What you need to recover a debt
If your debtor does not pay their debt, a debt collector can recover the debt for you.
However, in order for the debt collector to start enforcement, you must have an writ of execution (in Polish: tytuł egzekucyjny) and then, based on the writ, you must obtain an enforcement title (in Polish: tytuł wykonawczy).
A writ of execution is a court decision or other official document that states the existence and extent of the creditor’s claim. It also confirms the existence and extent of the debtor’s performance.
An enforcement title is a writ of execution that has been certified by a court as enforceable.
The enforcement clause is the court’s decision that the document presented by the creditor meets the criteria for a writ of execution.
Consequently, proper enforcement procedure may be initiated.
The court certifies that a writ of execution is enforceable at the request of the creditor.
A writ of execution from a court is certified as enforceable by the court of first instance where the action was brought or is pending. The court of second instance may issue the enforcement clause as long as the case file is before that court.
In the case of other writs of execution (such as an arbitration award or a mediation settlement), the enforcement clause is issued by the district court having general jurisdiction over the debtor, that is the court competent for the debtor’s place of residence or registered office.
Please note! You don’t have to apply for an enforcement clause if the court has issued a payment order in electronic writ of payment proceedings. In this case, the court issues an enforcement clause ex officio as soon as the order becomes final.
If your writ of execution is a court judgment, the judgment must become final before you can apply for an enforcement clause. A judgment becomes final when you can no longer exercise the right of appeal or complaint against it. This applies if no appeal has been submitted against the judgment, but also if an appeal was submitted and the court has dismissed or rejected it.
An exception is when the court issues a judgment to be enforced immediately. Such a judgment may be enforced even before it becomes final. Thus, the party may immediately apply to the court for an enforcement clause (even before the judgment becomes final) and then initiate the enforced debt collection procedure.
Writ of execution – forms
In order to obtain a writ of execution, companies usually take their case to court.
In debt cases, the court may hear the case:
- in ordinary proceedings
- in writ of payment proceedings, if the case concerns payment of overdue invoices
- in summary proceedings, if you want to recover your debt from a contracting party under a contract worth up to PLN 20,000
- in writ of payment proceedings if you have:
- an official document, for example a notarial deed
- a bill accepted by the debtor
- a demand for payment sent to the debtor and a written statement by the debtor acknowledging the debt
- a demand for payment accepted by the debtor, returned by the bank and not paid due to the lack of funds in the bank account
- a bill of exchange
- a cheque signed by the debtor.
Read about proceedings before common courts.
However, this is not the only way available. Particularly if the court competent to hear the case is in a large city where proceedings can take a long time. Creditors can also resolve the dispute with the help of mediators (in private mediation or when ordered by the court) or arbitrators in an arbitration court.
A writ of execution which, once certified by the court as enforceable, will allow a debt collector to collect a debt may be, among other things:
- a court judgment
- a settlement concluded before a court
- a settlement concluded before a mediator
- an award of an arbitration court
- an order for payment issued in civil or criminal proceedings by a district or regional court, a court of appeal, or by the Supreme Court.
In addition, the following may be also an enforcement title:
- a settlement concluded before a conciliation board established to settle disputes concerning employees’ claims under the employment relationship
- a settlement concluded between the employer and the employee – determining the compensation from the employee for damage caused to the employer or to a third party and rectified by the employer
- an extract from a judgment issued in group proceedings – indicating, in particular, the amount of compensation due to a member of the group or sub-group
- a settlement reached before a surveyor concerning the demarcation of real property
- an excerpt from the list of claims approved by the bankruptcy supervising judge, specifying the claim and the amount received by the creditor towards it – upon the termination or discontinuance of the bankruptcy proceedings, it constitutes a writ of execution against the bankruptcy estate
- a decision of the National Appeal Chamber
- a settlement concluded in the form of a notarial deed concerning compensation for mining and geological damages
- bank enforcement order
a notarial deed in which the debtor or another person has submitted themselves to the collection proceedings.
