How to recover a debt. How to repay a debt without a receipt and witnesses - three methods of solving the problem. For self-reclamation of debt, a citizen can use these methods
1. Non-cash liabilities. Compulsion to perform in kind. What has changed in the course of the reform of the Civil Code of the Russian Federation?
2. Monetary debt. The decision to collect funds - legal effect, impact on the relationship of the parties.
3. Penalty as a sanction for breach of obligation. New in the clarifications of the RF Armed Forces.
4. Interest for the use of other people's funds (Article 395 of the Civil Code of the Russian Federation). New in the clarifications of the RF Armed Forces.
5. Answers to the questions of the participants of the All-Russian satellite online seminar.
Speaker
Bevzenko Roman Sergeevich
Candidate of Law, Professor of the Russian School of Private Law, Partner of the Pepeliaev Group Law Firm
Candidate of Law, Professor of the Russian School of Private Law, partner of the Pepeliaev Group law firm.
Candidate of Legal Sciences (defense in 2002 in the specialty "Civil Law", topic - "Defense of a property acquired in good faith in civil law"), associate professor.
Teaching experience - since 2000 read for students full-time training of the Law Faculty of Samara University courses "Legal regime of securities", "Contract law", "Legal regime of real estate".
Currently works at the Department of Civil Law High school economy.
Since 2006, he has lectured at courses for professional participants in the securities market at the training center of the Federal Financial Markets Service on the basic course of the securities market, course series 1.0 (broker / dealer) and 5.0 (management of shares investment funds). Has a professional participant certificate financial market FFMS for series 5.0 (management of mutual funds).
Since April 2008 - lecturer at the Statute Law School.
Practical experience legal work: in the field of construction business (management of the implementation of investment and construction projects) - 8 years; in the field of investments - 2 years (MC UIF).
Has more than 50 published works in periodicals on the following topics: securities, legal regime real estate, general part of the law of obligations, participation in shared construction(published in the journals Bulletin of the Supreme Arbitration Court, Legislation, Law, Jurisprudence), 4 monographs, including one in the Statut publishing house ("Offset of obligations"), and two in the Urayt publishing house ("Civil law: Actual problems of theory and practice "/ under the editorship of V. A. Belov. M., 2007; Commentary judicial practice application of the first part of the Civil Code of the Russian Federation / ed. V.A. Belova; M., 2008).
Debt obligations recorded in the receipt must be fulfilled, since a receipt, according to Article 810 of the Civil Code of the Russian Federation, is a legally significant document. In case of ignoring the requirements, the citizen can apply to the court to reclaim the debt.
We will tell you how to repay debts on a receipt, what methods are provided for this and what needs to be prepared. We will also consider what will happen if the court takes the side of the creditor, and we will answer pressing questions.
How to independently repay a debt on a receipt - the procedure for pre-trial debt reclamation
Before going to court, a Russian should try to resolve the issue of debt repayment on a receipt directly with the borrower.
To independently reclaim a debt, a citizen can use the following methods:
- Call the debtor by phone and remind about the obligations to you.
- Meet in person with the borrower and demand that the issue be resolved amicably.
- Send a certified letter to the name of the debtor. In it, write that if the debt is not returned within the time period indicated in the receipt, then you will go to court. If you plan to transfer the debt to a collection agency, then this can also be indicated in the letter. Be sure to receive a notification confirming the acceptance of the letter by the debtor.
- Send the borrower a claim with written requirements. You can specify that in case of late return of funds, interest will be charged on the debt. They are determined depending on the refinancing rate (Article 395 of the Civil Code of the Russian Federation).
The letter or claim should not contain emotions and insults towards the debtor. In the sent document, the citizen can write that he will go to court to further solve the problem.
Advice: A lawyer can be involved in negotiations - especially if the receipt was issued by a notary.
The specialist must explain to the party of the debtor how important it is to pay the debt, and describe further possible problems that may occur in case of non-payment.
List of documents to the court for debt collection by receipt in court
There is a standard package of documents required when contacting judicial authorities in case of reclaiming the debt by receipt.
Of course, the applicant will have to file and file a claim. This is the main paper in which the meaning of the appeal, as well as the requirements, are recorded.
