The statement of claim for the recovery of funds by receipt with interest. Statement of claim for debt collection on receipt - rules for drafting
How to collect a debt by receipt from an individual? If you have ever given someone a loan, then there is always fear of not getting your money. One of the means of guaranteeing the return of the debt is a receipt.
It is thanks to this document that in the hands will be evidence of the transfer of funds to the borrower, and, therefore, the opportunity to send to the court statement of claim for debt collection.
Appeal to the court represents the use of the judicial defense opportunity provided by the Constitution of the Russian Federation. The receipt in this case will constitute evidence of the existence of a concluded loan agreement and the fact of the transfer of funds.
In this article:
When it is necessary to go to court to return money by receipt
The application to the court is a written request to the defendant to repay the debt, in fact the return of the funds transferred under the loan agreement to the debtor.
The evidence attached to the claim is a loan agreement or a receipt on receipt of money.
Written execution is required subject to a loan between citizens for an amount exceeding 10 minimum wages, corresponding to the size accepted at the date of its signing (Article 808 of the Civil Code of the Russian Federation).
In the absence of a contract or a receipt when transferring money, the parties in the application for debt collection are not able to refer to witness statements.
Thus, the repayment of funds transferred to a loan can sometimes turn into a real problem for the lender.
How to repay a receipt
The receipt is a document that proves the fact of transferring money to the borrower.
Thus, it will be he who will show the existence of a loan agreement between citizens. The loan agreement itself is concluded from the moment the money transfer took place.
In order to return the funds it is not necessary to prepare a statement of return to the judiciary. It is likely that money will return without the application of such efforts.
If no return is due within the established deadline, then you should be puzzled by the preparation of a statement of claim for debt collection by receipt.
It is this document that can initiate litigation on the issue of debt collection. And the result of the review will be a decision to satisfy the applicant's requirements.
And if the debtor further refuses to return the money received under the loan agreement, the recovery will be carried out with the help of bailiffs.
How to write a statement of claim for debt collection between individuals
The statement of claim for debt collection by receipt is a fairly standard document. Basically, claims differ in the description of the personal data of the parties to the contract, the situation, time, place and terms for which the money was transferred.
It is this fact that facilitates the use of a sample of a statement of claim for debt collection in the preparation of documentation to initiate a trial.
On this site you can download a sample of a statement of claim for debt collection under a loan agreement prepared by a professional lawyer who regularly participates in the consideration of such cases by the courts.
So, the proposed document will take into account all the necessary nuances for this category of cases. And for sure, according to the results of the consideration of the claim for debt collection, the decision you need will be made.
Example of a claim for debt collection under a loan agreement
Basmanny District Court of Moscow
107078, Moscow, st. Kalanchevskaya, 11
Plaintiff: Volkova Alvina Vladimirovna
moscow, st. Vatutina, house 19
Tel 8 981 886-28-17
Defendant: Turchaev Rustam Faritovich
moscow, st. Zenith 16
The price of the claim: 219538 rubles
State duty: 5,395 rubles
Statement of claimon debt collection on receipt
October 26, 2016 Volkova Alvina Vladimirovna (plaintiff) borrowed Turchaeva Rustam Faritovich (defendant) money in the amount of 150 000 rubles. for 2 months. Which is documented. The receipt on borrowed money was drawn up in simple writing and signed by A. Volkova. and Turchaev R.F. Date of receipt of the receipt 10.26.2016
According to the receipt, the defendant took money for two months and pledged to return 210,000 rubles, i.e., December 26, 2017.
Thus, the period of delay in the repayment of the debt begins on December 27, 2016. However, at the prescribed time, the defendant did not return the money.
The plaintiff took measures of pre-trial settlement of the dispute, namely, on June 23, 2017, a claim was sent to the defendant's address, which he ignored.
In accordance with Art. 309 of the Civil Code, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with the customs of business turnover or other usually presented requirements.
Unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed (article 310 of the Civil Code of the Russian Federation).
By virtue of paragraph 1 of Article 307 of the Civil Code, the debtor is obliged to perform a certain action in favor of the creditor, in particular to pay money, and the creditor has the right to demand that the debtor fulfill his duty.
In accordance with paragraph 1 of Article 810 of the Civil Code of the Russian Federation, the borrower is obliged to return the money received to the lender at a time determined by the parties.
In accordance with the provisions of paragraph 2 of Article 808 of the Civil Code of the Russian Federation, a confirmation of a loan agreement may provide a receipt of the borrower, certifying the transfer of a certain amount of money by the lender.
Thus it should be recovered from the defendant the amount of debt in the amount of 210 000 rubles.
In accordance with paragraph 1 of Art. 811 of the Civil Code of the Russian Federation, in cases where the borrower does not repay the loan amount on time, interest is payable on it in the amount provided for in paragraph 1 of Art. 395 of the Civil Code of the Russian Federation, from the day when the debt was to be repaid, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code of the Russian Federation.
