Collecting a loan by a bank through the court: advice from lawyers for debtors

There is no law in the Russian Federation that would establish a minimum debt threshold for a creditor to go to court. Theoretically, he can file a claim even with a debt of 1 ruble.

In reality, a financial institution bases itself on several criteria:

1. The feasibility of such a decision. With low chances of repayment and high legal costs, it is easier to assign the debt to collectors and not get involved in litigation.
2. Domestic policy and opportunities. A large credit institution with a staff of lawyers can even compete for 20 thousand rubles. True, with a small debt, the creditor will most likely apply to the justice authority not with a claim, but with an application for obtaining a court order, which will be cheaper and will not take much time (the case is considered by a judge alone within five days, the state fee is 2 times less).

It is impossible to 100% guess which approach a particular bank will choose in a given case.

As practice shows, in the event of a large delay, the borrower will not be able to avoid a lawsuit if the loan:

• long-term and for a large amount;
• issued on collateral (mortgage, car loan).

Reasons for going to court

In order for a creditor to go to court to collect a debt from a borrower, important criteria must be met, which are the same for most banks.

1. The borrower has previously paid more than three times.
2. The borrower answers the phone.
3. Lives at the registration address specified in the loan agreement, but no further than 150 km from the head office or regional branch of the bank.

The bank cannot go to court if the delay is LESS than three months. For loans from 500 thousand, the bank is obliged to provide restructuring. Without this, the claim will not be accepted.

Can a bank make a decision in favor of a client before he contacts the ombudsman?

Of course, not only that, already in the process, when the application is submitted, the bank can satisfy the consumer’s requirements, and he will refuse the claim.

The bank pays fees for applications submitted by clients, i.e. incurs additional costs. If the ombudsman constantly encounters illegal actions in the work of a credit institution, or it regularly refuses to implement the decisions it makes (and the bank is obliged to carry them out), then it risks its reputation - the ombudsman has the right to report violations to the Central Bank, as well as post relevant information on its website .

Conditions for going to court

Loan agreements contain a clause indicating to the borrower where the court hearing will take place if the bank goes to court. This is the location of the head office or representative office in the region.

Before going to court, the bank calls the debtor and finds out the reason for the late payment. If bankers understand that a person cannot pay, then they analyze the debt. A decision on the claim is then made. Litigation is a waste of money; the bank needs confidence that the money will be returned. There are a number of factors that make it clear whether the bank will go to court or sell the debt.

1. The amount of debt is more than 40 thousand rubles.
2. The debtor lives at the registered address.
3. The debtor answers the phone.
4. The borrower made more than three loan payments.
5. The debtor lives within 150 km from the bank's representative office. A credit institution will not go to court if the debtor lives in a closed city, remote village, or military unit.

Loan Default Law

Many borrowers fear that failure to repay a loan may result in criminal liability, including imprisonment. Yes, the Criminal Code of the Russian Federation provides for two articles under which willful defaulters may fall.

Under Art. 177 of the Criminal Code of the Russian Federation “Malicious evasion of repayment of accounts payable” can only apply to those borrowers whose loan amount exceeds 2,250 thousand rubles. It involves punishment in the form of a fine of up to 200 thousand rubles or the amount of salary for a period of up to 18 months, or imprisonment for up to 2 years.

In practice, this article is practically not applied to individuals, since it is almost impossible to prove the “malicious” intentions of the borrower.

Art. 159 of the Criminal Code of the Russian Federation “Fraud” cannot be applied to borrowers who have partially repaid the loan. Even if it is proven that in order to consider the issue of lending, you provided the bank with false information about your salary, this will not at all mean that you planned in advance not to repay the loan.

Our country does not yet have a developed system of criminal punishment for unscrupulous borrowers, so there is no need to fear going to jail for non-payment of loans to individuals.

Should you be afraid of judgment?

No matter how scary and unpleasant the process may seem to the borrower, it allows you to receive certain “dividends”. In some cases, lawyers even advise the debtor to initiate the process on his own.

And that's why:

The court terminates the loan agreement, which stops the accrual of interest and penalties.

1. The debt is fixed and does not increase further.
2. The borrower can reduce the amount of the penalty.
3. You can get something that you couldn’t agree on with the bank: a revision of the terms of the contract (change the payment schedule, carry out restructuring).

To get the desired result, a person will have to make efforts:

• independently, but better with a lawyer, develop tactics for behavior in court;
• collect documents confirming the validity of the requirements;
• file an objection or counterclaim;
• attend every court hearing.

Unlike criminal proceedings, the debtor will have to prove his rightness or innocence himself (Article 56 of the Code of Civil Procedure).

