Law on collectors. Who are they: bandits or civilized collectors?

Collection activities are legalized in Russia. Therefore, debtors of banks and microfinance organizations may face the actions of debt collectors. It is possible and necessary to fight debt collectors, especially if they exceed their authority and commit illegal actions. We will talk about methods of protection against collectors in this article.

What rights do debt collectors have?

The main points related to collection activities are reflected in Federal Law No. 230-FZ.

Typically, collection agencies are engaged in collecting overdue debt on loans and microloans. The transfer of debt can be carried out under an assignment agreement, and the debtor’s consent is not required. In some cases, collectors may act under a power of attorney on behalf of the bank. These points must be checked, since in other cases collection organizations have no basis for making claims.

Here are the main rights vested in collectors under Law No. 230-FZ:

• interact with the debtor through written demands, calls, SMS, messages via social networks or email (for all types of requests the law sets limits on the number per day, week and month), time of calls and SMS;
• meet with the debtor in person (for this you also need to take into account the restrictions of the law);
• go to court to collect the debt (if the debt has officially been transferred to collectors);
• submit documents to the FSSP for enforcement.

Article 7. Conditions for the implementation of certain methods of interaction with the debtor

1. At the initiative of the creditor or a person acting on his behalf and (or) in his interests, direct interaction with the debtor is not allowed:
2. on weekdays from 22:00 to 8:00 and on weekends and non-working holidays from 20:00 to 9:00 local time at the place of residence or stay of the debtor, known to the creditor and (or) the person acting on his behalf and (or) in his interests;

through personal meetings more than once a week;

3. through telephone conversations:
   • more than once a day;

   more than twice a week;

4. more than eight times a month.

• At the beginning of each case of direct interaction on the initiative of the creditor or a person acting on his behalf and (or) in his interests, the debtor must be informed:

Federal Law “On the protection of the rights and legitimate interests of individuals when carrying out activities to repay overdue debts and on amendments to the Federal Law “On microfinance activities and microfinance organizations” dated 07/03/2016 N 230-FZ

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Note!

The defaulter has the right to refuse to interact with debt collectors. To do this, you must send a written notification to the organization's address. If you do not have information about a collection agency, a representative of the collection agency must explain it to you upon your first contact.

The debtor’s refusal to cooperate does not deprive collectors of the right to go to court and the FSSP.

The collector is the debt collector, and therefore is obliged to confirm the grounds for its transfer from the original creditor. To do this, the debtor must be informed of the date and number of the agreement with the bank or microfinance organization, and provide a calculation of the amount of debt.

Where it all started

The need for professional debt collection arose around the time these same debts began to arise in Russia. Collectors work with those debts that are overdue by more than a month or two - it is customary for them to sell the debt that the creditor has already despaired of collecting. The first collectors in Russia have been working since the 90s of the last century, but they were completely shadow structures - they “worked” with representatives of approximately the same shadow business structures.

Collectors began to come out to the public after retail lending intensified in Russia. It is believed that the professional collection market arose in 2004 - then the bank already needed to collect debts that borrowers did not want to repay voluntarily.

The first to appear was the “Russian Standard Bank Debt Collection Agency” - back in 2001

. In general, Russian Standard has become a pioneer among banks in the segment of retail POS lending in stores. The bank was one of the first to issue loans after an accelerated verification of borrowers, which is why some of the installment plans and loans went to not the most conscientious clients.

But the first professional collection agency (that is, working in the interests of various creditors) appeared in Russia in 2004

– it was the Financial Collection Agency. In just 3 years, there were about 100 such companies, and then no one regulated their activities at all. The maximum way their work was regulated was at the level of self-regulatory organizations (by 2009 there were at least two of them - NAPKA and ARKB).

Samvel Mehrabyan, a lawyer for the “Unified Protection Center” service, told us

, until 2021, there were no special laws regulating the activities of collection agencies - they were guided by “general” legal acts: the Civil Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Federal Law “On Personal Data”.

True, even before this, the two highest courts had their say, and their opinions differed:

• in 2007, the Presidium of the Supreme Arbitration Court decided that banks have the right to sell debts to other companies - even those that are not credit institutions;
• in 2012, the Plenum of the Supreme Court decided that although banks can sell debts, they can only do this with the consent of the debtor.

