Standard statement of claim to a microfinance organization. Sample statement of claim for invalidation in terms of the loan agreement Termination of the microloan agreement
With the expansion of the microfinance market, the number of disputes between borrowers and lenders is also growing. The main points of contention are: unreasonably high interest rates on loans, threats from collectors, the unwillingness of MFIs to change the terms of loan agreements in the event that the borrower becomes insolvent. In this article, we will talk about the cases in which the debtor can resolve the disputed situation in his favor, and how he can protect his rights in court.
How relevant is the problem of non-repayment of loans for MFIs?
According to statistics, at the beginning of 2017, 40 million citizens of the Russian Federation had problems with repayment of loans. Approximately one third of all debtors are borrowers on microcredits (small amounts, short terms and extortionate interest).
The active population of Russia is about 80 million people, 15 million of them have outstanding obligations to MFIs. This is a gigantic problem that is constantly monitored by the state apparatus.
The legislator is looking for ways to limit the uncontrolled issuance of loans at exorbitant interest rates, the executive branch exercises local supervision over each MFO, and the judiciary resolves disputes related to the execution of loan agreements by the parties.
The real confirmation of the influence of state control on the microcredit market is the general trend towards a decrease in the percentage for using money: if a year ago the average daily rate was about 2%, today you can find loans with a rate of 1% and even 0.5% per day.
Increased attention on the part of state bodies to the activities of MFIs is increasingly becoming the reason that semi-legal creditors completely refuse to formally collect debts. But this is more the exception than the rule.
The MFI will not go to court to collect debts if the organization was registered in violation of the law, if the loan agreement contains obvious legal defects, if the limitation period (three years) is missed, or documents for issuing money to the borrower were lost.
You should not expect that small amounts (up to 10,000 rubles) are not interesting for MFIs. When calculating interest for the use of credit funds at a rate of 2% per day, even 5,000 rubles in a year will turn into 40,000 rubles. And this is a serious financial reason for going to court.
Methods of work of MFIs with debtors
The procedure for collecting receivables is determined by the laws of the Russian Federation and local acts of the enterprise. There is no standard procedure for working with debtors, therefore MFIs are obliged to build their relationships with borrowers in accordance with the general rules of civil, financial and economic law.
Legitimate methods of influencing borrowers who do not fulfill or do not fulfill their debt obligations on time (dishonest borrowers):
- written notice of delay;
- official written request for repayment of credit debt;
- claims;
- going to court with a claim for debt collection;
- presentation to the bailiff service of a writ of execution issued by the court.
And it's all. However, often MFIs are not limited to the listed methods. Also in progress:
- calls to work
- threats to relatives;
- home visiting, etc.
When evaluating these actions of the lender, one should be guided, first of all, by the rules for maintaining the confidentiality of credit relations, which also apply to MFIs. Article 9 of the Federal Law-151 "On microfinance activities and microfinance organizations" determines that MFIs do not have the right to disseminate information about their borrowers and loan conditions.
Accordingly, any calls to relatives, visits to employers or other actions as a result of which the loan becomes known to third parties are illegal. If, as a result of the illegal dissemination of information about the borrower, the latter will suffer material and/or moral damage, the debtor has the right to apply to the court with a claim for compensation for the damage caused.
Some MFIs issue local Regulations on debt collection procedures. The provisions of this document may not violate the requirements of the law. For example, if the Regulation of the MFI states that in case of late payments, the creditor's employee has the right to visit the debtor at the place of residence of the latter in order to inventory the property, then this rule cannot be considered legal, since it violates Art. 25 of the Constitution of the Russian Federation, according to which the dwelling is inviolable.
Tactics of protection against MFIs in case of insolvency
If it so happened that the microcredit was taken and used, and there was nothing to pay interest and repay the debt, then the most dangerous tactic is to wait. A debtor who has taken a wait-and-see attitude risks increasing his debt obligations by seven or even ten times. To prevent this from happening, in the event of a deterioration in financial conditions, the borrower should immediately begin to actively work with the microfinance institution.
The most common situations of worsening financial situation: dismissal, illness, force majeure. As soon as unfavorable circumstances began to operate for the debtor, he has the right to apply to the MFI with a request to freeze the debt, reduce the interest rate and defer or installment payments.
You can write an appeal to the MFI yourself. The body of the letter must include the following information:
- the name of the MFI and its legal details;
- number and date of the loan agreement;
- the amount of the principal debt and the amount of interest;
- a statement of facts confirming the deterioration of the financial situation;
- a request to defer the payment of the principal amount and reduce the amount of interest for the use of money.
The debtor signs the text of the letter and attaches copies of documents confirming the effect of unfavorable circumstances. The letter must be delivered directly to the office of the MFI or sent by registered mail with notification.
Even if the MFI does not respond to this letter or sends a refusal, then during litigation and determining the amount of the debt, such a letter will become a very strong argument in favor of the defendant, who asks the court to reduce the amount of interest charged.
