Sample claim for debt collection under a loan agreement in 2021

When to file a claim

Legal entities and individuals enter into various contractual relationships. Loan agreements are drawn up to guarantee the return of transferred funds. Return procedures and remuneration are part of this relationship. They are also written down in the agreement in the form of the return date, the amount of interest and the amount of the penalty. Violation of the conditions leads to civil liability. Situations when one of the parties should file a claim for debt collection under a loan agreement:

the borrower did not repay the funds on time;
a written reminder to the borrower is made and properly executed.

How to collect a debt against a receipt?

A loan agreement between citizens must be concluded in writing if its amount exceeds 10,000 rubles. Confirmation of such an agreement and its terms may be a receipt from the borrower or another document certifying the transfer by the lender of a certain amount of money. The presence of a debt receipt from the lender confirms the borrower’s failure to fulfill the obligation, unless the borrower proves otherwise (clause 2 of Article 408, Article 808 of the Civil Code of the Russian Federation; clause 1 of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on April 13, 2016). If the borrower has not repaid the loan certified by a receipt, we recommend following the following algorithm.

Step 1. Analyze the contents of the receipt

When analyzing the contents of the receipt, we recommend paying attention to the following. 1. Is the receipt the only document confirming the existence of the borrower’s debt and the terms of its return (repayment), or is it issued to confirm the fact of acceptance of the borrowed amount in accordance with the terms of the concluded loan agreement. In the first case, the receipt must contain information about the acceptance of funds as a loan and the borrower’s obligation to repay them, as well as about the lender, the borrower and the loan amount. In the absence of this information, the receipt will not be a document confirming the transfer of a sum of money to the borrower. In the second case, the receipt can only confirm the fact of acceptance of borrowed funds subject to repayment on the terms agreed upon by the parties in the loan agreement (clause 2 of Article 808 of the Civil Code of the Russian Federation; Determination of the Moscow City Court dated April 12, 2017 N 4g-3791/2017). the loan repayment period indicated in the agreement or receipt If specified, the loan amount is subject to repayment within the specified period. If not specified or determined by the moment of demand, the loan amount is subject to repayment within 30 days from the date you submit a demand for its return, unless a different period is established by the loan agreement (clause 1 of Article 810 of the Civil Code of the Russian Federation). 3. Does the receipt contain a condition on the payment of interest for the use of borrowed funds, as well as for non-repayment (late repayment) of the debt amount. As a general rule, if the receipt does not contain a condition on the amount of interest, it is determined based on the key rate of the Bank of Russia in force during the relevant periods (clause 1 of Article 809 of the Civil Code of the Russian Federation).

If the receipt does not provide for the accrual of interest, the loan is considered interest-free provided that its amount does not exceed 100,000 rubles. (clause 4 of article 809 of the Civil Code of the Russian Federation). Clarification of the above circumstances directly affects the volume of your requirements to the borrower, the procedure and features of their presentation.

Step 2. Find out whether bankruptcy proceedings or out-of-court bankruptcy proceedings have been initiated for the borrower

From the date of the arbitration court’s ruling on recognizing as justified the application to declare a citizen bankrupt and the introduction of restructuring of his debts, in particular, the following consequences occur (clause 2 of Article 213.11 of the Law of October 26, 2002 N 127-FZ): • deadline for fulfillment of monetary obligations, arising before the court accepted the application is considered to have occurred; • the accrual of penalties (fines, fines), other financial sanctions and interest on a citizen’s obligations, except for current payments, ceases. To be eligible to collect a debt on a borrower's promissory note, you must be one of the creditors. To be included in the register of creditors' claims, you have the right to present your claims to the borrower within two months from the date of publication of the notice of recognition of the application for declaring him bankrupt as justified (clause 2 of Article 213.8 of Law No. 127-FZ).

Note. The notice of bankruptcy is published in the Kommersant newspaper (clause 1 of the Order of the Government of the Russian Federation dated July 21, 2008 N 1049-r).

Special consequences also arise if the borrower, starting from 09/01/2020, files an application for declaring him bankrupt out of court (Article 1, 4 of the Law of 07/31/2020 N 289-FZ).

