Limitation period for a loan: calculation procedure and recommendations to borrowers. Limitation period for a loan
The statute of limitations on a loan is a very relevant issue at the moment. Many people quite often may face certain financial difficulties, and therefore this issue is relevant. For example, a person, due to crisis circumstances, suffers losses and cannot return the loan funds, or the license of the bank was temporarily revoked. Below in the article we will consider what to do if the statute of limitations has expired.
What is important to know about the statute of limitations?
A person who has taken credit funds needs to remember some nuances that may be useful. The agreement between the bank and the client states that credit funds are provided on the condition of their mandatory return. Based on this, the borrower's loan obligations remain until the expiration of the period specified in the relevant document.
That is, in this case, it is not about the time for which the borrower must repay the debt, but about the period within which the bank can collect the loan and the interest due to it, as well as other charges in judicial order.
IN current legislation There is a provision in the Russian Federation under which a financial institution does not have the right to demand the fulfillment of obligations that were assigned to the debtor. These provisions include the expired limitation period for the loan.
How long can the loan be repaid?
Collection period loan funds from the debtor is three years. Moreover, this period originates from the first violations of the conditions by the debtor. This provision is regulated in accordance with Part 1 of Art. 200 Civil Code Russian Federation. In addition, regardless of when the fines for violation of the loan agreement were accrued, their limitation period will expire simultaneously with the principal debt.
If the loan agreement does not specify the period for collecting the debt, then it will begin to be calculated from the last delay in payment. In the event that no payments are received within 3 months (90 days), the financial institution may require the debtor to return the entire amount that was specified in the contract. In the event of such a situation, the period will be calculated from the moment this request is made by the financial institution.
It is worth knowing that even if the limitation period for a loan has expired, this does not mean that a financial institution cannot file a claim with the relevant authorities and demand a return of the debt. In addition, in half of the cases, the court may decide not in favor of the debtor. You can dispute your claim by filing an appeal with judiciary, referring to article 200 of the Civil Code "On the expiration of the period for collecting credit funds."
But even though the borrower retorts legislative provisions, in some cases, financial institutions can seek refusal through the courts.
The reason for this may be:
- Sending a statement of claim to the relevant authorities by a financial institution even before the expiration of the limitation period on the loan.
- Carrying out work to fulfill contractual obligations.
In the latter case, the creditor may try to resolve the issue out of court by the following methods:
- Send an official letter to a citizen. However, in this case, it must be proven that the letter was received by the borrower.
- When recording a telephone conversation with the recognition of the borrower's own debt. In this case, the entry should be made only after notification and consent of the borrower.
But also the debtor can help to extend the recovery period. That is, the statute of limitations will be extended if:
- Documents were signed by the citizen that relate to the appeal of the loan debt.
- Part of the loan has been paid (even if this amount is minimal).
- The citizen himself recognized himself as a debtor financial organization.
If at least one of the above circumstances took place, the term for loans will be recalculated.
When can a borrower be recognized as a fraud?
Using the statute of limitations in order to avoid the return of credit funds can turn out to be unpleasant consequences for a person. That is, in addition to sending a statement of claim to the judicial authorities, the bank may apply to law enforcement agencies in order to initiate a criminal case against the borrower under Art. 159 of the Criminal Code of the Russian Federation "Fraud". In this case, an unscrupulous bank client may find himself in a more difficult situation than he expected.
In order to avoid such consequences, the borrower is required to send a notice of temporary insolvency to the financial institution to repay the debt.
Also, evidence that a citizen did not have malicious intent may be:
- Making mandatory payments on the loan (at least a few).
- The presence of movable and real estate which was given as collateral.
- If a small amount of the loan is not paid.
It is important to know that if the debt collection period is missed, then the creditor does not have the right to prosecute the citizen through the court under Art. 159 of the Criminal Code of the Russian Federation "Fraud".
Debt collection with debt collectors
Often, after the expiration of the collection period, some banks can forget about the unscrupulous client by selling his debt to collection companies. Accordingly, collectors will demand debt from the borrower. In addition, the amount of the surcharge provided by collectors can start from 50% to 200-300% of the original volume.