Court decisions that are not a writ of execution
Not all court decisions are writs of execution and not all can be used to start debt collector enforcement.
The following is not a writ of execution:
- a judgment invalidating a resolution of a cooperative
- a court decision confirming acquisition of inheritance
- a judgment of a court of second instance amending or revoking an already enforced judgment of a court of first instance – without ruling on the return of the performance performed or enforced or on the restoration of the previous state of the matter
- a decision to establish a right of way
- a judgment restoring infringed possession, without specifying the manner of restoring possession
- for the claimant, a judgment allowing the defendant to unilaterally discharge a debt by specifying a performance alternative to the main performance
- an order of the bankruptcy supervising judge concerning the obligation of the bankrupt (or a person close to him/her) to vacate and surrender the flat in which they were residing bankruptcy was declared, situated in the premises or building forming part of the bankruptcy estate
- an enforcement title constituting a supervisory court decision, ordering a debt collector to start or stop certain enforcement actions or to remove their effects
- a judgment allowing an action to change the content of the land and mortgage register to reflect the actual legal state
How to collect a debt from a company
Companies have legal personality and are therefore liable for the debts they incur with their assets. To obtain a writ of execution, you must sue the company that is your debtor.
Please note! If enforcement against the assets of a limited liability company proves ineffective, the members of the company’s management board may be liable for its obligations with their assets. However, you must first pursue claims against the company because, as a creditor, you will have to prove before the court that enforcement against the company is ineffective.
Regardless of the legal form of the debtor, if you want to obtain a claim owed to you from the assets at the disposal of:
- the administrator of the estate
- trustee named in a will
- succession manager
- the executor of a will
you must have a writ of execution issued against these persons.
Please note! When applying for an enforcement clause against the company shareholders, enclose an extract from the National Court Register (KRS) concerning the company from which you want to recover the debt.
How to recover a debt from a partnership
The Polish Code of Companies and Partnerships provide that partners in commercial law partnerships are liable with their assets for liabilities of those partnerships.
Partnerships include: general partnership, professional partnership, limited partnership, and partnership limited by shares.
To collect a debt from the private assets of the partners of these partnerships, you can:
- sue the partners before enforcement from the partnership’s assets proves ineffective (you can immediately file a lawsuit against the partners)
- apply to the court for the writ of execution issued against the partnership to be confirmed as enforceable against the partners liable for the partnership’s liabilities.
Please note! Removal of a partnership from the register of entrepreneurs does not exclude the granting of writ of execution against a partner liable for the liabilities listed in the writ.
When applying for an enforcement clause against the partners, attach an extract from the National Court Register confirming that the person against whom the enforcement clause is to be issued has the status of a partner. You may not to obtain an enforcement clause against a partner who was no longer a partner when the proceedings were initiated.
An enforcement clause will be issued in relation to a writ of execution against a partner of a partnership if:
- enforcement against the partnership was ineffective or
- it is clear that enforcement against the partnership will be ineffective in the future.
It is your obligation – as the creditor – to prove to the court that enforcement against the partnership is ineffective. However, you do not have to initiate enforcement against the partnership beforehand in order to obtain an order discontinuing enforcement proceedings because enforcement is ineffective. You can indicate that the partnership has no assets to satisfy your claim. You must have an official or private document with an officially certified signature to prove that (for example, a list of assets submitted by the partnership).
Please note! Declared bankruptcy is not sufficient to assume that enforcement is ineffective. Enforcement will be ineffective if the court dismisses the application to declare bankruptcy:
- due to the lack of assets sufficient to cover the costs of the bankruptcy proceedings or
- when the assets are sufficient only to cover these costs.
If an unsuccessful enforcement against the partner’s assets (excluding real estate) has been carried out in the last 6 months, their personal creditor may terminate their participation in the partnership 3 months in advance – even if the partnership was concluded for a fixed period. If the partnership agreement provides for a shorter notice period, the creditor may make use of it. In order to be able to make use of this solution, it is necessary to first obtain a court order on seizing the partner’s interest in the event of their withdrawal from or dissolution of the partnership.