MFI filed a lawsuit
The delivery of a statement of claim from the MFI to the debtor does not always mean that the creditor has started a lawsuit. Some companies use the demonstration of intention to go to court as an effective way to force debtors to voluntarily pay off their debts. To do this, MFI lawyers form a package of claim documents and send it not to the court, but only to the debtor, so that the latter has the opportunity to assess the scale of the problem.
In about half of the cases, such a maneuver brings a positive result to the MFI. Seeing huge numbers of debt, plus demands for payment of state fees and legal services, the debtor is looking for a way to quickly pay off his debt. This option of pre-trial preparation allows MFIs to speed up the process of returning money and save on paying state fees.
These actions on the part of the MFI cannot be called illegal, but if you intend to defend your right to reduce the amount of debt on the loan, then do not respond to the lawsuit, but wait for the subpoena.
Some MFIs go even further, they themselves fabricate a copy of the court decision using only a PC and a photocopier. Such actions are already criminally punishable and the debtor, who received a non-existent fake court decision by mail, has the right to report a crime.
You should start preparing for a lawsuit with an MFI in the following cases:
- the debtor received a subpoena;
- the debtor received documents stating that the MFI applied to the bailiffs with a statement on the execution of a court order to recover the debt from the borrower.
After making sure that the case was given an official move, the debtor must decide whether to involve a lawyer in solving this problem or manage on his own.
The participation of a lawyer who has practical experience in resolving disputes with MFIs will allow the debtor to save his own time and nerves, but will cost a tidy sum (about 10% of the amount of claims).
If the debtor has free time and a desire to independently protect his interests, then he can conduct the trial on his own.
About 80% of litigation ends in negative decisions only because the party does not comply with the procedural formalities!
Working on his defense, the defendant must pay attention not only to arguing his position and references to justice, but also carefully comply with all the requirements of the civil process.
The main procedural points to which the court draws attention:
- submission by the defendant of objections to the claims with copies of supporting documents attached;
- attendance at all court sessions (if there is a good reason for non-appearance, then it is necessary to send a petition to the court in advance with a request to postpone the consideration of the case);
- familiarization with the case materials (study of those documents that the plaintiff provided to the court);
- compliance with the deadlines for appealing court decisions;
- use by the defendant of his rights to submit his own evidence, to conduct examinations, give explanations, interrogate witnesses, etc.
An objection form for filing a lawsuit can be downloaded from the link.
Each procedural action must be properly executed and completed in a timely manner.
How do MFIs formulate their claims?
Most often, MFIs delay filing a lawsuit for two to three years from the moment the borrower ceases to fulfill its obligations. This is done in order to increase the amount of debt tenfold. The creditor is not interested in collecting 10,000 rubles. Therefore, if the MFI is silent for a long time and does not demand its money back, this does not mean that the debt is forgotten or forgiven. Most likely, the debtor is on the counter, and every day the amount due is growing.
Forming their claims, MFIs indicate the following in the claim:
- data of the debtor (address of residence and registration, telephone number);
- details of the loan agreement and the warrant, according to which the debtor actually received the money in his hands (copies of these documents must be attached to the application, and the originals must be presented to the court);
- clauses of the agreement, which define: the date of repayment of the loan, the procedure for calculating interest in case of delay in repaying the loan, the amount of fine and penalty for failure to fulfill contractual obligations;
- a request to the court to recover the principal debt, interest on the loan, interest and fines;
- a request to the court to recover from the debtor the legal costs incurred by the plaintiff.
There are no limits on the amounts withdrawn. If the claims are presented within the limitation period, the court accepts the claim with any calculations and arguments for consideration. The validity of the claims of the plaintiff is determined in court proceedings.
Grounds for reducing the claims of MFIs
You can completely win a court case against an MFI only in the following cases:
- if the debtor has payment documents that confirm that the debt has been fully repaid;
- if the MFI cannot provide the court with the original loan agreement or the original warrant under which the borrower was given money;
- if there is evidence that the debtor entered into the contract without having full civil capacity, or under the influence of deceit or threats.
However, such disputes rarely end up in court. Basically, the MFI goes into the process with the requirements argued and confirmed by proper evidence. But even in this case, there is an opportunity to partially win the trial. Moreover, often the percentage of unrecognized by the court amounts of claims reaches 60-80%.
Grounds for reducing the debt to be enforced:
- abuse of the plaintiff's right (the courts point out that the MFI used its right to accrue interest in bad faith: it delayed the time for going to court and applied a rate ten times higher than the rate of the Central Bank of the Russian Federation);
- the plaintiff did not take into account the significant deterioration in the financial condition of the debtor.
If the courts take these circumstances into account, then the debtor is charged the amount of the principal debt plus an amount equal to the amount of the principal debt to pay off the interest. So, for example, if the principal debt was 5,000 rubles, then in addition to this amount, 5,000 rubles of interest are also collected, for a total of 10,000 rubles.
