Debt collection claim: what will it mean for the debtor’s finances?

A claim for debt collection is filed in the event of a violation of obligations. This could be a delay in a loan or credit, a violation of the terms of an agreement, or compensation for damage from any actions. In some cases, the basis for filing an application with the court is a violation of obligations provided for by law.

The claim may be filed by the creditor or his representative by proxy. The defendant will be citizens or organizations that violated obligations. In the article we will tell you how to fill out a claim for collection, how to file an application to court against a bank, and what can be demanded from the debtor.

In what cases can you file a claim for recovery?

The obligations of citizens and legal entities can be prescribed in contracts, they are also fixed in the law. As a rule, an exact deadline is provided for the fulfillment of any obligation. For example, this could be the date of repayment of the loan or making payments according to the credit schedule, payment of taxes or utilities.

If the money is not received on the appointed date, the obligation is considered violated. This gives the right to use pre-trial options for collection, or to file a claim in court.

The right to go to court cannot be limited by contract or oral agreement between the parties. If the creditor or debtor achieves the inclusion of such a condition in the contract, it can be declared invalid.

Several important nuances associated with filing claims in court for debt collection:

• statements of claim are filed if there is a dispute between the parties
  - some types of undisputed debts can be collected without filing a lawsuit, including by court order, by a notary’s writ of execution, etc.;
• the claim must include any demands against the defendant
  - in case of violation of monetary obligations, this may be the return of principal, interest, penalties;
• statements of claim can only be considered by a court
  - depending on the nature of the obligations and the status of the parties, this may be arbitration, a court of general jurisdiction, or a magistrate;
• the decision made on the claim is subject to enforcement through the FSSP
  - for this purpose, the plaintiff will be able to obtain a writ of execution when the decision comes into force. Next, bailiffs will become involved in the debt repayment case.

A claim for debt collection can be filed in case of violation of obligations under an agreement or receipt, or in case of ignoring the norms of the law.
A statement of claim against a debtor-citizen is filed in a magistrate or district court. Disputes regarding debts of legal entities and entrepreneurs are considered by arbitration.

In addition to the collection of monetary debts, the subject of the claim may be a non-property claim, the assignment of periodic payments, for example, this may be a claim for the assignment of alimony.

You can simultaneously indicate property and non-property claims in the statement of claim, ask for periodic payments and debt collection. For example, when assigning periodic alimony payments, the court may collect the debt for the previous 3 years.

For credit and loan

Loans and credits involve the transfer of money under certain conditions. The agreement or receipt may indicate the exact deadline for the return of the entire amount, or the dates for stage-by-stage payments.

If the agreement does not specify the exact deadline for repayment of the debt, the lender must first send the borrower a corresponding notice (demand). If the money is not returned by the date specified in the demand, grounds for forced collection arise.

A claim for repayment of a loan or credit debt can be filed in the following cases:

• if the deadline for repayment of the entire amount of the debt is violated
  , in this case the claim can calculate interest on the debt and penalties for the entire period of delay;
• if the deadlines for individual stages of debt repayment are violated, including according to the credit schedule,
  only overdue payments can be collected, but if deadlines are systematically violated, the creditor can demand the entire amount under the agreement;
• if the debtor does not return the money within the period specified in the creditor’s demand (it cannot exceed 30 days)
  - for example, such a requirement is always applied to the return of debt and interest on a credit card.

Instead of filing a lawsuit, the parties can agree to change the terms of the contract, to provide an installment plan or deferment of payments, or to transfer compensation in the form of property. Pre-trial collection can also be carried out through collectors if they bought the debt from the main creditor or work for a bank or microfinance organization “on a contract basis”, under an agreement.

The loan debtor can be a citizen, individual entrepreneur, or enterprise. These same persons can act as parties to the loan. The jurisdiction and jurisdiction of the dispute depends on the status of the parties and the nature of the violated obligation.

For example, if the debtor is a citizen, then a claim can be filed against him in a magistrate or district court. If the parties to the loan are organizations or entrepreneurs, the dispute is resolved through arbitration.

In case of violation of the terms of the contract

Monetary obligations may arise by virtue of a contract. This can be not only a loan or a loan, but also the following types of transactions:

• purchase and sale, delivery
  - debt may arise in case of non-payment of the entire amount under the contract, in case of violation of delivery deadlines, etc.;
• rent, leasing
  - debt arises when payment terms for an object or thing are violated, when the leased item is not returned on time, etc.;
• performance of work, services
  - debt may arise due to late payment or violation of deadlines, quality of services or work.

In addition to collecting the debt in a lawsuit, the court can also resolve other disputes under the contract. For example, the application can simultaneously indicate a demand for the collection of penalties and for compulsion to fulfill obligations.

If an agreement provides for mutual obligations of the parties, each of them may incur a debt. For example, during a purchase or sale or delivery, the buyer is obliged to transfer money within the period specified in the contract. For his part, the seller is obliged to transfer the thing or item and deliver the goods on the appointed date. A lawsuit can be filed if there is a breach of obligation on either side.