However, if the contract did not provide for the transfer of debt to third parties, then the citizen is not obliged to do anything. That is, he should not give any debts to private companies that specialize in collection.
But, nevertheless, if the debt was sold by a financial organization to collectors, a citizen can observe similar phenomena.:
- A visit by collectors to the place of work of the borrower.
- Attempts to pressure neighbors in order to obtain Money.
- Regular calls during the day with insults or threats to the life and health of the debtor and his close relatives.
- Damage to property (breaking windows, paint on the door, etc.).
If a citizen is under pressure in this way, then he can safely send a statement to the prosecutor's office. In this case, both the collection company and the financial organization itself will be held liable, since the rights of a citizen were violated (transfer of personal data to third parties, as well as interference with personal life).
Before applying to the bank for a loan, the future borrower plans the period of debt repayment. Unfortunately, this time is sometimes violated due to circumstances beyond the control of the borrower. The bank in such cases may present claims to the debtor, but in order to satisfy them in court, the limitation period for the loan must be observed.
How is it determined
The statute of limitations is the period during which a bank or other financial institution may demand that a borrower repay a debt. By bank loan it is 3 years. But it can increase or decrease depending on many nuances.
Limitation of actions on credit debt is calculated from the moment of violation of the creditor's rights under the loan agreement. This requirement is provided for by the Civil Code of the Russian Federation, art. 200, part 1. More precise definition the beginning of the calculation is given in the terms of the contract.
In the presence of additional obligations(interest, fines), the limitation period for filing claims on them expires simultaneously with the period for the principal debt, regardless of when these types of debts were accrued.
It starts to be calculated from the moment the borrower fails to pay the next payment. If payments have not been made for more than 90 days, financial institution the right to demand a lump sum repayment of the entire amount of the debt under the contract. Calculation in this case begins from the moment of presentation of claims.
If the bank's request indicates the time of fulfillment of the obligation to repay the debt, then the prescription for the loan begins to be calculated from the moment the date specified by the bank expires.
The limitation period for a loan, which must be fulfilled within a certain time, is calculated taking into account some nuances. According to the provisions of the Civil Code of the Russian Federation, the time for fulfillment of obligations for which is determined is calculated from the date of the end of this time. But the period should not exceed 10 years from the date of the obligation.
Does the bank have the right to demand repayment of the debt after the expiration of the term?
According to Art. 200 of the Civil Code of the Russian Federation, the time for filing a claim is calculated after the termination of the agreement. For example, if you receive a loan on January 15, 2010 for 6 years, the expiration date will be calculated from January 15, 2016, regardless of the date of the last installment. But in practice, this applies only to "ordinary" loans. The latter does not include obtaining loans through plastic cards in the form of an overdraft (small loan). But even if the court makes a decision on the calculation of the limitation period on the loan from the moment the contract is terminated, this decision can be appealed by filing an appeal.
If the borrower enters into formal negotiations with bank employees, sending a letter in advance with a request to defer payments on the loan, then the statute of limitations can be significantly reduced. When a bank sells an agreement to collectors, calculations can be affected by the client making even one payment to repay the debt to the agency. It is best to consult with our lawyers on these issues.
By law, the bank can make demands for the return of funds within 10 years after the termination of the agreement - then the client may refuse to repay the debt. When the bank continues to send notifications of non-repayment of the debt in writing, by phone or by e-mail, the client can withdraw permission to use his personal data by writing a corresponding application.
How to protect yourself from collectors
Even after the expiration of the limitation period for a loan on the basis of an agreement sold by a bank, special agencies (collectors) can make claims for repayment of the debt. They do this both without an assignment, and with an assignment in favor of a collection agency of the right to claim in favor of a third party. Typically, such agencies take harsh measures to collect debts, including intimidation. In such cases, do not panic, but point out to collectors that their debt collection actions are illegal due to the statute of limitations on the loan. You can also protect yourself from illegal actions of collectors by writing a statement to law enforcement agencies (police or prosecutor's office).
When threats from collectors continue, you should record their fact and write a statement to the police or court. Your confidence in your rightness will also have a sobering effect on collectors working on the verge of the law.
Our lawyers can help you sort out all these issues. They will draw up the necessary complaints or statement of claim in court and restore your rights and legitimate interests in case of gross violation.