Court with an MFI at the initiative of the debtor
When is it profitable for a debtor to sue an MFI, and what is this benefit? In fact, the borrower will not receive significant benefits from such a process. You can count on the fact that the management of the MFI will assess the legal knowledge of the debtor and will not risk making unreasonable demands on him.
But this circumstance can play both for and against. There is a high probability of a conflict of interest, and then the debtor will have to allocate a lot of money and time to still defend his position in court.
Only the following categories of claims against MFIs have a positive judicial perspective:
- the debt is repaid, and the MFI continues to send interest accrual letters;
- the loan agreement was drawn up in violation of the requirements of the Civil Code of the Russian Federation and the norms of legislation on microfinance (recognition by the debtor of the agreement as not concluded or invalid).
- The MFI transferred information about the borrower to third parties (for example, the representative of the lender called relatives or the employer), as a result of which the debtor suffered damage.
It is possible to apply to the court with a statement of claim to reduce the interest on a loan by an MFI only if the interest is calculated in violation of the terms of the agreement. For example, the contract provides for a daily interest rate of 2%, and the MFI has calculated 3% each.
If the amounts of interest are calculated correctly, but the debtor does not have the opportunity to repay them, then you should apply only to the microfinance organization itself with petitions to amend the terms of the agreement that determine the amount of interest. In the event that the MFI goes to court to recover the debt from the borrower, such letters will be appropriate evidence that the debtor tried to resolve the dispute, but the MFI refused to renegotiate the rate.
It is almost impossible to force a creditor through the court to reduce the current interest rate. In addition, the process may drag on for several months, and all this time the lender will have every right to charge interest at the rate specified in the contract.
A sample application form can be downloaded from the link. As a general rule, a statement of claim is filed with the district court at the location of the defendant (MFO or its branch).
Judicial perspective
In judicial practice today there are a large number of judgments made in favor of borrowers. The decision of the Kirovsky District Court of Samara http://sudact.ru/regular/doc/0PnzvXMrSLQV/ is considered indicative.
But there are also a huge number of decisions not in favor of debtors. An example of argumentation in the decision of the Bratsk City Court of the Irkutsk Region http://sudact.ru/regular/doc/cd7CsuoEVglr/ .
So don't count on an easy win.
If the debtor does not agree with the decision of the court of first instance, he has the right to appeal this decision to the court of appeal. The appeal must be filed within one calendar month from the date of the decision by the court of first instance.
If the party to the case has not been properly notified of the trial and of the decision taken, then it has the right to ask the appellate instance to restore the time limits for appeal. In this case, the complaint must be sent within a month from the moment when the borrower became aware that there was a court decision not in his favor.
The relationship between the borrower and the lender is under the jurisdiction of civil law, and therefore, even if it so happened that there was a delay in loan obligations, then there is no need to be afraid that this debt may become a reason for criminal prosecution. For debts to MFIs, they are not imprisoned and they cannot be held accountable for any other liability, except for civil law (i.e., a fine).
Most often, after the completion of litigation in favor of the debtor, MFIs lose interest in him and stop any prosecution. If the court was lost, then the MFI works with the bailiff service and insists on the speedy execution of court decisions. But even in this case, such illegal methods of influence on the part of MFIs as calling relatives or visiting employers are excluded. All communication between the debtor and the creditor takes place through the bailiff, who is engaged in specific enforcement proceedings.
To understand how to sue a microfinance organization, and what requirements to indicate in a statement of claim, you need to analyze all the circumstances of the debt. And based on this, act in various ways.
Features of filing a lawsuit
If the borrower and the MFI could not agree on the method of repaying the debt that has arisen, then the court becomes the next stage in asserting the rights.
According to Article 333 of the Civil Code of the Russian Federation, a borrower, individual entrepreneur or legal entity has the right to file a petition with the court against a credit company with a demand to reduce the penalty incurred in connection with non-payment of the debt.
Fact! For such a claim, the borrower must have a good reason that prevents the timely repayment of the debt.
The total amount of debt consists of the following elements:
- the body of the loan;
- interest rate;
- accrual of interest on the amount of the debt;
- penalty for outstanding debt.
Judicial practice on microloans shows that it is unlikely that it will be possible to invalidate the entire agreement, but it is possible to reduce the amount of the fine (forfeit). It is better for the debtor to file a lawsuit against the MFI first, but often the lawyers of the microfinance organization are faster.
If the MFI has already filed a lawsuit
After the client stops paying its obligations, the microfinance organization has the right to file a lawsuit in court. Then the borrower also files a counterclaim, where he asks to recognize the size of the penalty as illegal and release him from its payment. The circumstances that led the borrower to increase the debt must be compelling, for example:
- Job loss.
- Decrease in income.
- Deterioration of health.
- Children and other family members dependent on the debtor.
All reasons stated in the filed claim must be documented. For example, in the case of a salary reduction - a certificate from the place of work, and in case of deterioration in health - a certificate from a medical institution.
