Litigation with banks. How does a court case with a bank regarding a loan proceed?
Lawyers who specialize in protecting the rights of borrowers under a loan unanimously say that the creditor enjoys privileges in court due to lack of literacy in protecting the debtor. What are the features of the loan court in 2019?
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Unfortunately, recently the number of problem situations with loans has only increased. This is primarily due to the instability of the economy in Russia and the tricks hidden in loan agreements.
Debtors should understand that for non-payment of a loan, the creditor more often wins in court than the borrower. This is what court practice shows.
To do your best, you need to take this process seriously and focus on what happens after the trial.
What you need to know
The banking organization will not prepare any claim in court if the delay is only 14-20 days. As a rule, it is submitted after 3 or more months have passed from the date of non-payment of the loan.
This can be fully explained, because every creditor wants to return the money to the bank by any means. And it doesn’t play a big role here - whether the client owes a thousand or a million.
The goal of the institution in this case will be to file a claim, win the lawsuit and show other clients that the bank does not forgive or donate money. Of course, this involves protecting the organization’s reputation.
Another very important reason for this action by the creditor is that he cannot write off a single ruble from an overdue debt without judicial intervention.
Therefore, financial institutions always try not to delay this problem too much and almost immediately file an application with the court.
The client receives a notice that the bank has filed a claim in court and this happens after several attempts to resolve the problem peacefully. In case of delay, the banking organization can take the following actions:
- Reminders to the client about the debt in the form of a letter, call, message.
- Explain to the debtor what the consequences are for him if he fails to pay the loan.
- Bank employees can come to the debtor’s place of residence and workplace to hand over a letter about the debt.
- Experts can offer reliable debt repayment schemes, or write off a certain part of the debt under one condition - resumption of repayment.
- The banking institution has the right to file a claim in court against the borrower. In this case, the bank independently decides when to submit this application under the Law “On Banks and Banking Activities”.
What rights does the borrower have?
Sometimes lenders do not act entirely legally, which is difficult for any borrower to prove, but despite this, he has the right to take the following steps:
If your apartment or house is under mortgage, you should urgently conclude an agreement with a good security company | This will ensure the safety of your home and you. That is, no one will dare to open the lock or even approach the place of residence. Collectors lose the desire to come to “visit” you if there is security |
You urgently need to re-register the property you own | Otherwise, there may be consequences when you have to buy it back at market value from the bank. With all this, the owner must be registered in this housing |
No one can help if you sign documents to give away property | Pack your things and move out, or just let private performers into your home |
You have the right not to sign anything and not to give any statements to the creditor | You can recognize the amount of debt only if you intend to pay it off immediately |
Any action of the creditor must have an explanation and, if necessary, opposition. Unfortunately, in practice one can see many cases where lenders do not behave very appropriately when dealing with a borrower.
After all, debtors can be different - scammers and ordinary people who simply do not have the opportunity to make payments at the moment. And the bank puts everyone on the same page. Do not forget that the borrower also has his rights.
First warnings for non-payment
The maximum period during which a bank can be inactive is 3 months. The banking organization, as a rule, always warns the defaulter about the accrual of fines, etc.
If you are not afraid of fines, phone calls from more than one number, email notifications, letters home, then things will move on and take a different turn.
The debt continues to grow, and when the period of inaction ends, the court begins to intervene in the process, and the debtor is guaranteed.
The legislative framework
Everything related to a loan, a statement of claim and court intervention can be found in the main articles of Russian legislation:
The function of the bank and interaction with the client is revealed | |
It is said that all banking organizations guarantee secrecy about their clients, their accounts, payments and deposits | |
It follows that if banks disclosed information about a client because his rights were violated, he has the right to demand compensation from the bank | |
The article talks about the bank and its employees when disclosing information | |
The article states that if the bank has violated the rights of the client, the client can sue the organization in court, where the amount of compensation for the harm caused will be determined. | |
It says here that such a transaction is void, but only if it is not disputed by the bank and does not provide for future consequences in case of violation | |
Here the terms of the loan agreement are stated, and what will happen in case of non-payment |
And also, in 2019, there were some innovations in the legislation that relate to loan debtors:
- Article No. 15 of the Law “On Consumer Loans” became invalid;
- It is now possible to collect debt through a notary office outside of court;
- The new law “On the protection of the rights and legitimate interests of individuals when carrying out activities to repay overdue debts and on amendments to the Federal Law “On microfinance activities and microfinance organizations” dated July 3, 2016 N 230-FZ became valid.
