MOSCOW, February 25 – RIA Novosti. Debt collection from individuals is not an easy task. How to return money from a debtor in a legal way, what is the collection procedure, what to do if the debtor is bankrupt, and whether it is possible to return a debt issued without a receipt – in the material of RIA Novosti.
How to get a debtor to return money
Debt collection is a procedure for returning funds if the debtor refuses to give them voluntarily. According to the law “On the protection of the rights of individuals in the implementation of activities for the return of overdue debts” there are several ways to influence an unscrupulous debtor – negotiations and filing claims, appeal to collection agencies and the court. At the same time, a private person can collect a debt through a court if its amount is at least 10 thousand rubles and there is a receipt. If the amount exceeds 50 thousand rubles, then you can apply for help to one of the organizations specializing in debt collection and included in the corresponding state register of legal entities.
How to collect a debt from an individual
Debt collection can be carried out in different ways: – judicial; – judicial; – extrajudicial.
Debt collection under a loan agreement
A loan agreement between individuals is an agreement between two parties that one of them transfers, and the other accepts cash or other assets for temporary use for a specified period. In case of delay under the loan agreement, you can resort to judicial protection of the violated interests, because, by law, the borrower is obliged to return the money on time. You need to go to court at the place of residence of the defendant. When preparing an application to the court, the lender is obliged to substantiate each of his statements with documents. If all the papers are executed correctly, then it is quite possible to return the debt.
Debt collection by receipt
Debt collection on receipt, which from the point of view of the law is a loan agreement, also takes place in court. At the pre-trial stage, the lender can send a letter to the debtor demanding the return of the debt. Also, the letter can indicate the collection of interest and the obligation to reimburse legal costs by the borrower in case of going to court. If the debt was not returned at the pre-trial stage, you need to go to court. For the process, it is better to hire a lawyer to avoid mistakes that could affect the outcome of the case.
How to collect a debt without a receipt
It is quite difficult to repay a debt without a receipt, but you can try some options. First, contact the police with the available evidence. This can be a bank statement on the transfer of funds, screenshots of correspondence with the borrower. Security officials are obliged to accept the application and conduct a check. The debtor will be called to the police for an explanation. Judging by practice, in this case, most likely the case will not be initiated, but if the debtor has admitted his guilt, then this can be used in court.
Secondly, you should apply to the court for debt collection. Before that, it is better to write a letter of demand to the debtor. Even if the loan agreement was drawn up orally, all proof of the transaction must be attached. Difficulties can arise here. For example, it will be necessary to prove that the correspondence was conducted between the lender and the borrower, which is sometimes difficult if accounts with nicknames were used.
If the debt is less than 50 thousand, then you should contact the magistrate at the debtor's registration address. The decision will depend on how well the plaintiff gathers evidence.
Debt collection methods
Collection through bailiffs
In the event of a positive decision of the court on the return of the debt, the enforcement action will go to the Federal Bailiff Service (FSSP), whose employees will send a summons to the debtor. You can also contact the FSSP at the place of residence of the borrower and declare enforcement proceedings (IP). To do this, you need to find out the debtor's place of work and the bank that he uses. The service will open an individual entrepreneur in three days, after which it can proceed to the compulsory withdrawal of funds – the seizure of accounts, inventory of property, etc. The debt can be collected within three years after the presentation of the writ of execution issued by the court.
Referring to collectors
According to the law “On Microfinance Activities and Microfinance Organizations”, the creditor can use the services of collectors from the state register, which is maintained by the FSSP. Only they have the right to deal with debt collection. Also, according to the law, each lender has access to the sale of debts if he has a properly drawn up agreement confirming the fact of borrowing money.
Collection with the help of lawyers
Lawyers provide services for the collection of debts from individuals, giving advice, helping to resolve the dispute out of court. You can contact them for competent paperwork and drawing up a claim. As a rule, a specialist provides a full range of services required to actually receive a debt. It also includes: – collection of evidence; – development of a legal position; – negotiation on debt repayment; – representation in court, etc.
How to repay a debt on your own
To begin with, you should start negotiations with the debtor and find out why the person does not return the money. You can also ask him to repay the debt in installments. If this did not work, and the debtor stopped communicating, but there is no receipt, then you need to contact the police, where he will have to write an explanatory note acknowledging the fact of borrowing money. Next, you need to go to court. The same should be done with arrears under the loan agreement.
Debt collection procedure from individuals
Initiation of enforcement proceedings
After the court ruled that the borrower must repay the debt, the bailiff initiates enforcement proceedings on the basis of a writ of execution at the request of the claimant. After that, he informs both the lender and the borrower about the opening of the individual entrepreneur. After 5 days, the employees of the FSSP begin forced withdrawal of funds, that is, they arrest the debtor's accounts and property. Enforcement proceedings are closed if the debt cannot be collected. In this case, the writ of execution is returned to the claimant, and after 6 months he can reapply to the FSSP.
Consolidated enforcement proceedings
Consolidated enforcement proceedings are created when several enforcement proceedings of a property nature have been initiated against one debtor. This is so that, when recovering in favor of several people, the bailiffs act not on each individual proceeding, but on the consolidated one as a whole.