If the court did not satisfy the debtor's requirements or did not satisfy them in full, it is possible to re-submit the statement of claim within the limitation period.
Fact! The statute of limitations is 1 year, if it has expired, then the chance of winning is extremely small.
But you can still try to win the case if the MFI does not announce the termination of the case due to the expiration of the deadlines.
If the borrower sues
Before suing the MFI, the borrower decides whether he wants to invalidate the contract in full or only in some part of it.
According to statistics, in approximately 50% of cases it is possible to achieve a reduction in payments in favor of the debtor, but almost never completely eliminate the need to pay the debt. Exceptions are the recognition of a person as incapable and not responsible for his actions at the time of the conclusion of the contract.
It is extremely difficult to achieve the cancellation of the contract, the courts in such cases recognize the rights of the creditor, because the contract was signed by the client voluntarily, and the money was received. But it is quite possible to try to challenge the payment of a penalty or reduce the interest rate.
In order for the court to recognize the interest rate under the loan agreement as unreasonably high, the debtor may cite the following arguments:
- The interest rate is too high compared to the official refinancing rate.
- The contract was signed under the pressure of a difficult life situation, which the creditor knew about and took advantage of it in order to enrich himself.
- For some time, the debtor honestly paid on the loan, but all payments went only towards repayment of interest.
The debtor may ask the court to delay the payment of the loan or installments. The delay is most often granted for a year, but any terms can be considered individually, depending on the life circumstances of the plaintiff. If necessary, before the end of the limitation period, it is allowed to file an application again.
If, in the opinion of the borrower, the microfinance organization charges unreasonable interest in excess of those specified in the contract, or requires early repayment of the debt, then in this case it is also possible to file a lawsuit in court.
Documents for the court
When filing a claim, you must prepare the following documents:
- A copy of the loan agreement.
- Documents confirming the claims of the plaintiff: calculation of financial claims, certificates confirming difficult living conditions.
- Receipt for payment of state duty.
- Statement of claim.
The amount of the state duty depends on the amount of the claim, if its basis is compensation in cash. But if the claim contains a request to reduce the interest on the loan, then it is filed free of charge.
Once the litigation has begun, the debt on the loan does not increase until the court decides. It does not matter who filed the claim earlier: a microfinance organization or a borrower.
The borrower can file a complaint against the financial institution with the regulatory authorities if he is not satisfied with the work of the MFI.
For contracts with microfinance organizations, a reduced limitation period of exactly 1 year applies (Article 181 of the Civil Code of the Russian Federation). Its calculation begins from the very moment the loan was taken, that is, the lender and the individual entered into an appropriate agreement. That is why absolutely all legal workers always say that it is necessary to sign documents with MFIs regarding loans only after they have been read competently and carefully. Thus, if more than 365 days have passed since the signing of the loan agreement, it is almost pointless to sue the MFI, but otherwise the defaulter can safely file a lawsuit.
How to sue a microfinance organization?
Attention
Note! Regardless of the reasons why the defendant asks for a delay (child care, illness, employment, and others), he must provide the court with documented grounds for his request. According to the statistics of such cases, it is optimal to take a delay of a year, but everyone has the right to ask the court to set absolutely any time frame for this.
Info
Moreover, if the defendant is denied his request until the end of the limitation period, he has every right to file another application for a delay. In turn, taking an installment plan will not mean that the court decision is suspended - this decision changes the procedure for its execution.
That is, the defendant is not allowed to immediately pay the full amount of funds that the MFI charges from him, but to give it in parts.
MFI. Judicial practice on microloans shows that a positive decision in such cases can be obtained. We will figure out how to properly draw up a claim, and what documents to provide in order to reduce the amount of debt on a loan.
Content
- 1 What to do if there is nothing to pay on the loan?
- 2 Litigation
- 3 Reducing the amount of the penalty
- 4 Decreasing the loan rate
- 5 What documents are required to file a claim
- 6 Deadlines for filing an application with the court
- 7 Challenging a decision
- 8 Suspension of enforcement
- 9 Installment payment
- 10 Conclusion
What to do if there is nothing to pay on the loan? Services provided by microfinance organizations are in demand today, despite unfavorable lending conditions.
How to file and win a lawsuit with an MFI?
Important
Civil Code, regulating the reduction of the size of the penalty. If you have already lost a court case with a microfinance organization and you have a decision to collect a debt, you can always challenge it by filing an appeal. This situation has several nuances that you need to know.
There is an appeal period between the issuance of the decision and its entry into force. For civil cases, it is one month. It is in your interest to meet the deadlines, because after 30 days the complaint will simply not be accepted. However, if the deadlines are missed for a good reason, this will be taken into account. The appeal is addressed to the highest authority, but it should be submitted through the judicial organization that made the original decision.
The document must contain information on why the defendant was unable to file a counterclaim during the process.