Based on all this, we can say that this problem has become so urgent that a new law and regulation have even been adopted that regulates it in detail.
New law. First of all, it concerns microfinance organizations and collectors, because the provisions in the act apply specifically to them.
What will be my actions when the bank sues to collect the loan?
First of all, you need to familiarize yourself with the claims provided by the bank. They are set out in the statement of claim for the court. It is advisable to involve an experienced lawyer in this process who has been working in this area for several years.
If it is impossible for you, then you should not give up and try to solve this problem yourself. Of course, the chances will be less, but in no case should you give in to the lawsuit.
Please pay attention to several important points in bank documents:
- sub-item that can help you;
- to calculate the last and final debt;
- the presence of a certain commission;
- when taking a loan, pay attention to the valuation of the property (car or real estate);
- the entire amount of the penalty.
Collectors submit a statement of claim to the authorities
The first thing to do in such a case is not to panic. Emotions here can only make the situation worse. Pull yourself together and study in detail the requirements that are presented and evaluate everything soberly.
It doesn’t hurt to immediately study the following questions:
- whether the standard period of claim, which is 3 years, has expired. If anything, then the period can be increased if such a clause is specified in the contract, but there is no way to reduce it;
- you need to verify the amount of debt for yourself;
- It is advisable to check the bank’s calculations, because they often contain irregularities;
- in order to reduce the amount of penalties, it is advisable to collect the necessary package of documents;
- find provisions in the concluded contract that can be considered invalid. This is quite possible, because often contracts do not protect the interests of consumers.
If an organization has already filed a lawsuit, there is no need to ignore or avoid subpoenas. This way, you give the creditor a full chance to win the process. After all, failure to appear at a court hearing is the same as agreeing that you were wrong.
In this case, you need to make every effort to find contractual violations, prove them in court and at least reduce the amount of recovery.
It is necessary to familiarize yourself with all documents related to this case. The court usually takes place at the client’s place of residence, so you need to go there with your passport and find out if there is actually an application from the bank.
If it is not possible to go there, you can go to the portal of this court on the Internet and check everything there. If you haven’t found the claim, you should also search at the place of registration of the banking organization.
This step is needed in order to:
- accurately check whether the bank submitted the application, or whether this is an attempt at psychological influence;
- carefully study the materials of this case. You have the right to make copies and photographs of documents. This will help you have a clear idea of what you should be prepared for.
You should carefully monitor all the actions of the bank and, if necessary, challenge the actions of the creditor. For example, it is worth trying to reduce the cost of the penalty, as provided for in the Russian Civil Code.
Opportunity to reduce debt
Sometimes the amount of the penalty exceeds the debt even with interest. Its size is usually determined by the concluded loan agreement, so the banking organization can rely on it.
But the Civil Code of the Russian Federation allows for the possibility for the borrower to reduce the penalty. This can happen even if the bank is acting completely legally.
It is not a fact, of course, that the decision will be successful, but if the loan is available, then there is a high probability of a positive response.
You can influence the court's position with the help of evidence that the non-payment was for good reasons - loss of work, serious illness, difficult family circumstances, etc.
The borrower's request to reduce the debt must be stated independently, orally or in writing.
Refund of insurance under contract
Federal Law “On Consumer Credit” Article No. 353 states that in the case of imposing any other services on a person in order to obtain a loan.
For example, or, in the loan application there must be a sub-item indicating consent to receive these services.
In addition, this also includes the signing of other contracts that are concluded by the borrower in obtaining a consumer loan.
If insurance is included in the loan contract as a mandatory condition, then the client’s rights are violated in the event that the borrower cannot make his own choice.
You can involve a financial organization in the process on the basis of Part 2 of the Code of the Russian Federation on Administrative Regulations.
The same law provides for the right of a banking institution to increase the annual interest rate on a given loan, for which insurance is not a prerequisite.
Changing the payment amount after the meeting
Many banking organizations pay the amount they received from the borrower, which is insufficient to fully repay the loan, pay off penalties and fines.
