According to information World Bank, about 60% of Russians experience difficulties with repayment of loans and borrowings. For creditors, one of the options for action is the assignment of claims on overdue debts to collectors. Firms included in the register of collection agencies are subject to total control by state bodies.
To the state register Federal Service bailiffs(FSSP) includes organizations whose main activity is the return of overdue debts. As of December 2, 2019, 315 collection companies were officially included in the FSSP register. All of them are licensed and can collect debts on credits and loans.
The Kommersant newspaper reports that the Ministry of Justice, together with the FSSP, has developed a draft law on the inclusion of credit organizations in the register of collectors. As a result, the debt collection market may increase by 1.5 times already in 2020. And the period of pre-trial settlement of the debt will be 30 days.
The FSSP is responsible not only for maintaining the register of collectors, but also for supervising the activities of the collection organizations included in it.
According to Law No. 230-FZ of 07/03/2016, only official collection organizations licensed by the FSSP and included in the state register are entitled to work on the return of overdue debts.
Even civilized communication with a collector can cause depression in a debtor who has nothing to pay. And what about screams, insults and threats? They are illegal and require legal punishment.
The law regulates the contacts of creditors with debtors, including the permitted actions to collect delays. Collectors are prohibited from:
If the collector violates the law, the agency may suffer and lose its license.
Collection agencies have the right to work with all types of debt, including debts to banks, microfinance organizations, utilities or insurance companies.
The debtor must study Federal Law No. 230 well and, when communicating with the collector, immediately assess whether he is acting according to the law or his requirements go beyond what is permitted. If a citizen is faced with the second option, they must immediately take action: write complaints (to the police, Roskomnadzor, FSSN, the prosecutor's office), file a lawsuit.
According to "Parliamentskaya Gazeta" (the official publication of the Federal Assembly of the Russian Federation), Dmitry Savelyev, First Deputy Chairman of the State Duma Committee on Security and Anti-Corruption, spoke about the need for a complete ban on collection activities. In his opinion, this institute of debt collection has discredited itself and completely exhausted itself.
In accordance with legal acts on collection activities, collectors have the following rights and obligations:
The purpose of the collector is to settle the problem with the return of the debt. He should describe the state of the debt and help the borrower find options for its repayment, and not intimidate the debtor, track down his minor children and threaten them.
How collectors should work properly:
The guarantee of the legal actions of the collection service is that it has a license. The activities of such companies are regulated by law, and the reporting is checked by the FSSP twice a year. Various sanctions may be applied to them for violating the rights of debtors, up to and including exclusion from the register. Then the violating agency will lose the opportunity to communicate with debtors, established by law.
The FSSP website contains a register of collection agencies that have a license. The list is updated regularly. A bureau not included in the register, but in contact with the debtor, may pay a fine of 2 million rubles, and then even be closed.
Information portals offer their own ratings of collection companies based on work experience, reliability and reviews about the company. For example, the leaders of the rating from the Aif.ru portal are NJSC PKB and LLC M.B.A. Finance.
Bureaus and companies that are not included in the state register (or excluded from it) can continue their activities. Their services are used by microfinance organizations and private lenders, who are attracted by low tariffs.
Paragraph 2 of Part 1 of Article 5 of Federal Law No. 230 states that only licensed agencies are allowed to interact with the debtor to recover the debt. This means that "black" collectors do not have the right to communicate directly with the borrower.
In 2018, the FSSP received 22 thousand complaints about the actions of collectors. At the same time, most of them are associated with the activities of "black" collectors who are not included in the register. The main reasons for the statements are rudeness, obsession and threats to life and health.
According to the Izvestia newspaper, Petr Shelishch, chairman of the Consumers Union of the Russian Federation, sees a way out of the situation in the introduction of distinctive signs for licensed collectors.
It is necessary to fight illegal "collectors" with the help of law enforcement agencies. The application can be submitted to the following authorities:
According to information Agency TASS, in October 2019 in the Moscow region, collectors welded up the front door of one of the tenants, confusing the debtor's apartment with his neighbor. Requests were sent to the prosecutor's office and the FSSP to revoke the license from the collection company.
How a collection firm was fined for psychological pressure:
The debtor will need to provide evidence of violations: recordings of conversations, video materials, testimonies of witnesses, sent SMS and electronic messages.