If the debt arose due to a deterioration in the financial situation, it is necessary to present the relevant evidence: a certificate of illness, a dismissal order, a decision of the Central Employment Service to recognize the applicant as unemployed, etc.

If a petition is filed to reduce the penalty, provide well-founded arguments and calculations.

The court will definitely take into account business correspondence with the bank: a copy of the application for restructuring, refinancing and the response received to it.

The issue may also be resolved at a preliminary hearing, during which the judge will offer to make certain concessions and conclude a settlement agreement.

For a borrower experiencing financial difficulties, but trying to fulfill a financial obligation, approaching this issue responsibly, legal proceedings are a good way out of a difficult situation.

A person who ignores monetary demands, the summons and the process itself should be afraid of the court. There is a high probability that the decision will not be in his favor and bailiffs, seizure of accounts, property and other unpleasant consequences will loom on the horizon.

In any case, you can appeal a court decision within a month from the date of issuance to a higher authority, through the court that considered the claim.

Loan restructuring

Restructuring involves changing the current terms of the loan agreement. The bank makes such concessions if it sees that for objective reasons the borrower will not be able to repay the loan on time. This does not mean that all clients who wrote a statement will be given relief. The bank carefully studies each case.

What should you tell the bank if you can’t pay the loan? It is necessary to truthfully describe your financial problems, but in order to receive a positive decision on restructuring, you need to document them. For example, provide the following documents:

• a certificate from the employment service that you are registered as unemployed;
• 2-NDFL, in which there will be a noticeable reduction in wages;
• certificate from a medical institution confirming temporary incapacity for work.

In other words, the bank must see that your problems with repaying the loan are not caused by the fact that you are simply mismanaging your money, but that you have good reasons for this. The bank also does not benefit from the growth of overdue debt; this has a bad effect on its financial performance. He is also interested in helping the borrower get out of a difficult situation and get the debt repaid.

Claim terms

The Central Bank of the Russian Federation recognizes a delay of 90 days as hopeless and recommends that the lender go to court if the borrower has not made payments for three months in a row.

According to Art. 14 clause 2 of Federal Law 353, if there is a two-month delay in loan payments within six months, the bank has the right to demand early repayment of the debt.

Much depends on the debtor himself:

1. If the borrower is hiding, ignoring calls and letters from bank employees, then most likely you need to expect a summons three months after the last non-payment.
2. If a person makes contact, negotiates to renegotiate the terms of the contract or refinance, the bank can delay the application period by up to six months.
3. If the debtor makes at least some feasible payments, the creditor will not rush to resort to legal proceedings, but will simply charge a penalty, it is more profitable for him. But, as soon as the amount of debt reaches a significant value according to the bank’s criteria, he will file a lawsuit.

In any case, before going to court, the bank will try to solve the problem on its own, working with the debtor in several stages:

1. Calls, SMS messages, letters reminding about the debt. Typically, this stage lasts about 2 months.
2. Pre-trial settlement takes about 1 month. The creditor sends the debtor a claim - a document that is essentially a warning to transfer the case to legislative proceedings in case of non-payment.

Thus, the borrower may have at least 3 months left before going to court. up to six months.

Can organizations use the services of an authorized person?

No, only individuals can file a claim of violation of their rights. And there are a number of restrictions for them:

• the amount of the dispute (claim) should not exceed 500 thousand rubles;
• Before submitting the application, the authorized person must submit an application for satisfaction of the claims to the bank, and only if it is ignored or is refused, contact the Ombudsman;
• less than 3 years have passed since the date of violation of the right (or the day when the consumer learned or should have known about the violation);
• The Ombudsman does not consider claims regarding compensation for moral damage or lost profits.

If you have difficulty paying your loan or want to get a better rate, use the refinancing service. It allows you to combine several loans into one, change the term and monthly loan payment to something more comfortable for you, and also reduce the rate and overpayment.

Judgment

The decision that the court will make for non-payment of the loan directly depends on the pre-trial work done by the bank and the borrower.

If the debtor asked for restructuring, documented the deterioration of his financial condition, but was refused, the judge will take this fact into account.

It turns out that the creditor, knowing about the poor financial situation of the person, through his actions or inaction, worsened it even more. In this case, the client of the financial institution can count on the cancellation of part of the penalties and fines, or the transfer of the case to the court regarding the loan will remain without consideration for the bank.

Court order

In 70% of cases, the bank will go to court without notifying the debtor. The judgment will be expressed by order. For debtors, the appearance of bailiffs comes as a complete surprise. Half didn't even know they were being sued.