And only after there is money left, they spend it by paying off the principal debt or interest. But the borrower does not always know about such banking actions.
According to the Civil Code of the Russian Federation, repayment of a loan in court must be counted in the following order of priority:
- payment processing, that is, payment for all services of a banking institution;
- principal debt;
- and payment of interest.
At the same time, no attention is paid to the information specified in the loan agreement.
In this case, the court takes the side of the borrower, and they oblige the bank in which they undertook to make a recalculation, and the loan payment after the trial will be significantly reduced.
Appealing the decision
The announcement by the court of any decision does not mean that you immediately need to run and pay off the debt. Within 30 days, those who do not agree with the court decision can appeal it.
This can be done by filing an appeal with the court that dealt with the case.
This is beneficial for the debtor because:
- By filing such an appeal, you can delay the presentation by the banking institution, because the court decision is not yet subject to the law.
- The first time the court examines the case, the court may also make mistakes. This, of course, is quite rare, but it is not impossible. For example, the court collects the entire amount of debt that the bank needs. But Article No. 333 of the Civil Code of the Russian Federation precisely states that the amount of the penalty can be reduced if the borrower so requests. The appellate instance can correct this misunderstanding if the court did not take this circumstance into account.
- The debtor's financial situation may change while the complaint is being considered, and he may already be able to pay the entire debt.
Additional questions
If the case goes to court, many defendants ask questions: can the court make a decision without his participation, was there a trial, is there a temporary ban on lending, and how can one win the case.
Making a decision without a defendant
The court may make a decision without a defendant, in which case it will be considered absentee.
But in order for the case to be considered without the participation of the borrower, there must be certain circumstances - according to the Civil Procedure Code of the Russian Federation.
The court must have confirmation that the debtor has been notified of the meeting, but has not reported the reasons why he will be absent.
The evidence may be the counterfoil of the summons with a mark that proves that the debtor received it. What to do if a court decision in absentia was made illegally? Appeal, of course.
According to the Civil Procedure Code of the Russian Federation, there are 3 options for canceling a court decision in absentia:
- submit an application to cancel the default judgment to the court that dealt with this case;
- file a cassation appeal against the concluded court decision of the general instance, which is filed in a court that is higher than the one that heard the case;
- if the default judgment was made by a magistrate judge, file an appeal to the district court through the same judge.
How to find out if there was a process
A trial in absentia can only occur if you have changed your place of residence and letters do not arrive at your new address.
Having a laptop or mobile phone to find out about the court will be very helpful:
- you can contact the bank branch where you took out the loan and clarify the amount of debt on the loan and how to pay it off;
- if the amount is less than 50 thousand, then the information can be found on the official website of the district court of your city. The case search is carried out using the borrower's full name;
- if the debt is more than 50,000, then it is possible to find out information in such portals as - State Services - it is worth registering and opening the function “Debt Search” and “Justice” - this is an online system in which you can select the sub-item “Federal courts of general jurisdiction” ", then "Search by cases and judicial acts", indicate the region of the Russian Federation, full name in the right place;
- if the delay is more than 3 months and the debt is more than 500,000, then when you go to court, the bank could declare you “bankrupt”. It is worth going to the website of the Arbitration Court, which deals with such cases. Fill out only 1 line - “Participant in the case.”
Based on the above, it can be noted that there are a lot of ways to find out whether there has been a trial for your debt.
Temporary ban on lending
Employees of the bank from which the loan was taken, after a lawsuit with a certain client, decide whether to issue a loan next time. This is an interesting question.
A banking organization will always have a legal basis to refuse a borrower. Lenders can set the ban time and the amount of the possible loan themselves.
Therefore, it may be worth thinking about how to pay off your debt so that there are no unexpected turns next time.
To win an argument, you should adhere to 3 tactics:
- The simplest thing is to simply drag out the court case until the last minute, while taking advantage of your rights and flaws in the laws. This will lead to the process being frozen and the bank will have no way out how to resolve the problem with you on favorable terms.
- You can challenge all agreements in court, that is, a loan agreement, if there is a guarantor.
