Forced collection of loan debts with the help of collection services and by court decision

How does the bank collect

The work can be divided into three stages:

soft, pre-trial recovery (soft);
hard;
legal.

Soft

At the soft stage, communication between the creditor and the defaulter occurs remotely. A bank employee calls the debtor and finds out the reason for the delay in payment, talks about the consequences of non-payment (damaged credit history, accrual of penalties, fines, possible confiscation of property, transfer of debt to collectors).

The creditor can send the defaulter SMS messages, emails, postal letters, and leave notifications on social networks. As a rule, the stage lasts one to two months (depending on the bank’s policy) and is limited to oral and written warnings.

Hard

When the borrower does not repay the loan within 2-3 months and does not respond to the actions of the lender, the employee initiates a personal meeting.

Often at this stage, the creditor enters into an agency agreement or assignment agreement with the collectors.

Agency contract

Under an agency agreement, the bank temporarily assigns to collectors the right to demand that the debtor fulfill the debt obligation.

The agreement is usually concluded for three months, but can be indefinite (Article 1005 of the Civil Code of the Russian Federation). The agency employee acts on behalf of the lender. All transfers that the borrower must make towards the return are sent to the bank details.

Collectors provide services for a certain percentage of the repaid amount. If the work cannot be completed, the bank enters into an agreement with another agency or sells the debt (assignment).

Cession

An assignment agreement is a transaction on the basis of which the old creditor transfers the right to claim the debt to a new one. Such an agreement is regulated by Art. 382 Civil Code. Borrower approval is not required.

The debtor will be notified in writing about the change of creditor. Collectors act on behalf of the organization, money is paid according to the details of the agency.

A necessary condition for concluding an assignment is the presence in the loan agreement of an indication of the possibility of assigning the right of claim. In its absence, the assignment will be considered invalid.

Legal

When all methods have been exhausted, the creditor files a lawsuit: world or district (Article 23 of the Code of Civil Procedure).

Judicial collection

The bank can resolve the issue of overdue debt in writ or enforcement proceedings.

Order proceedings

The first option is preferable for the lender.

The decision on the case is made within five days from the date of filing the claim (Article 126, paragraph 1 of the Code of Civil Procedure).
The presence of the parties is not necessary. The judge alone makes a decision satisfying the plaintiff's request.
The state duty is two times less than in enforcement proceedings.

As a result of writ proceedings, the bank receives a court order, on the basis of which it has the right to collect the debt independently or with the help of a bailiff.

However, the court may refuse to consider the claim if:

the amount of debt exceeds 500 thousand rubles (Article 121, paragraph 1 of the Code of Civil Procedure);
There are controversial issues in the documents proving the creditor's right of claim.

In addition, the debtor can cancel the court order within 10 days from the date of receipt. To do this, it is enough to write a statement of disagreement with the decision (possibly without specifying reasons) and send it to the magistrate.

Re-filing a claim to obtain a court order is not permitted by law. The creditor will only be able to resolve the payment problem through a lawsuit.

Claim proceedings

Consideration of the case in a claim proceeding is more beneficial for the debtor. Although the trial lasts from 2 to 6 months, the borrower can significantly reduce the amount of debt (Article 333 of the Civil Code), receive installments or deferred payments. Of course, to do this you need to attend the trial yourself or use the help of a lawyer.

At the end of the claim proceedings, the court issues a ruling. After entry into force, the plaintiff receives a writ of execution (Article 428 of the Code of Civil Procedure). Based on this document, the creditor has the right to independently foreclose on the debtor’s wages, accounts, and encumbered property.

The bank can submit the writ of execution to the FSPP, where officials open enforcement proceedings within three days.

What is forced debt collection

In case of late loan payments, non-payment of taxes, utilities, or other debts, the position of creditors, which can be organizations, banks, the state and individuals, worsens. The fact of non-payment of a debt, which violates the terms of contracts or is contrary to current legislation, leads to the adoption of immediate measures against the defaulter.

Forced debt collection is a set of measures aimed at repaying creditors' claims at the expense of assets owned by the debtor. Compulsory enforcement measures in enforcement proceedings presuppose that material assets in payment of a debt can be transferred voluntarily by agreement, or the alienation is carried out by bailiffs by court decision. According to the law, forced collection is allowed only if there is an appropriate document: a writ of execution or a court order. The plaintiff does not have the right to independently take the debtor’s property. Otherwise, the claimant faces administrative and even criminal liability.

