Measures for persistent loan defaulters. Can you go to jail for non-payment of a loan? What is malicious evasion of repayment of accounts payable

What are the consequences for non-payment of the loan?

Question: Tell me, what will happen if I fail to repay the loan to the bank? Will I be jailed or will there be another punishment? What is the legal liability for non-payment of a loan?

Answer: It is better not to think about deliberately not repaying a loan and not to conduct experiments. Take my word for it - banks know how to work on collecting debts on overdue loans. First, the bank's financial security service may take care of you, and then other structures will be involved, for example, collection offices, bailiffs, etc. But the most important thing is that while you experiment, your debt with penalties and all the bank’s additional costs for repayment will begin to grow exponentially.

And some experiments end badly. The first precedent was when the court made a decision to punish an attacker with a year of imprisonment in a penal colony for failure to repay a loan in the amount of 50,000 rubles. - happened in 2007. The criminal case was heard on February 9, 2007, in the Chkalovsky District Court of Yekaterinburg. The defendant was Akhmedov Dzhabrail Mamed-ogly, who, using a passport with a fake registration stamp and a fake salary certificate, received consumer loans in the offices of Alfa Bank and SKB Bank in Yekaterinburg for a total amount of about 50 thousand rubles and did not return them was going to. Mr. Akhmedov did not make a single payment to repay debts to credit institutions.

This experimenter did not have any property to seize to pay off the debt, and therefore the magistrate of the Chkalovsky district, Nina Zyuzina, came to the conclusion that the defendant acted with intent aimed at stealing bank funds through fraud, without intending to repay the loans in the future. Mr. Akhmedov was found guilty under articles 159 part 1 (fraud), 324 (acquisition of false documents) and 327 part 3 (use of a knowingly forged document) of the Criminal Code of the Russian Federation.

What responsibility can a borrower bear under the legislation of the Russian Federation for non-payment of a loan? Responsibility varies, I will cite only some points from the laws:

1. Seizure and foreclosure of funds and other valuables held by a credit institution by decision of the court or the prosecutor's office. Thus, Article 27 of the Federal Law “On Banks and Banking Activities” dated December 2, 1990 N 395-1 states:
   

   - Cash and other valuables of legal entities and individuals located in accounts and deposits or deposited in a credit institution, as well as the balance of electronic funds, can be seized only by a court and arbitration court, a judge, as well as by order preliminary investigation authorities in the presence of a court decision.

   And Article 33 of the same law provides the bank with the following rights:
   

   - If the borrower violates the obligations under the agreement, the bank has the right to early collect the loans provided and the interest accrued on them, if provided for by the agreement, as well as foreclose on the pledged property in the manner established by federal law.



2. This will be followed by enforcement measures (based on enforcement documents adopted by the courts). In accordance with Article 68 of the Federal Law “On Enforcement Proceedings” dated October 2, 2007 N 229-FZ, enforcement measures are:
   

   
   
   1. foreclosure on the debtor's property, including cash and securities;
   
   
   2. foreclosure on periodic payments received by the debtor due to labor, civil or social legal relations;
   
   
   3. foreclosure on the property rights of the debtor, including the right to receive payments for enforcement proceedings in which he acts as a claimant, the right to receive payments for hire, rent, as well as exclusive rights to the results of intellectual activity and means of individualization, rights of claim under agreements on the alienation or use of the exclusive right to a result of intellectual activity and a means of individualization, the right to use the result of intellectual activity or a means of individualization belonging to the debtor as a licensee;
   
   
   4. confiscation from the debtor of property awarded to the claimant, as well as by a notary’s writ of execution in cases provided for by federal law;
   
   
   5. seizure of the debtor's property located with the debtor or third parties, in pursuance of a judicial act on the seizure of property;
   
   
   6. applying to the registration authority to register the transfer of the right to property, including securities, from the debtor to the claimant in the cases and in the manner established by this Federal Law;
   
   
   7. performing on behalf of and at the expense of the debtor an action specified in a writ of execution, if this action can be performed without the personal participation of the debtor;
   
   
   8. forced eviction of the debtor from the residential premises;
   
   
   9. release of non-residential premises, storage facilities from the presence of the debtor and his property in them;
   
