Individuals can draw up a loan agreement for the transfer of funds between themselves, and / or a receipt, or they may not document this action in any way, hoping that a friend will return the debt in any case. However, situations often arise when it is necessary to collect debts from individuals.
Ways
There are various algorithms that help return the money to its rightful owner.
The lender can collect debts from individuals through the following procedures:
- oral reminder;
- claim procedure, both with the participation of only this person, and with the involvement of law enforcement agencies;
- with the help of the court.
In addition, he can resort to debt collection services from individuals of specialized organizations.
Pre-trial Order
In this case, negotiations are carried out with the debtor. They can be carried out independently or with the assistance of mediation service specialists. In this case, the main issues to be discussed include:
- repayment of debt in installments;
- deferment of payment;
- payment of available property.
If these negotiations did not bring the expected result, then it is necessary to proceed to the claim method of collecting debts from individuals.
In this case, a free-form statement is drawn up, unless otherwise provided by the contract. If there are no documents that would confirm the fact of the transfer of money, you need to contact the police with a similar complaint about fraudulent actions. When filing, you need to consult with lawyers on this topic, since the defendant can file a defamation statement.
Legal process
The collection of debts from individuals in court should be carried out after an attempted claim settlement of relations between the two parties. It is compiled in free form, but it must contain a requirement to return a sum of money by a certain date. If a negative answer is received or no is received, documentation is prepared for consideration of the case in court.
The lawsuit is written first. Other documentation is evidence-based and goes as annexes to it. First, the name of the court is indicated, where the appeal is made with its address, the following is the information about the participants with identifying information, then the number of the receipt of payment of state duty for the rendered judicial services is indicated. In the main part it is necessary to provide all the evidence about the evidence base, the requirements presented, including forfeits, interest, fines. In addition, you need to refer to the relevant regulatory documents that confirm the existence of a basis for the payment by the debtor. Copies of contracts, receipts, checks, claims, etc. shall be attached to the claim. Originals shall be submitted upon collection of debts from individuals by bailiffs at the request of the latter.
In order for the claimant to win the claim, it is necessary that the evidence base be provided in it.
The result of the investigation in this authority is the publication of a court order. It can be challenged by participants within 10 days after it is registered. With its entry into force, a writ of execution is prepared. Its contents will be discussed below.
Executive Summary
Its receipt often leads to contacting the bailiff service for the enforcement of court decisions. The collection of debts of individuals according to writ of execution is carried out in accordance with Federal Law No. 229- of 2007. It indicates the rights of bailiffs :
- seizure of property, as well as its seizure in relation to securities and cash;
- verification of financial documents that describe how executive documents were executed;
- search of property and debtors.
After a court decision is handed down, the writ of execution shall be transferred to the exactor or, at his request, sent to the FSSP. It may be directed towards the individual in management at the place of registration of the plaintiff or his debtor, or if a debt is collected by an individual from a legal entity at the location of his property or branch of that person.
In addition, the plaintiff who won the case may apply to the banking institution where the debtor's account is opened and submit a statement to write off a specific amount from his account. If the amount does not exceed 25,000 rubles, he can go to the place where the latter receives income.
The application of the creditor, together with the writ of execution, is transmitted to the particular bailiff within 3 days after they are received by the relevant FSSP institution. Upon the initial receipt of this document, this person initiates enforcement proceedings, which issues a resolution, which sets the term for the debtor to voluntarily fulfill his duties, which cannot exceed 5 days from the date when the latter received the resolution in question. If another term is indicated in the writ of execution, it is determined in accordance with the last document.
Thus, the judicial collection of debts from an individual does not imply the direct participation of this authority in the implementation of this action. With its help there is a resolution of the case. The recovery is carried out either by the plaintiff himself or by the bailiff in accordance with the writ of execution.
Bailiff Stages
After the publication of the decision, the bailiff reveals the property of the debtor with the help of various bodies. When it is discovered, he must ensure its safety before the collection process by seizing him. The debtor cannot use his property, go abroad (if the debt is more than 10 000 rubles).
In addition, the procedure for collecting debts from individuals provides for the collection of funds from the loan holder (from the account, from the cash desk, from the salary). In addition to the main debt, the debtor must pay the enforcement fee, which is 7% of the debt obligation, while it cannot be lower than 1000 rubles. for an ordinary individual and 10,000 rubles. for SP.
After all these steps are completed, enforcement proceedings are considered completed.
Bailiffs can seize various property, except that which relates to the instruments of earnings or is vital. So, you cannot take an apartment if it is the only housing for the debtor and his family.
If it is impossible to recover the debt for three years, the bailiffs close the enforcement proceedings in this case, about which the plaintiff is notified. Debt obligations have no statute of limitations, in connection with which the latter can again contact the judicial authorities to extend the writ of execution and return this document to the bailiffs.
