The useless procedure of appealing rejections for pre-case burden warrants

Art.390 of the Bulgarian Civil Code entitles claimants, before actually lodging a litigation claim, to apply before the local District court (which is the 1st instance court) for obtaining seizure warrant to secure their future claim (i.e. an order for placing a burden) on chosen assets that are owned by the debtor for the term of the prospective lawsuit. This is “one-party procedure” where the debtor does not participate. The role of this procedure is, first of all, to ensure that the defendant won’t release all his assets after been served with the court claim in order to save them, and secondly, to ensure that in case of positive decision, the claimant/creditor could reach effective satisfaction of their debt.




Once the said application has been submitted in court, usually the judge decides on it on the next day, as the Law pursues speed in such procedures. The goal here is to reach allowance a.s.a.p., so the claimant can get the issued warrant and via the local bailiff to place the burden on the chosen debtor’s assets to secure their prospective claim. In other words, the quick seizure of assets is pursued here. But sometimes, the application could be rejected directly by the court – usually if the judge considers that the debt is not yet due; or if there are no strong evidences to support the application, or court tax has not been paid, or there is lack of authorization towards the person who has signed the application, etc. This denial is direct - with no possibility of giving instructions towards the applicant to repair/improve their claim. In case of refusal for issuing preliminary seizure warrant, One of the available options for the claimant is to appeal it at the higher, 2nd instance court. But in this case the Civil Code obliges the court to involve also figure of the debtor in the appeal procedure, where it becomes “two-sided court process” and the debtor can dispute the application itself. Which given right to the debtor, in a procedure which initially starts and ends without their participation, is non-beneficial for the claimant/creditor, because once the debtor has been informed officially by the court that someone wants their assets frozen for prospective lawsuit against them, then the debtor can easily hide or transfer to third parties their own assets to prevent the actual success of such prospective legal actions. This danger puts the claimant in harmful situation and questions the effectiveness of the whole litigation process.

Alternatively, in this one-sided procedure, in case of rejection by court to allow pre-case burdening of assets, the claimant may choose not to appeal it at all, but to follow the motives of the judge and to repair or remove any shortcomings or defects in their denied application in order to submit it again. But in this case, the claimant should wait first to be notified by the court for the refusal (which technically may take several days for serving if you don’t check on desk at court the file). And then to wait for expiration of further 7-days - the deadline for appeal - before the issued rejection enters in force, so then the claimant could prepare and lodge their application again, hoping that the same or another judge within the same court may approve their application this time. Unfortunately there is no option for the claimant, once found out that there is a denial by court to allow pre-case burden of assets, to lodge new (improved) application a.s.a.p., although they chase quick protection of their rights against the debtor. Even if they lodge it during this deadline, the court will reject their new application with the sole motive, that there is still pending application, the decision on it has not yet entered in force. This procedural prohibition for the claimant is non-logical, because in such procedures speed is vital; waiting 10 more days to lodge new application for seizure is not beneficial in any way for the claimant who seeks immediate protection of their rights.




Therefore a change should be made in the Bulgarian Civil Code, to avoid involving the defendant in appeals against refusals for issuing pre-case seizure warrants, and also to entitle claimants who have been served with court rejections, to submit new applications straight away and without having to wait a week or more before they will be entitled to do it again.

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