- And yet, there is an opportunity to challenge the amount of debt that is issued by the banking institution, and exactly the interest rate and penalty. You can check the compliance of all documents, and even involve the Bank of Russia in a lawsuit. But this needs to be done as professionally as possible, otherwise nothing will work.
And the most important thing for the whole matter is to be calm and not panic. For a 100% result, it is better to contact a good specialist.
When drawing up a loan agreement, the last thing the borrower thinks about is that there may come a time when the financial situation does not allow repaying the loan debt. However, the most difficult situations can happen in life, the consequence of which will be a loan hanging in the air.
Consequences of delay
The first steps that the bank will take to collect the debt are reminders and telephone conversations. Perhaps employees of the credit department will offer restructuring of existing debt.
But if the borrower does not foresee significant changes in his financial situation for the better in the future, then most often he will not be able to either refinance with another bank or change the terms of the current agreement. The most common behavior of the client is to completely stop payments and ignore the bank.
Then the bank has only two ways out of the difficult situation with a problem loan - selling the debt to a collection agency or judicial collection. Consideration of the claim in court is the best option for the debtor.
Since legal literacy is not the strong point of Russian borrowers, the mere mention of an upcoming trial can cause them to panic. In fact, if the borrower is in a difficult financial situation, this process may be the most effective way out.
Advantages of court for the debtor:
- Interest on the loan is calculated at the time the bank submits an application to the court - as a result, the total amount of debt is significantly less than what would have to be paid in the usual manner.
- The borrower has a guaranteed right to file a petition to reduce or cancel accrued fines and penalties, to return the paid insurance premium, and to defer the execution of a court decision.
- In most cases, it is the court that releases the borrower from a significant part of the debt, leaving only the “body” and interest accrued at the rate specified in the agreement for collection.
It is very important for the client to state his requirements under Art. 333 of the Civil Code (recalculation of penalties). According to statistics, only 10% of all debtors use their rights guaranteed to them by law. But the bulk of the debt consists of penalties and interest on late payments.
Of course, there are also disadvantages. If you have official employment, you may be required to pay 50% of your income monthly to pay off the debt; if you have property, it may be seized and sold.
But the most important thing is that information about this will be entered into your CI, which will lead to problems in the future if you apply for a loan again.
Can a bank win a case without a court hearing?
The bank can exercise its right to obtain a court order to collect the entire debt directly, bypassing the meeting procedure - based on filing an application with the magistrate court. If such a requirement is satisfied, then the order goes into enforcement proceedings.
This “lightweight” option for resolving the issue of collection is extremely convenient for the banking company, but disadvantageous for the debtor. During the process, the borrower can provide evidence that he is currently unable to make regular payments.
It could be:
- discharge from hospital,
- notice of staff reduction at work,
- order of dismissal due to retirement.
In the same case, if there was no meeting, and you learned about the existence of a decision on your case after the fact, then you can appeal it. To do this, within the time limits established by law, an appeal is filed with the body that issued the document with the decision. We talk about this in more detail.
How will the court decision be enforced?
After the decision is made, enforcement proceedings pass to the bailiffs, who must send the corresponding demand to the debtor by mail. And here it is better not to let things take their course, but to actively participate in resolving the problem.
- Within 10 days after receiving the request, you can submit an application to the magistrate's court to have the execution of the decision postponed for a certain period. Here you can also ask for an installment plan to repay loan payments, both for the borrower himself and for his guarantors. In most cases, they will accommodate the debtor if they are convinced that he has no intent to commit fraud.
- Do not ignore the subpoenas that will come from the bailiffs. Their direct responsibility is to implement the decision received. And in order not to resort to extreme measures in the form of arrest and confiscation of property, it is better for the debtor to voluntarily write an agreement to withhold a certain amount to pay off the debt.
- If you have official income that you receive in a bank account, this company may receive a letter to block your account or an order to withhold up to 50% of its amount on a monthly basis. Deposits are also seized.
- If the debt is large, then a procedure for seizing property may be initiated - this includes almost everything that is registered in your name, or is in your apartment, and is supposedly worth more than 10,000 rubles. If the housing is the only one, they will not be able to take it, however, if it is mortgaged or pledged to the bank, then this rule does not apply to it.
More information on how to sue banks can be found on this page
What conclusions can be drawn?