In case of violation of their rights, the debtor may file a complaint against the claimants. The main authority that controls the activities of the agencies is the FSSP. Complaints are accepted personally from applicants and on the official website of the organization. The review period is up to 3 months. The borrower must provide evidence of misconduct on the part of the agency. In this case, the collection organization will have to check the FSSP.
If the offense arose through the fault of the creditor, you can file a complaint with the Central Bank of the Russian Federation. This is relevant in case of disclosure of personal data and banking secrecy.
NAPCA also accepts applications. In addition to the evidence of the offense, you will need to indicate the personal data of the plaintiff and the defendant. Complaints are considered within a week.
Collectors want to get access to the phone numbers of debtors:
Ideally, the collector should help the lender and the borrower solve the problem of overdue debt. In fact, not all collectors operate within the law. The debtor can check whether the debtor's agency is included in the state register. In case of violations, it is necessary to file complaints with the appropriate authorities. If this does not help, one should complain to the Office of the President and demand that inspections of inactive bodies be carried out within the framework of compliance with the laws of the Russian Federation.
How often have we heard in the media lately about the lawlessness of collectors?! In Iskitim, a woman was raped in front of her beaten husband and son; in Ulyanovsk, collectors threw a Molotov cocktail through the window of the debtor and inflicted burn injuries little child, in the Urals, the work of the ambulance was completely paralyzed and kindergarten, because the collectors put the numbers on auto-dial. Such examples turned out to be indecently many.
Not only for borrowers, but now for deputies as well, it has become obvious that separate law about collectors and tightening their activities.
And such a bill was adopted in mid-June 2016, and after 6 days it was approved by the Federation Council. The changes came into effect on January 1, 2017.
So, what does this law promise borrowers? What can collectors do and what are they forbidden to do? Who will control their activities? What are the negative consequences of the 2017 law on collectors for potential MFI borrowers in the future?
Among the minimum requirements:
Other organizations that are not included in the state register and have not received a license can continue their work starting from January 1. For violation of legal entities will face a fine of up to 2 million rubles. By the way, on December 30, only 10 spacecraft out of hundreds of existing ones were included in the register.
So, to interact with the borrower and 3 parties can:
From now on, debt under an assignment agreement can only be sold to a bank or a CA from the register. Accordingly, the sale of debt to individual entrepreneurs, individuals and other organizations is prohibited.
Separate requirements are set for employees of collection agencies. From now on, they do not have the right to hire persons with an open criminal record, as well as those who are abroad of the Russian Federation. Also, collectors must be located exclusively on the territory of Russia. Any contact with the borrower from the outside is illegal.
Moreover, collectors are required to keep records of all telephone conversations/SMS and keep them.
Naturally new law about collectors prohibits:
One of the most important points of the law on collectors is the right of the borrower to refuse any contact with collectors. The borrower has such a right after 4 months from the date of the delay. In order to get rid of collectors once and for all, you need to write an appropriate application and send it by registered mail with return receipt to the CA and the creditor. After such a statement, the collector has no right to contact the borrower in any way.
Thanks to the new law on collectors, in 2017 it will not be possible to combine debt collection activities with the provision of microloans or any other type of activity. This means that MFI employees (personal managers, collection departments, security service, etc.) cannot collect debt on their own.
Due to the fact that the law on collectors was adopted, in 2017 there was new article in the Federal Law on MFIs. Now the maximum amount of debt is regulated by the state. From now on, borrowers do not have to worry that the debt from the principal amount of 5,000 rubles will grow to 150,000 thousand. This is not possible due to the new amendment.
When developing a new law on collectors, a new article 121 was added to Federal Law No. 151 “On microfinance activities and microfinance organizations”, which regulates new order accrued interest on arrears.
According to it, upon the occurrence of a delay, the MFI has the right to charge% only on the remaining amount of the principal debt and until the amount of accrued interest reaches twice the amount of the outstanding part of the debt. This means that the debt will stop growing and will stop as soon as the debt for interest reaches the specified amount.
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The changes will affect only those loans, the agreements for which were concluded from 01/01/2017.
In mid-December, the President of the Russian Federation signed a decree by which he gave the FSSP obligations to control the activities of collectors. But the Ministry of Justice, in the same decree, is called upon to carry out regulatory and legal regulation of activities to return overdue debts of individuals and individual entrepreneurs.