Recovery from accounts and salaries of the debtor
Bailiffs can foreclose on the wages and other income of the debtor, if it is prescribed by the executive documents. In doing so, they must take into account the amount of the living wage. The bailiffs can withhold money from the salary if the debtor's finances and other property are not enough to fulfill the requirements of the executive document in full.
Recovery of the debtor's property
According to the executive documents, the debtor's property, sufficient to pay off the debt, can be recovered. His arrest occurs if the borrower lacks funds or the amount of debt is too high, the property is seized.
Recovery of money from the treasury
Sometimes the borrower is faced with a situation where it is impossible to repay the debt, because the bailiffs are inactive, for example, because of the heavy load. In this case, you can first write a complaint to the head of the FSSP or go to court with a statement declaring the official's inaction illegal. If it is possible to prove this fact, then the losses, according to the Budget Code, can be recovered from the treasury of the Russian Federation. Before going to court, you will need to describe what actions the FSSP employee did not take. For example, he did not send a request to the bank about the borrower's accounts, did not receive information about the debtor's real estate, etc. Recovery of losses in this case will be effective if the borrower possessed the property during the enforcement proceedings, and the recoverer submitted the necessary information or filed a complaint with the FSSP.
Why they may not collect the debt
They will not be able to collect a debt from an individual if the lender does not have enough evidence that he lent money, if the debtor does not have funds, property and official salary on the accounts. In this case, the enforcement proceedings are closed. Also, one of the reasons is the impossibility to prove the inaction of the bailiffs and collect funds from the treasury.
Bankruptcy for individuals does not mean complete debt relief. This only happens in case of absolute financial insolvency. For example, if the debtor has no property, is disabled and has no sources of income at all. In any other case, the lender has a chance to get his funds back. To do this, most likely, the borrower will need a lawyer to control the alienation of the debtor's property, the distribution of the amounts received from his sale, etc. If the debt is above 500 thousand rubles. and is overdue by more than 3 months, the borrower can file an application to declare the debtor bankrupt by himself.
A refund from it is possible when you go to court.
RIA Novosti's frequently asked questions were answered by Alexander Bedunkevich, head of the bankruptcy department of the YUST.AS Law Firm.
Is it possible to collect a debt from the relatives of the debtor?
– From the point of view of civil legislation, if a relative of a person is not a surety or co-borrower, then the relatives are not jointly liable for the obligations of the debtor. However, there are various kinds of legal constructions that make it possible to attract relatives, for example, in the case of filing an application for bankruptcy of an individual, when the debt is more than 500 thousand rubles, it is possible to establish the debtor's share in the common property with relatives or spouse and impose a penalty on him. For example, to establish the share owned by the debtor on a car, real estate, other property acquired in marriage and registered in the name of another spouse.
Where to file a claim for debt collection from an individual? Is it possible to file an application with a court outside the place of registration?
– As a general rule, a statement of claim is filed with the court at the place of permanent registration of the debtor. Article 29 of the Civil Procedure Code of the Russian Federation provides for the possibility of filing a statement of claim against a debtor whose place of residence is unknown or who does not have a place of residence in the Russian Federation to the court at the location of his property or at his last known place of residence.
If the legal relationship that has arisen falls under the regulation of the Law on the Protection of Consumer Rights, a claim may be brought to court at the place of residence or place of stay of the plaintiff, or at the place of conclusion or place of execution of the contract.
Where is the claim filed depending on the amount of the claim?
– If the debtor is a natural person, then the plaintiff submits a statement of claim either to the magistrate's court or to a district court of general jurisdiction.
Claims to the magistrate's court for property disputes are filed if: – the cost of the claim does not exceed 50 thousand rubles; – for property disputes arising in the field of consumer protection, with a cost of the claim not exceeding 100 thousand rubles; order, if the amount of claims does not exceed 500 thousand rubles.
What if the bailiffs cannot collect the debt?
– A fairly common situation associated with both the workload of bailiffs and the inefficiency of their work. You can offer several options for resolving this situation: 1 Complaints to a higher official about the action (inaction) of the bailiff-executor, and if the poor-quality and untimely work of the bailiff-executor led to losses of the claimant, then it is possible to file a statement of claim with the court to recover damages from Federal Service of Bailiffs. 2 Determination through the inspection of the Federal Tax Service of the debtor's settlement accounts and presentation of a writ of execution for collection directly to the bank. In the absence of funds, the writ of execution will be in the bank's file cabinet for execution. Upon receipt of money on the current account, they will immediately be debited in favor of the claimant. 3 Submission of an application for declaring the debtor bankrupt. This practice is a modern trend, since it allows you to attract an arbitration manager on commercial terms, who is functionally endowed with a large list of powers to identify the debtor's property, and also has the right to challenge transactions.
What debts cannot be sold to collectors?
– The legislation prohibits the sale of housing and utility debts, alimony obligations, obligations of former spouses arising from divorce or related to compensation for harm to life and health and compensation for moral damage to collection agencies.
That is, the legislation establishes the impossibility of transferring the collection of debts directly closely related to the personality of the debtor, which cannot be written off, including through the bankruptcy procedure (with the exception of housing and communal services debts).