Thus, in particular, from the date of inclusion of information about the initiation of an extrajudicial bankruptcy procedure for a citizen in the Unified Federal Register of Information on Bankruptcy, a moratorium is introduced on satisfying the claims of creditors indicated by the borrower in the application for declaring him bankrupt, and the execution of enforcement documents on property collections from him is suspended (p Clauses 1, 2, Article 223.4 of Law No. 127-FZ).

Step 3. Apply to the court

As a general rule, a statement of claim is filed with the court at the defendant’s place of residence. After the court decision comes into force, you will be issued a writ of execution. Also, at your request, a writ of execution can be sent for execution directly by the court (Article 28, Part 1, Article 428 of the Code of Civil Procedure of the Russian Federation). If the amount of the borrower’s debt does not exceed 500 thousand rubles, and the claim itself is based on a transaction executed in writing (loan agreement or promissory note), you have the right to apply for a court order to the magistrate at the debtor’s place of residence. A court order is at the same time an executive document (clause 1, part 1, article 23, art. 121, 122, clause 1, article 123 of the Code of Civil Procedure of the Russian Federation).

Note! To ensure economic stability, in exceptional cases, the Government of the Russian Federation has the right to introduce a moratorium on the initiation of bankruptcy cases based on applications from creditors. For the duration of the moratorium, in particular, enforcement proceedings on property penalties for claims that arose before the introduction of the moratorium are suspended. At the same time, a person can declare a refusal to apply a moratorium against him (Clause 1, Clause 4, Clause 3, Article 9.1 of Law No. 127-FZ; Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 24, 2020 No. 44).

When filing a claim or application for a court order, a state fee must be paid (Article 88, paragraph 2 of Article 123 of the Code of Civil Procedure of the Russian Federation; Article 333.19 of the Tax Code of the Russian Federation).

Note! The interest that you receive in excess of the amount of the repaid loan is an economic benefit, subject to personal income tax on a general basis at a rate of 13%, and received from 01/01/2021 in excess of 5 million rubles - at a rate of 15% (Article 41 , 209, clause 1, article 224 of the Tax Code of the Russian Federation; clauses 1, 10, article 1, part 2, article 2 of the Law of November 23, 2020 N 372-FZ).

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Email address for correspondence: [email protected]

Who files the claim and where?

In which court is a claim for debt collection under a loan agreement heard?

magistrate's court - if the claim does not exceed 50,000 rubles;
court of general jurisdiction - when the amount of claims exceeds 50,000 rubles;
arbitration - regardless of the amount, if the parties are legal entities;
arbitration court - if the contract includes an arbitration agreement.

Territorial jurisdiction:

court at the place of its own registration;
the court at the place of registration of the defendant, if the creditor is a legal entity.

Claims related to the return of funds are subject to the provisions of Art. 196 of the Civil Code of the Russian Federation on the general limitation periods. It is 3 years.

In other cases, the limitation period is extended at the request of the plaintiff if there are valid reasons (clause 8 of the resolution of the plenum of the RF Armed Forces No. 13 of June 19, 2012).

A package of documents in the magistrate's court and the court of general jurisdiction

To submit an application to a court of general jurisdiction/magistrates' court, a claim must be filed. It is compiled according to the number of defendants, another separate copy is for the court. The list of mandatory components includes calculating the amount of debt. If a penalty is charged, detailed calculation information will also be needed. A description of the amount owed is attached on a separate sheet.

You will also need a copy of the minutes of the general meeting of owners on the selection of a management company or a copy of the minutes on the selection of the chairman of the board. Instead of these documents, the claim may be accompanied by an extract from the minutes of the general meeting, the required details:

the name of the document is “Extract from the minutes of the general meeting”;
name of the homeowners association or housing construction cooperative;
questions regarding the choice of management organization.

The extract is issued for a specific date. It is endorsed as follows: “The extract was compiled as of....., the extract is correct.” The document is signed by the chairman of the board or general director of the management company. An extract from the minutes of the board of directors is prepared in a similar manner. The claim is filed by the organization, therefore the following documents are attached to the claim:

a copy of the certificate of the main state registration number;
an identification number;
payment order for payment of state duty.

