Debt collection rules. Who and how can demand repayment of the debt from you?

Who can claim debt repayment

We will immediately identify organizations that have every right to collect debt on credits or loans. These include:

• Lender - the bank or microfinance organization where the loan was taken;
• The new creditor is the bank or collection agency that purchased the debt;
• Legal and legal organizations that represent the interests of the creditor and collect debt through the court;
• Arbitration managers are specialists in repaying credit debt through court or other means.

Who is a collector? This is an intermediary between the organization to which you owe money and you. It can be encountered at the pre-trial stage of the proceedings.

Any other organizations do not have the right to demand repayment of the debt from you. If individuals and organizations not included in the list are trying to force you to pay money, feel free to file a complaint with the police.

Lack of laws regulating the legal mechanism of indexing

According to these provisions of procedural legislation, the court that heard the case may make indexation in cases and in the amounts provided for by federal law or agreement. And with this seemingly clear formulation, problems arose in practice. The fact is that these provisions refer to another law. But at present, federal laws regulating the legal mechanism for indexing sums of money collected by the court are simply absent in Russia.

The existing law enforcement practice on this issue indicates that Part 1 of Article 208 of the Code of Civil Procedure of the Russian Federation and Part 1 of Article 183 of the Arbitration Procedure Code of the Russian Federation serve as the basis for courts to refuse claims of claimants for indexation of awarded sums of money due to the absence of a federal law or contractual clause, providing for such indexing. Thus, the claimant finds himself in a situation where losses from depreciation of the awarded sums of money incurred by the claimant may remain unreimbursed.

Types of debt collection

Now let’s look at legal types of debt collection in Russia.

Pre-trial collection

Pre-trial collection is handled by the creditor bank. Bank employees, together with the debtor, are looking for acceptable ways to repay the debt. Pre-trial collection consists of the following communication:

• Personal meetings with the debtor;
• Telephone calls and correspondence with the borrower;
• Sending SMS messages.

In the case of pre-trial debt collection, the lender directly contacts the borrower and discusses the procedure for returning the money without involving the court. The result of negotiations may be debt restructuring, extension of the repayment period, or other solutions. This is the most acceptable way to repay a loan for both the bank and the debtor. And if you have accumulated debt, it is better to solve the problem with the bank without involving third parties.

Judicial collection

The creditor bank applies to the court for repayment of the debt. During the proceedings, the judge may take the side of the borrower or the lender. If the lending agreement is concluded correctly, then the court will always side with the bank and oblige you to repay the debt within the prescribed period.

By court decision, the bank will receive a writ of execution and hand it over to the bailiffs.

To repay a debt to the bank, bailiffs can:

• Arrest your housing and transport;
• Seize and sell household appliances and valuables at auction. The proceeds will be used to pay off the debt.

Extrajudicial collection

The creditor bank may transfer the debt to other organizations that will collect it. These may be other banks or microfinance organizations, as well as collection agencies, arbitration specialists (employees of law firms) who specialize exclusively in debt collection.

Half of the money received from you will be used to pay off the debt to the borrowing bank, the second - to pay for the services of organizations that collect the debt.

Forced collection

Bailiffs, who, by court decision, will describe and confiscate property or valuables, as well as collection agencies, can forcibly take away property from the debtor.

Compulsory penalties are carried out only after a court decision. Without a decision, it is impossible to forcibly describe and seize property.

After the court decision comes into force, the debtor will be given a period within which he must return the funds to the bank or microfinance organization. If this does not happen, then a forced collection procedure begins, which is carried out by bailiffs.

How is forced collection carried out?

1. Seizure of property. Bailiffs can seize property that belongs to the debtor. That is, you will be deprived of the right to dispose of an apartment, dacha, car or anything else. After legal proceedings, the seized property can be sold at auction or transferred into the ownership of the creditor bank.
2. Withholding part of your salary or pension. The court may order the employer or government authorities to withhold part of the amount from the debtor's salary or pension towards repayment.
3. Deprivation of rights to property. For example, the debtor disposes of securities and shares that can be confiscated in favor of the bank.
4. Foreign citizens who have not repaid the debt may be expelled from the Russian Federation.