We indicate what else should be included in the documentation package in 2018.
All originals of documents are submitted to the court upon request. You can submit copies for consideration, and when you come to the court session, you can show them to the clerk.
Do not forget to bring your originals with you.
Notice , documents together with the claim may be considered by different authorities.
We will determine where the documents can be submitted, and under what circumstances:
- To the magistrates' court. Documentation will be accepted if the amount of the debt is less than 50,000 rubles.
- To the district court. Documents will be accepted when the amount of debt exceeds 50,000 rubles.
As a rule, when you come in person to the secretariat, you will be informed whether or not the statement of claim will be accepted. If they are accepted, then you must submit the documents indicated in the list above. If they do not accept, then you will have to go to another authority.
Another thing is when documents are sent by mail... Then you will learn about the refusal to consider when you receive a return letter from the court.
You can also bring some papers if you suddenly forgot them. This cannot be done with mail.
Debt collection procedure by receipt through the court - step-by-step instructions
To reclaim the debt on receipt, after going through the pre-trial procedure for resolving the issue, a citizen can go to court.
To do this, you must follow the following instructions:
Step 1... Prepare a documentation package.
Step 2... Write a statement of claim. In another article, we'll take a closer look at how to do this.
Step 3... Contact the courts. Select the authority to which the documents and the claim will be accepted. You can come to court in person, or send the papers by mail. Mandatory on your copy statement of claim the person accepting the claim must sign in acknowledgment of acceptance.
Step 4... Pay the state fee. The secretary will tell you the details.
Step 5. Wait until the day when the court hearing is scheduled and take part in the proceedings. The plaintiff must be present, and the defendant may not come.
Step 6. Get a court decision and a writ of execution.
Step 7. Contact the FSSP department and submit the executive document to the employees.
If the court decides not in favor of the plaintiff, then you can appeal - and challenge this result.
The court's decision on the return of money with an IOU is in your favor: when and how should the debtor return the debt according to the law?
When the judge decides in your favor, it will take time for the document to become legally valid. The court decision will come into legal force only after 1 month.
During this time, the plaintiff can do nothing, but then to reclaim the debt you need:
- Contact the bailiff office in your city or area.
- Provide employees with a writ of execution.
- Wait until the bailiffs make a refund from the debtor. By law, they must complete enforcement proceedings after 60 days, however, in practice, this period becomes long-term, for example, due to the insolvency of the defendant-borrower.
Notice that the defendant will return the debt through the bailiff service, not personally.
Some advise you to inform the bailiff about the possible property of the debtor so that the process of recovering the debt is faster.
On practice things are that bailiffs they interact mainly with the debtor, and the plaintiff remains on the sidelines - and may even wait for years to pay the debt.
Alternative and simplified methods of debt collection by receipt
A Russian who does not want to collect a debt through the courts may resort to another method of recovering funds. An alternative is the transfer of rights, or the sale of debt through a private company.
The citizen must prepare all the documents and contact the organization dealing with the redemption of debts. Today, there are a lot of companies that are ready to buy back debts.
The procedure is as follows:
- A citizen contacts the company and provides documentation.
- Further, an assignment agreement must be concluded with him. It contains all the conditions for the transfer of rights.
- The organization then pays the client the debt in whole or in part, depending on the contractual terms.
If the citizen appealed to the judicial authorities, and the decision was made, then the employees of the FSSP will deal with the reclamation, and it will not be possible to sell the rights to repay the debt to the collectors.
Is it possible to return a debt by receipt if the debtor has nothing?
Debts will be reclaimed by bailiffs - and they, in turn, when a person has absolutely nothing, act like this:
- They interact with the borrower-respondent, find out what funds he has, in what amount.
- Determine if the borrower has the property.
- They are repeatedly reminded of the payment of a debt to a citizen.
- They can be brought to administrative responsibility, forced to pay a fine in case of non-payment and non-compliance with the requirements of officials.
- They can collect property if the amount of the debt is large.
Any fact of transfer must be recorded by the bailiffs.
If a person has nothing at all - no money, no property - then he will definitely be held accountable and forced to perform forced labor. The severity of the punishment depends on the amount of the debt and the performance of the citizen.
