How to draw up an agreement for the assignment of the right to claim a debt

Debt assignment agreement - what is it?

A creditor under a monetary or other obligation may transfer his rights to another person.
Such a transfer is formalized by an assignment of rights agreement, which in legal language is called an assignment agreement. The original creditor transferring rights is called the assignor, and the new creditor is called the assignee. Assignment agreements can be concluded by both individuals and organizations. The need to transfer the debt to another creditor may be caused by various reasons (for example, reluctance to collect the debt through the court). A typical example of an assignment is the transfer of debt under a loan agreement to a collection agency.

As a rule, the assignment of the right to claim a debt is compensated, that is, the new creditor pays the original creditor a fee, the amount of which is specified by agreement between them. The amount of such payment is most often less than the amount of the transferred debt, because otherwise the new creditor will have no reason to purchase the debt. At the same time, the law does not prohibit the gratuitous assignment of the right of claim to a new creditor.

What and how can you transfer

Article 382 states that assignment can be made by transaction or by law. In the first case, we mean obligations under any contractual relationship. For the second there is a specific list given in Article 387:

1. Universal succession. For individuals this is inheritance. A legal entity becomes the legal successor of another during reorganization.
2. Cession by court decision.
3. Guarantee. If the guarantor personally fulfills the obligations of the debtor, then the latter’s capabilities also pass to him.
4. Subrogation. If the insurance company pays compensation to the injured party, then it must collect compensation from the culprit, and not the victim.

The debtor's consent to the assignment is not required. However, until the assignee provides him with evidence of the replacement of the creditor, the debtor is not obliged to fulfill the obligation to him. This is enshrined in Article 385 of the Civil Code of the Russian Federation.

Article 383 prohibits succession in relationships where the identity of the recipient is of fundamental importance. First of all, this is the payment of alimony and compensation for physical damage.

When can you transfer a debt?

The law says that debts under any obligations can be assigned to a new creditor, except for cases provided for by law.
In particular, rights of claim cannot be transferred under an assignment agreement if they are inextricably linked with the identity of the creditor (for example, the right to alimony, compensation for moral damage, etc.). As a general rule, the transfer of a debt by way of assignment usually does not require prior consent from the debtor. However, in a number of cases, assignment of rights is possible only with the consent of the obligated person, in particular:

• if an agreement between the creditor and the debtor establishes that the transfer of debt is possible only with the consent of the latter;
• if regulations provide that the transfer of the right of claim is permissible only with the consent of the debtor;
• if the fulfillment of the obligation is closely related to the identity of the creditor.

The rights are transferred to the new creditor to the same extent as they belonged to the previous creditor.
In addition, along with the main debt, the obligations securing it (penalty, etc.) are transferred. Other terms of the agreement under which the debt is transferred to the assignee also remain unchanged. It should be noted that the debt can be transferred even when there is already a court decision to collect the debt in favor of the original creditor. In this case, after drawing up the assignment agreement, you will need to go to court, which will make a ruling on replacing the party in the case. Next, with this definition and the assignment agreement, you need to contact the bailiff service.

The situation in detail

The nature of the formation of debt is that one subject transfers some valuable item for temporary disposal to another.
For example, money, real estate, goods or even intangible assets. Until the recipient returns the value to the creditor, he is in debt. Moreover, not only organizations, but also private businessmen and citizens can act as lenders and recipients. The creditor, having not received repayment of the debt, takes legal methods of collection. If the actions do not produce any result and the debtor does not repay the loan, then it is allowed to sell the debt to a third party. This procedure is called debt assignment.

But not only the creditor can waive his obligations in favor of a third party. The debtor also has the right to transfer his obligations to another citizen or third-party company. The procedure is called debt transfer; it is, in essence, replacing the debtor with a new defendant for debt obligations. Each type of assignment or transfer of rights to debt has its own characteristics.