The defendant was not supposed to return money in the amount of 210,000 rubles on December 26, 2017. Accordingly, the calculation of interest on the use of funds should be made from December 27, 2016.
The delay period from December 27, 2016 to June 14, 2017 (at the time of filing a lawsuit with the court) of the year is 170 days.
Interest amount: 9 538 rub. 39 kopecks (see Appendix. Calculation of interest on the use of funds).
Thus it is from the defendant must be recovered interest for the use of funds in the amount of 9 538 RUB. 39 kopecks
In accordance with paragraph 3 of Art. 395 of the Civil Code of the Russian Federation, interest on the use of borrowed funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for interest calculation by law, other legal acts or an agreement.
Thus, interest for the use of funds from the amount of the principal debt in the amount of 210,000 rubles is recoverable from the defendant, for the period from June 15, 2017 to the day of actual payment.
Due to the fact that the defendant does not contact, the plaintiff is forced to go to court.
Based on the foregoing, I ask the court:
1) Collect from Turchaev Rustam Faritovich in favor of Volkova Alvina Vladimirovna, a debt in the amount of 210 000 rubles.
2) to recover from Turchaev Rustam Faritovich in Volkova Alvina Vladimirovna, interest on the use of funds in the amount of 9 538 rubles. 39 kopecks
3) To recover from Turchaev Rustam Faritovich in favor of Volkova Alvina Vladimirovna, interest on the use of funds from the amount of the principal debt in the amount of 210,000 rubles for the period: from the moment the lawsuit was filed with the court - June 15, 2017 until the day the debt was actually paid.
4) collect from Turchaev Rustam Faritovich in favor of Volkova Alvina Vladimirovna the state fee in the amount of 5,395 rubles.
Applications:
1) Receipt of payment of state duty.
2) A copy of the receipt for 210,000 rubles dated 12/26/2016.
3) Calculation of interest on the use of funds
5) Postal receipt (claim direction).
6) List of investments (claim direction).
Appendix No. 1.
Calculation of interest on the use of funds under art. 395 of the Civil Code
Debt | Delay period | Rate | Formula | Interest | ||
from | by | days | ||||
210 000.00 p. | 27.12.2016 | 31.12.2016 | 5 | 10,00 | 210,000.00 × 5 × 10% / 366 | 286.89 p. |
210 000.00 p. | 01.01.2017 | 26.03.2017 | 85 | 10,00 | 210,000.00 × 85 × 10% / 365 | 4 890.41 p. |
210 000.00 p. | 27.03.2017 | 01.05.2017 | 36 | 9,75 | 210,000.00 × 36 × 9.75% / 365 | 209.45 p. |
210 000.00 p. | 02.05.2017 | 14.06.2017 | 44 | 9,25 | 210,000.00 × 44 × 9.25% / 365 | 2 341.64 p. |
The amount of the main debt: 210,000.00 p. | ||||||
The amount of interest: 9 538.39 p. |
Total:The amount of interest on the use of funds is 9 538 rubles 39 kopecks.
Court Debt Collection Services
People tend to borrow and borrow money. After all, everything happens in life. However, over time, many forget about debt, despite having a handwritten receipt.
And then there is a need for debt collection. Judicial practice shows that this is not always easy. The way out in a difficult situation can be found with the help of a qualified lawyer.
Before starting work, the lawyer will analyze the entire situation in the complex and examine the receipt on receipt of funds in debt.
After that, further prospects will become clear. In many cases, it is advisable to file a claim with the debtor before filing a claim. This can save time and money for legal costs.
If the borrower does not want to give the received funds voluntarily, then the only way out is to go to court. Of course, a lawyer can attract law enforcement, and accusing the debtor of criminal acts.
However, practice shows that police rarely initiate criminal proceedings based on receipts.
In court, a lawyer will be able to recover not only the amount of the principal debt, but also the amount of interest for the illegal use of other people's money. The lawyer will give their reasonable calculation in the lawsuit.
Satisfaction of the claim does not mean that the debtor wants to part with the money voluntarily. Then the collection of debts from individuals by receipt will go to the stage of enforcement proceedings. And here the lawyer will accompany the work of the bailiffs.
Cash receipt on credit: legal force
Practice shows that success in collecting a debt largely depends on the correct preparation of a receipt. What should be in it?
Of course - this is the name of the document, as well as the date and place of its preparation. This is followed by information about the citizen who takes the money in debt and about the person providing the loan. Here you need to provide both the addresses of the parties and their passport data.
Next, you need to specify the loan amount (in numbers and words), the term of its return, as well as the amount of interest, if any. If the loan repayment term is not specified, then the debtor must first send a written request for payment of the due amount of funds.
Signing of the parties with a transcript of their initials should complete the receipt. If witnesses were present during the preparation of the debt document, then data on them should also be mentioned.