How do bailiffs collect?

The activities of FSSP employees are regulated by Federal Law No. 229 and must be based on the principles of respect for human dignity, the correlation of requirements and enforcement measures (Article 4 of Federal Law No. 229).

A written notification is sent to the debtor about the opening of enforcement proceedings, which indicates the amount of the debt, the basis for the claim, and the deadline for voluntary repayment (5 days from the date of receipt of the letter from the FSPP).

If, after the specified time, there is no response, the bailiff will begin to take measures and actions aimed at forcibly collecting:

collection of information about the debtor’s finances, availability of property, sources of income;
arrest of accounts, forced write-off of money to pay off debt;
prohibition on the ability to dispose of property, seizure or transfer of things for safekeeping;
sale of property, transfer to the claimant;
if the debt amount is 30 thousand rubles, the borrower is prohibited from leaving the country. (Article 67 clause 1 of Federal Law-229).

According to Art. 36 FZ-229, the bailiff must take all necessary measures to collect the debt within two months.

Classification of enforcement measures

The implementation of forced collection procedures by bailiffs must be strictly regulated by the provisions of Federal Law No. 229 “On Enforcement Proceedings.” All decisions made must not contradict the current executive document.

To ensure debt repayment, the following measures may be applied:

The debtor's property is confiscated. First of all, bailiffs are interested in cash and other highly liquid assets, the sale of which will not be difficult. In such situations, bank accounts may be blocked until the debt is fully repaid.
Collection under a writ of execution aimed at withholding part of the debtor’s earnings. Depending on the type of debt (alimony, outstanding loan, housing and communal services debts), the employer will have to withhold from the defaulter’s earnings up to 70% of the accrued amount and transfer it to the plaintiff’s account.
The property of the debtor is subject to recovery.
The assets of the defendant, which are temporarily in the use of third parties, are seized.
Alienation of non-residential premises from the debtor.
Eviction from residential premises, move-in of the claimant.
Land plots may be seized to repay the debt.
Expulsion of stateless persons from the country.
Other measures applied to the debtor that do not contradict current legislation and court decisions.

If the defendant does not agree with the measures taken to collect the debt, he can challenge the actions of the bailiffs in court.

How do collectors collect?

From the first days of their existence, collection agencies have established themselves as criminal structures that use crude methods of physical and psychological pressure.

Thanks to the new Federal Law-230, in force since January 2021, the work style has become more civilized.

Currently, only organizations that meet the requirements specified in Art. 13 FZ-230.

For example, an agency must have special software equipment, an authorized capital of at least 10 million rubles, and be included in the State Register of the FSSP. Citizens who have a criminal record cannot work as collectors.

According to Art. 7 Federal Law-230, agency employees should not disturb the debtor by calling a landline phone more than once a day, twice a week. Calls and SMS messages to a cell phone more than twice a day and four times a week are prohibited.

You can call debtors only from 08.00 am to 22.00 pm on weekdays, from 09.00 am to 20.00 pm on holidays and weekends.

The collector can personally meet with the defaulter only once a week.

The debtor has the right to refuse to communicate with the new creditor, or to interact with him through his representative (Article 8 of the Federal Law-230), however, only 4 months after the presentation of demands for payment.

According to Art. 6 FZ-230 agency employees do not have the right to:

use physical force, threaten health and life;
damage property;
psychologically pressure, use rude, offensive expressions when communicating with the debtor;
give false information about the amount of debt, liability for refusal to repay the debt;
distribute confidential information about the debtor to third parties.

For violation of the law, collection agencies are punished with a fine (up to 500 thousand rubles), suspension of activities for 3 months, and exclusion from the State Register.

Debtors can file a complaint about the activities of debt collectors:

In the FSPP. You can write and submit an application at the branch of the local regulatory authority, on the official website of the organization or by calling the helpline.
NAPCA is an organization that unites large collection agencies. Today it includes 40 companies. You can leave a complaint on the official website of NAPKA.
Roskomnadzor protects personal data. According to Art. 4 clause 5 of Federal Law-230, collectors have the right to disclose information about the debtor to other persons only with written consent. If agency employees ignore the requirement of the law, the debtor has the right to bring the collectors to administrative liability under Art. 13.11 Code of Administrative Offences. You can report a violation by leaving a complaint on the Roskomnadzor website or sending it by registered mail.
Prosecutor's office. A complaint should be filed with the prosecutor's office when the collection agency is not listed in the FSSP register and operates illegally, or the collector threatens with physical violence, damage to property, or exerts psychological pressure.