However, the fact remains that until 2013, the activities of collectors were not regulated at all. Only later was the federal law “On Consumer Credit” adopted, and in it the legislator for the first time prescribed the conditions for collecting debts on such loans:

• banks were officially able to sell borrowers' debts to third parties;
• collectors were prohibited from calling debtors from 22:00 to 08:00 on weekdays and from 20:00 to 09:00 on weekends and holidays.

Later, in 2015, another decision of the Supreme Court appeared - the highest court decided that banks can sell without notice only the debts of those borrowers who have already lost to the bank in court

. But if the issue has not yet been resolved in court, then the borrower must approve the transfer of the debt to the collector - otherwise such a transfer will be considered illegal.

Naturally, with such soft standards, collectors sometimes went beyond the permissible limits. There are widely known cases of telephone and written threats to debtors (the very first collectors from Russian Standard succeeded in this), damage to property (walls in entrances, entrance doors and debtors’ cars) and other cases that often fall under the Criminal Code.

It became clear that such chaos could not continue

, and the authorities began to act much more harshly.

What actions of collectors are unacceptable?

A debt collector is not a bailiff. Therefore, collection agencies cannot engage in enforcement actions, seize or seize property, or impose prohibitions and restrictions. Also, illegal actions of debt collectors include:

• violation of the number, frequency and time of calls, sending letters and SMS;
• any appeals with demands and threats against relatives, close persons or colleagues of the debtor;
• attempts to interact with the debtor if he submitted a written refusal;
• committing illegal actions falling under the Criminal Code of the Russian Federation - unauthorized seizure of property or money, uttering threats, using violence, damaging or destroying things, vehicles and real estate.

General control over collection activities is carried out by the FSSP. Therefore, the bailiffs can and should file a complaint if the collector goes beyond his powers and harasses with calls and letters, despite the refusal to cooperate. If you receive threats, or the collector uses physical force or tries to take away (destroy) property, you need to contact the police.

Psychological impact

Even without physical violence, the debt collector can exert psychological pressure on the debtor himself, his family members and other relatives. These actions may occur:

• in rude conversations on the phone, insults;
• in calls at night or early in the morning, on weekends;
• putting pressure on family members and relatives, including minor children;
• in hidden or indirect threats that are difficult to bring under the article of the Criminal Code of the Russian Federation.

Pressure may consist of leaving inscriptions in the entrance or on the walls of the house demanding repayment of the debt, in an attempt to tell the debtor’s employer or colleagues about financial problems. Even if such actions do not lead to harm to health, the debtor’s normal life will be impossible.

Do debt collectors sue?

Creditors have 3 years to initiate proceedings to enforce debt collection. This applies to:

• banks;
• microfinance organizations and credit cooperatives;
• collection agencies;

Why exactly 3 years? This period is established according to the provisions of Art. 196 of the Civil Code of the Russian Federation is the limitation period for debts. If the creditor does not have time to declare an overdue loan, and does so later than the established deadline, the debtor has the right to file an objection, citing the expired deadlines. The court is obliged to return the application to the creditor and close the case.

But the debt case will not be closed automatically. The borrower must himself declare that the statute of limitations on the case has expired.

Having received a debt for the assignment of the right of claim, collectors try to squeeze everything possible out of the person. Collectors rush to court only after they receive a court order, which the debtor can appeal.

How a court order works:

• after 10 days the order is transferred from the court to the FSSP;
• enforcement proceedings are opened, which are conducted by a certain bailiff;
• The bailiff has a fairly high workload and is often in no hurry to carry out collections.