The loan can be issued by a notary. Then he will seal the bonds with his signature.
How to return money on receipt from an individual: questions and answers
People at all times lend money. Often, at the same time, relations are fastened only with an honest word. However, a friend, buddy, can fail and not return finances on time. As a result, relations deteriorate, conflict situations on household soil begin.
On the other hand, even having a receipt does not guarantee timely repayment of debt. Practice shows that errors, inaccuracies in the preparation of a debt document can lead to problems in the future.
Below we tried to collect the answers of lawyers to the most common questions that arise when collecting debt. In addition, specialists are often asked how to draw up a debt obligation. So.
What should be on the receipt
We agreed that I give my friend money on credit. What points of the receipt to pay special attention to? Is it enough to print a document on a computer or is it better to write it by hand?
Vitaliy, Moscow
First of all, you should specify the amount of the loan. At the same time, it is advisable to explicitly stipulate that the money is transferred precisely in debt, and not for any other needs. Judicial practice indicates that without specifying the purpose of their transfer, difficulties may arise.
On the computer, the current laws do not prohibit making the text of the receipt on receipt of funds in debt. However, it is better to draw it up by the debtor with his own hand in order to avoid claims of authenticity of the text and the signature itself from the recipient of the money.
If the receipt does not indicate the period for repayment of the debt
I gave a friend a loan, however, in the receipt we agreed not to indicate the loan repayment period. When can I ask for a loan from him.
Nikolay, Balashikha
Indeed, this error in receipts is common. Therefore, if you turn to the court now, with a greater degree of probability it can be argued that the lawsuit will not be satisfied. You need to do as follows.
Send your friend a letter requesting a refund. According to the legislation, this requirement must be fulfilled within 7 days. If during this week the funds are not returned, the right to sue arises.
How to prove the existence of debt, if there was no receipt
I gave my girlfriend a loan after her insistent requests. Receipts we did not make. Now she does not recognize the existence of a loan. What to do in this case?
Ksenia, Vnukovo
Of course, in such cases, returning your money is the most difficult. If witnesses were present during the transfer of funds, they can appear in court and confirm the necessary information.
Recording conversations with the borrower is also suitable. However, it can be used as evidence when the existence of debt is not denied.
If the debt order is canceled
I appealed to the court for a court order. Debt collection was required. At first, the justice of the peace took my side and issued a court order. However, then the debtor secured its cancellation. What should I do next?
Victor, Alabino
There is only one way in your situation - to bring a standard action against the debtor. In this case, it is necessary to check whether the limitation period for the recovery of the amount has not yet expired.
Another point is the state duty. It is calculated from the total amount of claims. This includes the main debt, interest accrued at the time of going to court.
In this case, the fee paid for the application by order is taken into account. A surcharge is just being made. The old receipt is attached to the lawsuit.
How to return a debt by receipt through the court, if the debtor does not give money on time
If the debtor refuses to return the money taken against receipt, what should I do? Do not know how to repay a debt on receipt? Then you went to the right site! We will inform you what to do in this case.
People quite often face such a problem. Realizing that instead of money, only a piece of paper on which something is written by hand, citizens, first of all, involuntarily ask themselves: “Is it made up correctly? Will a court accept a lawsuit to recover a debt by receipt? ”
These questions are natural, no one wants, so simply, to part with their money. And this is true. In this situation, you must defend your rights.
The procedure for collecting monetary debt by receipt through the court
So, the lender came to the conclusion that you can return the money only through the court? Then it is necessary to familiarize yourself with all the conditions that the law makes in order to file a statement of claim for debt collection by receipt.
It is immediately necessary to clarify the content and form of the receipt. Legislation does not establish any requirements. The conclusion follows from here - the document can be executed in any form.
In its spirit, a receipt for receipt of funds is a contract. In connection with this state of affairs, the receipt has legal force, with the exception of circumstances related to statutes of limitations.
And yet, based on the general provisions contained in the legislation, the contract, for its recognition as such, should include:
- place of signing the contract;
- parties to the contract;
- subject of the contract;
- date of conclusion of the contract;
- details of the parties.
Therefore, when drawing up a receipt, it is better to take into account our recommendations and do everything right. No one will guarantee that the debt will be repaid on time and will not have to go to court.
Jurisdiction Rules
Here, in many respects, the size of the amount and the territorial location of the debtor will play a decisive role.
And also the interest that needs to be indicated in the claim for the recovery of the amount of debt on receipt is also important. In addition, take into account the presence or absence of a commercial component.
Let's deal with the jurisdiction of the price (amount) of the claim.
If the total price of the claim is 50,000 thousand rubles or less, then you must go to the magistrate’s court. If this amount is exceeded, the application is submitted to the district court of general jurisdiction.
Now consider the territorial jurisdiction. This means going to court, depending on the registration of the defendant or at the place of conclusion of the contract (writing a receipt).
