A very difficult year lies ahead for bailiffs. We are facing a revolution in regulations. In my opinion, this change is neither good for bailiffs nor for creditors, including factoring companies, which, after all, are in such a position in bailiff enforcement.
# Since when changes
The changes are effective as of 1.01.2019. The previous legal acts (including the Act, which has been in force continuously since 1997) were replaced by the Law on Bailiffs of March 22, 2018 and the Law on Bailiffs' Fees of February 28, 2018. The CCP was also amended. If a factoring company explicitly uses the names of the previous laws in its documentation - then the above-mentioned change should be taken into account.
# Territorial restrictions
No more automatic sending of cases to "favorite bailiff" And no more "wholesale bailiffs". It will be necessary to refer cases to the bailiff from the debtor's district, i.e., for example, if we have a debtor based in Warsaw (Mokotow district), we will be forced to refer the case to the bailiff operating at the District Court for Warsaw Mokotow.
If our favorite Bailiff will not have arrears then we can direct the request to him, but only within the boundaries of a given appellation. This means that we will be able to order the enforcement of a debtor in Sochaczew to a Bailiff from Warsaw, but no longer to the one from Lodz. And to make sure if we can do this we will have to call the bailiff to find out if he can still accept cases from outside the revir.
No more machinic referral of cases to the Bailiff. Unfortunately, there will be an additional workload for collection departments, i.e. the selection of the appropriate bailiff from the debtor's district. It will be necessary to develop a new model of cooperation and individual treatment of cases.
# Activity Recording
The bailiff will have an obligation to record (audio-video recording) the course of certain actions, including inspection and search of the apartment / real estate, seizure of movable property. At the request of the debtor, such an obligation will always be there. At the debtor's request, he will also be obliged to stop the recording. It is not difficult to imagine debtors abusing these powers and sabotaging enforcement.
# Changes in fees and VAT
- The existing fees (15% and 8%) will be replaced with 10% (basic) and 5%, 3% rates;
- The relative fees in a case cannot be less than PLN 150 and more than PLN 50,000. The latter restriction is advantageous for creditors - no more charging fees of more than 50,000 zlotys in the enforcement of large properties (who remembers the times 10 years ago when bailiffs were able to charge a separate relative fee from each debtor joining the enforcement of real estate? :));
- The bailiff will no longer be paid directly, but will instead be...revenue for the state budget. Instead, the bailiff will receive a commission based on the fees collected;
- Work is underway on a general interpretation on the VAT taxation of executions;
- If the execution is discontinued due to its effectiveness, the Bailiff will receive from the creditor a flat fee of PLN 150.00. And now note, this fee is not charged to entities whose object of activity: "is not financial and insurance activity within the meaning of the regulations issued pursuant to Article 40(2) of the Law on Statistics of June 29, 1995" or "is financial and insurance activity within the meaning of the regulations issued pursuant to Article 40(2) of the Law on Statistics of June 29, 1995. As long as they are the original creditors and the claim was not traded.". Without going into a deep analysis, it looks like the amount of PLN 150.00 will be paid by assignees - that is, entities that trade in receivables, but also most likely factoring companies. Fortunately, these are not significant amounts. Rather, they will hurt companies offering micro-invoicing, as long as such receivables go to bailiff enforcement.
# Other changes
- The bailiff is supposed to act in person, while the activities outsourced to assessors may only have a training function. This means less efficiency for the bailiff, who, after all, will not "split". This is very bad news for creditors;
- The bailiff will become a public functionary receiving a salary from the Treasury. Undoubtedly, the income of the Bailiffs' Offices, the salaries of the bailiffs themselves as well as their employees will decrease;
- The supervision of the Minister of Justice and his powers over Bailiffs will increase;
- There will be more inspections;
- The bailiff will be required to hand the debtor a complaint form against the bailiff's actions.
# Conclusions
- Any factor conducting debt collection against factoring-debtors or recipients on its own should adapt to the changes and prepare for the fact that every so often more will have to be sent to the Bailiff "on a platter" in the execution application;
- In particular, it will be necessary to remodel the cooperation with a single bailiff and seek a ad hoc good bailiffs along with initiating cases in other revues;
- Before submitting an application to our "favorite" Bailiff, it will be necessary to confirm that he can accept such an application from outside the district, so that it is not returned, which will prolong our case;
- It should be assumed that due to the aforementioned changes, including the personal action of the bailiff, the recording of activities and many other bureaucratic duties, as well as a decrease in salaries, the commitment, availability and efficiency of bailiffs will decrease, which may negatively affect the results of executions;
- In 2018, many judicial officers left, and many assessors were fired. The new changes are unlikely to lead to a migration of new employees into the profession. Therefore, it should also be taken into account that some of the Bailiffs we have worked with so far may leave the profession.
