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31.10.2019

Lending terms often provide for a type of guarantee of repayment of borrowed funds, such as a surety. This is often required when the loan amount exceeds 100 thousand rubles or any other threshold provided for in the loan agreement. The guarantor, according to the terms of the agreement, guarantees the bank the return of borrowed funds by the borrower, and if this becomes impossible, then he assumes the obligation to close the debt.

All the nuances of the upcoming agreement are formalized legally, which implies certain financial, administrative, and civil liability. Therefore, before embarking on such an adventure, carefully study the terms of the contract. The main thing you should pay attention to is the rights and obligations of the guarantor, the conditions for repayment of borrowed funds if the borrower does not pay the loan. In addition, the guarantee can be either full or provide for partial liability of the guarantor. A full guarantee implies the obligation of the guarantor to fully repay the borrower's debt, interest on the use of loan funds, and in case of delay - penalties and fines. At
In a partial guarantee, the guarantor is liable only in the amount of a certain part of the loan, and, accordingly, pays the interest accrued on the specified debt at the time of its repayment.

In other words, if for some reason the borrower stops making loan payments, then the obligation to repay the debt passes to the guarantor. Refusal of these obligations threatens the commercial bank with going to court, which will lead to the collection of debt by the enforcement service without fail, but taking into account court costs, from the guarantor.

Payment by the guarantor of the debt, if the borrower does not pay the loan, does not mean that these funds are lost forever. Surety guarantees imply the assignment of the right to claim debt from the bank to the guarantor. To confirm his right to the specified debt, the guarantor must obtain from a commercial bank all the certificates of closure of the borrower’s debt, the loan agreement and guarantees, certified payment receipts, etc.

According to the law, the guarantor has the right not only to reimbursement of expenses spent on covering the debt, but also to compensation for all associated expenses associated with the guarantee, i.e. banking costs, notary services, cash management services, etc. In the event peaceful settlement of debt, the specified package of documents should be sufficient. To resolve the conflict in court (if the borrower refuses the demands made by the guarantor), copies of these documents must be provided to the debtor by registered mail with a notification of the need to pay the debt. It is worth noting that all legal costs incurred by the guarantor during the proceedings are also subject to reimbursement if the court recognizes the plaintiff’s claims. The enforcement service, based on a court decision, sells the debtor's collateral or other property to pay the debt to the guarantor.

On the other hand, some restrictions are established by law regarding the collection of debt from the guarantor if the borrower does not pay the loan.

Firstly, in the case where the guarantor does not have a permanent source of income or property that allows him to close debt, he is temporarily released from the obligation to repay the loan for the debtor. That is, this deferment allows the guarantor to find a job or provide property for sale. In addition, the bank is loyal to borrowers who have dependent minor children or parents. This way, the guarantor can use part of his income to pay alimony, which will reduce the amount of income used to pay off the debt.

Secondly, any debt involves such a thing as a statute of limitations. If a commercial bank does not try to repay the debt or contact the borrower or guarantor for three years, it loses the right to court proceedings. It is worth immediately noting that loan repayment is not a standard telephone call with a request to return the specified amount, but an officially issued letter indicating the amount, reasons, methods of debt repayment, sent by mail or issued on purpose. If neither the borrower nor the guarantor received the specified letter within three years, then, as mentioned earlier, the court will most likely refuse the bank to collect the debt from the guarantor if the borrower does not pay the loan.

Thirdly, if the guarantor is declared incompetent, he will not reimburse the loan debt. To do this, usually the parents or relatives of the guarantor file a lawsuit in court to declare the specified person incompetent, which relieves him of any legal and financial obligations.

So, a guarantee is a guarantee that the debt will be repaid instead of the borrower in the event of his insolvency. The registration of rights and obligations occurs through a legal agreement, according to which the debt is collected from the guarantor in the event of the borrower’s refusal to pay the specified amount. To avoid the undesirable consequences of a guarantee, the guarantor may temporarily defer payment or wait until the statute of limitations on the debt expires.

Gosha asks

Hello! My brother took out a car loan in Volgograd. I was the guarantor. It turned out that my brother had not paid for 5 months. The bank calls me and says that I have to pay. Is it so?