How to recover a debt from a civil law partnership
A civil law partnership has no legal personality. This means that it has no assets of its own.
The assets of a civil law partnership are in fact the assets of its partners. It is a type of a joint ownership, i.e. one in which individual shares cannot be distinguished. The assets of all partners in the partnership are separate from their personal assets.
The partners in a civil law partnership are jointly and severally liable for the obligations of the partnership, and therefore you may pursue enforcement against:
- personal assets of each partner
- assets of the partnership – however, you need to have a writ of execution issued against all partners in the partnership.
If you have a writ of execution issued against only one of the partners (or against several partners) but they are not all partners in the partnership, you can only enforce your claims against the separate assets of those partners.
Separate assets are assets that have not been transferred to the joint assets of the partners in the partnership.
Please note! During the duration of the partnership, a creditor of one of the partners in the partnership may not demand satisfaction of a claim from their share in the partnership or their share in the particular assets of the partnership.
How to recover a debt from a one person business
A one person business does not have legal personality. This means that it is not a separate legal entity and the natural person running the business, i.e. the owner of the business, is liable for the debts of the business with all their assets.
The debt can be collected in the same way as when collecting a debt from a non-business debtor, i.e. from all the debtor’s assets.
Collecting a debt from a married debtor
In the case of collecting a debt from a married debtor, it is important whether the debtor incurred the obligation:
- with the consent of the other spouse
- without the consent of the other spouse (or when the obligation results from an unlawful act or unjust enrichment)
- before joint marital property was established (also when it concerns the personal property of one of the spouses).
If the debtor incurred the obligation with the consent of the other spouse, you may demand debt collection from:
- personal assets of the debtor or
- joint marital property of the spouses – in order to collect a debt from the joint marital property, you need a writ of execution issued against both spouses, where the liability of the debtor’s spouse is limited to the assets covered by the marital joint property.
If the debtor has incurred the obligation without the consent of the other spouse, you may demand debt collection from:
- debtor’s personal property
- remuneration for work
- income earned by the debtor from other gainful activity
- benefits from their copyrights and related rights, industrial property rights and other author’s rights (in this case, an enforcement title issued only against the debtor is sufficient)
- property belonging to a business, if the claim arose in connection with the business activity (in this case, an enforcement title against both spouses is necessary).
If the debtor incurred the obligation before joint marital property was established (also when it concerns the personal property of one of the spouses), you may demand debt collection from:
- debtor’s personal assets
- remuneration for work
- income earned by the debtor from other gainful activity
benefits from their copyrights and related rights, industrial property rights and other author’s rights (in this case, an enforcement title issued only against the debtor is sufficient).
Does a prenup protect the debtor’s joint property from debt collection
By means of a marriage contract (commonly referred to as a prenuptial agreement or prenup), joint matrimonial property may be extended or limited.
A prenup does not prevent the issue of an enforcement clause and enforcement against those assets which would belong to joint marital property if the agreement had not been concluded.
The assets covered by the prenup will not become the subject of enforcement against a married debtor, provided that the creditor was aware of the prenup and knew its scope. However, this is not investigated by the debt collector. Therefore, the debtor or the debtor’s spouse must file a lawsuit to have the enforcement title rendered unenforceable – this is known as an anti-enforcement action. If the debtor proves that the creditor was aware of the prenup, the court will exclude these assets from enforcement.
In order to enforce debt collection against a business that is part of the joint marital property, it is necessary to obtain an enforcement clause against the debtor and the debtor’s spouse.
Please note! Unjustified refusal to provide a debt collector with explanations or information requested, or providing information or explanations that are knowingly false, is subject to a fine of up to PLN 2,000 imposed by the debt collector, upon request of the creditor or ex officio. Such a fine may also be imposed on a debtor who does not fulfil their obligation to notify of a change of their place of residence.