Court case №607/4028/21 https://reyestr.court.gov.ua/Review/97228833.
The indisputability of the debtor’s debt or other liability is a mandatory condition for the notary to make a writ of execution (Article 88 of the Law of Ukraine “On Notaries”). However, the nature of the legal regulation of this issue gives grounds to conclude that the indisputability of the debt or other liability of the debtor to the notary is confirmed by formal features – documents provided by the debt collector in accordance with the List of documents.
Thus, the notary makes the writ of execution upon the fact of submission by the debt collector of documents, which according to the relevant List are a confirmation of the indisputability of the debt or other liability of the debtor to the debt collector. However, this fact in itself (submission of the relevant documents by the collector to the notary) does not indicate the absence of a dispute regarding the debt as such.
The Court draws attention to the fact that the law does not define an exclusive list of circumstances that indicate the existence of a dispute over debt. These circumstances are established by the court in accordance with the general rules of civil procedure based on the results of verification of the debtor’s arguments and evaluation of the evidence provided by him.
In view of the above and taking into account the provisions of Articles 15, 16, 18 of the Civil Code of Ukraine, Articles 50, 87, 88 of the Law “Pronotary” protection of civil rights by a notary executive is that the notary or recovery from the debtor’s property. This right exists until the court finds otherwise. That is, the debtor, who also has the right to protect his civil rights, may challenge in court the writ of execution executed by a notary: both on the grounds of violation by the notary of the writ of execution, and on the grounds of illegality of the claimant (in full or in part) statute of limitations on the requirements in full or in part), with which he applied to the notary to make a writ of execution.
Therefore, when resolving a dispute on recognizing a writ of execution as unenforceable, the court should not limit itself to verifying the notary’s compliance with formal procedures and the fact that the claimant submitted documents to confirm the debtor’s undisputed debt in accordance with the List of Documents. In order to properly apply the provisions of Articles 87 and 88 of the Pronotariat Law in such a dispute, the court must verify the debtor’s arguments in full and establish and indicate in the decision whether the debtor had an undisputed debt to the debt collector, ie
whether there was any debt or there was a debt of exactly the amount indicated in the writ of execution, and whether there were any unresolved disputes as to the debt or its amount as of the time the notary made the writ of execution.
This conclusion is set out in the decision of the Supreme Court of January 23, 2018 in case № 310/9293/15.
Thus, the defendant did not provide any proper and admissible evidence confirming the procedure for accrual of debt to the debtor and the period of such accrual. In addition, the defendant stated that according to the disputed writ of execution, the debt was collected for the period from May 7, 2020 to November 30, 2020, but the defendant did not provide evidence of the procedure and grounds for accrual of debt for this period.
Thanks to the work of our lawyers, the Individual was able to convince the court of the illegality of the execution of this writ of execution by a private notary and managed to avoid unjustified collection of funds in favor of the Financial Company.