   

3. Transfer of the rights of the creditor (bank) to another person, if there is such a clause in the loan agreement. This means that the bank has the right to assign the right to claim the debt under the loan agreement in favor of the collection agency. The transfer of the creditor's rights to another person is set out in Chapter 24 of the Civil Code of the Russian Federation. Here are some excerpts from this article:

   The right (claim) belonging to the creditor on the basis of an obligation may be transferred by him to another person under a transaction (assignment of the claim) or may be transferred to another person on the basis of law. (Article 382 clause 1)

   To transfer the rights of the creditor to another person, the consent of the debtor is not required, unless otherwise provided by law or agreement. (Article 382, ​​paragraph 2)

   Unless otherwise provided by law or agreement, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right. In particular, the rights ensuring the fulfillment of the obligation, as well as other rights related to the claim, including the right to interest, are transferred to the new creditor. (Article 384 paragraph 1)

   And the resolution of the Plenum of the Supreme Court of the Russian Federation No. 17 of June 28, 2012 adds to this an explanation that the assignment (sale) of a borrower’s debt on a loan to collectors can be considered legal only if this is provided for in the loan agreement.
   If the borrower has received a written “notice of assignment of claims” without attaching documents, then he must write a request to the collectors, in which he sets out a request to provide him with a duly certified copy of the agreement on the assignment of claims between the bank and the collection agency, as well as documents directly related to his credit (loan agreement, account statements, etc.). This is provided for in Article 385 of the Civil Code of the Russian Federation:

   1. The debtor’s notification of the transfer of rights is valid for him regardless of whether it was sent by the original or the new creditor.

   The debtor has the right not to fulfill an obligation to a new creditor until he is provided with evidence of the transfer of rights to this creditor, unless notification of the transfer of rights is received from the original creditor.

   3. A creditor who has assigned a claim to another person is obliged to transfer to him documents certifying the right (claim) and provide information relevant for the exercise of this right (claim).



4. And as a last resort, this is criminal liability for non-payment of the loan. So, for example, Article 177 (Malicious evasion of repayment of accounts payable) of the Criminal Code of the Russian Federation (Criminal Code of the Russian Federation) dated June 13, 1996 N 63-FZ provides for the following:
   Malicious evasion of the head of an organization or a citizen from repayment of accounts payable on a large scale after the entry into force of the relevant judicial act, the following shall be punishable:
   - a fine in the amount of up to two hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months,
   - or compulsory work for a period of up to four hundred eighty hours,
   - or forced labor for up to two years,
   - or arrest for a term of up to six months,
   - or imprisonment for a term of up to two years.

Banks have other methods in their arsenals, so you should always work with the bank, and in order to avoid getting into unpleasant situations with debt collection, realistically assess your ability to repay the loan before applying to the bank for it.

Many borrowers who are unable to make payments on their loan are wondering what will happen to them if they fail to repay their loan in 2019? Next, we will tell you about the consequences that the debtor may face.

If your loan is formalized, then the bank has every right to demand that you repay the loan, even if you do not want to do this voluntarily. Typically, the terms of cooperation between the bank and the client in case of payment refusal are specified in the contract, so it should be read carefully before signing.

Is it possible not to pay debts at all? Yes, you have the right to do this, however, in this situation you need to be prepared for the negative consequences that you will have to face. We describe below what exactly awaits you.

I don’t pay off my loan, what are the consequences?