For our readers, the question is very relevant: after what time is the unpaid loan canceled, and the debt will be considered "forgiven"? Today we will take a closer look this situation, and give you some tips on how you can use it.
Credit limitation period
Indeed, there are people, and there are many of them, who got into unpleasant situations related to the problems of paying debts for bank loans. Most citizens of our country have the idea that the creditor will write off the debts anyway, and therefore if there are problems, then there is no need to pay.
In the courts of the Russian Federation, almost daily cases are heard on claims to debtors. As a result, issues are resolved by selling debtors' property or by collecting certain amounts from wages. The percentage of outstanding loans is only growing every year. Less and less good or clean credit histories remain, read more about them in this article.
IN Russian legislation, namely, in the Civil Code there are articles devoted to the terms, after which the creditor is not entitled to demand repayment of the debt from the debtor through the court. You can find it in legal documents by name, you will need to read articles from 195 to 208 of the Civil Code of the Russian Federation.
According to the information gleaned from the legislation, an important thing can be noted: the limitation period for loans is 3 years. The countdown starts from the appearance of the first delay, i.e. not from the moment of signing the contract, but from the day you did not make your monthly mandatory payment.
Is it enough to just wait 3 years for the loan to be closed?
Not everything is as simple as it might seem . In the event that you had any contact with bank representatives, for example, a telephone conversation, you received a letter with a notification, or you yourself applied to the bank with an application for restructuring or deferment, then for this reason the period is renewed and the countdown starts again .
The following situations contribute to the interruption of the statute of limitations:
- Dialogue on the phone with a bank employee.
- Pay even a small part of the debt.
- Signature of at least one document that relates to challenging the debt.
- Recognizing yourself as a debtor on a loan.
On the other hand, experienced lawyers say that a financial institution has no way to prove that it was the debtor who picked up the phone. In addition, if he signed for receiving the letter, this does not mean that he read it. Therefore, sometimes in judicial practice, the limitation period is counted from the date of the first delay.
What does this mean for the borrower:
- He will need to change all his telephone numbers, if possible also his address of residence, because. calls and letters will continue to come, and cause a lot of inconvenience to the relatives and friends of the debtor.
- In addition, he will have to close his bank accounts in advance, and find an informal job where wages will be handed out personally.
The fact is that banking organization in the presence of a loan that has not been repaid for a long time, it can sue you, and with a probability of 90% the case will be won. After that, the bailiffs will have the right to freeze all your accounts, as well as to come to the place of registration in order to seize the property that you own.
If a person has issued a loan for the purchase of housing with him as collateral, then bailiffs can easily get into the apartment and sell it to another person. The proceeds will be used to pay off the debt. Much harder to do it with movable property, for example, by a car, since the debtor can hide along with what is pledged.
Will the debt be closed if the statute of limitations has passed?
Please note that the expiration of the period for a credit claim must be confirmed in court. In other words, upon the arrival of the period established by law, you yourself must go to court in order to obtain the appropriate document, this does not happen automatically.
So, let's assume that you have taken all precautions, changed your address and receive a salary informally, cut off all contact with the creditor and your relatives. Is it possible in this case to count on the fact that after 3 years your debt will be canceled?
Unfortunately no. The law states that after the expiration of the limitation period, the bank will not be able to collect debt from its client through the courts, but it will still be able to demand repayment of the debt from you using calls, letters and other things. The only way to stop this is to write an application for the withdrawal of personal data.
Besides, banking company has every right to sell your problem loan to collection agencies, if such an opportunity is specified in the contract (transfer of rights to third parties).
Debt collectors are professional debt collectors who do not stand on ceremony with their clients, using not always legal methods of blackmail, threats and vandalism. What to do in this situation - we tell on the pages of our website.
Can a bank forgive a debt?
And yet, there are times when banks forgive debts. There are only a few reasons:
- The amount of debt is insignificant and less than legal costs.
- Departure of the life of the borrower and the absence of heirs.
- Expiration of the statute of limitations is extremely rare.
Quite often, creditors agree to a partial write-off of debts. This is possible by a court decision if the borrower makes contact with the bank, participates in meetings and agrees with the debt. Read more about the court decision in favor of the debtor.