The next criterion is the commercial component. If the receipt indicated that the money was intended for a commercial project, and the parties to the loan are organizations and enterprises, then we turn to the arbitration court.
You must go there if the receipt was issued as a result of the economic ties of individual entrepreneurs.
The procedure for the preparation and filing of a statement of claim
Initially, you need to write a letter to the debtor with the requirement to fulfill the conditions of the receipt. It is necessary that he receive it personally in his hands. To do this, the claim is sent by mail, registered letter with notification or handed in person against signature.
If, no reaction to the demand for the return of the debt does not follow within 30 days, then you need to go to court with a lawsuit.
The law imposes strict requirements on the form and content of this document. At the same time, violations committed while writing the application may become the basis for refusing to consider the merits of the case.
A very common mistake when filing a statement of claim is the lack of a receipt for the payment of state duty for debt collection on receipt. In order to avoid such moments, you need to clarify the details of the court and pay for it.
In addition, it is necessary to foresee in what order the case will be considered. If, the total amount of the debt does not exceed five hundred thousand rubles, you can apply for a court order. Then the case is considered in a simplified manner and does not require a personal presence in court.
As you can see, going to court requires some knowledge and skills, so a consultation with our specialist will not hurt. Call us.
But if you nevertheless decided to act in person, then a sample of a claim for debt collection by receipt can be downloaded on our website.
Obtaining an executive document
The time frame for obtaining a writ of execution depends on the order in which the proceedings took place.
After a court decision is made, it is necessary to wait for its entry into force. If, the case was considered by the court in the general manner, then the writ of execution is received only after a month. This time is given to appeal the decision of the court of first instance.
When the court session took place in a simplified manner, the court order may be issued to the claimant, after ten days from the date of proper notification of the debtor, about the existence of such a document in relation to him.
Attention is important! Proper notification of the debtor may be delayed. In addition, there is a risk of cancellation of the court order.
Since, the court will try to notify the debtor by mail. And based on the fact that, quite often, people do not live at the address of permanent registration, the notification may not be received. To speed up the process, it is necessary to take this issue under control.
Enforcement proceedings and general findings
After receiving a writ of execution, the bailiffs should intervene in the case. Through their actions, the requirements established by the court are ensured. In our case, this is a compulsory collection of debts from individuals by receipt.
The recoverer must remember that he has the right to provide all possible assistance to the bailiff. For example, by providing information on the actual location of the debtor, his place of work, indicate the presence of property that can be used to pay off the claim.
In conclusion, we draw attention to the complexity of the entire process of repaying money debt. This procedure will require the lender increased attention, composure and a huge amount of knowledge. In addition, it is also such an expensive time in our world.
To avoid all these difficulties, use the services of a law firm. Do not pay attention to the price of services provided. Indeed, in the end, the court will transfer the debtor's case to the loser.
Receipts and latest court practice
A rather interesting decision of the Supreme Court was made public several years ago. It dealt with the question: is it possible to collect a debt without a loan agreement if there is only a receipt on hand.
As part of the dispute, the plaintiff appealed to the court with a request to recover money from the opponent, providing only debt receipts.
However, the first and second instances refused the claim, citing the fact that there was no loan agreement between the parties. The Supreme Court intervened in the case, which quashed all previous decisions.
In its decision, it is noted that the receipt is sufficient evidence of the existence of a loan. And the defendant must prove the opposite.
Thus, having only a receipt in hand, it is possible to recover money from a debtor in a judicial proceeding.
If you should contact us, we know how to solve your problems!
According to the procedural code, the lender has the right to initiate the process of returning debts that he could not return as a result of extrajudicial negotiations with the borrower. For a simple citizen, a debt is a certain amount transferred to relatives or friends and not returned back within the agreed time frame.
The root causes for the formation of debt are diverse. They are a consequence of financial and legal relations established between persons (entities). It turns out that the debt is the result of the failure of one of the parties to fulfill the obligations noted in the concluded contract, agreement or contract.
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A similar situation arises when one of the parties to the agreements does not perform previously agreed actions (payment) in favor of the opposite side of the contract. This also applies to those moments when the result of breach of contractual terms is the damage or damage caused to the creditor.
The largest number of lawsuits is filed with the judiciary with claims for repayment of debts arising as a result of:
- non-performance by the borrower of the return of funds (loans);
- non-payment of rental payments;
- non-payment of goods, services rendered, work performed;
- violations of any terms of the contract, etc.
Possible claimant
The entry into force of the loan agreement is regulated by Art. 807 of the Civil Code of the Russian Federation. It occurs at a time when one of the parties in relation to the other makes the transfer of values.
It turns out that between people, one of whom provided his acquaintance with money under previously agreed conditions for return, and the second accepted them, material and legal relations have already begun. The loan agreement has become effective between the parties that concluded it.