1. For starters, deterioration of your credit history. As you probably already know, each loan issued is registered in a special credit database, which contains all the information both about the loan itself and about the borrower. Everything is recorded - the amount, terms, payment procedure, delays, if any, the amount of the fine. All this affects the borrower's history. The more information it contains about late payments and non-payments, the lower your chances of receiving money in the future. Please note that all major banks check a potential borrower using the BKI (Credit History Bank) database, so if your history turns out to be damaged, you will only be able to get a new loan at very high interest rates.
2. You will have to face fines and penalties for late payments, which sometimes amount to a very large sum (about 1-3% of the amount borrowed daily). In other words, your debt will increase daily. And you shouldn’t be surprised that you took 50,000, and after some time the bank demands more than 100 thousand from you.
3. If you have not paid your loans for a long time, i.e. from 3-4 months or more, then a bank or non-bank financial organization can sell your debt to collectors (if such a possibility is specified in the agreement). At the same time, everyone knows that collectors are by no means famous for their humane methods of “knocking out” debts; they use everything - blackmail, threats, physical force. Read what to do if your debt is sold;
4. In case of large non-payment, the bank has the right to seek through the court its issued funds, in particular at the expense of your collateral (housing, car). If there was no collateral on the loan, then in court you may still be required to repay the loan funds. Bailiffs will come to your home, inventory and seize your property to pay off your debts. How to behave in this case is described in this article;
5. If you have a large debt on loans or alimony (more than 50-100 thousand rubles), then from the beginning of 2016 law enforcement agencies will have the opportunity to confiscate your driver’s license. We talked about innovations in legislation in this review.
6. What matters is the amount of loan funds, the repayment period and the amount of debt. In the case where a guarantor was specified in the loan agreement, your debt will be collected from him and his salary.
7. You may be blocked from traveling abroad, all bank accounts may be seized until the debt is paid in full.

Therefore, you cannot simply not pay the loan and wait for additional fines to be assessed.

How can I reduce my payment?

If you are ready to pay, but you are unable to do so due to the high interest rate and monthly payment, the smartest thing to do is to turn to a third-party company for . This service involves transferring your loan from one bank to another under more favorable conditions (reduced rate, longer debt repayment period, possible lack of insurance, etc.).

Taking advantage of this offer will be especially important for those borrowers who have several debts. It will be possible to combine them into one, reduce the rate for all and, thereby, significantly reduce the overpayment.

Please note that refinancing will only be available to you if you have a good credit history, i.e. no delays. If the CI is damaged by fines, delays, penalties, bankruptcy, courts, then this service will not be approved for you.

What to do if you have nothing to pay?

• It is better to extend the loan term, ask the bank to allow you to repay the amount in smaller portions, or arrange a deferment for a period while you are looking for additional work. This service is called debt restructuring, i.e. changing the terms of the loan agreement, described in more detail. But, of course, you will have to overpay a little.
• If you cannot find money to repay, and you have already accumulated a debt of 500,000 rubles or more (for loans and housing and communal services), then you can go to court for. You will be offered various measures to resolve the problem; if you have income, they will write off 50% to pay off the debt; if you own property, it will be sold through a bankruptcy trustee. And even if this is not enough, your debt will be closed.
• There is another way, which is not entirely correct, but nevertheless legal - to wait on loans, which in Russia is 3 years. If during this time you do not pay anything and do not communicate in any way with bank representatives, then they will no longer be able to demand anything from you through the court.

What should you do if the bank sues you for non-payment?

In fact, there is absolutely nothing wrong with this. On the contrary, for many borrowers it is the best way out of a situation when it is not possible to find a compromise with the bank on the repayment of the problem debt.

Why is this good for you? During the trial (from the date of filing the application), the accrual of all fines, commissions, and penalties stops. In other words, the amount of debt is “frozen.” Many debtors deliberately drag out the process, and for the same reason banks are extremely reluctant to go to these authorities.

In addition to freezing your debt, you will have the opportunity to reduce its size. If you have written evidence on hand why you could not pay your debts on time, for example, you lost your job, were in the hospital, etc., then the court may take this into account and cancel some of the penalties.

Can be reduced to three groups:
- imposition and collection of penalties and fines;
- transfer of debt to a collection agency;
- debt collection through court.

Fines and penalties for lending

If the loan overdue is small (less than 2 months), the worst thing that can await the debtor is penalties and fines. Their size varies depending on the bank and must be specified in the loan agreement. Fines can be imposed in a fixed amount and in the form of an increased percentage for using the loan. In Russia, it is proposed to legislate penalties for late payments - 0.05–0.1% of the debt amount.

Another unpleasant moment for a borrower who is late in payment is the transfer of information to the Credit Bureau. In the future, it will be quite problematic for such a borrower to obtain a loan.