Good afternoon, Georgy! Yes it is. The guarantor has the same responsibility for the car loan as the borrower. Let's see how to solve this problem.

Options for a guarantor

Banks often require the involvement of guarantors when applying for a loan. With their help, financial institutions reduce the risk of non-repayment of an issued loan.

However, guarantors either do not understand the responsibility when signing the agreement, or cannot refuse relatives or colleagues, not wanting to spoil relations with them.

By signing a contract with the bank, the guarantor assumes the same responsibility as the borrower. If the borrower stops paying under the agreement, the bank will begin to demand payments from the guarantor.

What should a guarantor do if the borrower stops paying his contractual obligations?

1. Declare yourself bankrupt if you have nothing to lose and don’t want to pay;
2. If you have something to lose (in most cases), it is better to buy back the debt by turning into a creditor, if you can take something from the borrower. The guarantor will be provided necessary papers, with which he can go to court and demand that the due amount be collected from the borrower, taking into account penalties.

The guarantor is released from his financial obligations under the agreement if:

The debtor has been liquidated;
The debtor began to fulfill his duties in full;
Creditors refused to accept fulfilled obligations;
There has been a transfer of obligations to another debtor;
The validity period (if specified in the contract) of the guarantee has expired.

It turns out that upon the death/bankruptcy of the debtor, the guarantor is released from obligations, but there is one nuance in the rule. If the creditors' claims are not satisfied, they can hold the guarantor liable based on his signature in the agreement

Finally, we note that the rights of the guarantor are quite limited. Therefore, do not rush to agree to sign a car loan agreement in Volgograd when relatives, friends, or colleagues ask you.

I can't pay my loans. What to do? Banks do not make concessions!!! What to do if you are unemployed and need to pay off a loan?

Citizens have most often turned to our lawyers with such questions since 2016. Today we will give you some practical advice that will help you get out of a difficult financial situation and finally decide for yourself whether to pay off the loan or look for another way out. If you need to analyze your particular case in more detail, our online duty lawyer is always ready to answer all your questions.

Legal ways not to pay a loan:

Undesirable ways not to pay a loan:

Consequences:

When problems arise with money, and you have a loan behind you that is not easy to repay and on which interest is always accruing, the most important thing is not to panic and, if possible, develop a strategy on how to get out of a difficult life situation and determine what amount you actually need you can pay monthly. There are no unsolvable problems. If there is absolutely no way to repay the loan, then even in this case you can find a way out, for example, through the court to achieve bankruptcy recognition or agree on debt restructuring, which can significantly reduce the burden on your own budget.

According to Russian legislation, deliberate evasion of repayment of accounts payable leads to criminal punishment (Article 177 of the Criminal Code of the Russian Federation). That is, a simple desire not to pay the bank is not enough to refuse to repay the loan. There must be a legal basis for this; simply put, if the creditor has no funds at all, there are no valuables that could be sold and thereby raise money for the bank. In this case, it is indeed possible to either completely cancel the loan, or achieve a review of relations with the bank, and conclude an agreement that is more convenient for the lender in specific circumstances.

Legal ways to avoid paying a loan

There are several legal ways not to pay a loan, which the vast majority of lawyers and financial advisors advise to use. Let's talk about them.

We carry out the bankruptcy procedure

Since 2015, in Russia, all individuals have the opportunity to prove their insolvency through bankruptcy proceedings through an arbitration court. Although judicial practice on this issue is only just being developed, many people have already applied for such help and proved their inability to repay the loan or loans. For a person to be declared bankrupt, it is important that the total amount of his debt exceeds half a million rubles.

If the court's decision is positive, all the citizen's property is subject to sale. All proceeds go to pay compensation to creditors who filed claims against the borrower monetary claims. At the end of the procedure, all debts, regardless of their amount, are canceled, thus, a person declared bankrupt is released from the obligation to pay loans, including those that were not examined in court.