Standard statement of claim to a microfinance organization
Before applying to the appropriate authorities with a statement of claim, it is best to read reviews from those who have sued MFIs, since there are plenty of them on the Internet. Invaluable experience from such people will definitely help the borrower successfully win the dispute with the lender.
Installment and Postponement of Judgment There are several legitimate ways to buy time to prepare for the process of challenging an excessively high interest rate - this is a delay or installment of a judgment. The deferment allows the defaulter to postpone the date of the final payment of the entire amount of the debt for a certain period, that is, judicial signs during this time will not have the right to describe his property, and representatives of the microfinance organization will “get it” with their demands.
How to sue microfinance organizations
Next, the non-payer needs to file a claim, based on the provision of Article 333 of the Civil Code of the Russian Federation, which clearly indicates the objective reasons for the impossibility of repaying the debt on time. Further, the fate of the claim can only be decided by the employees of the court, and no one else.
Note! Only individuals applying to MFIs for taking a consumer loan can use the right to reduce the amount of the penalty. It is almost impossible for persons who took money for business development to prove an overestimated amount of the penalty.
However, it is possible to reduce not only the amount of the penalty - if you read various reviews on the Internet from people who understand whether it is possible to file a lawsuit against an MFI, it turns out that it is not very difficult to reduce the interest rate under a loan agreement.
How to stop interest on microloans in 2018 and reduce debt
How to file a claim against an MFI for non-pecuniary damage A claim for compensation from an MFI for non-pecuniary damage is extremely rarely filed as a separate claim - most often it is included in other claims. But if all claims against MFIs are related only to moral harm, for example, due to insults, threats and similar violations of the law, then the claim may be independent.
Moral damage is subject to proof, including in relation to its monetary value. In addition, it will be necessary to prove the cause (a specific violation), the effect (illness, ill health, other harm, damage, problems) and the causal relationship. How to file a lawsuit against an MFI When preparing a lawsuit, two main approaches are used:
- Search online for a sample claim that is similar or similar to your requirements.
How to sue a microfinance organization and get rid of debts?
Do you want to apply for an MFI (rate reduction or fines) and need a sample? Download it from the Internet or ask your lawyer for help. A good defense in court against an MFI is witnesses, if any. This is interesting: until the middle of the 20th century in Africa, cattle were paid for goods or services. back to table of contents It became interesting to us what caused the non-return of microloans and we went to look for answers again on the forums.
- Temporary financial difficulties (illness, an unplanned business trip or another delay in salary), which entailed frantic interest on microcredit, is the main reason.
- Technical failures on the part of the IFC can also cause delays.
How to sue a microfinance organization
Organizations providing microcredit services are perhaps the most notorious “actors” in the financial market. It is they who are associated among citizens with insane interest and gangster methods of knocking out debts.
Most borrowers simply do not know how to sue MFIs, believing that their activities are not regulated by law in any way. Let's dispel this misconception and talk about how to reduce interest, receive moral compensation or change the amount of payments.
Microfinance organizations in Russia are controlled by the Ministry of Finance.
The activities of MFOs are regulated by the Federal Law No. 151 dated July 2, 2010, which contains a number of restrictions. From the beginning of 2017, new amendments come into force, designed to make life easier for borrowers. As court practice on microloans shows, decisions are often made in favor of the debtor.
Article 12 of the aforementioned law stipulates all cases of misconduct by MFIs. For example, it says that the lender does not have the right to change the conditions (the amount of interest or repayment terms) without the consent of the other party, that is, the borrower.
In fairness, we note that in practice this rarely happens. Cunning financiers know the law well and understand that the courts in this case are not on their side. Yes, and the interest is initially already enslaving.
However, if you are faced with something similar, feel free to start filing a claim.
The MFI does not have the right to charge a fee for the early repayment of a loan. In this case, the borrower must notify his intention in writing, no later than 10 days.
Under no circumstances should the interest on the loan taken exceed three times the amount of the loan. That is, if you took, for example, five thousand, then the requirement of the MFI to return more than 20,000 would be illegal. True, the restrictions are set without taking into account fines and penalties.
How to reduce debt
Relations of citizens with MFIs and banks are regulated by Art. 333 of the Civil Code of the Russian Federation. It stipulates the possibility of reducing the amount of accrued fines if the reasons for the delay are recognized as sufficiently weighty.
Let's start with how much we're talking about.
Everyone knows that a delay on a loan is fraught with a fine, and if the client missed the deadline for repaying an MFI loan, the amount of payments is made up of the following indicators:
- the main part (body) of the debt;
- daily interest;
- penalty for delay (forfeit);
- increased interest on the amount of the main and overdue payments.
It must be understood that the money actually received on hand will have to be returned in any case, even if the contract is declared invalid. But the rest of the payments may well be changed downward.
Such claims are almost always resolved positively. However, the mere unwillingness of a citizen to repay the loan taken is not enough.