Transferring a debt to a collection agency

If loan payments are overdue for more than 1-2 months, the debt is transferred (or sold) by the bank to collection agencies. As a rule, debt collection methods are on the verge of the law. They can threaten to take away property, with physical violence, call relatives and friends of the debtor, send annoying letters and SMS, call at night, etc. Withstanding the onslaught of debt collectors is often quite problematic, and many borrowers pay back their debts.

Debt collection through court

If collectors fail to collect the debt, the bank has the right to sue the borrower. As a rule, banks win court cases.

Collection to repay the debt may be imposed on:
- the debtor’s funds (savings, deposits in banks and other financial organizations);
- property of the debtor;
- if the debtor does not have savings and property, the court may order to make deductions from the debtor’s salary (no more than 50% of the total remuneration).

It is worth considering that, according to the law, it is impossible to recover household and personal items, food, social benefits and compensation.

Many borrowers are concerned about the question of whether they can buy an apartment or a car to pay off the debt. They definitely can if there is debt on a car loan. In these cases, the apartment and car are collateral. The situation with unsecured loans is ambiguous. According to current legislation, debt cannot be collected at the expense of the debtor’s only home. The courts also proceed from the proportionality of the debt: it is unlikely that the court will decide to seize and sell the apartment for 5 million rubles. to pay off a debt of 5 thousand rubles.

Often the courts impose a ban on traveling abroad until the debt is paid.

The most extreme measure is a criminal sentence for non-payment of a loan. If the borrower initially intended not to pay, he may be convicted of fraud. But this punishment is rare in practice; for this, the borrower must not make a single payment, and the bank must prove his intent.

Loans are considered a popular and in-demand banking product. Now almost everyone can receive them; they just need to fulfill the requirements of the lender at the time of approval and issuance. Problems arise already in the process of repaying the debt, when the terms of the contract are not met. It is important for the borrower to know what unpleasant consequences may occur and what the consequences of non-payment of the loan are.

Actions of the bank in case of non-payment of debt

Making loan payments on time or closing them early eliminates any problems for the borrower. Only if it is impossible to repay the debt do people find themselves in an unpleasant situation. In such cases, credit organizations use various methods to influence unscrupulous borrowers. Bank actions:

• sanctions such as fines and penalties are applied(in case of one-time or repeated late payment);
• demands for payment of the loan are made in writing or at the time of making the appropriate calls (if there is no result from the accrual of penalties or fines);
• a lawsuit is filed to enforce the collection of a debt(considered an extreme measure).

The banking organization’s choice of enforcement action depends on the period of overdue payments and the resulting amount of debt. Options for collecting funds and the amount of penalties are indicated in the loan agreement at the time of its signing and execution, so each borrower is familiar with the possible consequences of failure to fulfill their obligations. Debt collection options:

• pre-trial settlement through the involvement of collectors or the bank’s security service;
• trial.

After 3 months of delay, the bank can go to court and file a statement of claim to forcefully collect the resulting debt from the defaulter. Such actions on the part of the creditor may entail not only the accrual of fines, but also the need to pay additional amounts. The actions of banks in such situations are standard, so it is important for borrowers to know whether they can be held criminally liable for non-payment of a loan.

Consequences of non-payment of a loan

Failure to make payments on a bank loan entails 3 types of liability:

• monetary (financial);
• property;
• criminal

Financial responsibility measures are reflected in the loan agreement. According to the law, they are expressed in the following ways:

• the debtor is charged a penalty for each day of late payment;
• The borrower is required to repay the entire amount of the debt ahead of schedule.

Property liability includes blocking the debtor's bank accounts with subsequent withholding of funds from them. The borrower's property may also be seized for the purpose of selling it to pay off the debt. And, finally, withholding part of the salary (monthly until the loan is fully repaid).

Criminal liability for non-payment of a loan in Russia arises only after bank representatives go to court. The debtor is notified in writing of such a decision of the creditor. Most often, creditors’ claims are satisfied, so it is better for the borrower to be prepared in advance for two scenarios:

1. Pay off the debt voluntarily.
2. Prepare for the impact of bailiffs monitoring the execution of a court decision.

To bring the debtor to this type of liability, the bank needs to prove the provision of incorrect information when receiving loan funds.