In the case of a transaction amounting to more than 10 times the minimum wage, participants must draw up a relationship with a receipt. The same rule should be followed when a lawyer represents the interests of one of the parties when drawing up a loan agreement.
The borrower is obliged to fulfill the obligation to repay the debt in accordance with Art. 810 of the Civil Code of the Russian Federation. The application of fines in connection with violation of return periods is regulated by article 811 of the same code.
In the process of applying to the court, the plaintiff in the application may demand not only to repay the amount of the loan issued, but also to charge interest to the defendant for overdue time
Important information
To claim the return of the debt from the defendant and the application of penalties, the plaintiff appeals in writing to a court dealing with civil cases. The submitted application must comply with Article 131 of the Civil Procedure Code of the Russian Federation.
The lawsuit provides such important information:
- name of the judicial authority to which the applicant applies;
- The name of the applicant or the person representing him, the address of registration or residence;
- Borrower's full name, address information (in the case of a claim for debt collection under a contract to a legal entity, the full name of the enterprise or company, the actual and legal address should be provided);
- full amount of debt with appropriate calculations;
- list of documents confirming claims.
In the text of the application, the plaintiff must clearly and convincingly reflect the essence of the case, describe all the circumstances that led to the debt, and also indicate the measures taken to resolve the issue without appeal to the courts.
The data contained in the application must be confirmed by relevant documents or, in the case of a transaction without a receipt, by the testimony of witnesses. This is done in order to prove the fact of the debt and its non-return by the defendant in the course of the proceedings.
The application must necessarily be signed by the plaintiff himself, his official representative or agent.
Required documents
The list of documents for drawing up a claim and submitting it to court is established by Article 132 of the Civil Procedure Code of the Russian Federation.
It includes:
- copy of the claim (if the defendant is not one, then several copies);
- document confirming payment of state duty;
- papers proving the occurrence of debt that has not been eliminated;
- documents serving as evidence of actions taken by the plaintiff to return the amount of the debt (their provision is necessary if specified in the terms of the contract or regulated by law);
- data on the calculation of the claim amount, which includes the amount of debt, the calculated interest for the period of delay, as well as legal costs;
- if the interests of the plaintiff in the proceedings are represented by another person, then the corresponding power of attorney.
Sample debt collection claim
The litigation process requires an understanding of various legal aspects.
For the correct preparation of a package of documents, its formation and subsequent submission, if there is no desire to delve into all the nuances, it is better to contact a professional lawyer. This will help save time, prevent errors and inconsistencies.
In addition, all cash costs incurred for these purposes can be reflected in the claims, for which they must be confirmed by relevant documents.
All court cases have their own individual characteristics. To consider them all is unrealistic. Therefore, it is not possible to draw up a universal application form that is suitable for each case.
However, you can give a generalized sample of a claim for debt collection:
In the Oktyabrsky District Court. Belgorod
Plaintiff: Andrei Viktorovich Artamonov
Address: Belgorod, st. Plekhanova, 9, apt. 2
Defendant: Ivan Sergeevich Lukashev
The price of the claim: 237,000 (two hundred thirty seven thousand) rubles
Statement of claim
on repayment of debt under a loan agreement
On September 30, 2019, the defendant asked me to lend him funds for a total amount of 217,000 (two hundred seventeen thousand) rubles. We discussed the terms of the loan, and I agreed. The next day, October 1, 2019, I personally transferred the indicated amount to the borrower, which was reflected in the receipt drawn up by I.S. Lukashev. The refund, according to the terms of the contract, was to take place on October 1, 2019. This is also reflected in the receipt.
Citizen I. S. Lukashev did not fulfill the loan conditions, did not return the money to me within the agreed period. As a result, the defendant owed me a debt. I made repeated attempts for the defendant to return the debt on a voluntary basis, repeatedly requested and reminded him of this. However, these actions did not lead to a positive result. The defendant motivated his refusal to fulfill the loan conditions by the lack of funds. In connection with the foregoing, I had to resort to appeal to the court with a claim for the return of the debt.
In connection with the above data and in accordance with Art. 807, 808, 810 of the Civil Code of the Russian Federation and Art. 131, 132 of the Civil Procedure Code of the Russian Federation, I ask:
oblige citizen Ivan Sergeyevich Lukashev to return the borrowed funds in the amount of 217,000 (two hundred seventeen thousand) rubles and accrued interest for using the loan in the amount of 20,000 (twenty thousand) rubles.
All legal costs incurred by me as a result of the consideration of the case shall be assigned to the defendant.
I enclose the following documents (6 sheets):
- copy of the statement of claim - 1 copy;
- receipt gr. I. S. Lukashev on receiving funds from me (copy) - 2 copies;
- calculation of the amount of accrued interest for the use of the provided money - 2 copies;
- the original receipt of payment of state duty - 1 copy.
