What should I do if I repaid the debt but didn’t take the receipt?

Almost every person is familiar with situations when problems arise with debt repayment. Even if you have a receipt in your hands, issued in accordance with the law, in order to collect the debt you will have to go through a lengthy procedure of going to court and bailiffs. How to prove fraud using a receipt if the debtor evades repayment of the debt or hides from the borrower, we will tell you in more detail in the material presented.

Fraud by the defendant on the receipt

Article 159 of the Criminal Code of the Russian Federation defines fraud as the theft of someone else's property, including money, committed by deception or abuse of trust. Thus, the mere fact of taking someone else’s money is not a crime; it is necessary to establish signs of deception or abuse of trust in the actions of the debtor.

When making a loan between citizens, the following actions are performed, which may be important for qualifying fraud:

• all essential terms of the loan are agreed upon - the amount of funds, the transfer procedure (cash or non-cash payment), the repayment period, the amount of interest for the use of borrowed funds;
• agreements of the parties are formalized in the form of an agreement or receipt signed by both parties (if the receipt contains all the essential terms of the loan, it has the force of an agreement);
• For the legal relationship of a loan to arise, the funds must actually be transferred to the borrower.

Deception or breach of trust can be detected at any stage of the loan relationship, including in preparation for the transfer of funds. In this case, the borrower’s illegal actions should be aimed at a deliberate reluctance to repay the debt.

Let's consider typical situations when it is possible to establish a potential risk of fraud when applying for a loan using a receipt:

• the borrower agrees to any terms of the loan, including obviously high interest rates with a short repayment period;
• if, when transferring funds, the borrower asks to issue a receipt to another person not related to the loan;
• if the borrower convinces to do without a receipt, citing friendly or friendly relations.

These facts cannot clearly indicate potential fraud, but they create additional risk for the lender.

Types of fraud

There are many types of scams. But we will focus on those frauds that occur most often. After all, anyone can become a victim of these “popular” methods of taking property.

With bank cards

Skimming takes pride of place among bank card fraud. The principle of theft is simple, but its implementation requires advanced devices.

A skimmer is a device that is installed by fraudsters in an ATM card reader and reads information from the magnetic strip of the card. But for theft you also need a PIN code. Therefore, criminals install a micro-camera on an ATM to record the code numbers, and sometimes an overhead keyboard is used for the same purpose. When the attackers have received the necessary information, they make a copy of the credit card and withdraw money from it.

Another simple way is to check your card. An SMS message is sent to the victim’s phone informing them that their bank card has been blocked. The same message indicates a phone number to call to sort out the situation. Particularly gullible citizens call this number, provide card details at the request of a person who introduces himself as a bank employee, and lose money from the account.

With real estate

The so-called “black” realtors are engaged in turning to the elderly or people who have problems with alcohol and fraudulently re-registering the victims’ real estate to themselves or to dummies.

Such “realtors” are not shy in their choice of funds. To achieve their goal, they can use psychotropic drugs to cloud the mind of a lonely person and deprive him of his property. Sometimes notaries also work together with such realtors to draw up an agreement.

Also, no one is immune from fraud in the primary housing market. It happens that people buy an apartment in a “building under construction” and contribute some part of its cost. But in reality it turns out that nothing is actually being built and a respectable person - a representative of a construction company - is a simple fraudster who forged documents;

Debts

Sometimes it is better to turn to a relative or friend than to a microfinance organization to borrow money.
We understand such people very well, and most importantly, we trust them. But they can enjoy our trust. We only need a verbal promise that the debt will be repaid with the salary, and it’s inconvenient to take a receipt from a colleague.

But there are other types of loans with receipts, when someone you know asks you to issue a loan for them. At the same time, he undertakes to pay the money strictly on time and even confirms the fact of the loan with a receipt. But after a while this person disappears from sight and does not answer calls.

Perhaps this person is not a fraudster, perhaps he has financial difficulties. But from the point of view of the law, such actions are regarded as fraudulent. And the fact remains - your credit history is ruined, you have lost a friend and you are facing litigation. Let's talk about them.

Making a fraud report

An application to prosecute a debtor for fraud can be submitted to law enforcement agencies only in cases where the intent to evade repayment of funds has been reliably identified. At the same time, it is necessary to understand that in the process of using borrowed funds, the debtor may encounter objective circumstances that prevent the repayment of the debt (for example, loss of a job). In this case, there is no intent to steal money; there is no corpus delicti under Art. 159 of the Criminal Code of the Russian Federation is not available.

Note!

The presence of intent to steal funds must be indicated in the statement that will be submitted to the police. Moreover, the lender is obliged to prove these facts, since a knowingly false accusation of committing a crime will entail criminal liability for the applicant himself.