But even if the bailiff takes the debtor seriously, he is still obliged to act strictly within the framework of No. 229-FZ. His powers include:

1. Ban on traveling abroad. People who cannot pay off a loan usually do not have money to travel abroad, so for many this restriction is purely formal. But if there is a strong desire to visit Turkish resorts, the debtors go to Belarus, and from Minsk they calmly leave for a date to the sea.
2. Collection from income - withdrawal of 50% of wages. The method will not work if the debtor is not employed or works unofficially. Therefore, many debtors try to work according to gray schemes - to receive a minimum amount of income under 2-NDFL, and the rest is in an envelope that the bailiff cannot get to.
3. Arrest, inventory and seizure of property.
   Used as a last resort. Considering that collection agencies are not children whose mothers demand alimony from their unlucky father, bailiffs very rarely apply this measure in relation to credit debts. But even if the creditor turns out to be particularly zealous, in practice it is difficult to recover some property - most debtors have nothing. And what is there cannot be taken away according to the provisions of Art. 446 Code of Civil Procedure of the Russian Federation: a single apartment, furniture, appliances, food.

Taking into account the above realities, collectors go to court when other methods of influencing the debtor have been exhausted. Before this, creditors try to repay the overdue loan on their own.

But if there is nothing to take from the debtor, the collector (like any other creditor) can return the writ of execution to the bailiff many times - for example, if the debtor receives an inheritance or gets an official job. That is, the debtor can get on the debtor’s nerves for a very long time using purely legal methods.

Ways to deal with collectors

Now we will tell you directly about the methods of protection if you are presented with a collection debt. Unfortunately, even a written refusal to interact with debt collectors does not guarantee that they will not continue to ruin the debtor’s life. Therefore, it is not worth waiting patiently until they leave you alone.

Legal protection

As soon as you are faced with claims from creditors or collectors, it is advisable to contact a lawyer. This is not only necessary for immediate protection of rights. The lawyer will explain what options of action can be used in different situations, where to go with complaints and statements. The legislation allows the following methods of legal protection:

• defending interests in the courts - you can get a deferment or installment plan for payments, reduce the amount of the penalty, apply the statute of limitations to the entire debt or for certain periods;
• if you have nothing to pay off your debts, apply for bankruptcy; now this can be done for any amount of debt, but it is advisable to start the procedure with a debt of at least 350 thousand rubles. (because bankruptcy costs are quite high). However, according to the new law, it will be possible to become bankrupt for free, and the debt can be only 50 thousand rubles;
• contacting NAPCA or the prosecutor's office if the collection organization carries out illegal activities.

For example, bankruptcy will stop accruing penalties on the debt, and the procedure will be monitored by the arbitration court and the manager. This eliminates problems if threats are made over the phone, on social networks or in person. In these cases, you need to contact law enforcement agencies.

Protection through law enforcement agencies

The actions of debt collectors may fall under an administrative offense or a criminal offense. Here are several cases when the police are obliged to conduct a pre-investigation check and initiate a criminal case:

• intentional destruction, damage or theft of the debtor's property;
• threats expressed in any way, if they are perceived by debtors as a real danger;
• causing harm to the life and health of the debtor, members of his family or other persons (if significant harm to health is not caused, the collector will be held administratively liable);
• dissemination of defamatory information (through the media, on the Internet, in personal communication with strangers).

All these facts must be stated in a written statement. The police are required to conduct an investigation within three days. If the facts are confirmed, a criminal case will be initiated. The debtor will be recognized as a victim, and the violator will be prosecuted.

Relatives: to whom do you owe

First, let's determine who you may owe alimony to. To do this, it is worth leafing through the Family Code of the Russian Federation. We find the required Chapter V - Alimony obligations of family members. Alimony is paid by blood relatives or persons related by family ties.

Parents must support their minor children, the law says. The amount of obligations has been established. For one child, one quarter of the income is paid, for two - a third, for three or more - half of the income. These obligations will have to be fulfilled even if the court decides to terminate parental rights.

Adult children should take care of parents who need it. Spouses or former spouses also have mutual obligations to pay alimony. For example, a needy ex-spouse, if he became so during the marriage or within a year after its dissolution. Siblings have obligations to support their disabled siblings. They must take care of relatives: grandparents - about their grandchildren and vice versa, pupils - about their teachers, stepdaughters and stepsons - about stepfathers and stepmothers.