If the bailiffs are not doing their job, then you can complain about them to the Prosecutor's Office or the higher body of the FSSP.
Our today's article is about how to collect debt correctly. The problem of debt collection is relevant not only in our country, although there are a number of conditions that give it a local flavor. These are difficult times of transition to other models of monetary and property relations, periodic crises, and in addition - the way of thinking peculiar to our citizens.
It should be remembered that the peculiarities of the mentality are reflected in the attitude not only towards their own debts, but also on the attitude towards debts. legal entities- after all, organizations are led by people.
Debt recovery methods
The variety of methods by type is not so great. The division occurs into two types, the first of which concerns traditional approaches that do not contradict the norms of legislation. These are all kinds of verbal reminders, an appeal to government bodies, lawsuits.
The second type of methods for recovering problem debts is in conflict with the law, which makes its use undesirable and risky for the creditor himself, who risks not only not getting it back own funds, but also to be involved in the commission of a crime, including a violent one. These methods are known, they include appeals to representatives of the criminal world or attempts to use corrupt ties.
Reasons for refusing to repay debts
A variety of factors can serve as such reasons, and they should certainly be taken into account when choosing the way in which you intend to seek debt repayment. The method of influencing the debtor is selected taking into account all the circumstances for a particular case.
The debtor may find himself in a situation where he does not have the funds necessary to repay the debt.
The debtor's calculation that the creditor, for various reasons, will not be able to recover from the available funds, property and assets. This calculation is usually based on various transactions with assets, their registration on other persons, on attempts to influence the creditor through administrative channels (including corruption). The debtor can hide his whereabouts, wait for the expiration of the statute of limitations for the claim, take advantage of the lack of evidence of debt. It is rather difficult to list all the reasons.
Possible procedure for debt collection
One should start with obtaining and analyzing information about the debtor and possible methods of influencing him. His connections and relations with various persons or structures capable of influencing the debtor are being studied. In this case, not only formal legal relations of the debtor are considered, but also his business, family and personal connections, using which you can arouse the debtor's desire or consent to voluntarily return the debt.
It is necessary to create a model of the debtor's behavior, foresee in advance what actions should be expected from the debtor or persons involved in collection, analyze the options for the most desirable actions and ways of persuading them to commit them. Modeling should take into account the very possibility of debt recovery through legal methods of influence.
The model should also include the assessment of property and financial condition the debtor. If he has the resources, it all comes down to collecting the debt. It is more difficult to resolve the issue if the debtor does not have such resources.
Methods for the implementation of the foreclosure must strictly comply with the law and have an economic justification, including taking into account the position and capabilities of the debtor. At the same time, it is necessary to model the response actions, possible defensive positions and methods that can be applied by the debtor to prevent collection.
Effectively conducting business in an atmosphere of information transparency, which will make it possible to disclose to the public all the retaliatory actions of the debtor. Applying the already developed model of the debtor's behavior, one can also consider the factors that become the reason for his behavior. This includes the characteristics of the personality, character and temperament of the debtor, his entry into various systems of relations that determine the motivation for opposing collection. A detailed study of these factors and motives makes it possible to find how the most effective methods impact, and methods of effective counteraction in the event of a response from the debtor. All the methods under consideration should be evaluated from a legal point of view, since any violation of legal boundaries can lead to a backlash, which will be extremely difficult to resist in case of violation of the law. All used admonitions and threats must be strictly within the framework of current legislation.
The implementation of collection methods should be clearly planned. Sources of admonitions, messages about the need to repay a debt can be several objects. The proposal itself can be voiced by a lawyer, an authorized collection agency, the creditor itself, and even an organization that is sometimes created for similar purposes. The latter method is a kind of insurance in case the debtor has the opportunity to attract any administrative resources for retaliatory measures. With the development of such a scenario, the creditor will be more competent not to take part in the case, even agreeing to the sale of the debt. If it is possible to resolve the issue of recovery through compromise schemes, the creditor should take part in the negotiations.