The program implements a mechanism for batch sending of documents, which will not allow you to send a batch of documents if any of the documents are not attached.

How to file a claim

The claim form for refund of funds is not approved by law. A claim is filed against the defaulter under the loan in any form, but in compliance with the requirements.

The general procedure for the relationship between the parties to loans (between individuals, between legal entities, between legal entities and individuals) is determined in Chapter. 42 of the Civil Code of the Russian Federation.

The monetary, evidentiary component of the claim is prepared on the basis of a loan agreement. Its conditions are the basis for the formation of informational and motivated parts.

What form does a claim to recover the loan amount from the borrower have?

title;
information part;
motivated part;
conclusion.

Write in the title:

court details (name and address);
information about the plaintiff (full name, passport details, information about place of residence and registration, contacts);
full information about the defendant.

The information part is key. Please describe in detail:

the situation and circumstances as a result of which the subject of the claim for the return of money was formed;
the reason for the appeal is the defendant’s refusal to voluntarily return money, pay compensation, debt, damage, etc.

The motivated part is the consequences of violating the terms of repayment of loan funds:

the size of the monetary claim for the principal amount of the debt;
calculation of penalties and penalties under the terms of the contract;
calculation of the damage incurred (sometimes the plaintiff suffers financial losses due to the borrower’s non-repayment of the debt);
petition. It must contain a list of requests to the court - return of the loan, interest, compensation for losses.

In conclusion, summarize:

enter additional information confirming the validity of the judicial appeal;
list all attached documents, certificates, copies, conclusions. receipts;
sign and date.

When not to go to court

There are cases in which going to court to recover a debt from an individual against a receipt is not practical. Among them:

Declaring the defendant bankrupt. In this case, the debt cannot be collected from an individual, since the citizen is officially declared insolvent.
Absence of the borrower's signature on the receipt.
Incorrectly drawn up loan agreement.
The receipt was printed on a computer and only bears the signature of the borrower and the plaintiff. The defendant may file a counterclaim claiming that the autograph was placed on a blank sheet of paper. Moreover, if there were no witnesses present during the process of signing and transferring money.
Loan less than RUB 5,000.

In these situations, it makes sense to draw up a voluntary agreement. The parties can find a compromise solution by making some concessions.

If the debtor is hiding

If the borrower does not get in touch, then the debt can be repaid on the receipt through the court. There is no need to waste time and money searching for the debtor on your own. Russian legislation makes a court decision in the absence of the defendant. The result of the consideration of the case is the transfer of a court order or a default judgment to the plaintiff.

Bailiffs have more opportunities to find the debtor. The court decision is valid until full execution. The plaintiff must promptly extend or suspend enforcement proceedings.

Debt collection

It is advisable that the collection of the debt amount be carried out pre-trial. To do this, creditors hire experienced lawyers who know what arguments will influence the defendant. Any actions on the part of the lawyer in relation to the debtor are also documented. If you propose new terms for debt repayment, they should be put in writing and sent by registered mail.

You must go to court in the following cases:

if the debtor refuses his obligations;
if phased payments have ceased;
if the debtor has repaid the entire loan amount, but does not want to pay interest.

Debt collection procedure

The court hands over the writ of execution to the bailiffs. They notify the defendant that he must repay the debt within 5 days. If this does not happen, a list of the debtor's property is formed. It is subject to seizure and sale at auction. Before the start of bidding, the defendant has another 5 days to pay the obligations. This is the procedure for debt collection. In practice, it often turns out that the debtor has no property, does not work, and does not have a bank account. The maximum that the bailiff can do in this case is to prohibit the persistent defaulter from leaving the country.

In what situations must a receipt be written?