Property that cannot be seized

• Maternity capital, childbirth benefits and other payments to mothers;
• Any property that belongs to the debtor’s relatives;
• Housing (house, land, apartment), if they are the debtor’s only place of residence;
• Food;
• Equipment and technology that is necessary for work.

Indexation of monetary amounts as compensation for the impact of inflation

To compensate for the impact of inflation on the property legal relations that develop between the claimant and the debtor who has not fulfilled the obligations imposed on him by a court decision in a timely manner, the indexation of sums of money awarded by the court, provided for by procedural legislation (Part 1 of Article 208 of the Code of Civil Procedure of the Russian Federation, Part 1 of Article 183) is intended Agroindustrial Complex of the Russian Federation).

Indexation is not regarded by law as a measure of the debtor’s liability for improper fulfillment of a monetary obligation and is applied regardless of the guilt of the person obligated to pay the funds for delaying their payment. The only basis for indexing the collected amounts is their depreciation on the day of the actual execution of the court decision. Therefore, the application of sanctions to the debtor, which are a measure of the debtor’s civil liability for non-fulfillment or improper fulfillment of an obligation in the form of fines, penalties, interest, does not exclude the possibility of the court using the indexation mechanism.

Debt collection methods

When it comes to debt collectors and bailiffs, many borrowers remember the horrors that are regularly shown on television. Indeed, some collection agencies operate using illegal methods, and this is a reason to sue them.

Legal methods

The law allows the following methods of debt collection:

• Personal meetings with the borrower, negotiations with him;
• Phone calls, SMS messages;
• Emails;
• Telegrams and letters sent by mail;

Illegal methods

Now you will find out when and how many times a day collectors, bank employees and other authorized people can call.

Illegal methods include:

• Any contacts of collectors or bank employees from 22:00 to 8:00;
• Any contacts on holidays before 09:00 and after 23:00;
• Personal meetings with the debtor more than once a week;
• Threats and insults;
• Pressure on the borrower’s loved ones, his relatives and children;
• Dissemination of false information about the borrower on social networks or other information sources;
• Damage to property.

Attention!

If you encounter at least one type of illegal debt collection by debt collectors, immediately contact the police with a corresponding statement. Don’t expect debt collectors to come to their senses and stop terrorizing your family and you.

The “Credit Lawyer” website recommends making the most detailed application to debt collectors.

Obtaining a court decision by the plaintiff

At the end of the civil trial, at the last meeting, the judge announces the operative part of the decision on the case. In other words, it makes a verdict - to satisfy the plaintiff’s demands in whole or in part, or to refuse to satisfy them altogether. However, enforcement proceedings in your case will begin only when you and the defendant receive a reasoned court decision, drawn up in writing and in accordance with all legal requirements.

To prepare it, according to Article 199 of the Code of Civil Procedure of the Russian Federation (Civil Procedure Code of the Russian Federation), the judge is given 5 days. However, due to the workload of the court, the holiday season or other reasons, a reasoned decision may take much longer to prepare. After 5 days, you have the right to file a complaint addressed to the chairman of the court and thus speed up the process. The name of the court chairman will be given to you by telephone at the court office.

But first, check: perhaps the court decision has already been sent to you by mail. You can find out by phone or online. How to view the court's decision on the Internet, read here. You can receive a reasoned decision on your case by mail or in person at the courthouse. The last option is much faster. The main thing is to warn us when you are coming to get the decision so that it is not sent with other documentation by mail.

The Civil Procedure Code (Civil Procedure Code of the Russian Federation, Articles 209, 321, 322) gives both the defendant and the plaintiff the opportunity to appeal the court decision. If the defendant is dissatisfied with the outcome of the trial, he files an appeal, and if the plaintiff, then a cassation appeal. As a result, even in the absence of an appeal or cassation, the court decision comes into force only a month after it is formalized in writing.

