And so we will consider the first case - the Assignment Claim Agreement (Cession)
Russian law, and specifically the Civil Code of the Russian Federation, gives this right to the creditor in relation to the debtor. Those. the creditor has the right to transfer the right to claim the debt to a third party, but it is worth remembering that the new creditor obtains this right by repaying the debtor's debt to the old creditor, after which the old creditor loses all rights in relation to the debtor. Paragraph 1 of chapter 24 of the Civil Code is devoted to this type of transaction.
In accordance with Part 1 of Art. 382 allows the transfer of debt by law. Part 2 of this article suggests that the written consent of the debtor is not required, unless otherwise provided by law or contract.
It should be noted that collectors focus on the first half of this part of the article without paying attention to the second. The fact is that under the law "On the Protection of Consumer Rights", the provision of credit is a service provided by a bank to a debtor and does not provide for the transfer of rights to organizations and persons not licensed to carry out banking activities. But this already causes a controversial situation and in solving this situation directs to decisions of judicial practice on these issues. In this situation, there are two positions of arbitration courts. One position is on the side of the debtor, the second is on the side of the new creditor. But the jurisprudence of the Supreme Arbitration Court is not the ultimate authority. Therefore, the Supreme Court put an end to the solution of this issue in its decision N ° 17 of June 28, 2012 to resolve these issues by the courts, namely paragraph 51, which directly indicates that the "Law on the Protection of Consumer Rights" does not provide for the right to transfer requirements under a loan agreement with a consumer to persons who do not have a license to carry out banking activities, unless otherwise provided by law or agreement. Based on this position of the Supreme Court, it is worth paying attention to the Agreement between the bank and the debtor. If it contains a clause on the transfer of debt to third parties, then this action is legal; if not, then this transaction concluded between the collection organization and the bank is invalid.
Also, part 3 of this article indicates that without a written notification of the debtor about the transfer of rights of the creditor to another person, the new creditor bears the risk of adverse consequences resulting from it. The essence of this paragraph of the article is that when transferring a debt to a new creditor, the old creditor is obliged to notify the debtor in writing, and the written form of the notification must be confirmed by the client’s signature on receipt of this notice, i.e. in fact, it turns out that if the debtor did not sign the receipt of this notice, then he will be notified inappropriately, thus it turns out that the debtor must personally receive a registered letter with a notification, or the notification itself is a kind copy in the second copy. All other methods of notification through third parties or by simple correspondence are insufficient and in fact do not bear legal responsibility for the debtor, allowing him to refer to insufficient notification from the creditors.
Also important for the debtor and the Anti-collector is part 4 of Art. 382, which allows them to demand from the original creditor and from a new joint and several compensation for losses. The essence of the article is that if at the conclusion of the cession agreement between the bank and the collection agency violations are found in favor of the Debtor, he can claim compensation for losses incurred by him for appealing to lawyers, anti-collectors and to the courts. Thus, he can significantly reduce the amount of debt or receive an amount from the bank itself for transferring the debt to a collection agency, while it should be borne in mind that as soon as the Assignment agreement was concluded and entered into force, the bank lost the right to claim the debt and all costs for the bank are substantial and are made from the bank’s “own pocket”.
Article 384 of the Civil Code of the Russian Federation specifically sets out the scope of rights that passes to a new creditor.
Part 1 of this article suggests that claims are transferred to the new creditor in the volume and on the conditions that existed at the time of transfer of ownership. For collectors, this item is a tempting offer, which they throw at, forgetting that there are pitfalls here without further study of further articles of the Civil Code, they are tempted by the further demand for interest from the debtor for the use of funds. Thanks to this, the valiant brethren from KNAPKA rushed to buy debts from banks for 2-10% of the cost of the real amount of debt in the hope of getting "profits" exceeding the amount of expenses. Therefore, if you request a document on the payment of a debt, most of the collectors refuse to provide it, referring to the secret of the contract, which is actually not such and in court they are very reluctant to get it or especially "gifted" refuse to provide it, thereby deciding the case is not in their favor .
Part 2 says that the claim for a monetary obligation can go in part. Those. literally, this part of the article tells us that if a part of the debt was paid for the debtor, then the new creditor is not entitled to demand from the debtor an amount exceeding this part. This gives the debtor the opportunity to pay the amount to collectors lower than they require. In my practice, there was an example when the VTB-24 bank transferred the amount of the claim in the amount of 140 thousand without taking into account the payments made under the contract, as a result of the calculations, the amount of the debt turned out to be 88 thousand rubles. The result for the bank was the compulsion from its own pocket to give money to the client in the amount of 54 thousand rubles for indicating the bank’s miscalculation and for the science that it’s not worth doing it anymore.
h. 3rd became. 384 prohibits doing much more burdensome for the debtor than it was originally. The interpretation of this part I think is clear to everyone, if there are conditions that worsen the position of the debtor, then this transaction will be invalid and the debtor has the right not to execute it.
Art. 385 of the Civil Code of the Russian Federation specifically gives an explanation of how the debtor should be notified of the transfer of claims.
Part 1 says that the notice for the debtor is equally valid regardless of whether it is made by the new Lender or the old, but there is one “But” to which KNAPKA again does not pay any attention. And the essence of the note, specifically that if the Debtor received the Notification from the new Lender, he is obliged to provide the Debtor with supporting documents at the request of the Debtor. And here the Debtor can request from the new Lender the entire package of documents transferred under his debt for studying it for legality. If the documents requested by the Debtor are not provided to him, the Debtor has the right not to fulfill his obligations to the new Lender, while he will not be able to charge him interest for evading these obligations. For an example of non-fulfillment of this paragraph, I want to give an example the collection agency LLC "EOS", which on this site boasts of being in the KNAPKA association. This agency as a proof of its rights sends a Notice of the transfer of the right of claim to it and the First sheet of the Assignment Claim Agreement, which, in addition to general terms, does not contain anything and the last page of the Agreement, which indicates the details of the parties, does not provide the Debtor with any evidence. Repeated judicial practice in which 90% of the cases I studied is a failure for this agency did not teach these collectors the correct provision of a package of documents. The exception in this case is the Notification sent by the original creditor, for him the requirement to provide transfer of documents is not required. Part 2 of this article is not essential for this topic.
Part 3 of this article obliges the Lender, when transferring to the new Lender, to transfer documents proving the right (requirement) and provide information relevant to the implementation of this requirement. But here the banks and collectors are in trouble. Faced personally and studying practice, I can say that the transfer of information does not occur in full. The bank does not provide accurate information about which a lot of supporting facts can be found, as a result of which many strangers suffer from the actions of the collectors, the fact is that the “lamb” from KNAPKA apologize to my colleagues, but I just can’t say otherwise, they are actually hooligan actions without realizing that the consequences for them can be deplorable actions. Or, when transferring debts for which there are court decisions, they don’t tell collectors that they need to redo the writ of execution, and the near-by collectors do not have enough of this “intelligence” for it. Thus, the Debtor has one more possibility of legal non-fulfillment of obligations without legal consequences for him, and for lenders by loss of time of legal influence on the debtor. And all other actions that go beyond the law lead “near-minded” collectors to the dock.
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