Thus, on the basis of the FSSP, a special department will be created, which will include more than 300 specialists throughout Russia. It is they who will maintain the register of collection agencies, take measures to include / exclude the KA from the list of “selected ones”, supervise and check collectors.
Therefore, the most important body to which you need to complain about the actions of one or another KA is the FSSP, and not the Central Bank or Rospotrebnadzor.
With the entry into force of the law on collectors in 2017, borrowers can breathe easy. As practice shows, for the first month of the new year, the actions of collectors have weakened only by an iota from the previous indicators. Judging by the reviews, the number of calls has fallen by an average of 10-15%, but threats over the phone have not gone away. Collectors are still not shy in their expressions and put pressure on debtors by all available and inaccessible methods, including those prohibited by the new law.
It is obvious that this will continue until supervisory authorities they will not “remove” from the market spacecraft operating until 2017, but which have not received a license to carry out collection activities in accordance with Federal Law No. 230.
Moreover, it is difficult to expect cardinal changes in the methods of collection of overdue debts that will comply with the TOR from large licensed CAs. Most likely, it will be so until the FSSP and the Ministry of Justice are inundated with complaints from borrowers about violations of the law on collectors by one or another collection agency.
Undoubtedly, the new law on collectors will make it more difficult for collectors to recover late payments. However, on the other hand, it will also hit MFI borrowers.
The fact is that most MFIs, even at the stage of checking a potential client, calculate which of the risky borrowers will be able to recover the debt in case of default, and which it is better not to spend physical and financial resources on.
After FZ-No230, many MFIs will simply raise the bar for high-risk potential clients. And if earlier they could easily get a microcredit in an MFI, now they are unlikely to be able to do it.
Well, there is a high probability that MFIs will start “going” to the courts, which was practically never observed before.
If earlier more than half of the debtors calmly waited until the expiration of the deadlines limitation period, after which the collection of debt through the court is almost unrealistic, now it is unlikely to succeed.
The matter is that with the new law small agencies will leave the market of collection services. Their place will be taken big players, and it is much more profitable and convenient for them to work with a bank portfolio credit debt than with microcredit borrowers. From this it can be assumed that it will be quite difficult for MFIs to find collectors to collect debts from their borrowers. And if so, then there will be no other options but going to court.
And in this case, the debts will be collected by the bailiffs, who have the authority to enforce the collection of the debt.
As a result, we received a bill that, on the one hand, protects debtors, and, on the other hand, hits them and potential borrowers of microcredit organizations in the future.
As a result, we received a set of prohibitions and rules that collectors must not violate, but statistics showed that their actions have not changed much since the new law on collectors came into force.
The need for a special register of collectors and collection agencies is long overdue. Until quite recently, nothing prevented any person from taking the beautiful name "collector" and going to collect debts. The essence of such activity initially involves pressure on the client and, alas, not all newly-minted specialists could independently keep themselves within the framework of politeness, and sometimes even the law.
Many citizens, especially those who have been “attacked” by so-called collection agencies, are wondering if there is an official list, and if so, how exactly to check desired organization for trustworthiness.
The Unified Register of Collection Agencies of the Russian Federation does exist. On January 27, 2017, a list of legal entities entitled to provide such services was published on the website of the Federal Bailiff Service. Ten of them were licensed on December 29, 2016. By August 2017, there were already 142 agencies on this list, and some of them have been excluded by this time.
For comparison, at the end of 2016 in Russia there were 553 thousand legal entities that collect debts. For many of them, this is not the only type of service - such organizations have no chance of being included in the list. It can only include those agencies for which the return of outstanding debts is the main activity.
Important! From January 1, 2017, only agencies included in the list have the right to carry out collection activities. Other organizations that are not included in the register run the risk of receiving substantial fines (for legal entities - up to 2 million rubles, for individuals - up to 500 thousand rubles).
The law regulating the issue was signed in July 2016. Please note: the law only applies to the nuances of the return of debts not repaid on time. All other types of debt are out of the question.
What collection agencies are included in the state register? The decision to include single register collectors is accepted by the territorial branch of the FSSP. The list contains the date and number.