Options for implementing criminal liability

Punishment under the Criminal Code (Criminal Code) does not occur as often as compared to the use of property or financial obligations. Despite this, all potential borrowers should, before applying for a loan, become familiar with what penalties may arise for non-payment of a loan in Russia.

Cases of criminal liability:

1. Deliberate evasion of payments on a loan, the amount of which exceeds 250,000 rubles. Such situations are regulated by Article 177 of the Criminal Code. If the culprit is a legal entity, then its actions are considered within the framework of Art. 176. To apply the established measures, the fact of evasion from debt payment is first determined. The court, based on the evidence provided by the creditor, decides whether the actions of the defaulter were intentional in each specific situation.
2. Committing fraudulent actions when applying for a loan. Such offenses are regulated by Article 159 of the Criminal Code of the Russian Federation. Borrowers who took money as part of a loan fraudulently and do not want to return it are held accountable.
3. Intentional causing of damage. Such actions are regulated by Art. 165 of the Criminal Code of the Russian Federation. The borrower is considered guilty if, in the process of obtaining a loan, he abused the trust of the bank.

Punishment under Article 177 entails:

• a fine, the amount of which can reach 200,000 rubles;
• payment of the full amount of wages within 1.5 years from the date of the court’s verdict;
• assignment of compulsory work up to 480 hours;
• involvement in forced labor for up to 2 years;
• arrest for up to six months;
• imprisonment, which can reach 2 years.

Punishments according to Article 159:

• forced labor imposed for 1 year;
• imposing a fine of up to 120,000 rubles;
• imprisonment for up to 2 years.

Punishment under Article 165:

• imprisonment for a period of 2-5 years;
• a fine, the amount of which cannot exceed 80,000 rubles;
• payment of the full amount of wages within 2 months from the date of the court’s verdict;
• involvement in compulsory labor, which can be assigned for the entire period of detention.

It is important to understand that a borrower who regularly made loan payments before the occurrence of an unforeseen situation (job loss, bankruptcy) and was constantly looking for work after this event is not considered a fraudster. Criminal measures are not applied to such debtors. Malicious and deliberate evasion of loan obligations is not only the fact of the debt itself, but also the borrower’s reluctance to peacefully settle and resolve the issue with the bank.

Actions of the defaulter when the bank files a lawsuit

A borrower who cannot make payments should notify the bank in advance of the current situation. In this case, the client may be given a deferment or the payment schedule may be changed. If such measures were not taken, the bank will file a lawsuit. From this moment on, no penalties will be charged on the loan. What the borrower needs to do:

1. Go to court to find out the details of the case and the demands put forward by the bank.
2. Prepare evidence of the inability to make loan payments.
3. Appear in court at the appointed time to defend and defend your own interests.
4. Seek professional help from a lawyer if possible.

If the payer is absent from the court, the case is considered without him, and the decision is made in absentia. While present at the hearing, the defendant has the right:

• prove the inability to pay the loan for a good reason;
• reduce penalties (fines and penalties);
• change the repayment schedule;
• obtain complete information about the debt arising as a result of non-compliance with obligations under the contract;
• with mutual consent of the parties, enter into a settlement agreement for further repayment of the debt.

If the case is considered in the absence of the defendant, then the court has the right to make a positive decision in favor of the bank with maximum satisfaction of the requirements put forward by it. As a result, enforcement proceedings are initiated. If the payer fails to repay the amount determined by the court, the case is transferred to the executive authorities - bailiffs. They have the right to collect debt from all funds available to the debtor (accounts, wages, property) in favor of the resulting credit debt.

Signing a loan agreement with a bank obliges the borrower to strictly comply with its terms. Failure to repay the loan may have unfavorable consequences. That is why each person should take out a loan only if his financial situation allows him to make monthly payments according to the established deadline and taking into account the risk of force majeure.

Loans today are very popular and are issued for various purposes. The only problem that remains is the repayment of borrowed funds, since you have to pay with interest.

That is why those who plan to take out a loan are concerned about the liability for non-repayment.

Is there criminal liability for non-payment of a loan, and in what specific cases is such punishment applied?

If loan payments are made to the bank by the borrower or another person in his favor according to the schedule or ahead of schedule, then no problems will arise. This state of affairs is envisaged in case of favorable developments. However, it is not always possible to repay payments on time for a number of reasons.