Litigation with a bank is definitely good for the borrower, because an alternative to it can be interaction with debt collectors who do not stand on ceremony with debtors, extracting debts from them by all available, and not always legal, means.
The more people borrow money, the more likely it is that some of them will not be able to repay the debt. The reasons for non-repayment of a loan are quite varied; they can lie both in the plane of the borrower’s moral principles and be independent of him. Therefore, judicial practice in the context of courts between borrowers and banks on loans is very extensive.
Why is there a delay?
During periods of financial crisis, when the income of borrowers falls and they can no longer repay loans in full, overdue loans increase.
Late repayment of a loan can occur for various reasons:
- job cuts;
- employee illness;
- long departure;
- the birth of children, and, therefore, an increase in expenses for maintaining the family;
What does the bank offer?
If the borrower's level of solvency decreases, the first thing he is recommended to do is contact the bank and tell the manager about the current situation, and then fill out an application for restructuring. All financial institutions are interested in an amicable resolution of the situation, so usually the debtor is offered more favorable loan repayment terms:
- changing the payment schedule;
- interest rate reduction;
- debt refinancing;
- change of loan currency.
If the client does not agree to the financial institution's terms regarding restructuring, the bank may proceed to legal action.
The longer customers fail to repay their loans, the more likely it is that disputes with banks over loans will become a reality.
How to find out if a bank has filed a lawsuit
The first sign that indicates the beginning of legal proceedings is the reduction in calls from bank managers demanding repayment of the debt. This is due to the fact that the borrower’s case moves from the jurisdiction of the credit department to the security department.
Note to the debtor: the bank can sue the court at the place of its registration, at the place of actual residence of the borrower, or in another court, but then this institution must be indicated in the loan agreement.
So, after some time, the debtor receives a summons at his actual residence address. This is almost always a real document, since bank employees or collectors have no need to forge them. If there are reasonable doubts, you need to check the authenticity of the document: to do this, you need to go to the website of the court from which the summons came and enter the data from the form.
In addition, the borrower can be summoned to court by telephone: there is no point in hiding, it is better to pick up the phone and find out when and where the court hearing will take place.
Assessment of the situation
The first thing you need to do when deciding how to sue a bank for a loan is to assess the scale of the problem. To do this, you need to contact the court office and ask for the materials of your case for review. To gain access to your file, you usually only need to present your passport. All documents received can be viewed in the courthouse, but it is better to photograph them and read them in a calmer environment. Photographic recording of your case materials is permitted.
Statement of claim
Particular attention should be paid to the bank's statement of claim. It contains all the information about the reasons for going to court, and also indicates the size of the financial institution’s claims against the borrower. The statement of claim must be accompanied by a copy of the loan agreement, a security agreement (if any), statements of loan accounts, and tables with debt calculation.
After the borrower has familiarized himself with the situation and really assessed it, he needs to decide whether he is ready to sue the bank to the last minute or agree to a compromise. Another point worth considering here is that financial institutions employ lawyers who have extensive experience in litigation to recover money, but debtors will need to contact qualified lawyers to handle the case. And these are expenses, and considerable ones at that.
Lawsuits against banks regarding loans are quite common today, since most borrowers hope to win them and not repay the debt. This is what charlatans take advantage of, who, under the guise of qualified lawyers, promise to win the case in favor of the debtor for a certain fee. But, as a rule, if the terms of the loan agreement are not violated by the bank, the court makes a decision in its favor.
The client has every reason to contact a qualified lawyer if he is sure that the bank is deliberately violating his rights.
Debt collection litigation typically occurs in two stages: a preliminary hearing and a substantive hearing.
A preliminary hearing is necessary so that the parties to the conflict become familiar with the judge and the case materials, and also find out when the main hearing of the case will take place.
Several court hearings may take place within its framework - everything depends on the judge and the debtor’s lawyer. You must come to the main hearing prepared - have your own lawyer, study the case materials well so that you can point out inaccuracies in the statement of claim or bank calculations.
In addition, the borrower needs to be mentally prepared, since the financial institution’s lawyers will ask him tricky and perhaps not entirely ethical questions.
Depending on how the debtor's lawyers prepare and how the situation develops, it depends who will win in court - the bank or the borrower, and, accordingly, whether the latter will have to sell his property in order to pay off his debts.