Based on the contents of the receipt, as well as the conditions for its preparation and execution, the following typical examples of fraud can be identified:

• indication in the receipt of knowingly false information about the borrower - someone else’s or fictitious passport data, false address of residence or place of work;
• indication in the receipt of a deliberately false purpose for the loan if the funds are transferred for a specific purpose (for example, the funds are transferred for an urgent transaction, and the borrower spends them on a vacation at an expensive resort);
• refusal to repay even part of the debt if there is an objective possibility of payment.

The law does not contain precise instructions on how to prove fraud using a receipt; it will depend on the specific circumstances of the case. The more evidence the lender provides to law enforcement agencies, the greater the likelihood of bringing the fraudster to justice.

The Supreme Court explained how to prove a loan

In August 2013, Andrey Belov* lent Alexey Vasiliev* 32 million rubles. The borrower agreed to repay the entire amount no later than August 1, 2016. The parties signed a written agreement, drew up a schedule for the return of funds, and Vasiliev issued a receipt for receipt of the money. The borrower never repaid the debt to the lender. Then Belov decided to seek a refund in court. He demanded to recover 94.3 million rubles from Vasilyev, including the principal debt and penalties.

But three authorities rejected the claim. If a citizen lends money, then the loan agreement is considered concluded from the moment the funds are transferred, the first instance referred to paragraph. 2 p. 1 art. 807 Civil Code (“Loan Agreement”). To understand whether there was an agreement, it is necessary to establish whether the lender transferred the money. He could do this only if he had the necessary amount, emphasized the Industrial District Court of Samara and demanded that Belov prove that he had 32 million rubles. at the time of conclusion of the contract. Since the applicant did not do so, the first instance recognized the conclusion of the agreement as unproven and refused to collect the debt under it. At the same time, the court indicated that copies of the agreement and receipt cannot confirm the actual transfer of money, since the very availability of funds from the lender is not confirmed. The Samara Regional Court and the Sixth Cassation Court of Appeals supported the district court’s findings (case No. 88-11833/2020).

Belov did not agree with the acts of three instances and filed a complaint with the Supreme Court. He insisted that the law does not oblige the lender to prove the presence of money, and lower courts should have assessed the submitted receipt, which Vasiliev personally signed.

“The lender is not obligated”: the position of the Supreme Court

Only Belov’s representative, lawyer Ivan Ovchinnikov, came to the meeting in the Supreme Court, which took place on December 1. No one from the defendant appeared at the trial. Since Vasiliev himself was duly notified of the upcoming proceedings, the trio of judges, chaired by Sergei Astashov, decided to consider the case in his absence.

Ovchinnikov drew the attention of the judges that his principal, although he was not obliged, nevertheless partially proved his security at the time of signing the agreement. Belov provided the court with a receipt for the return of money from the previous borrower, declarations, and a purchase and sale agreement for the plot. All these documents confirm that the lender had a large amount of money, the lawyer explained.

– In your opinion, why did the courts question whether Belov had such an amount? – judge-rapporteur Elena Getman asked the representative.

“Perhaps the court assumed that some illegal manipulations were taking place, but there are none here.” My trustee was deceived. “He is now left without money and cannot find the people who owe him,” Ovchinnikov answered.

The Supreme Court recalled the importance of a receipt in a loan agreement

He explained that 32 million rubles. were intended for the development of land reclamation business in Kazakhstan. According to the lawyer, Belov was promised that he would become a member of the Caspian Engineering organization [approx. ed. - a company specializing in design] and another company, but this did not happen.

After asking a few more questions to the representative, the trio briefly retired to the conference room. Upon returning, the judge-reporter announced the decision: to cancel the acts of appeal and first cassation, to send the case for review to the Samara Regional Court.

A few weeks later, the civil panel published a reasoned decision in the case. The judges referred to the Review of Judicial Practice of the Supreme Court No. 3 (2015). In such disputes, the lender must prove the fact of transfer of money and the fact that a borrowing relationship has arisen between the parties, and the borrower must prove the fact of repayment of the debt or the lack of funds for the loan (question No. 10 of the review).

To confirm the transfer of money, Belov provided a receipt, which Vasiliev wrote in his own hand. This is proper evidence of the transfer of funds, which is expressly mentioned in paragraph 2 of Art. 808 of the Civil Code (“Form of a loan agreement”), the Supreme Court emphasized. The lender is not obliged to prove that he has the required amount at the time of concluding the agreement, the trio of judges noted (case No. 46-KG20-21-K6).

Controversial practice: expert opinion

This is not the first time that the Supreme Court has spoken out about the importance of the financial solvency of the lender when considering disputes regarding debt collection. In his ruling in case No. 41-KG17-39, he indicated that the source of money from the creditor, as a general rule, does not matter for resolving the dispute. This follows from the presumption of good faith, the Supreme Court explained then.