To get into the register, a legal entity must submit an application to the FSSP. Based on the results of the review, a certificate is issued. It is noteworthy that the license comes into force only with the approval of the organization in the list. By itself, the application for inclusion is not a guarantee of obtaining a "place" and does not give grounds for continuing to provide collection services.
A person who breaks the law can be fined- upon discovery of the fact of the provision of services, representatives of the bailiff service have the right to issue a protocol on the violation, despite the fact that the application from such a person may already be under consideration in the same service.
The list of collection agencies included in the state register is regularly updated. Any organization can apply.
Note: the state register of collection agencies of the Russian Federation and the lists of the National Association of Professional Collection Agencies (NAPCA) are completely unrelated.
Membership in NAPCA is akin to membership in a trade union, although with a different focus. The organization was established in 2007, is a non-profit, companies join it on a voluntary basis, to maintain or create a business reputation, in order to develop the collection services market in Russia to the international level.
This participation obliges, but from a completely different point of view. On closer inspection, you can see that the NAPCA lists and the FSSP list do not match - which, by the way, is sometimes the basis for criticism state initiative by interested citizens.
The easiest way to do this is on the FSSP website. by the address. This page does not have any convenient search functionality, but you can always use the Ctrl + F key combination and find the organization you need by name (full or abbreviated name of the legal entity).
At the bottom of the page there is the same list of collection agencies included in the registry, for download in three formats: PDF, XLS, ODS.
The initiative to create a registry is still quite fresh. No data on its serious impact on the level of civilization of the collection market yet. It also cannot be said that Debt collectors rushed to apply in unison and quickly, although the growth rate of the list (from 10 to 142 in half a year) at first glance seems promising.
In any case, having heard the name of the agency on the phone, it makes sense to check the presence of this organization in the register and, based on the information received, build further communication. If the organization is not on the list, you can safely deny her the right to file claims, referring to the law, or even go further - report the violator to the bailiff service.
See also: Article 89 of the Criminal Code of the RSFSR
Most of these are large companies - the main market players. According to the National Association of Professional Collection Agencies (NAPCA), they account for about 80% of the collection of overdue debts. “For leading collection agencies, compliance with the requirements of the law - the same liability insurance and licensing of operating systems - did not cause difficulties, since they already complied with them. But these restrictions, we hope, will clear the market of “gray” collectors and, accordingly, illegal methods of debt collection,” says Elena Dokuchaeva, president of the Sequoia Credit Consolidation collection agency.
It should be noted that according to the law on collectors, which entered into force in January this year, only collection agencies included in the state register can directly contact debtors. “Thus, a clear line has been drawn between “good” and “bad” reservoirs. Previously, it was not so easy to determine. Now there is a formal sign - the presence or absence of a company in the state register. This makes it easier for the police and the prosecutor's office to fight against illegal debt collection activities,” says NAPCA director Boris Voronin.
According to the new rules, creditors are required to notify debtors in writing about attracting collectors, and agencies, when communicating with citizens, do not have the right to withhold data about themselves. “The first thing a citizen should do if he is contacted by collectors is to check them on the FSSP website. If the company is not in the register, you can ignore the call or complain to the bailiffs. If the debt collector behaves too intrusively, the police should be involved, ”recommends Denis Malakhov, senior lawyer at the Debtor Protection League. You can also complain to the FSSP about violations of the law by accredited agencies, the lawyer notes.
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Since January 16, 2017, a register of collection agencies has appeared on the FSSP website in accordance with the basic requirements of the Federal Law. This document allows you to verify the legitimacy of conducting professional recovery activities. Accordingly, each person should know how to check whether a collection agency is included in the state register, in the event that professional debt collectors apply.
2. After that, in the list of the main menu, select the "Services" item.
4. After completing all the steps in sequence, you will see a table with a list of legal collection agencies in Russian Federation.
You can officially verify the legitimacy of a company that addresses a debt;
The document indicates the legal address of the organization, which will make it easy to find the addressee, to whom to write a statement or claim in case of any incidental situations;
The registry contains the exact site with which you can study the information (contact details, addresses of the nearest offices), as well as clarify it (by hotline or by sending an application to the email address of the organization);
The Federal Law (230-FZ) states the basic requirements for the activities of collectors and collection agencies, such as:
Have a mandatory state registration organizations in Russia;
collection agency in without fail must be included in the state register (can be checked on the FSSP website);
The employee must not have a criminal record economic sphere or be tried for a crime against public authority;
The employee must not have diseases that prevent the activity in this organization.
