Debt collection is a common phenomenon in a market economy. It is faced by both citizens and commercial organizations. The procedure is an interaction with the bureaucratic apparatus and obliges to comply with formal requirements.
Its occurrence
If you systematize information on debt collection, they arise in connection with the refusal or evasion of giving cash debts, defaults according to the contract.
All this does not apply to labor disputes (refusal to pay salaries), family (refusal to pay child support). A similar procedure is provided for them with different regulatory standards.
There are differences between lawsuits in which the participant is at least one citizen who does not have the status of an entrepreneur, and where the participants are exclusively subjects of economic activity.
Debt collection methods
Practice and law offer two options:
- contact the collectors;
- file a lawsuit and begin recovery through the bailiff service.
The first method not so long ago was considered not quite a legal way to return your money. Collectors were famous for threats, pressure on debtors, the use of criminal methods, not to mention the confusion of information about debtors.
Now this activity is regulated, and organizations that violate the rules of doing business are fined, in addition, the debtor is now entitled to apply to the court for his defense. If there is no desire to engage in litigation, it is enough to write a complaint to the FSSP. Sometimes bailiffs do not want to do their job, and they have to be stimulated with the help of the prosecutor's office.
As for those to whom they owe, collectors are also a kind of outlet for them. Transfer or transfer of debt in exchange for a certain amount (it is less than the initial debt) makes it possible to get at least something and forget about the problem with the debt.
Pre-trial settlement
We highlight one feature: in the case of ordinary citizens, pre-trial methods of settlement are a right, not an obligation. In the case of merchants and business entities, this stage is mandatory. Without passing it, the judge in arbitration will return the claim and will not consider the case on the merits.
Debt collection at this stage is both a formality and a real attempt to agree. If you approach from a purely formal point of view, a claim is sent and then an answer is expected. Then the papers are submitted to court.
According to the second option, the collector can offer installment, refinancing, termination of the contract on mutually beneficial terms. For example, part of the assets is transferred in exchange for the forgiveness of the rest of the debt, or another solution is worked out that suits all parties. Such a settlement has two advantages:
- lack of spending on a hopeless cause;
- return of part or all of the debt after some time.
Litigation
The application for debt collection is submitted to the court, which, having considered it, makes a decision. Most often, judges agree with the claims. Failures in these cases are rare, a judge may, for some reason, reduce the amount of debt - a more common option.
The law today provides for three options for considering a case in court:
- issuing an order;
- simplified decision making;
- adjudication within the framework of the lawsuit or general proceedings.
All three forms of proceedings are provided for by both the Code of Civil Procedure and the Code of Arbitration. The difference is in some nuances and numbering of articles of laws.
Court order
It is the result of a court reviewing an application and documents attached to it. On what grounds is a debt collection order issued?
- written or notarial transaction (contracts, receipt of receipt of money, etc.);
- sanctions for violations committed by the employer;
- debts for payment of housing services;
- debts on contributions to the HOA or housing cooperative.
- in the case of individual entrepreneurs and commercial organizations, mandatory payments and penalties of up to 100 thousand rubles.
GIC limits on the size of the amount does not establish.
The application writing scheme is as follows:
- information about the court or court number of the justice of the peace;
- information about the claimant (F. I. O., name of organization, address of residence or accommodation);
- information about the debtor (F. I. O., name of organization, address of place of residence or accommodation);
- details of the circumstances of the case are summarized;
- a request for a specific amount of money;
- list of attached documents;
- receipt of payment of state duty;
- signature and filing date.
The agribusiness obliges the applicant to also indicate the details of the bank account, to which money will then be transferred after collection.
How is the size of the state fee calculated for obtaining a court order to recover a debt? The law indicates 50% of the amount that would be paid when filing a lawsuit.
The decision is taken without a court hearing on the basis of the documents provided with the application. No further information is accepted from the parties. The participants in the procedure only have to provide the court with a package of documents and wait for the result.
The judge, having made an order, sends a copy of it with the attached documents to the debtor. If he manages to write a refusal within 10 days after receiving the papers, then the judicial act is canceled.
Is it possible to do without having to ask for an order? Not. The judge, having received the lawsuit, will check the availability of information about an attempt to obtain an order. In case of their absence, the documents are returned, and the plaintiff is explained the correct procedure.
Writing a lawsuit
How to write a debt recovery lawsuit? Sample is easy to find. Nevertheless, it is necessary to take into account a number of differences between the civil and arbitration process:
- name of the court where the lawsuit is filed;
- information about the plaintiff (full name, full name, address of residence or residence, contacts), the agro-industrial complex obliges to indicate in the lawsuit data from the registration certificate of the organization or enterprise;
- information about the defendant (full name of the organization, full name, address of accommodation or residence);
- circumstances of the case;
- The agro-industrial complex also obliges to refer to the norms of the law that were violated by the defendant;
- calculation of the amount;
- the requirements are set out under “I ask” (to recover from the defendant an amount in the amount of - the numbers and words indicate the amount);
- claim price (the amount at which the claims are valued;
- list of attached documents;
- signature and filing date of the claim.