If you have appeared financial difficulties and you are temporarily unable to fulfill your loan obligations, then you should not wait for the court in the hope of a complete write-off of the debt. You can use restructuring or refinancing.
- Restructuring
This is a change in the terms of payments due to objective reasons. For example, dismissal, injury and disability. You need to contact the bank, report the reasons for non-payment and draw up an appropriate application with a request to revise the conditions.
As a rule, credit holidays are provided or the rate is increased in order to reduce monthly payment. So you can solve temporary financial difficulties and save credit history in a good condition.
Not all banks go for restructuring, in this case it is necessary to require the creditor to write a written refusal, which will be useful to you in court. In this case, all accrued fines and penalties may be written off.
- The alternative is refinancing
Its essence is to obtain a new loan in the same or third party bank for more favorable conditions to pay off current debt. You draw up a new agreement, and the funds received are transferred non-cash to your current loan agreement.
You will find interesting offers on such programs from Russian banks in this article.
Bankruptcy of an individual
Starting January 1, 2016, individuals got the opportunity to declare themselves if their debt to financial institutions or housing and communal services is 500,000 rubles or more, and there is also a long delay. Judicial practice shows that you can declare yourself bankrupt even with a smaller amount - already from 350-400 thousand.
Material liabilities, such as loan payments, fines and other penalties, have a certain statute of limitations. With regard to loan agreements, the law has set a period of three years. After specified period contractual relations lose their relevance and it is not possible to collect debts.
Knowing about the statute of limitations, unscrupulous borrowers hide from the fulfillment of obligations and do not respond to bank requirements. The article explains in detail the rules and requirements for claims for debt collection, the possibility of not paying loans.
The statute of limitations does not run from the date of the agreement. A period of three years may be determined from the date of the last payment or the date of termination of the contract. There is no exact setting in the legislation; it all depends on the other circumstances of a particular case. The end date of loan payments is not taken into account, the main starting point is the last payment in most litigation.
For example, if payments stopped after a year, then the limitation period will expire 4 years from the date the agreement was signed. It does not matter the term of payments established initially. In serious situations where we are talking on significant amounts, the court meets the plaintiff. The limitation period is calculated from the moment of termination of obligations, Article 200 of the Civil Code of the Russian Federation. The court may choose such a period upon application credit institution suffered significant losses.
In other words, the collection period begins after the end of the contract, regardless of the date of the last payment. If the loan is issued for 5 years, then the term of the requirements will end 3 years after the end of the agreement. This type of judicial review is applicable to term lending. Credit card loans cannot be collected by this method because there are no deadlines for repayment. If the court nevertheless accepted this method as the main method of calculating the prescription, then the decision can be appealed on appeal.
The court decision depends on many circumstances, so it is impossible to determine the position of the court in advance. Court sessions can be held repeatedly, postponed due to the absence of the parties to the dispute.
There are rules by which the collection period for the evader is determined. For example, to extend claims the following circumstances apply:
- the last documented contact with the bank is the starting point for determining the limitation period;
- if the bank has sent a notice to the debtor demanding early repayment obligations, then the official letter shifts the terms of the claim;
- the first payment after the break allows you to shift the three-year period to this date;
- the countdown starts anew if an application for refinancing or debt restructuring is submitted;
- the period of three years specified in the contract cannot be changed by an additional agreement;
- transferring the case to collectors does not change the formula for calculating the terms of collection.
The bank is trying in every possible way to prove the existence of contacts in order to extend the collection period. But evidence does not include the testimony of employees as interested parties. Telephone conversations or fixation of the payer in the bank through video cameras cannot serve as a basis for extending the collection period.
A receipt for receiving a letter with a notification from the bank is not taken into account by the court. If a citizen appeared at the bank for needs not related to this loan agreement, then this does not serve as a reason for extending the claim period.
If the borrower has grounds for terminating relations with the creditor, then he must prove to the court that the collection period has ended. To do this, a petition or application is sent, which is certified by a notary. Such actions lead to the cessation of collection attempts and harassment by the bank. If a decision is made to end the prosecution, then the relationship with the bank can be considered completed.