If the defendant wants to challenge the court’s decision, then two options are possible: either the satisfaction of his appeal and the appointment of a new trial in the case, or the refusal of a new trial. You can find out more about this in our material “How to challenge a court decision.”

Remember

1. Only bailiffs can collect debt and only after receiving a court decision. This can also be done by the creditor bank, collection agencies and law firms that specialize in the recovery of debts from microfinance organizations and banks.
2. The bank can begin collecting the debt after the first late payment. As for litigation, the statute of limitations for outstanding loans is three years. What does it mean? The bank can sue the debtor within three years. True, there is one flaw in the law - the starting date or event about which time should be counted is not indicated. Banks take advantage of this and can file a lawsuit at any time.
3. Collectors may only use legal methods of debt collection. If you suffer from the actions of a debt collector, you are constantly threatened, your property is damaged, feel free to contact the police. Record all telephone calls, save letters, call the local police officer in case of damage to things and property by collectors. You will provide all this evidence of the collection agency’s illegal activities to the court.
4. Try to pay off the debt yourself. Do not involve anti-collectors for help. Their activities are not fully regulated by law. For collaborating with anti-collectors, you may be accused of fraud and a criminal case may be opened.

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How bailiffs will collect debts in 2021

The State Duma of the Russian Federation is considering 9 bills that would improve the work of the bailiff service, in particular, amendments to the law “On Enforcement Proceedings”, according to which a simplified procedure for collecting administrative fines that does not exceed three thousand rubles is introduced. The terms for their voluntary repayment will be shortened, the procedure for notifying the debtor will be simplified - sending a resolution through the public services portal and via SMS will become legitimate. After the end of the voluntary repayment period, which is reduced from the current five to two days, the bailiffs, without initiating enforcement proceedings, will send a request to the bank to write off the amount of the fine plus an enforcement fee of 1,000 rubles from the debtor’s account.

This, according to the authors of the bill, should relieve bailiffs from a large amount of routine work and allow them to pay more attention to the execution of court decisions, for example, on the collection of alimony.

CALCULATION OF RETENTION BY WILL OF EXECUTION

According to the general rule, deductions from wages made by the employer due to the rights granted to him cannot exceed 20 percent (Article 138 of the Labor Code of the Russian Federation).

However, when deducting under writs of execution, more than 50 percent of wages and other income cannot be withheld from the employee until the collected amounts are fully repaid (Article 138 of the Labor Code of the Russian Federation; Part 2 of Article 99 of Law No. 229-FZ; letter of Rostrud dated December 19. 2007 No. 5204-6-0).

When collecting alimony for minor children, compensation for harm caused to health, compensation for harm in connection with the death of the breadwinner and compensation for damage caused by a crime, the withholding cannot exceed 70 percent (Article 138 of the Labor Code of the Russian Federation; Part 3 of Article 99 of Law No. 229- Federal Law).

The amount of deduction is calculated from net income, that is, after personal income tax (Clause 1, Article 210 of the Tax Code of the Russian Federation).

When calculating personal income tax, it is necessary to take into account that an employee who pays child support has the right to provide him with a standard tax deduction (subparagraph 4, paragraph 1, article 218 of the Tax Code of the Russian Federation; letter of the Ministry of Finance of Russia dated October 11, 2012 No. 03-04-05/8 -1179).

When determining the basis for calculating alimony, the income from which it is withheld is reduced only by the amount of personal income tax that is part of this income.

Let's look at an example:

The debtor's employer received two orders from the bailiff service for one employee: the first - on the collection of child support in the amount of 25% of the salary, the second - on the collection of tax sanctions in the amount of 50% of the salary. The company is the employee's main place of work. The debt on property taxes is 15,000 rubles.

For April 2021, the employee received a salary of 30,000 rubles. The amount of personal income tax subject to withholding is equal to:

30,000 rub. x 13% = 3900 rub.

The amount of withholding under the first writ of execution was:

(30,000 rub. - 3,900 rub.) x 25% = 6,525 rub.

The amount of recovery under the second writ of execution is 50%:

(30,000 rub. - 3,900 rub.) x 50% = 13,050 rub.