Debt collection from successors
As legal practice shows, there are frequent cases when, before the return of the debt, the death of a person who has taken out a loan occurs. What to do in such a situation and what to do to return your funds?
In such cases, debt can be obtained from the heirs who will enter into the right of ownership. Only contacting them with their claims for debt recovery is not earlier than through 6 months. This time is necessary for people to declare their rights and enter into the right of inheritance. If the heir renounces his rights, then there will be no one to demand the return of the amount of debt.
When all the formalities are met, the lender can file a claim. It is necessary to indicate in it when and for what amount the debt arose, according to which document the money was issued. It is also necessary to provide a document showing that the borrower has not fulfilled debt obligations in life. The claim is sent to the heirs. Be sure to use a notification letter to provide this document to the court if necessary.
Further actions are similar to those described above. The court should file a lawsuit in a month. If the outcome of the trial is positive after 10 days, you can take the court decision and take it to the executive service.
If the heirs refuse to enter into the inheritance, all the property of the deceased passes into the ownership of the local government. The procedure for this situation is the same: a claim is filed to eliminate the debt to the new heir, in case of refusal, a lawsuit is prepared.
You can declare your rights to return the debt before the end 6 month old term. In this case, the claim should be directed to the notary in charge of the inheritance case. He, in turn, informs the heirs about the presence of debt and that the required amount will be claimed from the value of the property of the deceased.
from 12/31/2018
The problem of repayment of overdue debt is resolved through the court; for this, a statement of claim for the recovery of debt under a loan agreement is necessary. Indeed, the preparation of such a claim is the most optimal and legal way to return your money. And more and more people understand the need to make at least a receipt when transferring money as a loan. But not knowing the nuances of considering cases, they are afraid to go to court.
No written loan agreement? Do not worry. The absence of a document where all the conditions of the obligation, the terms of the return of borrowed funds, etc., would be spelled out, will not be an obstacle to. Mandatory in such cases, the presence of only a receipt. When individuals entered into a loan relationship.
A statement of claim for debt collection under a loan agreement in the presence of evidence of receipt of funds and their non-repayment is simple enough. As always, the nuances are below, additional questions can be asked to the on-site lawyer.
Example of a claim for debt collection under a loan agreement
To Gubkinsky city court
Belgorod region
gubkin, pr. Dzerzhinsky,
d. 31, apt. 29,
address: 309181, Belgorod Region,
gubkin, st. Nikitina, 123
On September 18, 2020, I and the defendant, Butova Daria Sergeevna, entered into a loan agreement by drawing up a written receipt. In accordance with the terms of the contract, I transferred the defendant cash in the amount of 50,000 rubles. The term for the return of funds was established by the receipt - until 11/01/2020 at 10% monthly (120% per annum) until the date of the actual return of the debt. Penalties for failure to return the contract have not been established. The funds under the contract were transferred to the defendant on the day of its conclusion - September 18, 2020.
To date, the amount of debt Defendant has not returned. In accordance with Art. 810 of the Civil Code of the Russian Federation, one of the main obligations of the borrower under a loan agreement is the return of funds for violation of the term of art. 811 of the Civil Code of the Russian Federation establishes liability in the form of payment of interest, the amount of which is determined by the rules of Art. 395 of the Civil Code of the Russian Federation. The amount of interest is determined by the Bank of Russia key rate that was in effect in the relevant periods.
Thus, the amount of debt Butovoj D.S. as of December 18, 2020, it amounts to 60,646 rubles. 25 kopecks
Based on the above, guided by art. 12, 807, 810, 811 of the Civil Code of the Russian Federation, Art. 131-132 Code of Civil Procedure of the Russian Federation,
- Collect from Butova Daria Sergeevna in my favor cash in the amount of 60 646 rubles. 25 cop., Including 50,000 rubles. as the amount of the principal debt under a loan agreement, 10,000 rubles. as interest on the contract, 646 rubles. 25 kopecks as interest on borrowed money.
Application:
- Copy of statement of claim
- State Duty Receipt
- Copy of receipt of funds
- Debt calculation
Bulatsky S.E. 12/18/2020
The nuances of a claim for debt collection under a loan agreement
General rules on a loan agreement are quite simple. One side transfers the other money (sometimes there is a loan of things, but we will not consider it separately). It is assumed that the borrower pays interest on the use of funds. But if the loan amount is not more than 100,000 rubles. and the physical persons, it is assumed to be interest free. Unless otherwise specified in the contract or, for example, in the receipt. In all other cases of a cash loan, interest payable will be mandatory. Even if nothing is indicated in the contract on this issue. In order to avoid their payment, when describing the terms of the contract (including the receipt), you must directly indicate - without interest.
The refund period is usually indicated in the contract or receipt always. If not, this does not entail its invalidity: the borrower is obliged to return the money before the expiration of 30 days from the date of receipt of the request for it.