People don’t know what to do in such a situation, but the order can be canceled independently in one day.

After canceling the order, in 90% of cases the bank will sell the debt to collectors, and in 10% will write a statement of claim.

Statement of claim

The claim cannot be cancelled. But you can get good conditions. The judge can write off the penalty, fix the amount of the debt and give a deferment on loan repayment (up to two years).

Unlike a court order, it is difficult to challenge a claim on your own. There are many individual features that may not be taken into account. The result could be a large amount of debt. Therefore, it is better to consult a lawyer for advice.

What to do after the decision is made

If the bank's demands are satisfied (in whole or in part), a decision will be made. The debtor has two options:

• appeal the decision through the appellate procedure in case of disagreement. The decision of the magistrate is appealed to the district or city court; if the act was adopted immediately in the district court, then the appeal will be considered by the regional court;
• make a court decision . In some cases, filing an appeal only makes sense to delay the process. There are no other reasons, since the decision is fully consistent with the concluded agreement and other circumstances.

A complaint can be filed within thirty days from the date of production of the final version of the decision (Article 321 of the Code of Civil Procedure of the Russian Federation). The document is submitted through the same court that made the decision.

The appeal will not admit new evidence unless it could not have been presented earlier due to circumstances beyond the control of the applicant. This authority will consider how the court previously assessed the facts, law and evidence, and whether this was done correctly.

If the debtor does not want to appeal the decision, then after a month it will enter into legal force. Five days will be given for voluntary execution, after which the bailiff service will handle the collection. A search will be carried out for the debtor's accounts and property. However, if you have contact with the FSSP and the creditor, you can agree on a certain procedure for repaying the debt.

Objection to the bank's statement of claim

An objection is a document in which the debtor expresses complete or partial disagreement with the creditor’s claim, justifying it with references to the law and supporting it with evidence (witness testimony, documents).

There are two forms of objections:

• material;
• procedural.

For example:

• the plaintiff admits the existence of a debt, but does not agree with the amount of the penalty (material);
• The plaintiff considers the defendant’s demands to be unlawful, since the statute of limitations has expired (procedural).

Filing an objection does not require payment of a state fee. There are no specific requirements for document formatting. According to generally accepted rules, it must contain the following points:

1. The header is placed in the upper right corner indicating the details of the court considering the claim and the applicant’s full name.
2. Description. Contains information about the claim (date, number, information about the parties to the case), the fact of disagreement, references to the law, available evidence.
3. The essence of the request. As a rule, it begins with the words “I ask you to refuse to satisfy the plaintiff’s demands.”
4. List of attached documents.
5. Date, signature.

The second and third paragraphs should be brief and meaningful, in an official business style. From the contents of the document, the court must clearly understand the position of the defendant and his arguments.

A sample form can be found at the court office stand.

The defendant has the right to file an objection at any stage of the trial, before a final decision is made, using one of the following methods:

• personally during the process;
• through the court office;
• by registered mail, sent in advance.

The latter option is usually used in preparation for the start of trial.

The document can be presented by:

• defendant;
• a representative who has a notarized power of attorney;
• a third party interested in the outcome of the case.

Often a person, trying to independently defend his interests in court, confuses an objection with a response and a counterclaim. As a result, the court does not grant the request, and the defendant's chances of winning are reduced. Therefore, it is important to understand the difference between these documents.

An objection and a review are the same in form (header, description, requirement), but differ in essence.

A review is a document in which the debtor expresses his position to the court. It does not contain disagreement with the creditor’s claim and is filed when the defendant has no actual objections.

A counterclaim is a document in which the debtor makes a claim against the creditor (for example, to return insurance or an overpaid penalty). It must be drawn up in accordance with the requirements of Art. 131 of the Code of Civil Procedure, you will have to pay a state fee for consideration.

How to prevent a visit from bailiffs

• Restructuring. The client contacts the lender and reports that he is unable to pay the loan under the previous conditions. As a result, the payment schedule is revised, and the amount of the monthly payment decreases and becomes feasible for payment.
• Refinancing. This is possible if the loan was taken out a long time ago, but now a lot has changed, and current conditions make it possible to repay the debt with greater benefit. The loan is recalculated according to the new rules and a new agreement is concluded. True, this is possible if difficulties with payments have just begun.
• Discounts and promotions. For conscientious collection agencies, in particular for EOS, so-called forgiveness actions are typical. During these activities, a person can write off part of the debt, thereby easing the credit burden.

EOS always tries to find a solution that is beneficial for the client. A flexible payment schedule, forgiveness of part of the debt - we do everything to help a person start a new life without obligations.

