Assignment of claims in the course of legal proceedings

Assignment of a claim: notification of the debtor

Is it mandatory to notify the debtor? Pursuant to Article 509 of the Civil Code, ‘A creditor may, without the debtor’s consent, transfer a claim to a third party (assignment), unless this would be contrary to the law, a contractual reservation or the nature of the obligation.’. The debtor is therefore not a party to the contract, and their consent is not, in principle, required for the assignment of the claim, except in situations where they have reserved such a right (to give consent). The creditor should notify the debtor of the assignment, but is under no obligation to do so. It is worth noting, however, that until such notification is given, the debtor may continue to repay the debt to the existing bank account, rather than to the assignee.

Assignment of debt

If the parties enter into an agreement to assign a claim that is already the subject of court proceedings, the first thing to note is the date of service of the claim. This is because if the claim has already been served, the assignment of the claim will not affect the further course of the proceedings. The assignee may only step into the shoes of the assignor after obtaining the consent of the opposing party. Whilst the debtor’s consent is not required for the act of assignment itself, if court proceedings have already been initiated, the debtor must consent to the change of the claimant. It is worth noting in passing that the assignor’s consent will also be required. Although consent may be implied, it is definitely better to obtain it in writing. The best solution is to submit a letter to the court in which the purchaser requests permission to join the proceedings in place of the assignor, whilst enclosing a statement from the assignor expressing consent to this action.

Assignment of claims – debtor’s consent

What if the Defendant does not give their consent? In such a situation, it is worth making use of the institution of third-party intervention or joinder. In that case, the rights of the purchaser of the claim will be protected, and they will be able to pursue their claims. It should be remembered, however, that such changes in the parties are not permitted in summary proceedings.

In summary, the assignment of a claim during court proceedings (after service of the claim) has no effect on the parties. The assignee may, however, make use of the legal mechanisms provided for and join the proceedings, either in place of the assignor or as an intervener. If, however, the assignment took place before the statement of claim was served, the claimant loses their standing. The assignee may join the proceedings upon obtaining the consent of both parties. It is advisable for the assignee to make use of the legal options available for enforcing the debt.

If you require advice on assignment or legal support in any other area, please contact HWW Hewelt Wojnowski Lindner i Wspólnicy.