Form and essential terms of the assignment agreement

Sample contract.
The agreement on the assignment of rights should be concluded in the same form as the agreement under which the rights are transferred to the new creditor. That is, if the main agreement is concluded in simple written form, then the assignment agreement must be drawn up in simple written form. If the main agreement is certified by a notary, then the assignment of debt, accordingly, must be notarized. If the transaction, the rights under which are transferred to a new person, is registered in Rosreestr, then the assignment agreement is subject to registration (unless otherwise provided by regulations).

The only essential condition of the assignment agreement is its subject. The subject is the right of claim, which is transferred to the new creditor. The text of the agreement should describe the essence of the transferred right of claim and indicate on the basis of which documents it arose. At the same time, it is not at all necessary to reflect in the contract the reasons and motives for such a transfer.

The agreement or court decision from which the transferred right arises must be attached to the assignment agreement.
If such an agreement has annexes, then they also need to be transferred to the new creditor. All other terms of the agreement on the assignment of rights are considered additional and are included in the text of the agreement at the discretion of the parties. All of the above is presented more clearly in a sample agreement for the assignment of the right to claim a debt, available on our website.

FAQ

1. What documents are needed to register ownership?

Passport, cession, DDU, copy of the commissioning permit, acceptance certificate, receipt of payment of the state duty.

2. Is it necessary to carry out legal due diligence before registering a cession?

Yes, there are often scammers for whom the assignment of an apartment is a scheme of deception. At a minimum, check whether this apartment has been assigned before.

3. Until what point can a DDU be assigned?

Until the moment of commissioning and signing of the acceptance certificate of the apartment.

4. If I want to purchase an apartment in another city, can I carry out the assignment remotely?

Yes, for this you need to make an EDS (electronic signature).

Nuances of the assignment agreement

When concluding an assignment agreement, you need to take into account a number of nuances:

1. It is advisable to reflect in the text of the agreement a condition regarding which of the parties and within what period of time informs the debtor about the transfer of the right of claim to the assignee. It is more logical to assign this responsibility to the new creditor, since by virtue of the law it is he who bears the risk of the consequences of failure to notify the debtor.
2. If the debtor, who has not been notified of the transfer of debt, fulfills the obligation to the original creditor, then he is considered to have fulfilled his obligation. And in this case, the new creditor will have to recover from the previous creditor the amount of debt that he unreasonably received.
3. The transfer of the right of claim can be formalized not only by a bilateral, but also by a tripartite agreement (with the participation of the debtor).
4. The compensation agreement should specify the amount and procedure for payment of the remuneration paid by the assignee. If the parties enter into a gratuitous agreement, it is best to explicitly state in the agreement that the new creditor has no obligation to pay remuneration.
5. The former creditor is not responsible for the fulfillment of the obligation by the debtor. An exception will be the situation when he acts as a guarantor of the obligated person to a new creditor.

How to choose the right property to purchase via transfer

There are a lot of disadvantages to registering a concession, but it is quite possible to minimize the risks. In particular, we will talk about the risks associated with the assignor’s dishonesty, the developer’s bankruptcy, and delays in deadlines. When starting negotiations, request the original share participation agreement with the seal and signature of the construction company, the seal of Rosreestr, and a special registration mark. They don’t want to provide you with a DDU or it doesn’t contain this data? You have stumbled upon a scammer.

If everything is in order with the assignor, we next check the reputation of the construction company. Read reviews from current residents, owners, shareholders, and other people who have rented an apartment. Are there more negative reviews? The acquisition can be risky. If there is more positivity, you can trust the company.

Find out if the insurance company is bankrupt online on the website “Unified Federal Register of Bankruptcy Information”. Search for your insurance company in the “Debtor Search” field, and then select the “Developer” category to narrow the search area. Don’t mess with a bankrupt; it will take years to get him to rent out his house or at least compensate him.

Find out if there are criminal lawsuits against the developer. You will find information about this on the “Electronic Justice” website. Analyze the reasons for the claims and what the plaintiffs are seeking.

Take a look at the project declaration, which is posted with the developer or sent directly to the client after the first request. Information about construction timeframes and property characteristics is important. If the data matches reality, you can trust the company.