Of the ways to inform the debtor about the need to repay the debt, the most effective and protected is a written notification that the collection process begins on the initiative of the creditor. Proposals are better accepted if they are in the form of a document, for example, a proposed repayment schedule, contracts that the debtor receives in a certain sequence, when from the first proposal to each subsequent one there is a gradual increase in pressure, and the threat of increasingly stringent legal measures to recover debt. It makes sense to provide for the possibility of confirmation of acceptance by the debtor of all messages sent to him.
It is important to create an opinion of the debtor about the inevitability of collection by legal means, while listing all the rules of law that consider the right to collection and its implementation, including the rules, the existence of which the debtor does not take into account.
Difficulties in the collection process
Often, the debtor's resistance has no basis, but continues only because the situation has gone too far, and he performs actions that were initially useless. The debtor should be notified of such a development of events, indicating the possible consequences, and the actions should be suppressed by lawful methods.
Excessive emotional behavior of the claimant may also be a problem in the collection. This is the irritation that the debtor evokes, or, on the contrary, sympathy. All this reduces the effectiveness of the actions carried out. To prevent such impacts, the situation should be considered with maximum objectivity, without personal attitude, strictly from a business point of view.
Another mistake can create a problem with collection. This is the provision to the debtor of the first document containing a large list of threats of the most severe nature, which makes it impossible for the performer to further increase pressure on the debtor, listing more and more stringent and effective measures. In addition, the applied threats must correspond to the real amount of debt, too strict requirements for small debts are not taken seriously. The same applies to the case when the enforcer applies more and more harsh methods, even realizing the hopelessness of the debt. The image of an overly tough recoverer plays the opposite role and forms a model of behavior in the debtor, in which he continues to resist and refuses to repay the debt for no less fundamental reasons. With the partial return of the debt, the question of the legality of the application of the previously listed measures arises, which makes the debtor want to receive some concessions in the event of further collection. This most often leads to an aggravation of the situation, therefore, you should adhere to the previously chosen program, considering the option of concessions only in case of special circumstances.
Debts that are considered hopeless require an attentive and serious attitude from a professional point of view, which makes it possible to transfer them into the category of difficult, but realistically executable tasks.
Once one of the listeners of my seminar made a mistake and read in business card"Debt elimination" instead of "debt collection". This reading error only confirms the subconscious negative attitude towards the debt collection procedure. In fact, the demand for debt is not speculation in debt, not legal blackmail, but a situation when "hard-earned money" is not returned. What to do in this case? Debt doesn't come out of nowhere. The main thing is to prevent the emergence of problem debts. Even at the negotiation stage, you can discuss securing obligations. A bill of exchange, property pledge or surety will help. So, for example, in the course of cooperation between the parties, the solvency of the enterprise-customer of the service began to "melt before our very eyes." Meanwhile, the director of the enterprise himself belonged to the category of persons from whom “there is something to take”. In this situation, the contractor convinced the director of the contracting company to personally vouch for own company... Six months later, the customer company stopped working, the assets were not enough to make settlements - the surety helped out. It was this contract, as well as energetic steps to collect the debt, that helped the contractor not to lose what he earned. It is equally important to continue the relationship with the debtor and find a reason for dialogue. This is very important point in the theory of conflict management. By our behavior, we set a scenario that the debtor implements in practice. If we a priori believe that the debtor is a swindler and a thief, and we support this conviction with practical actions, then most likely we will be right, to our regret. Meanwhile, if we ignore the cases of fraud, then the majority of debtors are people who, under certain conditions, want to settle accounts with us. Give the debtor a grace period, sign a payment schedule, and discuss compensation options. Even bankruptcy procedures do not exclude an amicable agreement with the debtor. Note, it is better to get at least something years later than to lose everything. I know of one interesting case when a small enterprise-manufacturer of doors owes a very decent amount for accounting services... The debtor was in the “subscriber unavailable” mode for a long time, but, finally, before the annual report appeared in the office and explained the reason for the financial situation... Then the creditor helped to sell the doors of the debtor to the bank in which his current account was opened. From the first advance, the accounting services were fully paid. However, so far we have considered situations where the