Debt collection against a receipt from an individual. faces in 2021: order and timing

Just 10 years ago, promissory notes were almost never found in nature. Our Russian mentality perceives any official pieces of paper as unnecessary bureaucracy, for which a normal person should be ashamed. Or, at least, it’s inconvenient, because “that’s not how decent people do things.” Like, we are related, among ourselves, what should we share...

But debtors begin to sing differently when the date for repayment arrives. The creditor, who was previously ashamed of forcing the person to write a receipt, suddenly realizes that only this document can now help him collect the debt from another person. And he feels like a lucky man who miraculously escaped from great trouble.

What role does a receipt play when repaying a debt?

IOU

is a document written by hand. The text in the document confirms that one party lent the other a certain amount of money, and that the borrower undertakes to repay the funds within a strictly specified time frame.

The document is direct evidence of the debt. It is a key factor in the legal process. Receipts confirmed by notarization are especially valued, although the law does not force private creditors to contact notaries. But in the legal process, this will help speed things up.

Interestingly, creditors who did not require a receipt also have a chance to return the money. But in this case it will be more difficult to return the money.

The difference in debt collection with and without a receipt is as follows.

If there is a promissory note	In the absence of a promissory note
Proof	The receipt itself confirms the fact of the debt	Other evidence of debt is needed: recognition by the debtor himself, witnesses, money transfers based on a bank card statement, and so on.
Collection process	Through the order	Through enforcement proceedings by bailiffs
Deadlines	You can get a court decision in a few days	The process will take a long time, and challenges to higher authorities are possible.

Without a receipt, collecting a debt is very difficult.

Certification of a receipt by a notary

In fact, a receipt certified by a notary means the drawing up of a loan agreement that can be notarized. You will have to pay a fee for services. If the debtor refuses to repay the loan, the creditor does not need to go to court. It is enough to obtain a writ of execution from a notary. With this inscription you can go to the executive service. To protect yourself as much as possible from losing money, the lender can additionally draw up and notarize a pledge agreement for the debtor’s property.

What should the receipt look like?

In order for the receipt to become conclusive evidence of the existence of a debt, you must follow several rules for its execution:

Place and date of document preparation. We indicate the city and date when it was written.
Information about the parties. Here you must indicate the full name and passport details of both parties. If an entrepreneur is involved in the relationship, you can additionally indicate his OGRNIP and TIN.
The amount of monetary debt and currency. Both numbers and the amount in words are indicated.
Information about the conditions. The justification is indicated - for example, borrowing money, transferring an advance payment, prepayment for some services, and so on. You can also specify obligations - for example, return within 2 months in equal parts. At the same time, return deadlines and other clarifications are established.
If desired, you can specify the purpose of the debt: for example, the purchase of real estate, payment for certain services.
Additionally, the creditor has the right to specify a fee for using someone else’s money, as a percentage or a fixed amount. Of course, within reasonable limits, otherwise it will be difficult to recover compensation for use in a lawsuit.
Return conditions. The creditor may indicate his bank account or set other rules for the return of what was received.
Signatures of the parties.

The document can be drawn up on a computer and printed on a printer, but it is more correct for the lender if it is drawn up manually - and the borrower must fill out the receipt. If necessary, then, if the debtor refuses to recognize the receipt, a handwriting examination can be carried out, which will confirm that the receipt was written by the person who borrowed the money.

By the way, the latter often then try to disown the debt in court - such nuances as a manually drawn up receipt are very helpful to a conscientious creditor.

Notarization of the receipt will not be superfluous. This service involves additional expenses, but they are fully justified by minimizing risks.

In what cases do borrowers not return funds?

These reasons are the following facts:

If the borrower has no funds.
If the borrower hopes that this document does not have legal force.
If the borrower tries to stretch out the time to repay the debt.
If he hopes that after a couple of attempts to return his money, the lender will lag behind the careless borrower and turn a blind eye.
Various other options are also possible in which the borrower does not return the borrowed funds to their owner. In such a matter, a trial (usually a judicial one) is required.

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For variety, we present below possible methods of collection.

Peaceful solution to the issue

You go to the debtor and try to negotiate a return without going to court.

Let's imagine the situation. You gave a distant relative $20,000 against a receipt for home renovations. The return period is 2 years. Ok, 24 months are up, you wait, but nothing happens. A relative does not answer the phone, although you know where he works and where he lives.