Their responsibilities include:
Maintain a list of employees who have access to the debtor's personal information (the employee must give a receipt for familiarization with the Federal Law, and is also obliged to maintain the confidentiality of information);
Keep all paper and electronic documents for three years from the date they were sent or received;
Keep an audio recording of all cases of interaction with the debtor, warning him about it, and also store these recordings on media for at least three years;
Submit a report on its activities to the authorized body and inform it about the changes made to its constituent documents;
Comply with the requirements of Art. 13 230-FZ.
the federal law(230-FZ) from January 1, 2017 introduced restrictions for collection agencies. Thus, these organizations do not have the right to:
Disturb the debtor from 20:00 - 9:00 - on holidays and weekends, 22:00 - 8:00 - on weekdays;
Visit the debtor more than once a week;
Call the debtor more than once a day, twice a week and eight times a month;
Send SMS more than twice a day, four times a week and sixteen times a month;
Call the debtor at work numbers and visit him at work;
Hide the phone number, as well as call from phone numbers that do not belong to the collector or creditor;
Contact with third parties (parents, colleagues, neighbors);
damage or destroy the property of the debtor;
Use words that humiliate the honor and dignity of the debtor (third parties);
Use physical force, threats to life and health to the debtor, as well as to third parties;
To exert psychological influence on the debtor and third parties;
Also, the law explains the rights of the borrower to protect their interests. Before the start of each contact, the debtor must be informed:
Surname, name, patronymic (if any) of the creditor;
Information about whether the borrower is in arrears on the loan;
Number contact phone creditor or a person entitled to act on his behalf.
In case of violation of these provisions, the collection agency faces a serious fine.
The federal law (230-FZ) introduces a fairly large number of restrictions on the activities of creditors and collectors. Definitely, innovations will reduce the violent and illegal collection of debts from borrowers. Also, the law will allow to remove unscrupulous collectors who denigrate the activities of other agencies entered in the register. But only time will tell how the law will be applied in practice.
Head of the legal department of SRO "Unity"
Sales Director of additional products of the group of companies "Bystrodengi"
Head of Department retail business Bank Levoberezhny
Limited Liability Company "ActiveBusinessCollection", LLC "ActiveBusinessCollection"
non-public joint-stock company"First Collection Bureau", NJSC "PKB"
Limited Liability Company "National Collection Service", LLC "NSV"
Limited Liability Company Credit Finance Agency, AKF LLC
Joint Stock Company "Financial Agency for Collection of Payments", JSC "FASP"
Limited Liability Company Center YUSB-M, OOO Center YUSB-M
Limited Liability Company “M.B.A. Finance”, LLC “M.B.A. Finance"
Joint Stock Company "SEQUOYA CREDIT CONSOLIDATION", JSC "SEQUOYA CREDIT CONSOLIDATION"
Limited Liability Company Center YUSB, OOO Center YUSB
Limited Liability Company "GK Financial services”, Limited Liability Company “GK FIN”
Trust Limited Liability Company, Trust LLC
Limited Liability Company "Trust-Western Siberia", LLC "Trust-Western Siberia"
Limited Liability Company " Management Company Trust, Trust Management Company LLC
Limited Liability Company "Company Trust", LLC "Company Trust"
Limited Liability Company "Debt Agency "Credit Security Center", LLC "DA-TsKB"
Filbert Limited Liability Company, Filbert LLC
Limited Liability Company Credit Security Bureau RUSSCOLLECTOR, LLC Credit Security Bureau RUSSCOLLECTOR
Limited Liability Company "Agency Regional organization Debt Collection Agency, R.O.S. Debt Agency LLC
Limited Liability Company "Capital Agency for the Recovery of Debts", LLC "Capital AVD"
Limited Liability Company "Credit Incaso Rus", LLC "Credit Incaso Rus"
Limited Liability Company "Creditexpress Finance", LLC "KEF"
Phoenix Limited Liability Company, Phoenix LLC
Limited Liability Company "EVEREST", LLC "EVEREST"
Limited Liability Company "TsZ Invest", LLC "TsZ Invest"
Limited Liability Company Camelot , LLC Camelot
Limited Liability Company "Agency for Legal Recovery and Support", LLC "Agency YuVS"
Limited Liability Company "L-COLLECTION", OOO "LK"
Limited Liability Company P.R.E.S.K.O., OOO P.R.E.S.K.O.