debtor does not deliberately evade the performance of the obligation. But, for example, the leadership in the organization of the debtor has changed, and the new leader has a "new vision" in relation to the old obligations to the creditor. In this case, negotiations often come to a standstill. For example, filing an application with the court simultaneously with the requirement to apply interim measures against the debtor (seize property, prohibit settlements through third-party accounts or with the help of bills of exchange, and so on) can force the debtor to sit down at the negotiating table. I would like to emphasize the importance of negotiations before and during court proceedings. An amicable agreement, as a rule, is preferable to a court decision, since the text of the amicable agreement is developed by the debtor and the creditor themselves, and the decision is made by the court. No one wants to carry out a decision that was imposed on him and which he considers unjust. In conclusion, consider a classic example from the "decent debtor evading responsibility" series. Svetlana lent Alexey $ 30,000 by receipt. Alexey did not return the debt within the specified period, citing financial difficulties that had arisen. The debtor did not refuse to meet, behaved quite correctly, but constantly found more and more new reasons for postponement. Then Svetlana offered to sign a promissory note to her debtor with a deferred payment for three months. As a result, the creditor received its debt, as well as interest and penalties on the promissory note at the rate of the Central Bank of the Russian Federation. The tactic of providing even more deferral than the debtor asks for precludes further negotiations for a deferral. For example, the same tactic was used by a banker against a borrower - a leasing company. Only the promissory note was issued for several large amount than the amount of debt. In addition, the creditor asked for a list of the debtor's tenants with telephones, and when "there was no money again," the banker simply offered a bill at a discount to several of the debtor's large tenants. The loan was repaid three days later.
Many had to bail out relatives, colleagues or friends with money. When transferring money, not everyone cares about drawing up contracts or receipts. But situations when the borrowed money is in no hurry to return, it is not at all uncommon. And the lack of a document confirming the loan becomes a problem. When it comes to large amount, parting with her significantly affects the budget. What to do if it was not possible to receive money on time. We offer several options for answering the question of how to knock out debt legally.
Rescuing money from a close relative or acquaintance, people often do not think about the formalities and do not formalize the transfer of funds by a notary. Debtors, taking advantage of this circumstance, are in no hurry to return the loan, mistakenly believing that the absence of a document relieves them of responsibility. However, even in such a difficult case, to solve the case in a legal way quite possible. Article 162 of the Code of Civil Procedure states that dictaphone or video recordings, SMS, e-mails, communication via social networks can be used as evidence. It should be noted that the court will not consider the testimony of witnesses, since this is prohibited by law.
If initially there is no written confirmation, the “evidence” will have to be obtained after the fact. You should calmly communicate with the debtor so that he confirms the fact of receiving a loan, its amount, the agreed repayment period. The collected evidence must be properly documented. Mobile messages should be pre-printed by contacting your mobile operator.
E-mails can serve as proof of a loan transaction. The printout of scans, like SMS, is certified by a notary office. The recording of the conversation on the dictaphone is accompanied by a text transcript, which is printed out on the computer. According to the law, the recording of an ordinary conversation is not accepted as evidence. It must necessarily contain information about who is conducting it, for what purpose. Such evidence is strong enough for the court. However, if the defendant continues to deny the fact of the loan, it will be necessary to prove the absence of sound editing, to conduct an examination of the debtor's voice on the recording. Therefore, it is best to videotape the conversation.
You can confirm the existence of debt using a receipt
Reporting to the police
Once you have evidence that the loan has taken place, you can turn it over to the law enforcement authorities. In essence, lending money is a civil transaction, and the court must deal with it. But under these circumstances, the actions of the debtor can be qualified as fraudulent, and this is already a criminal article. The basis for initiating a case will be Article 159 of the Criminal Code of the Russian Federation. But there is no guarantee that the actions of the debtor will be qualified as a criminal offense. If the police refuse to initiate a case, it is worth taking a certificate, with which you can then go to court.
It should be noted that the very fact of going to the police is enough to collect a debt from a person. If the citizen does not have money, but he admits his guilt and promises to return the loan, the next step should be to appeal to the courts. Police officers draw up a relevant resolution. With him, the lender goes to court, submits an application and awaits a decision. The parties have the right to go to peace by negotiating new conditions for the return of funds. But you shouldn't take the debtor's word for it, it's better to document everything.