The peculiarity of the arbitration process in the preliminary observance of the claims procedure. The plaintiff sends a claim and gives a deadline for a response.
If there is no evidence in the documents of its direction, the claim shall be returned.
The Civil Procedure Code does not have a similar provision, but the fact of sending a claim will serve as additional evidence.
What documents are attached
An application for an order or a lawsuit to recover a debt is considered only on the basis of documents, witness testimonies are not acceptable evidence.
The first category - receipts that are issued in confirmation of a loan, the second - contracts under which the debtor or defendant is obliged to make payments.
The only way to refute a receipt is to provide written confirmation given by the lender to repay the debt.
With the recovery of debt under the contract is becoming more difficult. In addition to a copy of the agreement, other papers are provided confirming the fulfillment by the plaintiff of his obligations. This includes acts of acceptance of goods, acts of acceptance under a service agreement, bank statement, etc.
An integral element of a claim is a decision on refusal to issue an order or on its cancellation, issued earlier.
The plaintiff in the arbitration certifies copies of the documents and sends them to the court, and to the defendant, and to third parties.
What matters are dealt with in a simplified manner
Judicial debt collection under the simplified procedure is envisaged for several types of cases:
- Recovery of cash amounts up to 100 thousand rubles. according to the CCP.
- Recovery of cash in the amount of 250 thousand rubles. with IE or 500 thousand rubles. from organizations in the agricultural sector.
- Collection of mandatory payments or sanctions in the amount of 100 to 200 thousand rubles. by agribusiness.
- Collection of debts formed due to contractual relations between the parties recognized by the defendant but not executed by him, regardless of the price of claims in accordance with both codes.
The consideration of the case in this mode is allowed subject to the consent of both parties. Both the court and one of the parties are entitled to take the initiative. At the same time, the case should not affect:
- relations of participants with authorities (including when one of them is an authority);
- state secrets;
- children's interests;
- issues resolved in a special proceeding.
If a third party enters the case during the consideration, a counterclaim is filed, or circumstances that preclude the application of the simplified procedure are revealed, the judge must proceed to the general procedure for considering the case. It also acts if:
- additional evidence needs to be investigated;
- examine or examine evidence;
- interrogate a witness;
- during consideration, there is a risk that the interests of third parties will be affected.
What does a simplified production procedure look like?
Judicial collection of debts is a modified form of writ proceedings, where the parties are not summoned to the meeting, respectively, the minutes of the meeting are not kept, and only at the appointed time they send documents to the court.
How is everything organized? The judge informs the participants in the proceedings about the opening of the case and offers to provide objections, additional evidence before a certain date.
Objections and new materials are provided to both the court and the opposing party. Here, the judge does not need to receive materials from one side in order to transfer them to the other.
If the papers arrived late, the judge has the right to accept them if the delay is due to valid reasons, which are stated in the application of the participant.
Decision making feature
A judge has the right to make a decision without drawing up a motivation. If the participants in the process do not declare a full judicial act, the deadline for filing an appeal is 15 days; if they declare, the deadline is extended to a month.
If the case is decided by a justice of the peace, it is advisable to consider that a request for a complete decision should be addressed at the latest within 3 days after the announcement of the result of the case or the receipt of a message about it.
General review procedure
Debt collection is carried out according to the standard procedure. A statement is submitted, the judge, checking it regarding compliance with formal requirements, opens a case and calls the participants in the process to himself.
The defendant is given the right to object. If he doesn’t appear in court twice, knowing about the meeting, the plaintiff’s arguments are the basis of the decision - the trial in absentia is applied.
After hearing the arguments of the participants in the case, having studied the documents received, the judge makes a decision. As a rule, one session is spent on disputes of this kind.
Finally
A trial can take two steps:
- a request for a court order;
- consideration of the claim in a simplified or general manner.
Order proceedings are difficult to pass, only in some cases, in the case of arbitration cases, a lawsuit is filed if the amount exceeds the established threshold.
In cases with ordinary citizens, in which the amount of the dispute is not more than 50 thousand rubles, decisions are made by justices of the peace. If the threshold is exceeded or the case is related to requirements that exclude the consideration of a dispute in world justice, the material is submitted to the district court.
In the case of a receipt, it is enough; in the case of contracts, the courts require evidence of fulfillment by the plaintiff of his duties.