Register of collectors, the unified state register of existing collectors in 2018 © 2015 - IA "Zaym.com" Certificate of mass media EL No. FS 77 - 68179 dated December 27, 2018. After studying the information provided, our specialists will contact you. You can track the status of your application in your personal account at zaim.com. Access is sent to the e-mail specified during registration.
However, before going to court, it is worth stocking up on evidence of a violation of the law. What to do if collectors call If you are not in the mood to communicate with creditors, you can simply not pick up the phone. There is no criminal or administrative responsibility for this.
If you don't mind talking to creditors, speak politely and without insults.
Attention
The rights of collectors under the new law are limited. Officially, companies are allowed to take actions to collect debts from citizens of the Russian Federation. However, the methods used should not contradict existing legislation. That is, any threats and, moreover, damage to property are prohibited (this also applies to offensive inscriptions that collectors often use as a way to influence non-payers).
The collector has the right to meet with the defaulter no more than once a day, 2 times a week and 8 times a month. When and to whom can collectors call under the new law. Do collectors sue Many people are concerned about whether collectors can sue if they do not get their money back.
Important
Often this argument is used as a way to influence debtors. Indeed, a company can apply to a higher authority, but a person does not face a prison term for non-payment of a loan. The only decision that the court can make is to oblige the defaulter to repay the loan amount (for example, through monthly deductions).
Accordingly, there can be no talk of any repayment of sky-high interest (which debt collectors often try to impose). They can only appoint the payment of a penalty in accordance with the loan agreement. You can't sue if the statute of limitations has expired loan document(3 years).
Debtors' rights under the new law Remember that debt collectors can only call or write to you within 4 months of the loan being in arrears. After this period, you have the right to refuse to communicate with employees of collection organizations. To do this, you must write a written application and send it to the bank to which you owe.
The document must include the data of a lawyer authorized to communicate with debt collectors. If an employee of the company violates the established rules (does not appear, threatens or calls at night), a complaint can be made against him.
Unfortunately, Ezaem is not currently accepting online applications on Zaim.com. We apologize for the inconvenience! You can send an application to another organization under similar conditions: List of collection agencies licensed in 2018 The FSSP published a list of collection agencies licensed in - 150 agencies were included in the state register. From January 1, 2018, only collection agencies included in the state register of collection agencies can engage in debt collection from individuals.
Citizens can complain about illegal actions to law enforcement agencies and the FSSP, which from January 1, 2018 was endowed with the functions of monitoring the activities of collection agencies. Comments
Harsh language can be used against you if the case goes to court. What to do if collectors threaten in 2018 If your life, health or property is threatened, you need to collect evidence to apply to the courts. If threats are received by phone or in a personal conversation, use a voice recorder.
The record is subsequently provided to the police along with a statement about the threats received. If they try to intimidate you by SMS, save messages in the phone's memory. In the future, they will also be used in court as evidence. You can just ignore the threats if you don't plan on starting a lawsuit. List of prohibitions for collectors. Where to complain if collectors call on someone else's loan Most of the inconvenience is caused by calls about other people's loans.
This article consists of one part, touches on topical issues on the transfer credit debt before the bank to third parties, most often which are collection organizations. The article also touches the most pressing issues legitimacy of actions of collectors to collect debts, taking into account the new judicial practice.
The points of the article are as follows:
The right of a bank and microfinance organizations to transfer debt under a loan agreement to third parties
Debt collection on overdue debts is regulated by Federal Law No. 230-FZ of 03.07.2016 “On the protection of the rights and legitimate interests of individuals in the course of activities to recover overdue debts and on amendments to the Federal Law “On microfinance activities and microfinance organizations”.
Banks, microfinance organizations and collection organizations have the right to collect overdue debts. True, the right of the latter to collect overdue debts is practically not regulated by law. Banks and microfinance organizations have the right to transfer overdue debts to third parties. The transfer of debt under a loan agreement or loan (for overdue debt) is carried out by concluding an agency agreement or through an assignment agreement.