It is necessary to arm yourself with documents confirming the impossibility of repaying the debt in full. At the same time, it makes no sense to refer to circumstances that the borrower is able to change. If you are unemployed, nothing prevents you from getting a new job.
The reason must be compelling and not dependent on the will of the plaintiff. For example, illness, fire, an increase in necessary expenses associated, for example, with the birth of a baby.
The court takes into account how disciplined the borrower previously met the deadlines. Compared to banks, MFIs are in a less advantageous position because they do not practice loan insurance and cannot claim that the client himself has refused to protect himself in this way.
If you have problems with payment, do not immediately file a lawsuit. It is necessary to make an attempt to negotiate with the credit institution first.
True, most semi-criminal MFIs are extremely rare to meet, but their refusal to assist will be a good argument in your favor. The main thing is to fix this fact in writing.
Thus, you will demonstrate that you are ready to negotiate, do not refuse to pay your debts, you just want to get acceptable conditions for yourself.
Guide to action
Many citizens, if it is impossible to repay the debt, panic and stop thinking constructively. With daily interest and bi-weekly installments on the loan, the debt is snowballing. Therefore, it is not worth waiting until the situation turns into a financial disaster.
There are legitimate ways to achieve acceptable conditions for yourself. Your task is to solve the problem with the least loss. Let's figure out step by step how to file a lawsuit against a microfinance organization.
Imagine a situation where repayment of a loan is impossible due to salary delays or disability. This unpleasant fact can be confirmed by a certificate from the accounting department of the enterprise. where the debtor MFI works. In case of illness, you will need a copy of the sick leave.
The lawsuit is filed at the place of residence, in the district court and is considered as a case of violation of consumer rights.
It should be remembered that it is easier for an ordinary citizen who has received a loan for current needs to achieve a reduction in the amount of the penalty. An individual entrepreneur who has indicated the purpose of lending to business development is unlikely to be able to prove that the penalty for delay is too large.
In fairness, we note that the penalties are usually small, it will not work to gain a significant amount here. But the borrower has a good chance of getting a court decision that will reduce the amount of bonded interest.
Some nuances
It is better for the client to prove his case, based on the hopelessness of the situation. For example, a borrower took out a loan under duress in order to:
- pay debts on housing and communal services;
- keep minor children;
- carry out treatment;
- refinance an existing loan.
You should also focus on the fact that MFI employees took advantage of your condition and imposed a loan on you on very unfavorable terms. The legal basis in this case is Art. 179 GK.
If the client is free to declare his desire to terminate the contract at any time, then in most cases it is impossible to file the first claim for reconsideration of the amount of the accrued debt. Such issues are considered after the MFI applied to the court.
The defendant, having filed a counterclaim, may request a recalculation. In the application, you need to describe the situation, indicating that the amount was calculated incorrectly, ask to reduce the final rate.
During the trial, the borrower has the opportunity to make a request for an installment loan. The same can be done if the verdict has already been issued, but the decision has not yet entered into force. In this case, an appeal and a counterclaim must be filed.
Moral compensation - how to get it?
Borrowers sue microfinance organizations for various reasons, the most common of which are:
- unilateral termination of the contract;
- recognition of conditions as enslaving;
- unilateral change in MFI interest or terms;
- return of funds illegally withheld to pay off a debt;
- recognition of the contract as null and void;
- recovery of moral damages.
Let's dwell on the last point in more detail. What to hide, behavior on the verge of a foul is not at all uncommon for MFI employees. The constant calls, insults and threats start the same as soon as the customer has missed a payment date. The hysteria is on the rise if the payment has not been made.
Please note that it will not be possible to receive material compensation for the incorrect behavior of employees with MFIs. Even if they call you at night, threaten physical violence or damage to property, this is not a matter for the court, but for the police. And the application for illegal actions must be addressed to your district police officer.
In order to receive compensation for non-pecuniary damage, it will have to be proven.
That is, there must be an event provoked by the actions of employees of the organization, for example, a heart attack or an exacerbation of a chronic illness.
The fact must be recorded and confirmed by extracts from the outpatient card. Moreover, it will also be necessary to prove that the employees of the creditor organization are the perpetrators of the problem. And here your statements to the police, video or audio recordings will come in handy.
Summing up
Summing up, let's mention a little about the deadlines established by law so that the client of the MFI can protect his rights.
A reduced statute of limitations applies to the settlement of such disputes. According to Art. 181 of the Civil Code, it is a year from the date of conclusion of the agreement between the borrower and the lender. Can I sue after that? After the statute of limitations has expired, most applicants are denied acceptance of the application.
In order not to get confused in legal subtleties, it is better to entrust the preparation of an application and filing a lawsuit to lawyers or anti-collectors. Taking into account the specifics of your case, experts will develop a plan of action.
In practice, there are many legitimate ways to solve problems, but the choice must be made individually. Understanding that an intelligent lawyer is involved in the case, MFIs agree to make concessions and do not risk putting pressure on the debtor in illegal ways.