Guided by the provisions of part one of Article 808 of the Civil Code of the Russian Federation, when concluding a loan agreement for individuals, it is necessary to use a written form if its amount exceeds ten times the amount of the minimum wage.
If the lender is a legal entity, then this amount no longer depends on the minimum wage and is equal to 1000 rubles. When collecting a credit debt using a receipt of a generally recognized form, there is no mandatory requirement to enter passport data. At the same time, for better reliability it is still worth indicating them. Filing a statement of claim to the court regarding the collection of credit debt under this document occurs in accordance with the general procedure established by Article One Hundred and Thirty-First of the Civil Procedure Code of the Russian Federation.

Procedure for the trial

Repayment of debt under a receipt through a magistrate or district court is carried out according to the following algorithm:

The court begins preparations for the hearing.
The defendant, who is also the debtor, receives a copy of the statement of claim.
The parties are assigned a date for a preliminary hearing.
The plaintiff and defendant arrive in court and express their opinions on the current situation.
Legal advisers submit petitions and, if necessary, order a graphological examination.
After examining the evidence base, presenting a document confirming the debt, and hearing debates, the court makes a decision.
If the plaintiff's lawyer proves the debtor's violation of obligations, then the judge indicates in the decision the amount to be collected.
The borrower has 30 days to file an appeal. After the specified period, the court decision comes into force and collection begins.

In case of consideration of a case regarding a bank loan, the procedure for the proceedings does not change. The fact of the loan is confirmed by a signed agreement. In the case of a private loan, this document is a receipt. In the absence of a receipt, proof requires the presence of witnesses who saw the fact of the transfer of money.

The following are considered evidence of a loan:

Internet correspondence with an obligation to return money;
SMS messages confirming the plaintiff’s words;
audio and video recordings of the obligation to repay the loan.

After the end of the proceedings, the creditor receives a writ of execution or an order for the forced return of money. The document is submitted to the bailiffs to select the most favorable method of debt repayment.

Effective methods:

seizure of property and subsequent sale at auction;
debiting a certain amount from the borrower’s salary;
debiting money from a bank account, if you have one;
transfer of a writ of execution to an educational institution or pension fund.

The law allows 2 months for taking executive measures to repay the debt. As practice shows, the refund process can take a long time.

Debt collection service

The executive service or debt collection service is a court whose main function is to monitor the implementation of the court decision. But it is not always beneficial for the creditor to bring the case to court, so often the injured party, who is waiting for the debt to be repaid, turns to debt collectors. The activities of such companies in our country are officially permitted. Its employees use harsh but legal methods of influencing debtors. Under such psychological pressure, many give up and repay their debts.

Claim for debt collection under the contract

Before going to court, especially arbitration, it is necessary to comply with the claims procedure, i.e. before the trial, contact the debtor with a demand for repayment of the debt.

A claim is something like a future lawsuit. What does the claim include?

The claim must contain information about who it is addressed to, i.e. details of the debtor, full name or name, if it is a legal entity, address of the debtor. You can specify a phone number, email address, INN for the organization.
The claim must be clear from whom it is being sent, i.e. data of the creditor, claimant, future plaintiff.
Most often, claims are printed with the organization’s stamp, which includes the date and number, i.e. information about the internal registration of such a claim.
The document can be called a “claim”. Although the title of the document does not play a big role, the main thing is that it follows from the text that this is a claim.
The text of the claim, as a rule, sets out the circumstances of the formation of the debt, i.e. when, between whom, what the agreement was concluded about, what violations were committed by the debtors that led to the formation of debt, debt calculation. The rules of law on the obligation to properly fulfill assumed obligations, etc. are indicated.
The petition part indicates the requirements of the creditor, i.e. what amount the debtor must return and pay to the creditor. You can specify by what date the return must be made. IMPORTANT: in some courts, most often in the Moscow Arbitration Court, the plaintiff may be refused to accept the claim due to failure to comply with the claim procedure, on the grounds that the requirements in the claim and the demands in the claim differ, for example, in amount. Therefore, it is very important to clearly formulate your requirements in the claim and then duplicate them in the claim.
After the requirements, you can make a reference to the rule of law establishing the period for consideration of the claim or to the clause of the contract that regulates the period for responding to the claim.
At the end of the claim, information is indicated about who is signing the claim and putting a signature.

USEFUL: watch also the video with additional advice from a lawyer on filing a claim