By force of law

Some monetary obligations may arise not under the terms of a contract, but by force of law. It could be:

• payments for taxes and insurance premiums;
• alimony for the maintenance of children and other persons;
• fines for administrative violations.

The grounds for the occurrence of debt under the listed obligations are specified in regulations. For example, collection of child support is allowed if the parent does not allocate money for maintenance. A claim for reimbursement of debt on taxes and contributions is filed if the deadlines specified in the Tax Code of the Russian Federation are violated.

Cost of debt recovery services

It is recommended to return the money with the help of a law firm. If the debtor does not want to make contact and does not plan to give you the due amount, a lawsuit will most likely be required. Other methods rarely work.

Where and to whom will need to be paid as part of debt collection:

1. Collection agency. If you use the services of debt collectors, you will have to share part of the collected debt on a receipt. In reality, such cooperation rarely occurs.
2. Your legal representative. If you do not want to personally deal with this matter, you can involve a legal representative in the process - for example, a lawyer, and pay for his services.
3. Lawyers. You can use their services one-time - for example, order only consultations or the preparation of an application; Or you can seek comprehensive legal support.

The calculation of the cost of collection is carried out personally, and depends on the amount of debt, the correctness of the debt receipt, the measures taken, the defense strategy and other factors.

Who can file a claim in court for debt collection

The person to whom the obligation was violated can demand repayment of the debt through the court. It could be:

• bank, microfinance organization (under lending agreements, provision of microloans);
• an individual or legal entity, entrepreneur (under an agreement or receipt for a loan);
• the state, represented by the tax authority or other department;
• parties to civil contracts and transactions;
• a representative of the children, an adult child or another family member (when collecting alimony).

The creditor (claimant) may entrust the preparation and filing of a claim to a representative. For example, a representative may be a lawyer, advocate, or other person. The authority of the representative must be confirmed by a power of attorney. It is drawn up by a notary and attached to the claim.

The creditor can sell (assign) his right to claim the debt. A typical example is the assignment of debt on a loan or microloan in favor of a collection company. After concluding an agreement to repurchase the debt, a claim for non-payment will be filed by a new creditor.

Who will be responsible

The defendant in a claim for recovery will be the person who violated the obligation. These can be citizens, entrepreneurs, organizations. If a lawsuit is filed for debt collection or damages from the state, a specific agency is named as the defendant. For example, when collecting overpayments of taxes, the defendant in a claim must indicate the Federal Tax Service.

The defendant can also conduct business through a representative. But if the court collects the debt, it will not be the representative who will pay according to the writ of execution, but the main debtor. In some cases, it is possible to replace the debtor under obligations. This usually requires the consent of the lender. Without the consent of the parties, debts can be transferred to the heirs, to the legal successors of the liquidated organization.

The legislative framework

To file a complaint and return funds provided to a private individual, either by receipt or after an oral agreement, you should be guided by the following legislative acts:

1. Civil Code of the Russian Federation No. 14-FZ dated January 26, 1996. No. 14-FZ (as amended on March 28, 2017).
2. Criminal Code of the Russian Federation dated June 13, 1996 No. 63-FZ (as amended on July 18, 2017)
3. Federal Law “On Enforcement Proceedings” dated October 2, 2007. No. 229-FZ.
4. Tax Code of the Russian Federation No. 146-FZ of July 31, 1998.
5. Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (as amended on July 29, 2017).

How to properly file a claim to recover money

Civil collection cases are decided on the basis of claims, documents supporting the debt, and evidence. The judge must check the positions and arguments of both sides before making a decision. Therefore, we recommend that you always participate in meetings in person or through a representative in order to avoid unreasonable refusal of demands. Read below about the rules for registering and submitting an application for debt payment.

What documents and information are needed?

The statement of claim describes the grounds for the occurrence of the obligation and the essence of its violation. This data must be confirmed by other documents and references to regulations. The claim for collection of a loan or debt under other obligations must be accompanied by:

• an agreement or receipt confirming the terms of the transaction, the timing of debt repayment, indicating the amount of interest and other important points;
• documents drawn up or received at the pre-trial stage of collecting funds (correspondence of the parties, demands, claims, notifications, etc.);
• calculation of claims (principal, interest, penalties, etc.);
• payment schedule under a credit agreement or microloan;
• other documents, depending on the essence of the dispute.

After the case has been initiated, additional documents can be submitted to the court. For example, the defendant will be able to submit a response, a counter-calculation of claims, petitions, evidence of payment of the debt or part thereof. When making a decision, the judge is obliged to evaluate all the documents and arguments of the parties, and not just the content of the claim.

Additional documents will be needed when collecting debts arising by force of law. For example, when collecting alimony, you must provide a birth certificate for the children, which confirms the biological relationship with the defendant. To collect a fine, the materials of the administrative case (protocols, explanations of the violator, etc.) are submitted to the court. It is better to agree on the exact list of documents with a lawyer to avoid problems when considering the claim.

