EXECUTIVE SIGNATURE OF THE NOTARY AS A BASIS FOR THE GARNISHMENT PROCEDURE

The levy of the debtor’s property held by a third party (garnishment proceedings) is carried out not only on the basis of a judicial act, but also on the basis of an executive signature of the notary. The legislator has expanded the range of grounds in order to eliminate the legal obstacle — the impossibility of foreclosure on the pledged property that is not in the possession of the debtor or the pledger, in the absence of a special judicial act. The need to obtain a judicial act in the seizure of property from third parties was dictated by the observance of Article 35 of the Constitution of Russia. The opinion is expressed that the out-of-court procedure for reclaiming property on the basis of an executive signature of the notary contradicts Article 35 of the Constitution of Russia. The executive signature of the notary is made only in cases where the claim of the claimant is indisputable. Nevertheless, the finding of the debtor’s property in the possession of a third party may indicate the existence of a material interest of a third party in relation to the property, and, as a consequence, a dispute about the right. The out-of-court procedure for foreclosure has a number of disadvantages. A notary has no real opportunity to make sure that there are no encumbrances with the rights of third parties before certifying a transaction on the disposal or pledge of property. Establishing the ownership of the property to the debtor before affixing an executive signature is not enough — it is necessary to make sure that the property is in the possession of a third party before applying enforcement measures. When making an executive signature, the opinion of third parties who own the property of the debtor is not taken into account. The only guarantee provided to third parties is the possibility of appeal the notarial act.

executive signature of the notary, notarial action, foreclosure procedure, judicial control, undisputed order of foreclosure, dispute about law, bailiff, third parties, encumbrances with the rights of third parties, pledge

Kletsenko S. S. Executive signature of the notary as a basis for the garnishment procedure. Business. Education. Law, 2022, no. 1, pp. 214—217. DOI: 10.25683/VOLBI.2022.58.138.