It is recommended that the defendant, represented by the borrower, attend the hearings, since his absence is likely to lead to a ruling in favor of the plaintiff. The court considers not only the principal amount of the debt, but penalties and penalties for each day of delay. Quite often, the penalty part of the debt exceeds the amount of the main loan.
The petition must specifically state that the statute of limitations has passed. Justice will not count the terms and their possible transfers. The petition must be written correctly, with knowledge of the legal foundations. It is optimal to entrust the writing of the document to a professional, it is much cheaper than returning the debt in full. The lawyer will be able to continue working, in case of a negative decision, apply to the appellate instance.
Lenders transfer contracts to collectors, regardless of the deadlines for the end of obligations. If the collection period has expired and judicial review groundless, then they try to return the debts by all accessible ways. Threats and insults may rain down, the possibility of physical impact is not ruled out.
It is impossible to condone criminal actions; cases of criminal completion are not uncommon, when the life and health of the borrower is really at risk. , protect civil rights debtor. In addition to threats and physical violence, these negative characters, often half-criminal, do not have the ability to seize the bank accounts or property of the debtor. The law prohibits banks from transferring personal information about debtors, so collectors are already breaking the law with this violation.
Recovery from the guarantor upon the death of the borrower
Delay in payments leads to recovery from the guarantor, an agreement with which is usually signed for the entire duration of the contract. The claim can be addressed to the borrower and the guarantor, since both have obligations to the bank. Collection to the guarantor is directed from the moment of absence of payments. The primary contract cannot be changed, the interest remains the same, as well as the terms of payments. If at least one condition is changed at the initiative of the bank, then the guarantor has the right to challenge his obligations in court.
Upon the death of the borrower and the absence of guarantors, the claims go to the heirs. Since the inheritance case is completed only after six months, when the certificate of inheritance is issued to the applicants, it is only then possible to bring claims against them. For the period of establishing heirs, penalties and interest are not charged on the amount of the debt, the loan agreement is frozen. After entering into the inheritance, citizens automatically assume credit obligations. The lender works with them in the future.
In the absence of an inheritance after the deceased, the bank suffers direct losses and writes them off for unforeseen circumstances. If loan agreement insured against the death of the borrower, the lender will receive reimbursement from the insurance company. It is illegal to demand repayment of a debt by relatives; a claim can only be filed with a guarantor.
After the three years required by law, in the absence of strong arguments, the bank will not be able to go to court for recovery. But this does not prohibit taking measures of influence, reminding the deviator of the existing obligations. Do not think that after three years the debtor will be left alone. In addition, if the debt collection period is missed, the court may oblige the borrower to return the accrued penalties, considering them on a separate line agreements.
The plaintiff may sue the debtor for property that is security for the debt, or simply owned by the defendant by right of ownership. There are situations when the debtor comes to his senses and closes the debt after the limitation period, that is, after three years. This is a voluntary desire, but if the court obliges you to pay after the missed deadline, then this is a violation of the law. Such a decision of the court should be appealed to higher authorities by filing a complaint against the judge or writing an appeal.
Establishing a specific period for the possibility of collection helps the debtor to get out of the debt hole. When the bank does not bother the debtor at first, then such behavior is aimed at accumulating penalties. If the bank has information about the property of the debtor and the place of his employment, then sooner or later he will have to pay off all obligations.
Hiding from the bank can be more expensive, so it is recommended to use civilized methods. There are several such possibilities: from declaring a debtor bankrupt to debt restructuring. banking structure is also not interested in litigation, tries to meet the needs of a conscientious payer who has fallen into difficult situation. You can ask credit holidays for a specified period, during which only interest accruals are repaid.
The ability to reduce the monthly payment by extending the loan term is also a recognized need for critical situations. The highest percentage of non-performing loans refers to consumer lending. Therefore, it always makes sense to think about the need to take out a loan in cash or by credit card. Coming troubles and a shaft of forfeits will not allow you to live in peace, and banks have learned to calculate swindlers and crooks and deal with them with effective methods.
The statute of limitations for a loan
Not all borrowers are aware of the existence of such a thing as a statute of limitations on a loan. In fact, it means the termination of the client's obligations to the bank after a certain period of time. At the same time, it is extremely important to understand that this issue is quite complex from a legal point of view, therefore, it requires either careful and thorough study, or the invitation of a professional lawyer for advice.