How to find out if a bank has filed a lawsuit?

There are several ways to find out whether the creditor has appealed to the legal system. It is necessary to understand that most claims relate to writ proceedings and take place without the participation of the defendant.

1. Request information from the bank about the debt.
2. Monitor the situation on the website of the magistrate or district court at least once a month.
3. Monitor the database of enforcement proceedings on the FSSP website at least once a week.

This is enough to keep abreast of what is happening. But the bank may not file a claim at all.

Conditions for imposing a penalty

Bailiffs have the right to withdraw money from a bank account if enforcement proceedings are underway against the debtor to repay the debt. If such a write-off occurs without warning for the debtor, then most likely he did not notify the bailiffs of his location and contacts. Because the bailiffs must inform the debtor about the commencement of enforcement proceedings and, then, about issuing a writ of execution to the recoverer or sending it to the bank. Moreover, such a procedure is mandatory, but solely of a notification nature, that is, the bank does not require consent from the debtor to write off the debtor’s bank card. Failure of the debtor to receive the writ of execution will not be grounds for filing a complaint against the actions of the bailiff if he actually sent the writ to a known place of residence.

Did the bailiffs withdraw money from your salary card?

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Which banks go to court?

Large banks under state control value their reputation and do not cooperate with debt collectors, preferring to collect debt through the courts.

These include, first of all, two serious companies:

Sberbank and VTB24. They file a claim without unnecessary proceedings, if there is a large delay of more than 3 months.

Gazprom and the Bank of Moscow also take a tough position on this issue. They go to court after trying all the stages of pre-trial settlement.

Home credit almost always collects the debt in court. According to borrowers' reviews, the most loyal bank. He waits for payments for about six months, reminding him of the debt with calls and letters; if the debtor ignores it, he turns to the justice authority.

Do not seek to file a claim:

• companies just starting to build up their own assets;
• small financial institutions;
• banks working primarily with retail lending.

As a maximum, the above organizations go to court for a court order. If the borrower cancels, the debt is assigned to a collection agency. This is what Tinkoff Bank does, for example.

How to write an application

It is better to entrust the drafting of a statement of claim to a lawyer - it is more difficult for a person without a specialized education to correctly state the requirements with references to the legislation.

But if this option is not suitable, then you should pay maximum attention to filing a claim and check the correctness of its preparation. How to properly sue a bank so that the application is accepted by the court?

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So, the statement of claim must contain

:

• “Hat” - in the upper left corner you must write down the name of the court - the addressee, all the details of the plaintiff and defendant, the price of the claim. It is better to indicate your contact information as much as possible: address, telephone, email, so that the court secretary can promptly notify about the progress of the application.
• Factual data of the concluded agreement between the plaintiff and defendants - date of conclusion, number, its terms.
• A description of all violations committed by the defendant, indicating which laws were violated by the financial institution.
• Plaintiff's claims.
• List of attached documents.

The completeness of the attached written evidence in support of one’s position guarantees, firstly, the court’s acceptance of the submitted application, and secondly, it increases the chances of satisfying the stated requirements.

If you doubt that your document is compliant, study the sample statements provided or call a lawyer.

What documents to attach

:

1. Copies of the application for all defendants and third parties - at least 3 copies;
2. Receipt confirming payment of the state duty. There is no fee for consumer protection claims;
3. A copy of the passport (or other identity document) of the plaintiff;
4. A copy of the contract and additional agreements;
5. Documents confirming the plaintiff’s claims: claims to the bank, its written responses, receipts, payment documents, account statements, SMS messages, recordings of telephone conversations, letters, etc.;
6. Calculation of the amount to be recovered (your own calculations are also suitable);
7. Documents confirming the authority of the representative (if he is involved in the case).

How much does it cost to sue a bank? The amount of the state duty will depend on the cost of the claim. Use the calculator on the website of the Russian Armed Forces to calculate the amount of the duty.

How to achieve a positive decision

You have drawn up a statement of claim, the court accepted it for proceedings and set a hearing date - it would seem that everything is going well. But it’s too early to relax. There are a number of actions you can take now to increase your chances of a positive outcome.

• Take an active position, otherwise the claim will be considered in your absence, and the financial organization will be able to justify itself. Attend court hearings. You will be able to answer the court's questions during the trial. You are not required to make a long and florid speech. It is enough to competently and clearly state your claims and support them with documents.
• Keep an eye on the documents that the defendant submits during the meeting - there are cases that a bank representative provides an agreement with completely different content, worn out statements, notices that were sent to the wrong address.

If you feel that you do not understand the process, contact a professional lawyer.