Sample form of an agreement for the assignment of the right to claim a debt

In the event that an agreement on the assignment of the right of claim is required, a sample form for it will look something like this:

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Tax circumstances of assignment

The transfer of rights has a direct impact on the tax obligations of all parties to the transaction:

• For the debtor, from the point of view of taxes, nothing changes, VAT is not restored, as explained in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation;
• the transferor does not pay VAT as a seller, despite the fact that the transferred property right must be subject to taxation. In Art. 155 of the Tax Code of the Russian Federation there are no direct instructions for calculating VAT upon assignment of debt.
• the assignee , who has received the right to claim the debt, will have to pay VAT only if we are talking about transactions subject to this tax (sale of goods, fees for services, performance of work). If the former creditor provides an invoice, the “secondary” one will be able to provide VAT for deduction (Article 171-172 of the Tax Code of the Russian Federation).

RESPONSIBILITY OF THE PARTIES

3.1. Each Party is responsible for damage caused to the other Party if it arose through its fault as a result of non-fulfillment or improper fulfillment of contractual obligations.

3.2. The Assignor is responsible to the Assignee for the completeness and accuracy of the information and documents transferred in connection with this Agreement. If the Assignee incurs losses during the execution of this Agreement due to the fact that the Assignor provided incomplete or untrue information or documents (clause 2.1 of the Agreement), the Assignor undertakes to compensate for such losses.

3.3. The Assignor guarantees the existence and transfer of all rights assigned to the Assignee, the Assignor is responsible for the validity of the rights of claim transferred under Agreement No. 01/03/2016 dated 03/09/2016.

3.4. The Assignor is not responsible for the Debtor’s failure to fulfill the requirement transferred under this Agreement.

3.5. For violation of the deadlines for the transfer of documents (clause 2.1 of the Agreement), the Assignee has the right to demand from the Assignor payment of a penalty in the amount of 0.02% of the amount specified in clause 1.2 of this Agreement for each day of delay.

3.6. If the Assignee violates the deadline provided for in clause 2.3 of the Agreement, the Assignor has the right to demand payment of a penalty (fine). A penalty (penalty) is accrued for each day of delay in fulfilling the obligation, starting from the day following the day of expiration of the established deadline for fulfilling the obligation under this Agreement. The amount of such a penalty (fine) is set at one three hundredth of the key rate of the Central Bank of the Russian Federation in effect on the day of payment of the penalty of the unpaid amount, but not more than 2% of the amount specified in clause 1.2 of this Agreement.

3.7. The parties are released from liability if the damage is caused regardless of their will, i.e. due to force majeure.

In the event of the occurrence of these circumstances (force majeure), the Party for which proper performance has become impossible is obliged to notify the other Party in writing within 5 (five) working days. Untimely notification of force majeure circumstances deprives the relevant Party of the right to refer to them in the future.

The notification must be accompanied by a document issued by an authorized government agency confirming the presence and duration of force majeure. If force majeure circumstances occur, the deadline for fulfilling obligations under the Agreement is postponed in proportion to the duration of these circumstances, since these circumstances significantly affect the fulfillment of the terms of the Agreement on time.

Contents of the agreement

The contract must necessarily contain:

• full data of the parties to the agreement - the assignor (transferring the debt) and the assignee (accepting the debt);
• the most described subject: the essence of the transferred obligation or its size, the grounds for its occurrence, details of the court decision, information about its entry into force, details of the issued writ of execution;
• the procedure for notifying the debtor about the replacement of the creditor and about concluding an assignment agreement;
• termination procedure;
• the act of transferring the originals of all documents on the basis of which the transferred obligation arose.

IMPORTANT. If, before concluding an agreement on the assignment of a claim (cession) under writs of execution, part of the monetary obligation was previously fulfilled by the debtor, it is necessary to reflect the amount of the remaining claim, the rights to which are being assigned (Part 2 of Article 384 of the Civil Code).