That is why credit institutions have developed a set of measures to influence negligent borrowers.

If there is no funds to pay the loan for the first or next time, the bank may apply various sanctions:

• penalties, fines, etc.;
• requirement for early repayment of debt;
• calls, written notifications;
• going to court, starting enforcement proceedings, compulsory collection.

The application of certain measures depends on the period of missed payment and the amount of accumulated debt. If the first delay occurs, the bank will apply penalties. This condition must be specified in the loan agreement, so the amount of penalties directly depends on the specific terms of the loan.

If this does not give positive results, then bank employees can make calls to notify the payer about the debt and encourage him to pay the loan.

In the standard case, after 3 months of delay or after 3 consecutive missed payments according to the schedule, the bank has the right to go to court with a claim for forced collection of the debt. In this case, the debtor faces not only collection of the principal amount of the debt, but also penalties, fines and other additional amounts of money.

Thus, the bank’s actions in case of non-payment of the loan are carried out in a certain sequence. Usually actions are standard and dictated by a specific situation.

The greater the delay and the amount of debt, the stricter the measures taken by the lender.

What happens if the bank sues for non-payment of a loan?

One of the options for interested parties in the absence of repayment of the loan by the payer is to go to court.

The credit institution usually communicates such a decision in writing.

What will be the result of such an appeal?

There will definitely be a judicial review of the case regarding the collection of alimony. The payer may not appear, in which case the case is dealt with without him and the decision is made in absentia.

Attendance at the hearing gives the respondent the opportunity to:

• Prove to the court the impossibility of repaying payments due to valid reasons. Documentary evidence will be required to confirm them.
• Reduce the amount of penalties and penalties. If the amount of the principal debt cannot be minimized and you have to pay in full, then all payments in excess of it may be disputed.
• Obtain as much information as possible about the amount of the final debt, enter into a settlement agreement with the credit institution if there is an agreement to repay the debt peacefully.

However, in the absence of a defendant, the court will be forced to take the side of the bank and satisfy the maximum of its demands. As a result, a positive decision will be made and enforcement proceedings will be initiated.

If the payer does not repay the amount determined by the court decision, then the case is transferred to the bailiffs. On the basis of a writ of execution, they have the right not only to recover funds from the debtor’s accounts and earnings, but also to seize property in order to pay off the debt.

Criminal liability for non-payment of a loan

In addition to other possible sanctions, failure to repay the loan on time may result in criminal liability.

However, it is used in practice quite rarely, but there are still cases of its use as a punishment for non-payment.

To apply the provisions of Article 177 of the Criminal Code of Russia, it is necessary to determine the fact of malicious evasion of debt repayment.

In addition, the loan amount must be in a large or especially large amount, and, therefore, above 250 thousand rubles. Whether the defaulter is malicious or not is decided by the court based on evidence of evasion of loan repayment.

Punishment under Art. 177 of the Criminal Code of the Russian Federation provides for one of the following measures:

• fine payment up to 200,000 rubles;
• payment in the amount of wages for a period of up to 18 months;
• up to 480 hours of compulsory work;
• up to 2 years of forced labor;
• arrest for up to 6 months or imprisonment for up to 2 years.

As a result, criminal liability for malicious evasion of loan repayment is provided for by the Criminal Code of the Russian Federation. It is used quite rarely, since there are isolated cases of judicial practice in such cases.

How to behave if the bank sues for non-payment of a loan?

A borrower who is unable to make payments on time and in full should immediately think about building a dialogue with the bank.

On the one hand, the credit institution is not interested in the problems of a particular borrower, and no one will write off debts.

However, you can ask for a deferment or change in the payment schedule.

If the lender has already filed a lawsuit in court, then the good news for the debtor is that the accrual of penalties and fines has stopped, and the amount of the final debt has been fixed.

If the payer cannot or does not plan to pay the debt in full, then his actions will be as follows:

1. Contact the court to which the claim was filed to clarify the circumstances of the case and the requirements of the bank.
2. Collect all evidence of lack of solvency and other important evidence in the case.
3. Appear at a court hearing to protect your interests.