Forced rather strict legal and legislative regulation of the activities of organizations providing microfinance to the population, by a certain percentage reduced the burden on the courts in terms of claims against microfinance organizations (MFIs) and claims from borrowers. However, the ideal in this area is still quite far away. Let's take a closer look, How to sue a microfinance organization and what are the details to be aware of.
Disputes do not arise from scratch, but in a situation where MFIs operate by offering ultra-high interest rates for the use of borrowed funds and huge fines and penalties for delays against the backdrop of declining incomes of the population, lawsuits are simply inevitable.
Issues discussed in the material:
What issues related to MFIs are most often considered in court
As a rule, borrowers who find themselves in conditions where, due to an objective change in their life circumstances and their financial situation, they find themselves in a situation in which they have lost the ability to repay their debt with interest and taking into account penalties and fines, hope to resolve the issue by going to court. according to the terms of the agreement with the MFI. Debtors, referring in their claims to the enslaving terms of the contract, seek in a legal way to reduce the amount of debt required for payment or to achieve a court decision on accepting a deferral or installment plan for loan payments.
In addition to these issues, borrowers often try to resolve issues such as:
- Recognition of the contract as invalid. Most often, the reason for this is the enslaving nature of the terms of the contract, but the grounds for invalidating the contract may also be of a different nature;
- Termination of the contract unilaterally, if the pre-trial attempt to reach an agreement with the MFI did not lead to success;
- Resolving the issue in case of a unilateral change in the terms of the contract by the MFI, as a result of which the conditions for repaying the debt became obviously unfeasible for the debtor;
- Solving the issue of recovering from the MFI the funds that the MFI wrote off from the borrower's account to pay off the debt is illegal;
- If the MFI allows, on its part, such as threats, insults or other actions of an unauthorized nature, the debtor through the court can recover compensation from the MFI for moral damage.
Despite similar issues being addressed in courts in debt recovery claims by both MFIs and banks seeking to recover loans, court practice suggests that the chances of reducing the total amount of debt are much higher in a dispute with an MFI. In the case of a bank, it will be much harder to reduce the amount of debt due to interest or penalties and fines.
The same feature also applies when resolving the issue of recognizing the contract as invalid. If there are objective grounds for recognizing a microloan agreement as invalid, it is much easier to achieve a positive decision in court than in a dispute with a bank. The reason for this is the really prohibitive conditions of the contract, which create an unbearable financial burden on the borrower, as well as the fact that the borrower applies to the MFI, as a rule, under the influence of circumstances that often leave him no other choice.
The Court restricted Microloans:
Since the courts are well aware of the nature of the activities of MFIs and that for borrowers, the terms of an agreement with an MFI are the right path leading directly to a financial dead end, disputes in court are resolved based on the inherently weak position of MFI borrowers. Borrowers in such a dispute will always need judicial protection, and the courts in their judgments, taking into account such an unfair position of the borrower, often respond positively to the borrowers' claims.
How to terminate a microloan agreement through the court
Before applying to the court regarding the termination of the microloan agreement, the plaintiff must make an attempt to resolve the issue by extrajudicial methods. That is, the borrower must first apply to the MFI with a claim, making sure that the representative of the MFI puts an acceptance mark on his copy of the claim with the date, his position and full name and signature. The borrower can also send a claim using the postal services. The postal item must be with a notification of receipt and with a description of the attachments. If there is no evidence of taking steps towards pre-trial settlement of the issue, the court will not accept your application.
To terminate the contract, it is necessary to find weighty legal grounds. One of these grounds is a change in the financial situation of the borrower and his life circumstances, as a result of which he loses the ability to fulfill his obligations under the contract. The borrower must provide evidence of the existence of such circumstances, the occurrence of which could not be foreseen in advance, and with the condition of the occurrence of these circumstances, the contract for the borrower has acquired the character of a deliberately disadvantageous and impossible to perform, that is, the execution of the contract, taking into account the new circumstances, clearly causes irreparable serious financial damage to the borrower. This reason is one of the most common, because objectively any change in the financial situation of the borrower (loss of his job, temporary disability due to illness, disability, etc.) puts him in difficult conditions that do not allow him to pay off the loan on the same terms.
If the borrower used a bank loan, where the conclusion of an insurance contract often becomes a prerequisite, he would be insured against such a change in living conditions, in any case, according to the terms of the insurance contract, the bank could provide him under certain conditions with a deferment, installment plan, etc. . measures to resolve the situation at the expense of the insurance company. In any case, this works if the client does not terminate the insurance contract on his own. In MFIs, insurance is not applied, therefore, the argument from the MFI that the borrower could have insured is not taken into account by the court.
At the same time, the reasons that the borrower indicates as significantly worsening his financial situation must really be serious and independent of his actions, otherwise they will not be considered. As such reasons, on the basis of which it is possible to terminate the contract with the MFI, medical certificates of a significant deterioration in health or a certificate from the MSEC on the degree of disability, payment documents on the involuntary expensive treatment of the borrower or a member of his family and documents proving the need for expenses, without which were impossible to do.
