting the request for payment order does not have res judicata authority, reason for which the creditor may introduces a lawsuit under common law to recover his debts, of course, by bearing new stamp duties and taking the risk of increasing the insolvency of his debtor.
If the court, analyzing the documents in the file and the claims of the parties, finds that the request for payment order to be substantiated, will issue a payment order, which is an enforceable title, which specifies the term and amount of payment. According to the provisions of art. 1022 para. (3), the payment term may not be less than 10 days nor more than 30 days from the date of communication of the payment order, unless the parties agree on another term.
Against the solution of admitting the request for payment order, the debtor can formulate, within 10 days from the communication of the decision, an application for annulment. The application for annulment is stamped with 100 lei and is judged, unlike the way to appeal the appeal against the common law decision, by a panel of 2 judges from the court that issued the payment order, the decision issued by this panel judgment being final.
We consider it important to specify that the formulation of a request for annulment does not lead to the suspension of the execution of the payment order, this not losing its character of executory title, having res judicata authority until the resolution of the request for annulment. Therefore, the creditor will be able to enforce his judgment at first instance and will be able to recover his claim even if the debtor has appealed against the annulment claim. Of course, in the event that the debtor wins the case before the court of judicial control, the creditor will be obliged to return to him all the amounts collected as a result of the execution of the payment order, reason for which the execution is done on creditor risk.
In conclusion, we consider that, if the factual situation allows the fulfillment of the conditions of admissibility of a request for payment order, recourse to this special procedure is recommended to economic operators, given the advantages conferred, such as stamp duty in a fixed amount of 200 lei, enforceability, even without a final judgment and fast-track procedure which, in the event that the claim is not contested by the debtor, provides for the issuance of the payment order within 45 days of filing the application, all these characteristics responding the needs of economic operators in this period in which the recovery of debts and coverage of losses generated by the economic and health context must be carried out quickly.