Alimony agreement

You can agree to pay alimony orally or in writing. But informal agreements are easy to ignore, because verbal promises cannot be presented to the court. It is better to enter into a written agreement with a notary or establish the amount of alimony in court. In this case, it can only be changed officially by signing a new agreement with a notary. Or through the court. If the party does not fulfill the obligation, then with the notarial agreement you can go to the accounting department where the debtor works, or to the FSPP.

For bailiffs, a notarial agreement on the payment of alimony has the force of an executive document.

Collect through court

Alimony can be established and collected and forcibly - through the court. In this case, there will be a full-fledged trial in which you can present documents, checks, receipts indicating expenses on one side and income on the other.

The payer can give his reasons for reducing the amount of alimony. One of the reasons for reducing child support is if there are other children.

For example, the ex-husband married a second time, another son was born, who also needs to be supported. Previously, the child from the first marriage was the only one and received 25% of the father’s income, but now there is also a dependent. According to the law, if there are two children, 33% of the income can be withheld from the father. Now each son will receive 16.5% of his father's salary. Even if they are in different families.

How to talk to a debt collector correctly?

A conversation with a debt collector can ruin your mood, lead to stress or more serious consequences. If you receive a call after submitting a refusal to engage, file a complaint with NAPCA. If a refusal is not stated, we recommend that you adhere to the following rules when talking:

• always ask the collector to introduce himself, name his organization, its basic data;
• at the slightest manifestation of threats or insults, try to record the conversation, but do not get into an altercation;
• even if you really owe money, try not to directly admit this fact in conversation or in writing (such points can be used to restore the statute of limitations in court);
• You can stop the conversation at any time, since they cannot force you to communicate with the collector.

Calls or personal conversations with any persons other than the debtor himself are unacceptable. If you have given your consent to the collector for a personal meeting, it is advisable to conduct the conversation in front of witnesses and record the conversation. This will reduce the risk of physical violence and will provide evidence in case of misconduct.

We do not recommend agreeing to personal meetings with debt collectors or engaging in lengthy telephone conversations. It is much easier to file for bankruptcy or pursue other protection options than to be constantly stressed.

Another tightening of responsibility?

Now there are such strict rules for debt collectors that legal agencies will definitely not exert psychological pressure or threaten the debtor (although, for example, the threat to sue and collect the entire amount through bailiffs is not exactly a threat). But still, collectors sometimes cross the line of what is permitted and behave inappropriately with the debtor

.

It controls the work of FSSP collectors - and according to official data alone, in 2021 it received 28 thousand complaints about the incorrect behavior of debt collectors. However, as it turned out after a more detailed study, more than half of the requests do not directly concern professional collectors - their work methods were simply adopted by the creditors themselves.

Probably due to strict restrictions on the activities of collectors, creditors (banks, microfinance organizations and even pawnshops) are now trying to collect debts on their own

. And they are still taking advantage of the gap in the legislation - it turns out that strict rules regarding debt collection do not apply to them at all. This will not last long - the State Duma just recently adopted in the first reading a bill that extends liability for incorrect debt collection to any debt collector. Among other things, they now face a fine of up to 500 thousand rubles for violating the rules. Bailiffs will also monitor compliance with the law.

Now the FSSP is going through a difficult stage of reform, and is expected to control collectors even more strictly

. Now the FSSP only maintains a register and identifies facts of violation of the law. But the bill, developed back in 2021, may also entrust bailiffs with the consideration of cases of administrative offenses regarding violations of collection rules. In other words, the bailiffs themselves will identify facts of violation, issue protocols themselves and impose administrative punishment.

For now, this is all complicated by the lack of an appropriate budget and personnel - for new powers the service needs at least 400 more competent employees

(in general, the problem with personnel is one of the main ones in the FSSP). As Samvel Mehrabyan says, the initiative has several problems:

Amendments may be made to the Code of Administrative Offenses regarding the activities of collection departments and collectors - several such proposals have already been submitted to the working group and the State Duma. For example, it is assumed that the bailiff will be able to block the phones of those collectors who cross the boundaries of ethics in a conversation for up to 60 days.

If threats are used against the debtor, the credit institution will be punished with a fine of 50 to 500 thousand rubles. Not through the court, but by the same bailiffs.

