After 3 years, the statute of limitations will pass and the loan may not be repaid.
A significant part of armchair lawyers use terms and norms from the legislation, the meaning of which they understand very poorly.
Yes, indeed, the statute of limitations is 3 years, but this does not mean that if you go to another country for 3 years and turn off your phone, the debt will disappear. You won't be able to hide and wait it out. Some even think that at the end of 3 years you can repeat the cycle of taking out new loans with a game of hide and seek and “legal” non-payment after 36 months. Why it doesn’t work like that, says Andrey Kotov, General Director of the Credit 911 MFO:
“This (debt write-off) is only possible if the creditor does not file a lawsuit within 3 years. Moreover, in our practice, in 80% of cases the courts side with the creditor even when the statute of limitations has expired. Especially in cases where the debtor does not appear at the meeting.”
Logic dictates that the larger the loan amount, the sooner the lender will begin the procedure for forced repayment of the debt, so there is no point in hoping for a miracle. Every company, especially a financial one, knows how to count money and will not forgive a debt just like that.
The head of the legal department of Capital Consulting LLC, Egor Chernykh, speaks in more detail about the calculation of the limitation period:
“When calculating the limitation period for a consumer loan, there is an explanation from the Supreme Court that the beginning of the limitation period is calculated separately for each overdue payment, according to the payment schedule. The calculation of the limitation period does not take place based on the debtor’s last payment, but includes the debt for three years before filing the application with the court and all subsequent payments according to the schedule. For example: a loan from 2011 to 2021, the claim was filed in court in 2019, which means that it can be recovered for the period from 2021 to 2021. Don’t forget also that after filing an application for restructuring or refinancing a loan, the statute of limitations is reset.”
Requirements for a promissory note
If there is a written agreement, and the receipt only confirms the fact of transfer of funds, then it is sufficient to indicate in it that on a certain date the lender transferred, and the borrower accepted, under the loan agreement (number, date) funds in the amount of (specify the amount) and undertakes to return them within the terms and conditions established in the loan agreement. In addition, the borrower must sign it.
Required items
If there is no written agreement, and the receipt is the only evidence of the origin of the borrowing relationship, then it must indicate:
- date and place of drawing up the document,
- information about the lender and borrower, their full name, place of registration, passport details,
- loan amount (in numbers and words),
- loan terms (repayment period, interest rate),
- acceptance of borrowers' funds and obligation to repay them,
- signatures of the creditor and debtor, and their decoding.
If there is no loan repayment period, then the loan must be repaid within 30 days from the date of presentation of the request (clause 1 of Article 810 of the Civil Code of the Russian Federation).
If the receipt does not mention interest, then a loan in the amount of no more than 100,000 rubles is considered interest-free.
If the loan is considered interest-bearing, but the receipt does not indicate the amount of interest, then it is determined in the amount of the key rate of the Central Bank of the Russian Federation in force in the relevant periods.
It is very important to indicate the loan amount and information about the parties in the receipt.
The most important thing is that it should clearly follow from the contents of the note that the money is not being transferred as a gift, not as payment for goods or services, but temporarily on the terms of return.
For example, the court refused to collect the debt, since the contents of the document did not indicate that the funds were received by the defendant as a loan; the receipt did not contain an obligation to return them (Appeal ruling of the Moscow City Court dated November 14, 2019 in case No. 33-48893/2019) .
After receiving a loan, tell the bank about your incapacity
The idea is as follows: an MFO or bank does not have the right to issue a loan to an incapacitated person.
Some on the forums advise threatening the bank for not checking your legal capacity, maybe the bank will get scared and it will be possible to agree to stop payments. Incapacity means that the borrower, due to mental disorders, does not understand what is happening, including the consequences of the contract. The man is sick. Such a citizen really should not be transferred to the category of borrowers; banks and microfinance organizations are obliged to monitor this.
How this happens in practice, says the head of the federal legal department, Valentina Zebnitskaya:
“If you report incapacity when receiving a loan, the bank simply will not issue the loan. If you declare later that at the time of the conclusion of the contract the citizen was incapacitated, the case will be considered in court. At the same time, the fact of the citizen’s “insanity” needs to be proven. As a rule, testimony will not be enough for the court.”
In addition, according to the expert, certificates from medical institutions, an examination, etc. will be required. If the borrower is truly declared incompetent after the loan is taken out, the responsibility for repaying the debt passes to the guardian (usually a close relative), and the source for payments will be the income of the incapacitated person - for example, a pension assigned by the state.
Therefore, not everything is so simple, especially since the legal department of banks includes a clause in the contract stating that the borrower is legally competent.
Chairman of the credit and consumer cooperative “Bankerbook” Alexander Voskoboynikov explains that “the court will consider not only your certificate at the time of concluding the agreement, but everything in its entirety: whether you worked, whether you entered into any other transactions, whether you visited a notary. And then, recognition of the contract as void entails restitution, i.e. both parties return what was received during the execution of the contract. This does not mean that your debt will be forgiven. The maximum that can be achieved in this way is to bring interest rates to the level of the key rate of the Central Bank of the Russian Federation.”
This method turned out to be just as theoretical as the first. In reality, such tricks don't work. Fortunately, there are not many people willing to prove fictitious incapacity to the bank. Method number three attracts a much larger number of debtors.
How to collect a debt on a receipt in court
The statement of claim is filed with the district court at the defendant’s place of residence.
If the loan amount together with interest does not exceed 50,000 rubles, then contact the magistrate.
After the court decision comes into force (one month after the decision is made, unless an appeal is filed), you can receive a writ of execution to present it to the bailiff service.