You go to him and appeal to his conscience. He lowers his eyes to the floor and says something like “maybe I’ll give it back later, there’s no money now, his wife is pregnant, the cow is sick, the roof is leaking in the barn,” and so on.

There are two possible options:

you are trying to get into a position and draw up an additional agreement under which he will return the money to you, say, in a year;
you understand that no one is going to repay your debt voluntarily, and you are thinking about further actions.

In practice, additional expectations, agreements and attempts to resolve the issue peacefully do not bring results if the debtor a priori does not want to return the money. You will only lose time, your money and faith in people.

Submitting official claims

This is already a more effective method. If your debt is not returned within the stipulated time, you can file a formal claim and send it to the person’s place of residence.

The claim must:

indicate legal norms for debt claims, referring to them;
demand a refund;
indicate further intentions - that you are going to forcibly recover the money through the court.

It is better to draw up a claim with lawyers and send it by registered mail. Be sure to keep the second copy with you and wait for the mail notification - it can be attached to the statement of claim as a supporting document.

If the debtor does not return the money after receiving an official complaint, you can prepare documents for the court.

Appeal to the court of first instance

Proceedings should begin if, within 30 days of receiving the claim, the debtor has not contacted you and has not repaid the debt.

You can contact:

to the magistrate's court;
to a court of general jurisdiction.

As a rule, they usually go to the magistrate's court - the case is considered in a shortened time, and the creditor receives a court order. The order has the force of a full court decision. It allows you to start enforcement proceedings and return the money on receipt through bailiffs.

Obtaining a notary's executor's inscription

The return method is used if the debt document was notarized.

All you need to do is contact a notary and submit a package of documents for verification. After a thorough analysis, the notary will issue a writ of execution, with which you can contact the bailiffs at the FSSP.

Contacting third parties to draw up an agreement for the assignment of the right of claim or enforcement

We are talking about collection agencies that professionally collect overdue debts.

Note that this method works 100% only in the bank-collector chain, where the sale of overdue loans is carried out in bulk. Collectors do not like to deal with private creditors.

Typically, cooperation with them is carried out on the following conditions:

the creditor turns to the magistrate for an order to settle the debt - sometimes collectors make such demands in order to protect themselves;
the percentage for services will be significantly higher than in the format of cooperation with banks. Collectors may demand at least 40-50% of the money collected from the debtor.

Seeking help from debt collectors will work if the debtor does not pay the money when given the opportunity. Simply put, dynamite in all available ways.

It is possible to collect money through the court using a promissory note

The creditor may initiate foreclosure proceedings based on the promissory note. It is advisable that all the circumstances of the debt registration be indicated there, and that notarization be present.

The procedure for collecting debt by receipt

The law requires that the claims procedure be followed before going to court. This will prove to the court that at least one of the parties tried to resolve the issue peacefully, and the trial is being used as a last resort.

Classic legal regulation provides for the following stages of communication between creditor and debtor:

pre-trial procedure;
judicial procedure for resolving disputes.

To put it in plain language, you need to first warn the person, and then sue the debtor on the receipt. Moreover, many lawyers advise that you MUST comply with the notorious pre-trial order.

But we don't insist. Why? Because the Supreme Court of the Russian Federation, in decision No. 69-KG19-11, directly stated that filing a claim for debt collection by a private creditor automatically constitutes a demand for repayment.

The Supreme Court came to this conclusion while considering case No. 33-5195/2018, which also involved non-repayment of money on a promissory note. The creditor went to court, simultaneously notifying the debtor about this, but lower courts refused to satisfy the claims. They argued that the woman creditor should have followed the claim procedure before applying for a court order to collect the debt on the note.

The Supreme Court took the side of the creditor. He pointed out to the courts a common mistake: it is important to observe pre-trial procedures in arbitration disputes involving organizations and businessmen. But in civil relations between people, formalities are unnecessary.

What follows from this? It is RECOMMENDED to follow the pre-trial procedure, but it is not mandatory.

Pre-trial settlement

When claiming money against a receipt, there is only one situation where compliance with pre-trial procedure is required without exception: the text of the document states that without claim work, going to court will be considered unlawful.

It is rarely possible to obtain repayment of a debt on a receipt without a trial. In reality, the pre-trial procedure is used only to comply with legal requirements.

How to properly organize a pre-trial claim:

A claim is drawn up, which indicates the debtor's unfulfilled obligations under the receipt, the amount of claims, references to legislative norms and the requirement to repay the debt.
Documents for the court are being prepared. If nothing happens within 30 days, the creditor goes to court.