It may, of course, not come to the point of selling the property. Bailiffs can submit documents to the accounting department of the borrower's employer and gradually write off the debt from his wages, or seize the debtor's accounts and withdraw money from them to pay off the debt.
What to do if the bank sues the borrower: Video
Bank clients are afraid of loan-related litigation. People believe that laws will not protect them. The same opinion is imposed by collectors who intimidate debtors in every possible way in order to make a profit as quickly as possible. In fact, this is not entirely true. The judicial system allows you to close your accounts and get out of the debt hole, but you still have to pay. After a loan trial, the borrower may have a real opportunity to start life with a clean slate.
Banks, on the contrary, want to take their money back and as quickly as possible. All means are used, for example, a person is convinced that a court case for non-payment of a loan will ruin his career or family relationships, but he cannot do anything. But if he pays today, then everything will be fine and perhaps the good bankers will write off part of the penalty.
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You don't need to believe everything you are told and promised. There are clear standards by which a person will be judged and by which he can defend himself. The article indicates the possibility of writing off the penalty, but it is not necessary to pay the entire debt at once.
Many people are concerned about the question, what to do after a loan trial? Indeed, problems can arise at work, and in the family too.
Here you need to take into account that the employer does not care whether your salary is transferred to the card or to the FSSP service. It's not his problem. If at work they tell you to quit because of debts, then these actions are illegal and violate labor law. You can safely complain to the labor inspectorate.
But the relatives need to be explained that the court is a legal solution to the problem and any intervention on the part of the collectors is the basis for.
What can the court rule regarding an unpaid loan? There is only one solution - to pay. The exception is insured events, provided that insurance has been taken out. Even if the company does not admit that a problem has occurred, this can be challenged, and in most cases in favor of the debtor.
The main advantage of the court is the stop of all accruals on the debt. The amount is fixed and transferred to the bailiffs. But there is a nasty pitfall for the defendant here.
When filing a claim, the bank indicates the debt and the judge accepts this amount. But at the same time, the creditor continues to charge interest while the proceedings are ongoing. The judge fixes one figure, and the bank has another. Unfortunately, this is a legal practice. Remainder .
Important! It is in the interests of the debtor to point out this circumstance to the court. And if there has already been a court case regarding the loan, then it is necessary to further dispute the balance of the debt.
Loan debt, preparation for trial
It is necessary to prepare for the trial in advance. So that everything looks correct from the point of view of the law.
- We contact the bank for .
- We notify the bank of financial difficulties in writing.
- We go to court on our own or wait for these actions from the creditor.
- We pay the debt through bailiffs.
What happens after a trial for non-payment of a loan?
The court decision will be sent to the bailiffs, and they, on the basis of Art. 30 of Federal Law No. 229 (On Enforcement Proceedings), an individual entrepreneur will be initiated.
- will be limited;
- will place a ban on registration actions with property;
- will produce;
- will withhold 50% of official income.
The bank won the loan lawsuit, what next?
If the loan went through trial and the bank won it, then the following steps must be taken:
- If the court's decision is expressed by an order, then it. In this case, the bailiffs will not bother you.
- When filing a claim, it is necessary to draw up an objection and write a petition to cancel the penalty.
- It is advisable to ask the court for a term of up to two years.
- If the loan was insured, the company must be obliged to pay compensation.
- Agree with the bailiffs on a payment schedule. In most cases, the debtor is met halfway.
According to Federal Law 229, you are required to pay the entire amount in full. This option is considered ideal in the collection system. But this rarely happens. If a person has no money, then there is nothing to pay for.
The most common way is to pay in installments to the bailiffs or by agreement with the creditor. Depending on the situation, funds must be deposited into the account of the FSSP or the plaintiff.
Keep payment documents until the debt is paid off. Bailiffs like not to transfer the creditor's money for years. A common situation is that you pay off a debt, and a year later the bank calls and demands it back.
At this time, your money is in the accounts of the collection service. Be careful and ensure they are enrolled on time.
When the bailiffs arrive
According to Art. 64 Federal Law 229, bailiffs carry out enforcement actions if the debtor refuses to contribute funds voluntarily. The period allotted for this is ten days from the moment of initiation of enforcement proceedings (Article 30 of the law).