The obligations of the parties to the contract arise from the moment of transfer of funds, therefore, the transfer itself must be issued with a receipt. Or at least do it with witnesses. It is preferable, nevertheless, to draw up a simple contract in which to write down the conditions: amount, term, interest, sanctions for violation of the payment deadline.
An agreement can be challenged, in addition to the general grounds for the invalidity of transactions, proving its lack of money. That is, to prove the fact that the money was not received. Such an argument is often used in.
How to draw up and file a claim for debt collection under a loan agreement
A lawsuit is prepared taking into account general requirements. The following circumstances are described and confirmed by the evidence in the text: the conclusion of the contract and its form (written, receipt, witnesses, etc.), the amount of money transferred under the loan agreement, and the failure to fulfill the obligation to return the funds.
Copies of the contract (receipt) and the calculation of the debt (or indicate it in the text) are attached to the statement of claim, which will amount to the price of the claim. You can ask to call a court of witnesses who can confirm the information set forth in the lawsuit. Original documents will need to be provided at the hearing.
It is customary to lend money to friends, relatives and good acquaintances in trust without drawing up a debt receipt.
Non-return of money happens quite often and the lender has to collect any evidence of their transfer to protect their rights. Everything should be fixed - from SMS and video recording of conversations with the debtor.
What it is?
In the presence of trusting relationships between people, for example, friends or relatives, a “parole” loan is often applied, that is, without an elementary debt receipt. If we are talking about large amounts, and persuasion to return voluntarily does not help, then you need to contact the police and (or) the court.
In addition to contracts executed in writing, there is also a category of oral transactions. Such a concept is described in Article 159 of the Civil Code of the Russian Federation. A similar category of transactions includes the loan agreement without writing a receipt. The fact of conclusion of the contract will be considered a direct transfer of money to the borrower.
A lawsuit to recover a debt without a receipt means a procedure for repaying such a loan through a court. It is possible, however, it is necessary to collect a detailed evidence base. A real obstacle to getting back your money will be in the case when the defendant can prove the worthlessness of the transaction. There are frequent cases when the borrower argued that the money was given to him free of charge.
Is it possible to collect a debt without a receipt, contract and witnesses?
The situation when the money is borrowed without documentary evidence is much more difficult in terms of prospects to return it through the court.
The fact of the absence of witnesses or witnesses in the form of relatives of the creditor only complicates the matter. But from the point of view of law and judicial practice, it is possible to recover your money.
There are at least three legal options for this:
- Peaceful agreement;
- Writing a claim (claim) to the debtor;
- Submission of a fraud report to the police;
- Filing a lawsuit.
Some advise using the services of collection agencies, but they often use semi-legal methods to return money. This can turn into serious problems for the lender, so it is better to use civilized methods within the law.
Peaceful agreement
If the person to whom the money is borrowed is really in a predicament, then it is better to try to agree peacefully. For example, to stipulate the return of the occupied amount in fractional parts that are feasible for the borrower.
If necessary, you can visit a notary public and fix a new return schedule notarized. It would be wise to invite witnesses and have a conversation with them about fractional repayment of debts. This can serve as weighty evidence in the future.
Writing a claim
After verbal persuasion, the direction to the debtor of the claim () should be used. The fact of its writing can not only convince the debtor to repay the debt, but also serve as arguments in court. The claim should be sent by registered letter with a notice or delivered personally in hand for signature.
In case of non-repayment of the borrower, the case is awaiting consideration by the police and the court. Moreover, he will have to pay in addition to the main debt, a fine for the misuse of other people's money and a state duty for filing a property claim.
Contact the police
If the debtor ignores the request for the return of the debt, the borrower has the right to contact the police with a statement. In accordance with paragraph 1 of Article 159 of the Criminal Code, the seizure of the right to another's property by fraud and abuse of trust is considered fraud.
What must be indicated in the application:
- circumstances in which the amount of money was borrowed - the objectives, terms and other conditions of the oral agreement;
- the exact place and time of the transfer of money;
- persons present at the conclusion of the transaction;
- personal data of the debtor;
- a description of all attempts at peace negotiations, writing a claim and reaction to it, etc .;
- any evidence of the transfer of money;
- request for verification of corpus delicti.
Upon receipt of a refusal to initiate criminal proceedings, one should proceed to the next measure - filing a lawsuit.
Video: How to do
Writing and filing a claim for debt collection without a receipt
The composition of such a statement is no different from the ordinary claim for recovery under a loan agreement. Only in this case, the loan agreement was concluded orally.
- name of the judicial authority;
- Full name and actual address and registration of the plaintiff;
- Full name and actual address and registration of the defendant;
- title of the document;
- a description of the circumstances in which the money was given, and also on what conditions;
- the wording of the requirements is to return the debt, interest (forfeit) and state duty;
- calculation of the price of the claim;
- list of applications;
- date of compilation and signature with decoding.