A similar conclusion can be found in many acts of lower courts. For example, when resolving case No. 88-1420/2020, the Second Cassation Court of Appeals indicated that the lack of the required amount from the lender at the time of concluding the agreement is not a legally significant circumstance and is not within the scope of the court’s assessment.

However, practice on this issue is still not so uniform. Sometimes, especially in cases with large sums, courts request confirmation of the lender’s income, despite the existence of an agreement and receipt, notes the chairman of the ICA Lawyers and Business Lawyers and Business Federal Rating. group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (medium and small disputes - mid market) group Criminal law 7th place by revenue per lawyer (less than 30 lawyers) 19th place by revenue Company profile Dmitry Shtukaturov (cases No. 33-7961/2018 and No. 33 -33187/2018).

The court can initiate such a check if it has doubts about the validity of the contract, it follows from clause 8.1 of the “Review of certain issues of judicial practice related to the adoption by courts of measures to counter illegal financial transactions.” According to Shtukaturov, we are talking about cases when the defendant admits the claim or the plaintiff and defendant are trying to conclude a settlement agreement under which the borrower must pay the debt.

Often the question of the financial security of the lender arises when checking the validity of the creditor's claims in a bankruptcy case.

Valeria Ivacheva, lawyer in judicial practice ART DE LEX ART DE LEX Federal rating. group Antimonopoly law (including disputes) group Land law/Commercial real estate/Construction group Compliance group Dispute resolution in courts of general jurisdiction group Sanctions law group TMT (telecommunications, media and technology) group Transport law group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) (high market) group Corporate law/Mergers and acquisitions (high market) group International litigation group Natural resources/Energy group Finance/Banking law

In insolvency cases, the risk of filing fictitious claims is especially high, so they have a higher standard of proof, explains Ivacheva. The need to assess the financial position of a creditor in bankruptcy was pointed out by the Supreme Court in its Resolution No. 35 dated June 22, 2012 (clause 26).

What can confirm the lender's security:

• certificate from place of work;
• certificate of income for a certain period;
• account statements;
• information from the tax authority (for example, documents in which income is declared);
• purchase and sale agreements and other transactions under which the lender received money in the amount of the loan or in excess of it;
• expense cash orders for the issuance of funds to the lender.

Author: Dmitry Shtukaturov, Chairman of the ICA Lawyers and Business Lawyers and Business Federal rating.
group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (medium and small disputes - mid market) group Criminal law 7th place by revenue per lawyer (less than 30 lawyers) 19th place by revenue Company profile. The decision of the Supreme Court in the Belov case will most likely consolidate the approach according to which the source of the creditor’s money does not matter for resolving disputes about debt collection, says Shtukaturov.

By referring to this definition, lenders will be able to limit themselves to the existence of a loan agreement and a receipt, and a higher standard of proof will apply primarily in insolvency cases.

Dmitry Shtukaturov, Chairman of the ICA Lawyers and Business Lawyers and Business Federal Rating. group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (medium and small disputes - mid market) group Criminal law 7th place by revenue per lawyer (less than 30 lawyers) 19th place by revenue Company profile

* – first and last names have been changed by the editors.

• Kira Klimacheva

• Supreme Court of the Russian Federation
• Civil process

Collecting evidence

When filing a statement with the police under Art. 159 of the Criminal Code of the Russian Federation, it is necessary to confirm the grounds for prosecution. The very fact of evading debt repayment does not indicate the presence of intent to steal funds; most disputes regarding the return of money on a receipt are resolved through civil proceedings.

Typical evidence of deception or breach of trust may include:

• using someone else's documents or data to issue a receipt;
• provision of documents for someone else's property as security for debt repayment;
• providing false information about your place of work or residence address;
• spending borrowed funds on personal needs that do not correspond to the purposes of the loan.

In addition to written evidence, witness statements may be used. For example, information may be communicated to mutual acquaintances indicating an intention to receive other people's funds without the intention of giving them away.

• lawyer

What is the danger of a fictitious receipt for receiving money?

A citizen may not know that he has fallen into the trap of scammers. Starting in 2022, cases of a new type of fraud began to be widely mentioned in the media. Every person who carelessly left passport data to strangers risked becoming its victim.

Then everything is quite simple. A fictitious receipt is drawn up stating that a certain amount was borrowed and was not returned in a timely manner. With it, the scammers go to court and receive a court order.

The victim does not suspect anything, because there is no provision for summoning him to court. The court order itself, according to the rules of the Code of Civil Procedure of the Russian Federation, is issued within 5 days.