But for anything to work, one thing is necessary - the “white” work of collection agencies, and not “fraudulent” SIM cards, from which the debtor is openly intimidated, and does not agree on payment. What can you agree on if the conversation begins with “Hear you” and ends with threats to children? And it is very difficult to track the subscriber, he has already thrown away this SIM card.

Samvel Mehrabyan

, lawyer at the legal service “Unified Defense Center”.

That is, this is all a matter of an uncertain future, as are periodic proposals from deputies and activists to ban the work of collectors altogether.

It was possible to ban the work of collectors only in the Kemerovo region

. In 2021, after one high-profile case, the local governor ordered that such companies stop operating in the region altogether. However, the head of the region cannot have such powers, so the prosecutor’s office later challenged the ban and, in fact, it lost force. Now in the Kemerovo region, collectors work, as in all other regions.

Help through court

If collectors present a debt that has already been outstanding in court, you can apply for a deferment or installment plan. To do this, you need to confirm that the reasons for the request are valid. For example, you can submit documents about dismissal or reduction, a certificate of salary reduction, and confirm the assignment of a disability group.

Since collectors cannot forcibly withhold money from salaries or bank accounts, a determination on deferment or installment plan must be submitted to the FSSP.

Filing for bankruptcy may be the best option, especially if you do not have property to sell. After completion of the procedure, most debts will be written off, which makes any subsequent actions of the collectors illegal. The disadvantage of bankruptcy is the additional costs of paying remuneration to the manager and the risk of losing property.

Calls from collectors after a bankruptcy decision

If the court has officially declared the borrower bankrupt, collectors do not have the right to demand money from the debtor. Such actions are considered illegal. When a former borrower, and now bankrupt, encounters similar behavior, it is necessary to file a statement with the police.

According to Article 163, 330 of the Criminal Code of the Russian Federation, the bankrupt writes a complaint against the company and submits a copy to the prosecutor's office. When a court declares a former debtor bankrupt, no one has the right to demand money from him.

What to do if you didn't take out a loan?

You may face claims from collectors, even if you have already repaid the debt, or have never been late at all. This may be due to the following reasons:

• if errors were made when drawing up the assignment agreement or executive documents (for example, if information about the namesake was incorrectly indicated in the writ of execution);
• if the bank sold the repaid debt to collectors;
• if the collection organization initially collects a non-existent debt.

If you are not a debtor, any actions taken by debt collectors against you are a violation of the law. Immediately contact the police or the FSSP and describe in detail all illegal actions. If a mistake was made by banks or courts, it is necessary to submit a request to eliminate it. Our lawyers will provide you with the necessary assistance in these matters.

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Is it possible to contact bailiffs and collectors at the same time?

The creditor has the right to use any legal means to repay the debt. There are no laws prohibiting simultaneous contact with the FSSP service and a collection agency, but the following nuances must be taken into account:

• Only a creditor who has financial claims confirmed by agreements, a judicial act or other documents can submit an application to the FSSP and collectors;
• bailiffs can only be contacted if there is a writ of execution, while collectors can begin collection at any stage (for example, collectors can provide services for sending claims to debtors, filing a claim and conducting litigation);
• if the creditor sold the debt to collectors, he will not be able to contact the FSSP service (if the bailiff previously initiated an enforcement case, the collector will be replaced or the proceedings will be terminated).

If the creditor decides to sell the debt in full to collectors, the debtor's consent is not required. However, the debtor has the right to know on what basis further collection will be carried out. When presenting claims, collectors will have to confirm such grounds, submit a power of attorney or a debt assignment agreement.

Thus, an option is possible with the simultaneous presentation of demands from bailiffs and collectors. If the debtor repays the debt in full, the bailiffs are obliged to terminate the proceedings. Moreover, if the money was directly transferred to the claimant, or the transfer of money took place through collectors, a supporting document must be submitted to the FSSP (otherwise forced proceedings will be continued according to the general rules).

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Author:

Vladislav Kvitchenko

CEO . Practicing lawyer in the field of bankruptcy of individuals. persons Since 2015, she has been successfully handling insolvency cases. Vladislav is brilliantly versed in bankruptcy law, gives expert comments on legal situations and actively publishes in specialized publications.