In the first case, the organization with which the contract is concluded acts in the interests of the creditor or lender. In the second case, it is an independent claimant. Under an assignment agreement, there are two persons - the assignor and the assignee. Relations between the assignor and the assignee are governed by Chapter 24 of the Civil Code of the Russian Federation. It should be borne in mind that, according to Art. 388 of the Civil Code of the Russian Federation, assignment of a claim by an assignor to an assignee is allowed only if it does not contradict the law.
At the same time, according to part 1 of Art. 12 of the Federal Law “On the Protection of the Rights and Legitimate Interests of Individuals in the Implementation of Activities for the Recovery of Overdue Debts and on Amendments to the Federal Law “On Microfinance Activities and Microfinance Organizations”, the assignee to whom the overdue debt is transferred, the activities for the return of overdue debts must be basic. Failure to comply with this rule may be the reason for the recognition of the assignment agreement as invalid. The cession agreement may be declared invalid for other reasons, but this is a topic for a separate article.
The concept of a banking license
According to Art. 13 of the Federal Law of December 2, 1990 No. 395-1 “On Banks and banking”, implementation banking operations is carried out only on the basis of a license issued by the Bank of Russia in accordance with the procedure established by this Law, with the exception of cases established by the Federal Law "On National payment system". There are various forms of banking licenses for banking activities. All licenses are placed in the Register of Issued Licenses for Banking Operations. This register of licenses issued to credit institutions is published by the Bank of Russia in the Bulletin of the Bank of Russia.
Carrying out by a legal entity of banking operations without a license, if obtaining such a license is mandatory, entails the recovery from such legal entity the entire amount received as a result of such transactions, as well as the collection of a fine in the double amount of this amount in federal budget. Moreover, the Bank of Russia has the right to file a claim against such an organization in court of Arbitration about its liquidation.
To make it clearer, let's imagine the following situation.:
A certain organization received, on the basis of an assignment agreement, to demand the right to collect a debt in the amount of one hundred thousand rubles. The debtor agreed with the amount presented and repaid the debt. Later it turned out that this organization does not have a banking license.
Accordingly, not only one hundred thousand rubles, but the entire amount for such operations, including the indicated one, should be recovered from this organization. Also, this organization should be fined twice the amount of the entire amount for such operations. And so it is with regard to each violation revealed during the inspection.
Accordingly, a banking license is a special document issued by the Bank of Russia to an organization for its banking operations, in the absence of which the organization is obliged to return all amounts received from operations carried out without a banking license and pay a fine in the double amount of this amount, in relation to each fact of such an operation . The result may well be the bankruptcy of the organization, for example, the same collectors.
Collection organizations and grounds for their activities
A collection company is an organization that specializes in collecting debts and further collecting them from debtors in favor of a bank or a microfinance organization under an agency agreement, or in its own favor if such debts were bought out by collectors under an assignment agreement.
The legal basis for activities has already been established in the above-mentioned law on the protection of the rights and legitimate interests of individuals in the implementation of activities to return overdue debts, as well as in the recently issued Ruling of the Judicial Collegium for Civil Cases Supreme Court Russian Federation dated May 14, 2019 No. 67-KG19-2.
To carry out its activities, the collection organization must have a fairly extensive list of documents, certified copies of which must be provided to the debtor at his request. At the same time, only one collector from the relevant collection organization, and not the entire organization as a whole, can directly interact with the debtor.
In order to interact with relatives, acquaintances of the debtor, his employer, collectors must comply with two conditions:
Both conditions must be expressed in writing. It should be noted that all of the listed persons, including the debtor himself, must not be incapacitated, persons undergoing treatment in hospitals, disabled persons of the first group, minors, with the exception of cases of their emancipation in judicial order.
Additional documents that should be followed when regulating the activities of collection organizations are the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On the Protection of Consumer Rights” and the Decree of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 57 “On Consideration by Courts of Civil consumer protection disputes.
The Consumer Protection Act is applicable in the sense that, as in the case of consumption banking services, and when interacting with collectors, an individual who turned out to be a debtor under a loan agreement is a consumer of these services, given that the Supreme Court of the Russian Federation in the above Resolution supports such a position.