Settlement agreement
Often, a citizen who is in debt is quite friendly, he does not mind returning the money, but his financial situation does not allow him to pay off the debt full amount... In this case good decision will become an amicable agreement. In it, you can negotiate payment by installments or compensation for the delay. Such an agreement is signed with a notary. The specialist will advise on how to properly draw up a document, how to outline the responsibilities of the parties. You can simply draw up a receipt indicating a convenient return date.
How to return money transferred to the card
With a non-cash transfer of borrowed funds, the procedure for their return is simplified. The fact of transfer of a certain amount is reflected in bank documents, so you don't have to prove anything. But to operate with the concept of monetary debt in this case is not worth it. It is better to contact the bank with a statement that the money was transferred to the debtor's account by mistake.
A claim is sent to the unscrupulous borrower with a demand to return the funds. 10 days are allotted for execution, after which you can go to court with a claim. The application should refer to Art. 1102 of the Civil Code of the Russian Federation "Illegal enrichment". It is easier to get money from the debtor in this way than to prove the fact of the loan.
You can return a debt that is confirmed by a correctly drawn up receipt through the court
How to recover a debt on receipt
When bailing out friends, relatives or colleagues with money, it is most reasonable not to rely on their honesty right away. This is especially important when it comes to a large amount.
According to the Code of Civil Procedure of the Russian Federation (Article 161 Clause 1), loans, the amount of which is ten times the minimum wage, require mandatory notarization.
Simply put, such a debt can only be collected if it is formalized in accordance with all the rules.
If the loan amount is small, you can draw up a document yourself. The receipt must contain the following information:
- personal and passport data of the debtor and the lender;
- addresses of their residence;
- the amount of debt;
- conditions and date of loan repayment.
V mandatory need to indicate that cash are transferred specifically for temporary use. Otherwise, the debtor may say that this is payment for services rendered.
How to draw up an application to the court
Debt recovery through the court begins with the filing of a statement of claim. In it, you can refer to Articles 807, 808 or 810 of the Code of Civil Procedure, which regulate the relations of the parties in civil - legal transactions of this kind. The document must indicate the personal data of the plaintiff and information about the defendant, including passport data, address of residence. The application must contain a brief explanation of the situation: when, by whom and for how long the money was taken. Next, there is a requirement to collect a debt from the defendant. In confirmation, a receipt of receipt of funds is provided.
In addition to the document confirming the fact of the loan (receipt), evidence of the financial solvency of the debtor may be useful in court. For this purpose, a photo of large purchases made during the period in which the debt is repaid is suitable for this purpose.
Such proceedings usually take quite a long time. Perhaps during this time the issue will be resolved by itself, and the money will be returned. If this does not happen, at the end of the trial, the bailiffs will have to puzzle over how to get the debt out. Together with the claim for the return of the debt, you can submit an application for payment moral compensation... If judgment It was pronounced not in favor of the plaintiff, he has the right to appeal against it by contacting a higher authority.
If you cannot repay the debt, you can contact the collectors
Is it possible to contact collection agencies
Debt collection is not only involved government services but also private organizations. Collection agencies carry out their activities on the basis of a license, so there is nothing reprehensible in turning to them for help. However, this makes sense only if the amount of the debt is large enough, since only part of it will be able to return. Collectors will become interested in debt if there is a real prospect of knocking out money. It must be understood that the loan must be confirmed by a receipt. Only in this case the actions of the collection specialists will be legal.
Prohibited psychological or forceful methods of influencing debtors collection agencies rarely used. All their actions are strictly regulated by Federal Law No. 230 of July 2016. As a rule, work with a client at the first stages begins with remote communication. Simply put, the debtor will be constantly reminded of the debt by phone calls and SMS.
If the first stage does not bring results, the collectors proceed to work on the road. They work with the debtor by talking in person. An unpleasant surprise for a citizen who does not want to repay the debt will be that colleagues, relatives, neighbors or fellow students learn about his ugly act. The very fact of publicity can already push the unscrupulous debtor to return the loan.
In conclusion, I would like to warn against forceful methods of resolving the issue. The law equally protects all citizens, so if the debtor turns to law enforcement officers with a statement, the lender faces liability under the article “extortion”. Not worth abusing official position, threaten or disseminate defamatory information, resort to damage to property or provocations. It is better to consult with a competent specialist and act according to the law.
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