What restrictions does the bankrupt receive in return:

within five years, a citizen will not be able to take out a loan from any financial institution, since he will be obliged to warn creditors about the procedure;
re-cancellation of debts becomes impossible within five years;
A bankrupt citizen is prohibited from engaging in management activities in organizations and companies registered as a legal entity for three years.

We are seeking debt restructuring

During review arbitration court bankruptcy case, the court may decide to activate the debt restructuring procedure. In this case, the borrower is assigned a financial manager who will have the opportunity to challenge all transactions for three years. individual without charging fines and penalties for late payments, negotiate with creditors.

Restructuring can also be achieved out of court. To do this, the borrower must make a written request to the bank to defer loan payments or carry out debt restructuring. The reason for such an appeal may be any financial difficulties that have arisen, for example, if a person has lost his job and has no additional sources of income. The reason for the revision must be documented. The bank may agree to review the agreement. During restructuring, the loan term increases and, accordingly, the monthly payment amount decreases (naturally, the total amount of interest on the loan increases and, in general, hits the wallet even more, but the procedure allows you to avoid the accrual of fines and penalties). When a payment is deferred, the borrower does not pay the body of the loan, but only repays the accrued interest. Both of these options are suitable only if the borrower has short-term financial difficulties, and he is confident that he will soon have the funds necessary to make all payments.

If you do not know how to write a letter to the bank about the inability to pay a loan, debt restructuring and deferred payment, then we suggest that you familiarize yourself with samples of these documents:

We repay the loan through an insurance company

This option will be valid if, when drawing up a loan agreement, the borrower took out insurance in case of financial difficulties associated with loss of ability to work or work. If this is the case, a person has the right to contact the company with a demand to repay his debt in accordance with the terms of the insurance.

Not all insurance organizations immediately agree to comply with the requirements. However, you should not give up: you need to go to court, where, if all the evidence is available, they will most likely make a decision in favor of the borrower.

For security reasons, you must first agree with the bank on a deferred payment so that the loan penalty does not accumulate. However, you can also demand payment of a penalty that arose during legal proceedings from the insurance company.

We challenge the provisions of the loan agreement

In some cases, citizens manage to get rid of overwhelming debts by challenging the legality of the loan agreement. A person needs to file a claim in court at the place of registration of the lender, motivating his appeal by the fact that when drawing up the agreement, the rights of the borrower were seriously violated, namely, that the agreement was concluded on conditions that were extremely unfavorable for him.

This method is quite difficult to implement. You should start litigation only after consultation with a professional lawyer and with confidence that the truth is on your side and is supported by numerous facts. If the court case ends not in favor of the borrower, this threatens him with even greater financial difficulties.

Our lawyers know The answer to your question

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What you shouldn’t do if you can’t repay the loan

Sometimes people are given extremely “bad advice” on how to avoid paying their loan. They are fraught with big problems and lead, for example, to criminal punishment or to the fact that debt hole It's getting deeper.

Loan refinancing

In principle, a person can pay off a debt by taking out a loan from another financial institution for more favorable conditions. Sometimes, indeed, this option is quite viable, but as practice and numerous testimonies from people show, refinancing only confuses a person and does not help him cope with problems at all. You can do this only after calculating everything and comparing possible risks and benefits, because, in essence, such a procedure changes practically nothing: only the other side changes. In addition, not every bank is ready to provide funds to a person with an outstanding loan from another banking institution, and if it is, this may indicate a bad reputation of the institution.

Disappearance of the borrower

According to the laws in force in Russia, three years after the borrower has completed the last transaction through the bank, the organization will no longer be able to demand that he repay the loan even through the court, since by this time the statute of limitations will expire.

Many people use this. Just at one moment they leave home, leave their family and work. Of course, in this case, the person can no longer count on getting an official job in the new place; he becomes, one might say, an outcast who has abandoned everything familiar. Most importantly, bank employees or collection agencies begin to demand debts from family members of the borrower, sometimes this goes very far, so this path should not be chosen by a person who more or less values the well-being of loved ones.

What should you do if the debt is “knocked out” by debt collectors?