Implementation of collection organizations activities for the return of overdue debts
In order to carry out their activities on the return of overdue debts, collectors, first of all, must be guided by the Federal Law “On the Protection of the Rights and Legitimate Interests of Individuals in the Implementation of Activities for the Return of Overdue Debts and on Amendments to the Federal Law “On Microfinance Activities and Microfinance Organizations”. As mentioned above, for collectors this activity should be the main one. In addition, collectors must be entered in the state register to carry out their activities. Such a register can be found on the website of the FSSP of Russia.
There are certain rules for the interaction of collectors with debtors to collect overdue debts. These rules are listed in Art. 4 of the Federal Law "On the protection of the rights and legitimate interests of individuals in the implementation of activities to return overdue debts and on amendments to the Federal Law "On microfinance activities and microfinance organizations".
These include:
The listed methods of interaction are not exhaustive, but other interaction actions can only be provided for by a written agreement concluded between the collection organization and the debtor, signed by both parties.
The Federal Law “On the Protection of the Rights and Legitimate Interests of Individuals in the Process of Recovering Overdue Debts and on Amendments to the Federal Law “On Microfinance Activities and Microfinance Organizations” establishes a restriction on the interaction of collectors with a debtor.
These restrictions include the following:
And all of these violations are the most favorite methods of collectors in the "interaction" with the debtor. It should be noted an example of such "interaction" of collectors with a debtor in the city of Iskitim, Novosibirsk Region, where collectors in a perverted form raped the debtor and family members in a group. It is because of such cases that collectors are considered “criminals, extortionists and criminals”, which is often true.
The activities of the collection organization Phoenix LLC more or less comply with the law. But here the problem is the fact that this collection agency is affiliated with JSC " Tinkoff Bank”, which, as you know, is not only an absentee bank, but also registered in the offshore zone of the Virgin Islands.
A few words should also be added regarding the State Register of Collection Organizations posted on the website of the Federal Bailiff Service of Russia and the right of collectors to carry out debt collection activities. The right to carry out activities for the return of overdue debts arises from the moment of entering into such a register and is lost from the moment of exclusion from it. Supervision of the activities of collectors in the implementation of the return of overdue debts is carried out by bailiffs.
A banking license is mandatory for collectors
Since mid-May 2019, a number of changes have been made by the Ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 14, 2019 No. 67-KG19-2. Initially, the defendant in the case took a loan from a bank. After the formation of the debt, the right to claim was assigned to one of the collection organizations. Then, along the chain, it was transferred to other collectors from one organization to another. The last collection organization to which the debt was transferred went to court with statement of claim on debt collection. The case was considered in one of the courts of the Cherepanovsky district of the Novosibirsk region. The first instance satisfied the requirements of collectors. The court of appeal, which was the Novosibirsk Regional Court, agreed with this. But the defendant did not agree, who eventually turned, after an appeal in the first cassation instance, to the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation agreed with the arguments of the debtor, who is the defendant in the case, the appellant and the cassator, and sent the case for a new trial to the court of appeal.
The arguments relied upon by the Supreme Court of the Russian Federation are as follows::
Based on the foregoing, it should be concluded that collectors are required to have a banking license to carry out their activities. In case of non-compliance with this requirement, the activity of the collection organization is illegal and subject to compulsory liquidation as a legal entity.
The second conclusion is that, even if the condition on the possibility of assignment of the right of claim to third parties is clearly expressed in the loan agreement and agreed between the parties to such an agreement, the collection organization still needs to have a banking license.
This conclusion is based on the following:
Thus, a banking license for collection organizations is mandatory. It is this rule that should be followed until the end of the retrial of the case, which has prospects to again reach the Supreme Court of the Russian Federation.
In the meantime, the courts are reconsidering the existing dispute, it makes sense for persons against whom collection organizations or microfinance organizations have presented the relevant requirements, guided by the enumerated legislative acts and judicial decisions of the Supreme Court of the Russian Federation, to challenge the requirements of the above organizations in court, including on the basis of they do not have a banking license to carry out debt collection activities, as loan agreements, and under loan agreements taken in microfinance and microcredit companies.
Moreover, information about who has what loans is a banking secret. And this should not be forgotten neither by banks, nor by collection organizations, nor by borrowers.