What is a statute of limitations on a loan?
The legal term "statute of limitations" in the field of lending implies a certain time period during which the creditor has the right by law to demand the repayment of the debt. Until its completion, the bank or other financial organization has the opportunity to apply to the court on the issue of collecting unpaid amounts on the loan. Naturally, based on the definition of the term, we can make a logical conclusion that after the specified period of time, called the limitation period, the bank loses the right to demand the return of the debt and apply to the judicial authorities about this.
How to correctly calculate the statute of limitations?
The main problem in the practical use of the limitation period is the discrepancies on the issue of the methodology for its correct calculation. On the one hand, the duration of the period under consideration does not cause any problems - it is three years. Difficulties begin when determining the origin of these three years. At the moment, there are two main points of view on this issue:
- The countdown starts from the last transfer of funds to the account in payment of the debt. This is the approach adopted by some courts, which confirms the real arbitrage practice. However, there are solutions based on a different principle for calculating the limitation period;
- The three-year countdown starts after the expiration date loan agreement. This option is considered less accurate. This is due to the fact that not all loan products have a validity period, which, for example, credit cards. At the same time, the same principles should be applied in all such cases. As a result, it is the first approach that is considered more correct and can be taken as a basis.
It should be remembered that there is a situation when the third option for calculating the limitation period on a loan is applied. It concerns the management enforcement proceedings service bailiffs. In this case, the countdown starts from the date of the last official contact between the borrower and the bank representative, documented.
Limitation period for personal loans
The concepts and rules for calculating the limitation period for loans described above apply equally to both individuals and legal entities.
Limitation period for loans to legal entities
The current legislation in terms of the limitation period does not divide borrowers into individuals and legal entities. The only difference between them is that on entity the bank is suing Court of Arbitration, and for physical - to the court of general jurisdiction. However, this does not affect in any way the length of the limitation period, which is three years, or the time at which it begins to run.
Which article governs the statute of limitations?
The basic concepts and duration of the limitation period for all types of loans are contained in Articles 195-196 of Chapter 12 of the Civil Code of the Russian Federation. These articles provide an exhaustive definition of the term and clear rules for its interpretation.
Consequences of expiration
In practice, a situation often arises when the bank continues to demand the return of the debt after the expiration of the limitation period. In such a situation, one of the most effective methods impact on a credit institution is the invitation of an experienced lawyer. In most cases, he manages to convince bank employees without any problems that their demands have become invalid due to current law without even bringing the case to court. Otherwise, with the correct calculation of the limitation period, you can apply to the court with almost 100% chances of winning the case, including subsequent compensation for all expenses incurred by the borrower.
Another way to avoid incessant calls from the bank is to apply for the withdrawal of personal data. At this point, the attempts of the credit institution to repay the debt also usually end. However, it should be remembered that the absence of the need to repay a loan does not mean that the bank will not blacklist the borrower, which will ruin his credit history for a long time.
The role of collectors
Often, banks turn to collection agencies for help in collecting debts. In most cases, collectors are absolutely not interested in various legal terms, including such a thing as the statute of limitations. In such a situation, the borrower must understand that the bank's appeal to such "specialists" does not affect the expiration of the statute of limitations and the termination of obligations to the credit institution.
At the same time, there is an extremely effective method solving any problems arising with collectors - filing a statement with the police, and if it is inactive - with the prosecutor's office. This usually gives a quick effect, which is expressed in the fact that collection agency stop their completely illegal activities.
How to avoid problems?
In order to avoid potentially possible problems, you must follow the following fairly simple rules:
- the borrower's obligations to repay the loan terminate after the expiration of the limitation period, that is, three years;
- their correct countdown begins from the moment the last financial transaction under a loan agreement;
- in case of any illegal actions on the part of bank employees or collectors should immediately write a statement to the police and the prosecutor's office;
- if you need to prove your own innocence, you should contact a professional lawyer.
Of course, one should not forget another most reliable way to avoid problems with the bank - to fulfill the payments prescribed by the contract on time and pay off the existing debt in a timely manner.