If the MFI unilaterally changes the terms of the agreement, and at the same time, the borrower's situation worsens in a significant way, the borrower also has the right to file a lawsuit in court to terminate the agreement with the MFI. However, this state of affairs is rare, and even if it happened, the court may not find grounds for terminating the contract and simply oblige the MFI to maintain the previous terms of the contract, as well as reimburse the borrower for the losses incurred by him.
How to invalidate an agreement with an MFI through a court
The borrower has the right to demand in court that the microfinance agreement be declared invalid if there are substantial grounds for this.
The following are the most commonly used grounds for invalidating a contract:
- The most commonly used basis is the bondage of the terms of the contract with the MFI. From the moment the MFIs began their activities, when their application of the highest interest rates was uncontrolled, and huge penalties and late fees were applied, this very basis was used in the courts as widely as possible. At the beginning of their activity, MFIs often included collateral in the terms of the contract, the amount of which was prohibitive in comparison with the loan provided, and for a slight delay, the MFI included security measures that completely deprive borrowers of collateral. Certain restrictions were applied to such measures by the legislation, in connection with which the flow of claims against MFIs decreased, but, despite this, by itself, by default, providing for bondage conditions for issuing loans, determines an ongoing stream of claims on the basis of bondage of conditions. The court considers as enslaving either the terms of the contract that are extremely unfavorable for the borrower, or those to which the borrower agreed only under the influence of external circumstances, that is, the MFI is considered as a party that took advantage of the borrower’s difficult situation to conclude a contract with him that is obviously unfavorable to the degree of servitude;
- The second most popular reason for recognizing an agreement with an MFI as invalid is the conclusion of an agreement by an incapacitated or partially incapacitated person, or by a person who does not have the right to conclude agreements without the mandatory consent of another person. Often an agreement with an MFI is concluded by children who have not reached the age of majority, which is illegal, and the legal representatives of a child who has entered into a contract without the right to do so reasonably use this basis to invalidate the agreement;
- Finally, as a basis for invalidating the contract, the plaintiff may indicate the general illegality of the contract or its terms. This ground can be used if legal violations are found in the contract itself, taking into account which the contract really becomes invalid.
The main thing to be clear on this issue is that even if the contract is declared invalid, the borrower's obligation to repay the debt cannot be abolished.
Another thing is that in this case the amount of the debt will be equal to the amount that he took. That is, if the borrower borrowed 15,000 rubles, he will have to return only these 15,000 rubles, excluding interest, fines, penalties and other terms of the invalid contract.
How to file a counterclaim or go to court with an objection to a claim
The borrower may apply to the court to declare the contract invalid or to terminate the contract on his own initiative. However, what to do in a situation where the creditor has already initiated a lawsuit and the borrower finds himself in the situation of the defendant?
The borrower has the right to file an objection to the claim, in which to present his claims against the plaintiff, or initiate a counterclaim on his part. For example, the borrower may, as part of the objection to the claim, put forward a demand for the recalculation of the amount of debt, taking into account the exclusion of the amount of the penalty from it, as well as a decrease in the amount of interest.
If you are participating in a lawsuit, you can file a petition for your part to establish a debt repayment schedule, taking into account installments, directly at the trial.
How to file a claim for compensation for non-pecuniary damage
Talking about how to sue a microfinance organization, you should be aware that separate claims for compensation for moral damage, as a rule, are not filed. More often, these claims are included in other claims, for example, to terminate the contract unilaterally or to invalidate the contract. A separate claim for compensation for non-pecuniary damage can be filed if the whole essence of the claims against the MFI lies precisely in the moral harm received from its employees, for example, when you listened to threats and insults, or other illegal actions were committed against you by the MFI.
You must prove the existence of situations that brought you moral harm. It is required to prove not only the existence of harm, but also its compensation in monetary terms. The scheme for proving non-pecuniary damage is as follows: you must prove the actions of the MFI representative who committed unlawful and offensive behavior, as well as prove the presence of harm that has occurred, that is, illness or poor health, loss of working capacity (certificate from a doctor) and other problems, including financial nature. And finally, you have to prove that there is a causal relationship between the first action and the second, that is, that your damage was caused precisely by the actions of the MFI.
How to file a claim against an MFI for compensation for moral harm
As in all other cases, you can proceed in two ways: either search for information on how to file a claim yourself, using the Internet, where you can find sample statements of claim for problems similar to yours, and draw up a statement of claim, focusing on the document found (in this case, the document may be outdated, not taking into account the current situation, or not valid at all), or immediately contact lawyers for competent and prompt preparation of a claim that meets your interests and legal requirements.
A lawyer can also help you build evidence for your claim. In any case, legal assistance in resolving issues with MFIs will be extremely necessary for you, since knowledge of the features and subtleties of the legislation can lead to winning even a deliberately weak situation.