Then the attacker goes to the bailiffs, who initiates enforcement proceedings. But the victim learns about the imaginary debt only when money begins to be debited from his card or bank account.

In many cases it is possible to defend your own interests. However, it is not always possible to compensate for the damage. After all, the fraudster most likely has neither property nor income.

The document can be canceled by filing an application with the court. Only 10 calendar days are allotted for this. They are calculated from the next day after receiving the order.

They do not return the debt on receipt. What's next?

Contacting law enforcement agencies with a complaint about fraud is not a guarantee of a refund. To do this, you need to apply to the judicial authorities with a claim for the return of the debt and interest provided for in the receipt. If a criminal case is initiated as a result of the complaint, the victim may bring such a claim simultaneously with the investigation.

To collect funds from a receipt, you must perform the following steps:

• wait until the deadline for the return of funds expires (before the deadline expires, it is impossible not only to collect the debt, but also to initiate a criminal case, since the borrower retains the right to fulfill his obligation);
• file a claim for debt repayment (this stage is not a prerequisite for going to court, but will allow you to prove the use of all methods of voluntary settlement of the dispute);
• draw up and send to the court a statement of claim for the return of the debt with the calculation of the amount of the penalty for the entire period of delay;
• take part in the court hearing and confirm the grounds for going to court;
• receive the court decision and present it to the bailiffs for enforcement.

If enforcement proceedings are initiated on the basis of a court decision, forced collection will be carried out not only from the amount of earnings or other income, but also through the sale of the debtor’s property.

What role does a receipt play when repaying a debt?

A receipt is a written document that confirms the transfer of money from one person to another.

It contains information about the fact of delivery of funds, the allocated amount and the date when the borrower must repay the debt. In fact, this is a loan agreement.

The document acts as proof that the person took the money. Ideally, the paper should be notarized, but current legislation does not oblige individuals to use the services of notaries.

In general, those who do not draw up a receipt also have a chance to get the loan back, but this is much more difficult to do and only if there is evidence of money being transferred from one account to another.

How to prove fraud without a receipt

It is much more difficult to repay the debt if the parties have not formalized the transfer of funds in writing. Even if there are long-standing friendly or friendly relations between the parties, it is recommended that the transfer of funds be carried out in the presence of witnesses (mutual friends, acquaintances, colleagues, etc.).

In addition, the following evidence may be presented to confirm the debt obligation:

• personal correspondence with the borrower, in which he directly or indirectly confirms the transfer of funds;
• documents confirming significant expenses of the borrower in the absence of his own funds (this indirect evidence may be important if there are other grounds for making claims);
• avoiding responding to a written claim or oral requests from the lender.

For any option of transferring funds as a loan, we recommend drawing up a written agreement or receipt. Using illegal methods of debt repayment may result in criminal liability for the lender himself.

Evidence of fraud in non-repayment of debt

It is not enough to simply collect evidence; it must be documented. Attach to the application:

• written testimony of witnesses (it is necessary to indicate their full names, addresses and contacts);
• the results of a handwriting examination, formalized in an official conclusion;
• audio and video;
• evidence of large purchases (for example, if an unemployed person bought himself a car after drawing up a receipt, this will indirectly confirm that he really took money from you).

Receipt related to loan processing

There are situations when a person asks his friend to take out a loan, pledging to return all the money or pay off the debt himself, confirming this with a receipt. But as soon as the time for payment comes, the debtor disappears.

• write a statement to the police;
• wait for the results of the case;
• go to court, providing all available evidence.

The court will oblige you to repay the loan, but will collect this amount from the person who wrote the receipt. True, at what time she will return will depend on the employment and official salary of the debtor, his social status.

In what cases do borrowers not return funds?

These reasons are the following facts:

1. If the borrower has no funds.
2. If the borrower hopes that this document does not have legal force.
3. If the borrower tries to stretch out the time to repay the debt.
4. If he hopes that after a couple of attempts to return his money, the lender will lag behind the careless borrower and turn a blind eye.
5. Various other options are also possible in which the borrower does not return the borrowed funds to their owner. In such a matter, a trial (usually a judicial one) is required.

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If they try to accuse you of fraud

In this case, it is advisable to seek the help of a professional. This need is due to the fact that, due to the vague description of the signs of this crime in the law, innocent citizens are often subject to criminal prosecution.

Sometimes unscrupulous entrepreneurs and companies use accusations not to punish the guilty, but as a way to deal with competitors. Often, police officers are drawn into such schemes, who, for a fee, initiate custom-made criminal cases and bring innocent people to justice.

Art. 51 of the Constitution of the Russian Federation provides a citizen with the right not to testify against himself. This right must be exercised immediately if you are detained by police officers.