The FSSP does not set the exact date of its visit to the defendant’s home. The effect of surprise plays an important role. Usually the bailiffs come early in the morning to find the defendant at home.
Advice! To prevent the bailiffs from coming to your home, make a small payment (100 rubles) within five days from the moment the IP was initiated. This will make it possible not to consider you a malicious defaulter and will tie the hands of the FSSP employees. According to the law, they will not be able to carry out an inventory and seizure of property.
If you have a trial, the creditor legally has the right to demand the return of funds. So don't expect the calls to stop after the trial. On the contrary, this will be a reason not only to dial you by phone, but also to pay a courtesy visit.
All collection services are covered by a court decision. But if you receive threats, contact the prosecutor's office. This violates your rights.
Collectors are calling
Collectors are responsible for collection and have the right to go to court. After winning the case, they will start calling with triple force.
Do not forget that on January 1, 2017, the law on collection activities Federal Law 230 came into force, which prohibits calling the debtor more than twice a week.
If your rights have been violated, you can go to court on the basis of Art. 3 Code of Civil Procedure of the Russian Federation.
The court decision must be carried out by the bailiffs. On its basis, enforcement proceedings are initiated (Article 30 of Federal Law 229).
But the plaintiff himself can submit a writ of execution to your work without contacting the FSSP. Banks usually use this to withdraw money from your salary card.
Important! The amount of debt write-off should not exceed 50% of your income. If they write off more, write a corresponding statement to the FSSP.
Bottom line
If you have any questions, ask them to the site’s lawyer on duty or leave comments on the article. We will try to answer you as soon as possible.
Legal assistance to debtors
It is worth noting that for a bank going to court is also not a good thing - maintaining legal relations with the borrower remains the main task of the creditor, who is ready to restructure the loan agreement or enter into a settlement agreement with the defendant (when the case reaches the court).
And, nevertheless, there comes a moment when the court puts an end to the legal relationship between the creditor and the borrower and the guarantors, transferring the parties to the status of claimant and debtors.
Appealing a court decision on a bank claim
The borrower and his guarantors, who have become defendants in court proceedings to collect a loan debt, should be aware that after the court has announced the operative part of the decision, there is no immediate obligation to pay the bank the entire debt at once.
According to the provisions of civil procedural legislation, a court decision that has entered into legal force is subject to execution. And in order for this decision to come into force, a certain period must pass, during which the parties who do not agree with the court’s conclusion can appeal it. This period is one month from the date of drawing up the decision in final form (usually the date is indicated in the decision itself).
An appeal against a court decision is formalized in the form of an appeal, which is submitted within the prescribed period to the same court that heard the case.
Why should you file an appeal?
Firstly, an appeal allows you to delay the presentation of a legal claim to the borrower by the bank - after all, until the court decision has entered into legal force and a writ of execution has been issued, the claim cannot be presented.
Secondly, it is rare, but it happens that the court of first instance (the same one that made the decision to collect the loan debt) makes mistakes that lead to a worsening of the defendant’s position. For example, the court recovers the entire amount declared by the bank, while according to the law - namely, Article 333 of the Civil Code of the Russian Federation - the amount of the penalty can be reduced by the court. And if the borrower demanded such a reduction, and the court did not take into account his opinion, then the appellate instance may well correct this error and reduce the amount of the collected penalty.
Thirdly, while the appeal case is being considered (which takes about two to three months), the borrower’s financial situation may change - and he will either be able to repay the entire debt to the bank or enter into a settlement agreement.
Conclusion of a settlement agreement
It is quite possible at any stage of legal proceedings to reach a mutual agreement between the bank and the debtors. If it was not achieved when considering the case at the first instance of the court, then after the decision is made, before it enters into legal force and before the ruling is made by the second instance, the bank and the borrower can discuss the terms of reconciliation, after which the appeal can be withdrawn by the applicant in connection with the approval of the settlement agreements.
This right is granted to the parties by the rules of Art. 326.1 of the Civil Procedure Code of the Russian Federation.
However, we should not exclude the possibility that, after an appeal, the parties still did not come to an agreement on how to resolve the problem with the loan debt.