What to include in the text of the claim

The basic requirements for the form and content of claims are determined by the Code of Civil Procedure of the Russian Federation (for civil cases). With regard to arbitration disputes, the same rules are specified in the Arbitration Procedure Code of the Russian Federation. For example, the content of a claim under a loan agreement between individuals must indicate:

• name of the judicial authority (depending on the amount of the penalty, this may be a magistrates' or district court);
• information about the plaintiff and defendant;
• cost of the claim (includes amounts for all claims);
• description of the terms of the loan (you must indicate the amount of funds, the date of repayment under the agreement or receipt, the amount of interest, and other conditions);
• a detailed description of the violation of the obligation (for example, the period of delay, a reference to the debtor’s written refusal to return the money, etc.);
• calculation of all collection amounts (it can be stated briefly in the claim, but a detailed calculation is better prepared in the form of a separate document);
• reference to the regulations on the basis of which the debt is collected (for example, when repaying loans, you must refer to the Civil Code of the Russian Federation, judicial practice);
• a list of claims filed against the defendant;
• list of attached documents;
• date, signature of the plaintiff or his representative.

When collecting debts under other obligations, the content of the claim may differ significantly. Therefore, we recommend that you draw up the document through a lawyer who will analyze all the nuances of the dispute and correctly indicate references to the legislation.

During the consideration of the case, you can clarify the requirements, change and supplement the grounds for recovery. For this purpose, the plaintiff submits statements, petitions, clarifications and additions to the claim. Part of the claims can be waived at any time. To do this, you also need to file an application with the court. If the plaintiff refuses all claims, the judge will dismiss the case.

Claim

The list of claims depends on the terms of the contract or obligation, on compliance or non-compliance with the law. In a loan case, the plaintiff may demand:

• return of the entire debt or loan balance;
• interest payments for the entire period of delay (the rate is determined by agreement, receipt or according to the norms of the Civil Code of the Russian Federation);
• reimbursement of legal expenses, including state fees, for the services of a representative;
• payment of penalties if they were provided for in the contract.

When considering cases of consumer protection, you can demand not only payment of the debt, but also a penalty and compensation for moral damage. The defendant may also be charged an administrative fine for violating consumer rights. Of this amount, the plaintiff will receive 50%, and the second half of the fine will be collected into the budget.

Before a decision is made, the claims can be changed, the amount of recovery can be increased or decreased. The judge also has the right to reject any claims, reduce the amount of debt and interest on his own initiative, or at the request of the defendant.

Sample claim for debt collection under a loan agreement

On our website you can find a sample claim for debt collection on a loan. Our specialists will provide assistance in preparing the document. Please note that the completed application form is different for each situation, as it depends on the nuances of the dispute and the nature of the obligation.

Statement of claim for debt collection under a loan agreement (17.5 KB)

Statement of claim for debt collection (20.8 KB)

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

Options for resolving the situation with the debtor

Based on the results of the meeting, study and evaluation of the evidence presented by the parties, the judge makes a decision, which indicates the period for its entry into force. After the agreed period, if the defendant has not stated his disagreement, the plaintiff may apply for a writ of execution. Then it's up to the bailiffs.

The described option can be considered ideal, but it is too rare. Much more often, the defendant either does not agree or completely ignores the summons and does not appear at the hearing. In this case, the judge may conduct a trial in absentia. Then the decision will indicate a deadline for its cancellation.

Important! A loan from a legal entity cannot be issued without signing a corresponding agreement, Art. 808 Civil Code.

Contacting third parties

It is recommended to resort to transferring an individual’s debt to a collection company only in extreme cases, because when selling the debt, it will not be possible to fully recover the money lent. Often, collectors return 70-90% of the debt amount if there is already a writ of execution for it. If you only have a receipt, the discount can reach 50%.

The advantages of this collection method include:

1. High probability of getting money back in a short time.
2. No need to maintain contact with the borrower. To find out the current state of affairs, you just need to dial the call center number of the company to which the debt was sold and ask the dispatcher for all the answers to your questions.

An example of an agreement on the sale of debt to collectors can be found here.

Debt sale agreement p.1

p.2

p.3

Features of resolving a problem with a debtor

An even more rare, but probable, scenario for the development of the situation is the reconciliation of the parties during the proceedings. This happens when the defendant, after the opening of proceedings, announces his intention to repay the debt. It is possible that the plaintiff will waive part of the demands (forfeits, fines or accrued interest), but the defendant will have to reimburse the state fee in full.

Important! If the creditor has been waiting for the repayment of the debt for a long time and does not dare to take drastic action, then he should remember about the statute of limitations. For such cases, it will be 3 years from the date of expiration of the debt repayment period specified in the receipt or agreement, Art. 196 Civil Code.

When can you complain?

Let's consider cases in which a citizen can complain about a debt to court . There are not so many of them:

• The debt was transferred and not returned without a receipt , but the creditor has some other indicators that the funds were transferred and not returned back to the borrower;
• The creditor has a receipt for the money , but the amount of the receipts for the return does not cover the amount of the debt;
• A citizen has an agreement under which he is obliged to return or transfer money, but the other party refuses to fulfill his obligations.

Info

Thus, you can make claims to the court if you have any evidence of an unpaid debt and refusal to return it on the part of the debtor.