The list of applications must provide the entire evidence base, as well as a receipt on payment of state duty, calculation of the price of the claim, as well as a copy of the statement of claim for the defendant.
Cost of claim
The law limits the amount that can be collected without a receipt - it should be no more than 10 minimum wages. With a larger amount, written proof of the loan is required and the oral agreement is not suitable as a basis for repayment.
The minimum wage (minimum wage) is reviewed annually by the statistics service.
The price of the claim consists of the following components:
- main debt;
- interest on the use of money (if there was such an agreement);
- interest on arrears.
Oral contracts usually do not refer to interest on the use of money. But the penalty for the unlawful retention of other people's money (in case of delay) is provided for in Article 395 of the Civil Code of the Russian Federation. The basis for their calculation is the key rate of the Central Bank.
The formula for calculating the penalty (percent):
Interest amount \u003d Amount of overdue debt × Central Bank rate / 360 × Days of delay.
The Central Bank rate may be changed by the judge to a fairer one, if during the delay period she made big leaps.
Evidence
Providing the maximum amount of evidence will be a decisive factor in the lawsuit, since there is no main document, namely the contract.
The evidence may include the following facts:
- video recordings of negotiations;
- audio recordings of telephone conversations where the borrower recognizes his debt;
- printed and notarized correspondence on the Internet;
- a certificate from the service provider stating that the holder of this phone number is the defendant;
- copy of the claim and the fact of its delivery;
- other evidence.
Where to serve
Since this is a deal between individuals, the place of filing depends only on the value of the claim.
The statement of claim should be filed:
- with an amount of 50 thousand rubles to a justice of the peace;
- over 50 thousand rubles to the district court.
It should be noted that the requirement to reimburse the state duty is not included in this amount. The lawsuit is filed at the place of residence of the defendant.
Arbitrage practice
Judicial practice can be considered in a case in point. Citizen N (plaintiff) transferred by money transfer to another citizen Z (defendant) the amount of xxx rubles.
By verbal agreement, the money was transferred to buy a car for the plaintiff. But after xx months the defendant did not take any actions to purchase and transfer the car, he also does not return the money.
The defendant in the person of citizen Z does not deny the fact of receiving the money, but claims that they were given to him for transfer to third parties. The plaintiff filed a lawsuit with a request to return the money, a penalty for the use of other people's money and state duty.
The court of first instance in Vladivostok ruled that the money should be returned and compensated for the state duty, the petition for forfeit was rejected. The Primorsky Regional Court quashed this decision, substantiating that this money was a “gift”. The reason is the lack of a document that would confirm the purpose of the transfer of money, namely for the purchase of a car.
The judicial collegium of the Supreme Court, as the last instance, recognized the decision of the Primorsky court as erroneous. The dispute was examined from the perspective of Articles 1109 and 1102 of the Civil Code of the Russian Federation, stating that only those funds and other things that were transferred “to charity” are not refundable.
In addition, the fact of donation must be proved by the defendant, despite the fact that the defendant did not indicate the fact of donation.
The described example had evidence of the transfer of funds in the form of a receipt for the transfer, but even in this case the dispute aroused double opinions among judges at various levels. But the possibility of return subject to high-quality lawyer's work is quite possible.
Similar situations can occur if there is a receipt without indicating that the amount is given in debt.
In practice, an oral loan agreement based on trust is often used. Money borrowed without a receipt is extremely difficult to repay due to lack of written evidence of the fact of their transfer and terms of return.
In such cases, before applying to the judicial authorities, lawyers advise to file a complaint with the police, and record all conversations, SMS, etc.
The statement of claim for debt collection by receipt is a document allowing to exercise the right of claim from the debtor. The sample can be downloaded for free.
The troubles associated with collecting debts on receipts are of a long temporary nature. On this resource page you can download for free sample of a statement of claim for debt collection by receipt. The receipt has a unique evidentiary property, and is of great importance in settlements between counterparties. The statement of claim for debt collection is based on this document drawn up with one's own hand. The mandatory written, one-hand execution of the receipt allows the court to determine the accuracy of the information.
The procedure for filing and filing a claim for debt collection is not complicated. It is enough to have a written, correctly executed text from the debtor, a receipt on payment of the state duty and a copy of the statement of claim. The whole set is handed over to the appropriate court. After some time, the date of the meeting is determined. Summons and copies of papers are sent to the respondent and interested parties. The defendant has the right to file an objection or counterclaim, if there are grounds.
Obligatory clauses of the statement of claim for debt collection by receipt
:- At the top, on the right side, the name of the addressee is traditionally written;
- Below is the respondent’s own data and details;
- In the middle of the sheet is the name of the receipt of debt on receipt;
- The following are the circumstances of the case, the requirement, regulatory consolidation;
- At the end, you must indicate the list of attached papers;
- Date, signature, transcript.