Legal settlement

It involves going to court.

Jurisdiction: the magistrate's court and the court of general jurisdiction.

If the plaintiff chooses the first option, he initiates writ proceedings:

This will be followed by a simplified consideration of the case within 5 days;
he will not have to attend meetings;
the debtor is also not involved in the case;
consideration is carried out on the basis of the submitted package of documents.

Then a court order is issued and sent to the parties. If no objections are received from the defendant within 10 days, the creditor can contact the FSSP and initiate enforcement proceedings.

A court of general jurisdiction is approached if proceedings are pending, if the debtor has challenged the court order by writing an objection. Such processes differ in duration, the need to attend court and other nuances.

From judicial practice

The creditor applied to the authority to collect a debt of 70 thousand rubles from the defendant. A receipt drawn up jointly with the debtor was offered as evidence. The document stated:

the maximum period when the defendant must repay the debt;
collection of money with interest for a specific period;
amount lent.

The defendant did not appear at the collection meeting. The receipt was considered as the main evidence. The debtor, due to her absence, did not deny the authenticity of the document and did not deny the obligation to return the money. The court decided to recover from the defendant the amount of debt specified in the receipt and interest on bank payments in a specific region.

Preparation of procedural documents

In order not to face a refusal to collect a debt on a receipt, you must prepare the documents correctly. You must submit to the court:

Statement of claim in two copies - the second is sent to the debtor.
Receipt for payment of state duty.
Documentary evidence of debt: promissory notes, loan agreements, account statements, a copy of the claim, bank transfers and postal notices.

The key emphasis is on the statement. This is the document that is considered first. How to file a claim?

The statement of claim must include:

We indicate the full names of the parties, passport details, residential addresses, and contacts.
We indicate the name of the court to which we are applying.
In the text of the application we list the violations - delays, lack of payment with references to legislative norms.
We list the circumstances that arose within the framework of relations with the debtor.
We provide a detailed calculation of the requirements - the principal amount of debt, accrued interest and remuneration for unauthorized use of loan money.
We confirm that the claim procedure has been followed.
We list the contents of the attached package of documents.

You must go to court within the period strictly BEFORE the expiration of three years from the moment the delay arose. This is the statute of limitations for debts. If you miss the deadline, the debtor will be able to send a counter-statement - and it will no longer be possible to receive your money on the receipt; the court will close the case based on the debtor’s appeal.

Tips and tricks

Citizens who wish to formalize the obligations that have arisen between them should clearly understand in which case the receipt has legal force, so that later difficulties do not arise. Recommendations for compilation are as follows:

It is best to draw up the document by hand by the creditor, so it will be easy to prove the authorship if you need to file a lawsuit.
It is necessary to write down all the nuances in detail. When, in what amount, and for what purposes was the money provided? Be sure to indicate the date and form of the refund.
The amount of money provided must be indicated not only in numbers, but also in words.
The original receipt is retained until the money is paid in full. If the creditor does not have the original receipt in hand, then he will not be able to go to court.
If the debtor refuses to repay the obligations, then there should be no delay in going to court. The statute of limitations is only 3 years. The deadline can be restored if it has been missed only if there are good reasons.

Debtors who have written a receipt by hand must understand that such a document is identical to its notarized counterpart, and debt obligations must be fulfilled in full. In case of delay, the creditor can collect not only the amount of the debt, but also apply penalties even if the receipt is issued in simple written form.

Makarova Natalya Nikolaevna

Lawyer at the Legal Defense Board. He specializes in administrative and civil cases, compensation for damages from insurance companies, consumer protection, as well as cases related to the illegal demolition of shells and garages.

Cost of debt recovery services

It is recommended to return the money with the help of a law firm. If the debtor does not want to make contact and does not plan to give you the due amount, a lawsuit will most likely be required. Other methods rarely work.

Where and to whom will need to be paid as part of debt collection:

Collection agency. If you use the services of debt collectors, you will have to share part of the collected debt on a receipt. In reality, such cooperation rarely occurs.
Your legal representative. If you do not want to personally deal with this matter, you can involve a legal representative in the process - for example, a lawyer, and pay for his services.
Lawyers. You can use their services one-time - for example, order only consultations or the preparation of an application; Or you can seek comprehensive legal support.

The calculation of the cost of collection is carried out personally, and depends on the amount of debt, the correctness of the debt receipt, the measures taken, the defense strategy and other factors.