Magistrates also have jurisdiction over cases of issuing a court order. A court order is issued for monetary claims of no more than 500,000 rubles, based on a written transaction. A court order is an executive document. But not all courts recognize the receipt as an indisputable requirement.
If the amount of the claim is no more than 100,000 rubles, then the case can be considered through simplified proceedings without calling the parties.
To correctly determine the jurisdiction of the dispute and draw up a statement, contact a lawyer.
How to properly file a claim for debt collection using a receipt
When filing both a claim and an application for a court order, you must pay a state fee. Its size depends on the amount of the claim.
In the statement of claim, please indicate:
- name of the court,
- information about the plaintiff and defendant,
- circumstances of the loan,
- demand for loan repayment.
Attention! If the loan amount is indicated in the receipt in a foreign currency (currency of the debt), then you have the right to collect it only in Russian rubles (currency of payment) in an amount equivalent to the currency of the debt at the exchange rate of the Central Bank of the Russian Federation on the date of execution of the court decision. (Resolution of the Plenum of the Armed Forces of the Russian Federation No. 54 of November 22, 2016).
- requirement to pay interest for using a loan (if the loan is interest-bearing), interest on the basis of Art. 395 of the Civil Code of the Russian Federation for late loan repayment,
Attention! The obligation to pay interest on the loan amount (penalty) in the amount provided for in clause 1 of Art. 395 of the Civil Code from the day when it should have been returned until the day it is returned to the lender, arises in case of delay in obligations, regardless of the payment of interest provided for in paragraph 1 of Art. 809 of the Civil Code, for the use of a loan (Definition of the Armed Forces of the Russian Federation dated September 5, 2016 No. 4-KG15-75).
- signature.
What documents should be attached to the claim?
Attach to the application a copy of the receipt, a receipt for payment of the state fee (request for deferment), as well as evidence of sending the claim to the defendant.
In addition, evidence of the issuance of the loan and its terms may include:
- audio or video recording,
- recording of a telephone conversation.
Submit your application to the court by mail or via the Internet by filling out a special form on the website.
claim for debt collection
2021 sample
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Starve out the collectors
In 2021, the work of debt collectors is regulated by stricter regulations than several years ago, which is what debtors take advantage of.
Egor Chernykh explains what we are talking about: “Currently, collectors are prohibited from:
- call more than 1 time a day, more than 2 times a week and a total of more than 4 times a month;
- call from 22 pm to 8 am, and on holidays - from 20 pm to 9 am;
- write messages more than 2 times a day, more than 4 times a week and a total of more than 16 times a month;
- arrange personal meetings more than once a week;
- call relatives and friends of the debtor, unless consent has been obtained from the debtor and his relatives/relatives;
- Collectors can call and write SMS, including email, etc. only from open numbers, saying/writing their full name. and the name of the agency."
According to the speaker, some collection agencies have found a loophole and “anonymous collectors” who are not controlled by anyone begin interacting with the debtor.
These people from unregistered numbers call debtors, relatives of the debtor, colleagues and friends around the clock, trying to put psychological pressure on them, insulting them, writing in doorways, in SMS messages, on social networks. At the same time, they do not report for what specific debt they are asking for money; if there are more than two loans, then it is difficult to figure out which debt they are calling about, so “anonymous collectors” feel impunity in such situations. But the situation is gradually improving, and debt collectors are increasingly beginning to resort to legal means.
“Previously, collectors sought the return of money by harassing debtors. After the anti-collection law came into force, the effectiveness of debt collection using this tool fell sharply. Nowadays, judicial collection is gaining popularity, when microfinance organizations take the case to court after several unsuccessful attempts to resolve the issue with the debtor through negotiations and seek the return of funds based on a court decision. This option is unprofitable for the borrower, because in addition to the debt, he will have to additionally pay legal costs, and a negative entry about his unreliable financial behavior will appear in his credit history,” notes the general director of the online microcredit service “Honest Word” (MFC “Honest Word” ") Andrey Petkov.
In a country with such a low standard of living, you shouldn’t expect that someone whose income depends on the success of negotiations with debtors will just give up and stop bothering you. It’s better not to look for options other than not to repay the loan, but to pick up the phone and start a dialogue.
Pre-trial procedure for debt collection by receipt
The lender may try to recover funds from the borrower out of court. To do this, draw up and send a claim to the debtor.
In your complaint please indicate:
- information about the parties to the loan agreement,
- the fact that the borrower has received funds,
- the loan repayment deadline has arrived,
- demand for its return.
Send the claim by mail with notification or hand it to the debtor in person.
If the loan repayment period is not specified, then before going to court you must send the borrower a written request to repay the loan, wait 30 days, and only after that go to court.
Fabricate car theft
Option for car loan holders.
The essence of the scheme: the car is driven to another region and sold. Then the insurance company receives a statement from the owner about the occurrence of an insured event. The method, even at first glance, seems like a risky undertaking, but it does not lose popularity. Andrey Zavodskov, Director for High-Risk Asset Management of the Eqvanta Group of Companies, Fr.
“Insurance fraud is more popular here than anywhere else. But this is Art. 159.4 of the Criminal Code of the Russian Federation, which gives up to 10 years. Whether this loan is worth it is something everyone decides for themselves,” warns Alexander Voskoboynikov.
A similar algorithm is used by mortgage holders when they set fire to or flood an apartment. An ill-considered action that does not cancel the obligation to pay and only leads to additional expenses and often to real time in a general regime colony.
Results
If you receive a microloan on your card when you did not consent to it, you must file complaints with the Central Bank, Rospotrebnadzor, the police and the prosecutor's office. You should also contact the bank with a statement about the erroneous transfer. No codes or other data should be passed on to MFO representatives. You also cannot spend the money you receive.
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