Then the appellate authority issues a ruling that either leaves the court’s decision to collect the debt unchanged, or changes it (reduces the amount of the penalty, for example) in part.
In general, the judicial practice of disputes between banks and borrowers and guarantors has developed in such a way that the claims of creditors are recognized by the courts as almost indisputable. And they are satisfied in full precisely because of contractual legal relations, which are not disputed by anyone in court.
But you should not be very upset if the appeal did not in any way affect the volume of claims presented by the bank - after all, the right to conclude a settlement agreement remains even after the court decision enters into legal force and after the issuance of a writ of execution to the claimant.
The possibility of concluding a settlement agreement with the bank even when enforcement proceedings have already been initiated and bailiffs are knocking on the debtors’ doors is provided for in Art. 50 of the Federal Law “On Enforcement Proceedings”. Thus, at any stage of a problematic relationship with a bank, you can think about a settlement agreement.
Providing installment/deferment
This is one of the answers to the main question - what to do when the bank wins the case. If the appeal did not help, it was not possible to reach an agreement with the bank on the terms of the settlement agreement, and in the future, a visit from bailiffs with the seizure of property, as well as deprivation of the opportunity to manage funds received in bank accounts, then the only opportunity to avoid the above-mentioned unpleasant consequences, there will be an application to the court for an installment plan or deferment of the execution of the decision.
Installment plan is the fulfillment of the requirements contained in the executive document, in parts, through regular fixed payments over a certain time until the debt to the bank is fully repaid.
Deferment is the execution of a court decision not at once and at the first request of the claimant, but within a certain period when the debtor has the opportunity to pay the entire amount collected by the court.
It is advisable to apply for an installment plan when the debtor has evidence that he is unable to fulfill the decision at once due to other obligations and circumstances that prevent him from doing so.
As a rule, the grounds for granting installment plans are the presence of dependents of the debtor (documents confirming this fact are attached to the application - birth certificates of children, certificates of disability of close relatives, etc.), obligations to maintain housing (receipts for payment of housing -utilities), other loan obligations that are fulfilled by the debtor (or a guarantee for other loans).
It will be very useful to attach to such an application for the court a schedule of the planned installment plan - that is, how many months and in what amounts the debtor is willing to pay until the debt is fully repaid.
Typically, courts grant such applications if the grounds listed above are present. But the court may change the debt repayment schedule, taking into account the interests of the bank, which expects the timely and complete fulfillment of its legal requirements.
To grant a deferment to the debtor, the court must be satisfied that the applicant actually expects the occurrence of some event that will allow him to proceed with the execution of the decision.
Such events usually include planned transactions with property, as a result of which the debtor will have the opportunity to repay the debt, or the occurrence of a certain circumstance - for example, the child turns one and a half years old, if the debtor is a woman who is on leave to care for a child under one and a half years old .
The main thing that debtors who plan to obtain an installment plan or deferment of execution of a decision from the court should know is that if such an application is granted by the court, neither the bank nor the bailiff will have the right to do anything to repay the debt as quickly as possible.
But this does not mean that a court ruling on granting an installment plan (or deferment) will become a kind of immunity for the debtor. If this determination is not implemented properly, the bank has the right to apply to the court to cancel the installment plan (deferment). And cancellation could be a real possibility.
Why is it necessary to take measures to resolve relations with the bank?
Because if this is not done, then the bank and bailiffs will take enforcement measures. And such measures include:
- seizure of funds in all bank accounts opened in the name of the debtor (moreover, this measure usually includes accounts to which wages, scholarships, pensions are accrued - any regular payments; it is possible to exempt half of the money from withholding to pay off the debt, but again, in court);
- arrest and seizure of property (this can be not only property in the form of household appliances and household items, with the exception of things that the debtor needs for everyday life, but also real estate, vehicles);
- restriction on travel outside the territory of Russia (it is very unpleasant when such an obstacle arises during a planned vacation);
- restriction in special rights (not deprivation, but a restriction! If the debtor does not work as a driver, then he has the opportunity to obtain a restriction in the use of a driver’s license if he has a debt of over ten thousand rubles). Andreeva Tatyana
Support in disputes between citizens and banks: examination and challenging of loan agreements, protection of consumers of banking services, optimization of credit debts after collection - everything that cannot be dealt with without special knowledge.