Edis Felić: In Fina, creditors legally request a court decision even though they have it

An entrepreneur has complained to us about issues with collecting from a pre-bankruptcy debtor after a legally binding pre-bankruptcy settlement was concluded. However, in this case, it is not the debtor causing the problems, but rather the system, which prevents Fina from easily executing the collection requested by the creditor. Fina rejects the request for the debtor’s blockage based on the legally binding pre-bankruptcy settlement. The entrepreneur states, and proves with documentation, that they were asked to provide a specification of overdue obligations along with the request for blockage, as well as what we want to write about here – the original pre-bankruptcy settlement with the clause of finality. The problem arises because commercial court judges do not want to issue that original for the simple reason that in such situations, they send it directly to Fina for publication on the website that the pre-bankruptcy settlement has been concluded.

A deeper problem

However, Fina refers to the Law on the Enforcement of Claims against Monetary Assets, which states that the creditor submits the original or a certified copy (dispatch) from the court to Fina. The same is stated in the Enforcement Law. On the other hand, according to the Law on Court Procedure, it is prescribed that original court decisions are kept in the court archive, and that parties can obtain a certified copy. Fina notes that it will accept a certified copy and that it is not true that the original is required. However, it is possible, although we do not claim this, that someone in Fina actually requested the original instead of the certified copy, leading to confusion. That entrepreneurs who faced such problems understood that they needed to submit the original, not the certified copy, is evident in the fact that they themselves suggest to Fina that in the future it should accept copies of the court decision on the conclusion of the pre-bankruptcy settlement that could be compared with the original that Fina already has. Namely, if they had been informed about the possibility of obtaining a certified copy, they would not have suggested that in the future Fina accept unverified copies. Indeed, Fina requests certified copies, but that is something that court officials do anyway. The problem is, however, a bit deeper than this, most likely, confusion between people in Fina and entrepreneurs, and that problem causes such and other misunderstandings.

Notice ‘strictly designated’

One does not need to be a lawyer to logically question what Fina would need a certified or unverified copy of the conclusion of the pre-bankruptcy settlement for when it has already received it to inform the interested public about it. According to that nonsensical logic, that notice is strictly designated, we would say, and for other purposes, as it is known to be written on some documents, it must not be used. It is truly absurd, because if there is already an original that is kept in Fina, why not use it and not harass entrepreneurs who want to submit a request for the blockage of their debtors. However, this is not Fina’s fault. In fact, no matter how upset entrepreneurs may be, we must defend Fina here, which must act according to the Law on the Enforcement of Claims against Monetary Assets and the Enforcement Law. It would not be good, no matter how poor the legal solutions are, for the problem to be solved by circumventing the law. On the contrary, those legal provisions should be changed, and we can only criticize Fina for not sending a proposal to the Ministry of Finance to change such things. Nevertheless, until changes occur, it should be reiterated to entrepreneurs that in such cases, they do not need to bring the original court decision; it is sufficient to obtain a certified copy from the court registry.