When a person encounters collection agencies, he has several options for action. Moreover, both can be effective and significantly help in resolving the credit issue:

Review contract documents carefully, and if they did not stipulate the condition that the bank has the right to assign debts on loans to collectors, feel free to go to court. This means that the bank carried out such an operation illegally, which means the borrower can legally not pay them money.
Contact anti-collection companies. These organizations are well versed in the intricacies of the relationship between the borrower, bank and collectors. Professional lawyers will help you better understand the terms of the contract, as well as identify violations in the work of collectors, which may become a reason to contact the prosecutor's office.

conclusions

The only legal way to avoid paying a loan is to declare a person bankrupt. There are other legal methods that allow the borrower to defer payments, change payment amounts, etc. In any case, when serious financial difficulties arise, it is best to sort things out with the bank through the court. This will help to close all the ambiguities of the issue, to determine more or less equal conditions and opportunities for the lender and the insolvent borrower.

For example, the court will never force the lender to pay penalties and fines that exceed the amount of the loan. First of all, the citizen’s personal property will be considered as a possible payment, while the apartment, if it is the only one the person has, will not be able to be taken away. If a person really has nothing to pay, it becomes possible to close the enforcement proceedings and write off the debt: a certain number of such decisions are always provided for by each bank and is, in principle, an ordinary and uncritical, calculated practice for them.

For all questions related to the impossibility of repaying a loan to a bank, you can contact our duty lawyer online.

Obtaining a secured loan in the form of a guarantee is quite widespread a practice that does not always end in a positive direction, since the borrower may not solvent. In such cases, the guarantor must know his rights, in particular, whether he has the right guarantor submit totrial forborrower, whichdoesn't pay the loan.

In what cases can guarantor submit totrial forborrower, whichdoesn't pay the loan

Having received a loan from a bank, a citizen does not always pay off debts; the bank has the right to turn to a third party side after the first late payments. Moreover, in this case, apart from psychological troubles, the guarantor will not feel any problems. However, in case of systematic non-payment, the bank has the right to collect the debt from it through the court, to which the same sanctions will apply as to the main debtor:

seizure of property according to the list established by law;
deduction of a certain percentage from official income;
coercion to pay.

Important! The guarantor, after paying the debt in full and having in hand documentary evidence of these circumstances, has the right to sue the borrower to receive his own money.

Should the guarantor repay the loan if the borrower does not pay?

According to Russian legislation, the guaranteeing person is jointly and severally liable, this indicates the fact that he, along with the client, is involved in the payment of debts. Of course, there may be circumstances that allow:

delay the moment of filing claims due to lack of official income and property;
payment of alimony will reduce the expenditure base;
the presence of young children or elderly dependent parents will also reduce the amount of penalties;
In addition, the guarantor has the right to completely get rid of liability if he proves that, without his knowledge, changes were made to the agreement that increased the scope of his liability or otherwise affected his participation in lending.

All this makes the fate of the third party easier, and he has the right to delay the period of payments or reduce their monthly amount, but it will not be possible to completely avoid liability if the bank has a signature on the guarantee documents.

Rights of the guarantor if the borrower does not pay the loan

The rights of the guarantor, if the debtor does not repay the loan taken, may be different, since loan agreements with security as a guarantee may vest the person acting in this status with various obligations, so he may bear:

full responsibility, which banks try to apply most often, then he, along with the client, bears the burden of debt;
partial, when the third participant is liable only with his property, which must meet the requirements of the bank and not have encumbrances. Such a person is most often the owner of common property, that is, a family member to whom the property in common use is registered;
solidary - when the bank treats both parties to the agreement with the same requirements;
subsidiary – when the guarantor is obliged to answer only if the debtor does not have enough funds to fully pay the creditor.

What should a guarantor do if the borrower does not pay the loan?