It is advisable to attach evidence of illegal actions to the application:

audio and video recording of conversations;
call printouts;
witness statements.

Despite the fines and the work of regulatory authorities, collectors have not yet had time to rebuild their activities in accordance with the new requirements. They still use the old methods: intimidation, false information, damage to property, spreading negative information about the debtor.

The effectiveness of countering such methods of collection will largely depend on the debtor himself. By collecting the evidence base and submitting the received materials to the appropriate authorities, you can achieve an end to the arbitrariness.

Features of the application of compulsory enforcement measures in enforcement proceedings

Implementation and enforcement of enforcement measures is one of the basic goals of the FSSP of Russia. Their order is fixed in Federal Law No. 229.

Compulsory execution measures (MEI) in enforcement proceedings are carried out through the application of actions provided for in Article 68 of the above-mentioned law.

The concept of enforcement measures

MPI are legally established activities carried out by a bailiff. They differ from enforcement actions in that they are committed using coercive methods and against the will of the defendant.

The specific method to be used in a particular situation is chosen by the bailiff independently, depending on the nature of the definition’s instructions in the document.

The main nuances concerning enforcement measures and interim measures in enforcement proceedings include the use of:

in order to implement the provisions of the FSSP definition;
only in accordance with the grounds provided for in Article 44-FZ regulating this process:
together or separately;
to the property owned by the defendant (individual or legal entity) on the basis of current legislation.

Classification and types

According to Article 69 of the Federal Law dated October 2, 2007 No. 229-FZ, several types of MPI are provided.

Securing claims by collecting the defendant’s property, cash or other valuables, periodic payments that the debtor receives as a result of labor or social legal relations, rental payments, rent.
Seizure of the debtor's property (that which is held by third parties).
Contacting the registration authorities to register the transfer of rights to property, including various valuables, from the defendant to the creditor.

Reasons for use

The conditions for the application of the measures in question are specified in Article 44 of Federal Law No. 229. Initially, to begin such actions from the position of a bailiff, a properly executed document drawn up on the basis of the relevant judicial act is required.

After drawing up the document, the bailiff is obliged to make a decision to initiate IP.

Compliance with the period of familiarization with the documents accepted for execution by the collector is a mandatory requirement of the bailiff when resolving the problem of initiating an individual entrepreneur.

After the expiration of the period allotted by the FSSP employee for voluntary fulfillment, the debtor is notified of the forced fulfillment of the designated obligations.

Deadlines

Compulsory enforcement measures are applied by a FSSP employee after the initiation of enforcement proceedings.

In this case, a determination to search for the debtor or his property is issued by an employee of the FSSP 3 days from the date of receipt of the plaintiff’s application to announce the search.

Principles of enforcement proceedings

According to Article 4 of the above-mentioned law, enforcement proceedings are carried out on the principles:

triumph of the law;
timeliness of implementation of executive actions;
respect for the honor and dignity of the debtor;
inviolability of property necessary for the proper existence of the debtor;
transparency;
dispositivity;
correlation between the requirements object and the MPI.

What principle may enforcement proceedings not adhere to?

In case of application of PM, the absence of the initial principle of transparency in relation to the debtor is allowed.

Thus, coercive methods of influence in individual entrepreneurs are actions specified in the writ of execution and performed by the bailiff in order to recover property from the debtor. In this case, enforcement measures can be used only after the initiation of proceedings.

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Bottom line

The number of debtors in the country is increasing every year.
Debt collection is carried out by credit organizations, collectors and bailiffs. Each of them has its own methods.
Banks are trying to collect the debt on their own. If the work done is ineffective, they go to court or to debt collectors.
The court makes a decision in favor of the creditor, but the debtor has the opportunity, during the trial procedure, to reduce the amount and change the terms of repayment.
Bailiffs can seize accounts and property. Forcibly withhold money from income or sold items.
The new law limits the activities of debt collectors. Its violation entails major troubles for agencies. Despite this, the methods of work of “debt hunters” still go beyond the scope of civilized collection.
It depends only on the debtor how legally competent and painlessly he can deal with payment and punishment of collectors for excessive zeal.