Application for inaction or bailiff action
Sometimes FSSP employees act excessively zealously towards the wrong people or inaction towards those to whom they should make complaints. In this case, their actions may be challenged. It is necessary to file a complaint in the order of subordination (that is, to its immediate supervisor), or against its decision in the appropriate court.
This complaint is filed within 10 days after the fact of violation has been established. In most cases, individuals do not know when the bailiff will take one or another action. In this case, he may appeal them during the course of a ten-day period after their commission. Evidence is a postal notice indicating its date of receipt.
The complaint shall indicate:
- information identifying an individual, his place of registration;
- the particular bailiff to whom she is served;
- grounds for writing indicating specific actions or omissions of the person;
- requirements of an individual;
- applications.
The latter should be:
- receipt of payment of state duty;
- copies of documents:
- writ of execution;
- court decision;
- the act of impossibility of execution;
- Decisions to end enforcement proceedings.
Moreover, the court may refuse. In this case, the state duty will not be returned. If the decision is positive, she will be recovered from the defendant.
What to do if the debtor has no property
Everything that was described earlier is applicable only if the loan holder has some property in his ownership. What should I do if he copied it to relatives, acquaintances, etc., he does not have official earnings, bank accounts, etc. In this case, the bailiffs should visit the debtor's place of residence and try to describe the property that is there. However, one must be prepared for the fact that relatives will file a lawsuit in court, which, if there is evidence that this is their property, as the judicial practice of collecting debts from individuals shows, will take their side. In addition, the bailiff may prohibit the debtor from leaving the borders of our state.
You can also find out whether the borrower is married, legally registered or not. The bailiff should send a request to the appropriate registry office. In this case, the creditor has a chance during the trial to divide the property belonging to both spouses, to allocate the share of the debtor, which will be fully or partially withdrawn in order to pay off his debt.
Unfortunately, our legislation does not provide for criminal prosecution of debtors. Many lenders try to cite an article on fraud, but in most cases the police refuse to initiate proceedings on the grounds that these are not criminal, but civil law relations. The only measure that can be used here is anticipation. Present a writ of execution for production can be an unlimited number of times. The heirs of the loan holder may also be held liable for debt, and you can also wait for his retirement. In this case, 50% of it will be transferred to the lender's account.
If an individual gives a loan to a legal entity, then you need to look at the size of the authorized capital of the latter. It pays only within its limits, and then - the same procedure with property.
Debt processing using a receipt
The last document should be drawn up if the debt exceeds the minimum wage by 10 times. Debt collection on receipt from an individual is many times easier than without it.
This document must be completed by the debtor personally. The following details must be indicated in it:
- date of signing and place of fulfillment of this action;
- parties and registration are indicated;
- debt obligations in quantitative terms;
- sanctions in case of delayed payment of a loan;
- date of return of the full amount or next payment.
The receipt must be certified by two parties.
In the presence of this document and non-payment of the loan by the debtor, the main thing is not to miss the limitation period, which is three years.
What to do if the debtor does not write a receipt?
Debt collection from an individual without a receipt is complicated, but it is possible that it is regulated by Article 162 of the Civil Code of the Russian Federation. To repay the debt, you must refer to other evidence, which may include:
- witness's testimonies;
- audio recording;
- video recording.
In the case of the presentation of the last two evidence, it should be clearly visible (in the case of the video) and heard (in both cases) how the debtor refuses to return the loan. The record cannot be falsified, otherwise the plaintiff will already be brought to court.
Contract recovery
As we have already found out, the main document between the parties that are individuals is a receipt. Although a loan agreement may be concluded, which also prescribes the amount, date, place of conclusion, information identifying the parties, repayment conditions, that is, in fact, everything is the same as on the receipt.
Debt collection from individuals under a contract is mainly used when concluding a credit type of such a document, that is, when a citizen takes a certain loan from a banking institution or other non-bank credit organizations. In this case, they can hire collection agencies that will inform the debtor of the debt owed to him. In addition, these business entities may file a lawsuit in court.
Finally
There are many ways to collect debts from individuals. First of all, it is necessary to pay attention to the conclusion of contracts with individual entrepreneurs and legal entities if money is transferred to them for temporary use and a receipt is written in case of such a transfer to individuals. In case of impossibility of such an implementation, it is necessary to conduct audio, video recording, to attract witnesses. If it is impossible to resolve the issue peacefully, you must go to court. This body does not perform direct debt collection; it is carried out by a bailiff. The appealing citizen must assist him in every possible way, in the event of his inaction or unlawful actions, he may file a complaint against him.