During the lending period, the guaranteeing person may find himself in a variety of situations regarding this circumstance, in which it is necessary to act taking into account their characteristics:

If the bank calls about one late payment by a client and it turns out that the latter’s salary payment was simply delayed, nothing needs to be done in this case. Since the institution in most cases does not file a lawsuit before the end of the contract. The only thing that threatens the guarantor in this case is loss of peace of mind.
The contract has expired, and the client of the institution has not paid off with the creditor, who, in turn, demands fulfillment of obligations from a third party, otherwise he threatens to sue. In this case, there may be several options - pay debt for a friend who has there is property before the trial, it will be cheaper, and in the future, demand payment from him through the court. Pay off the debt only after a court decision, but then you will also have to pay for the services of the court, and with the participation of collectors, their work.
If the borrower is declared bankrupt, then it will be possible to negotiate with the bank on repayment of the debt on terms favorable to all parties.

In what cases does the guarantor pay the loan for the lender?

Should the guarantor repay the loan if the borrower has not paid and the lender has referred the matter to the court, which will make an appropriate decision. In this case, the guarantor will have to:

make a court decision, which will be announced in the courtroom or communicated by the bailiff;
the same employee will make an assessment of the guarantor’s income and property if he has this moment if all this is missing, then nothing will be exacted, but at the first appearance the exaction will be applied;
up to 50% will be charged from the guarantor’s income, if any;
the guarantor's property is sold in the same way as the main defendant to pay off the debt. At the same time, it should be understood that the bailiffs absolutely do not care who owns what; they will sell liquid objects first, for example, if the borrower has a plot of land in the wilderness, and the guarantor has an apartment in the city, then first of all it will go towards payment she.

It should be understood that after full payment for the debtor, the guarantor fully receives all the rights of the creditor and has the right to recover all costs from the main defendant. In this case, the bank that has received full payment is obliged to hand over to the person who has paid all the documents regarding the borrower’s debt.

How to get money back for a loan guarantee

If such a situation occurs, for example, the borrower does not pay the loan from Sberbank, then the guarantor, when requested by the bank, has no choice but to return the funds. Then the question arises of how to restore your spending:

Initially, you should obtain all documents from the bank, which will serve as evidence of the transfer of the rights of the creditor to the payer;
then you should notify the debtor of your intentions by registered mail, in which you must present a specific amount financial losses and return periods. A reasonable course of action on his part would be to attempt to amicably negotiate compensation for losses incurred by the guarantor;
if the borrower refuses to repay, it is necessary to file a lawsuit demanding forced collection of the debt. Such an unpleasant course of events fully explains all the disadvantages of a guarantee, as a result of which unforeseen and large expenses may arise, while the situation is the same for all countries - Russia, Belarus, Ukraine.

Of course, the guarantor, in addition to paying the debt in full in one payment with interest, can try:

ask the bank for restructuring or credit holidays;
pay the debt at the expense of the borrower's property;
challenge the creditor's decision to call funds, but this option is largely unsuccessful.

We should not forget about the existence of a statute of limitations, which is 3 years, since financial institutions often remember about security at the last moment, only after it becomes clear that interaction with the debtor is fruitless. This option may be one of several that makes it possible not to pay for other people’s debts.

What threatens the guarantor if the borrower does not pay the loan?

If the debt is overdue and the case is delayed, then the guarantor faces several untidy circumstances:

if the borrower is accused of fraud because he has not made a single payment, then in order to accuse the guarantor, evidence of her complicity in defrauding the bank is necessary. In addition, criminal liability also requires significant evidence, and is acceptable only when the guarantor, after a court decision to recover the property, tries to deliberately hide it so as not to give it away;
regarding the collection of property, the same requirements apply to the guarantor as to all defaulters - the only housing cannot be taken away, as well as the necessary household items or tools and equipment for earning money, in addition, the last penny will not be taken away either;
The bank is not obliged to relate to the credit history, but may enter data into the guarantor’s history. Information about the trial will be received in which the guarantor will already be called the debtor;
travel abroad after the data reaches the bailiffs will be prohibited according to the legislation of the Russian Federation;
if the borrower has died, then the guarantor can remain in this status only after voluntarily agreeing to continue the guarantee for the relatives of the deceased.

Guaranteeing is associated with great risks, but this does not mean that you should leave a friend or relative in trouble, you just need to guarantee it, having great guarantees of it in your hands solvency and be confident in your partner, which is why Sberbank welcomes relatives as guarantors.