For added security credit organizations put forward a requirement to attract guarantors to the loan, who would share with the borrower the financial responsibility for repaying the loan in full within the prescribed period.
Meanwhile, it is very difficult to find a person who would undertake obligations. As a rule, a loan guarantee is issued to the closest relatives and relatives, who are ready, if necessary, to financially support a debtor who has fallen into difficult life circumstances. Otherwise, there is a high chance that the borrower will refuse to pay the debt to the bank and disappear, and all obligations will be transferred to the guarantor.
Like borrowers, guarantors must also be vetted by the bank for compliance with certain requirements.
To determine what a “guarantor” is, you need to familiarize yourself with the list of basic requirements for this category of persons:
In order to preliminarily assess the possibility of using a particular candidate as a guarantor for a loan, you can check whether the capabilities of a particular person correspond to the required parameters of the bank. However, the exact conclusions of who can become a guarantor are made only by the bank, which will take into account the entire set of parameters of the candidate. Since the main requirement is high level solvency and security of a person, the bank requires a certificate confirming the amount of income or wages. Ultimately, who is the guarantor, each bank determines individually.
Determining the area of responsibility, it is necessary to proceed from the provisions of Art. 363 of the Civil Code of the Russian Federation, according to which an equal degree of responsibility is established for the repayment of a loan on the conditions specified in the agreement.
Between the credit institution and individual is special treaty, common sense which is that the person will be obliged to pay fines, penalties, commissions, make monthly payments in case the debtor ceases to fulfill his obligations.
The responsibility of the person who has become the guarantor of the loan is large enough to hastily agree to support the borrower in obtaining a loan.
Before making a commitment, a candidate for a bank guarantee must understand that participation in a credit relationship is not just visiting a branch and signing a certain set of documents, but also full financial responsibility for the loan amount. The implementation of a negative scenario can lead not only to the loss of own funds, but also to unpleasant situations with collectors and bailiffs.
The involvement of the person who vouched for the borrower in debt financing begins from the moment the first delay occurs. When the debtor is unable to service credit debt or simply refuses to pay contributions, in accordance with paragraph 2 of Art. 363 of the Civil Code, the creditor requests to fulfill financial obligations instead of the borrower himself.
A lending institution may do the following:
In addition to material obligations, you must perform the following actions during the entire loan period:
Other requirements may also be established that must be met at the request of the credit institution.
Participation in the loan entails not only the obligations of the financial and non-financial plan. A person can exercise his rights as a guarantor under the loan agreement and when closing the loan.
A person acting as a guarantor for a loan has the right to carry out the following actions:
If the client refuses to fulfill his financial obligations, his guarantor has the right to demand restructuring from the bank.
Do not underestimate the guarantee agreement - if the guarantor has repaid all the debts formed to the credit institution, the agreement terminates, and the payer has the opportunity to demand through the court the return of the funds paid by the borrower.
As part of the implementation of the court order, the bailiff will be able to forcibly recover the necessary cash on writ of execution. In addition to the principal debt, interest, you can claim compensation for all costs incurred in the performance of the terms of the loan agreement.
The guarantor may apply to the court at any time during the exercise of his obligations. To file a claim, you will need to attach copies and originals of documents proving the full payment of the debt and the absence of debt (certificate of full payment of the debt by the guarantor and loan agreement, real estate mortgage, payment certificates).
Deliberate evasion of the client from payment and ignoring SMS notifications about the need to repay debts give the guarantor the right to challenge any decision of the creditor.
The peculiarity of participation in loan relations lies in the absence of the right of the guarantor to the funds received by the borrower with the simultaneous obligation to pay the loan in the event of a debt. Financial obligations must be fulfilled, regardless of what reasons served as the basis for the formation of debt. At the same time, if the borrower retains in the eyes of the bank the right to apply for restructuring, revising the terms of the loan to more favorable ones, such a service almost does not apply to the guarantor.
In addition to the trouble of having to pay a debt for another person, another negative consequence will be a deterioration in credit history the guarantor himself. Even if the bank approves the loan application for such a person, the loan amount will be less. It will also not be possible to hide information about the guarantee - it is visible in the general database and is provided to the credit institution upon request.
According to Art. 363 of the Civil Code, a loan implies joint and several liability. This means that in the absence of payment by the borrower, the person assumes financial obligations. If a delay is allowed, not only the client who took the loan, but also the guarantor can spoil the credit history. According to paragraph 2 of Art. 363 of the Civil Code, in addition to monthly installments, the guarantor is obliged to pay all penalties and fines for the resulting delay. If there are several guarantors, joint liability arises, unless otherwise specified in the agreement.
These are the conditions established by the current legislation, however, another procedure for claiming debt and assigning liability may be established in an agreement with a bank.
AT individual cases credit liability may not be fully imposed. This provision must be specified in bank agreement. If the parties agree to bear subsidiary liability, the lender must provide evidence that the borrower is unable to repay the loan, except in cases of evasion. Only after providing evidence that the debt is not related to a simple unwillingness to return the funds taken from the bank, the bank can send a demand for payment to the guarantor. This requirement sent on the basis of a court order, however, in the event of the loss of the borrower, the court may refuse to satisfy the claim.
When reading the text of the agreement, special attention should be paid to the type of liability for credit obligations. Unless otherwise provided in the clauses of the document, subsidiary liability applies.
Some of the most unpleasant consequences are a damaged credit history and involvement in litigation if the client refuses to return the funds to the bank. A lender facing default may give several months for the borrower to arrange a full repayment. If during this period the situation has not improved, the bank puts forward demands for payments on the loan to the guarantor. However, the guarantor finds himself in a more difficult position, because he will have to pay not only the debt on overdue contributions, but also the accrued fines and penalties.
Making claims against a guarantor is rarely practiced in reality. Most often, proceedings in court await for debts of a large amount. If the debt of the borrower is large, the credit institution can prepare a claim in 3 months.
The court, taking into account all the circumstances, makes a decision. The judge may refuse to satisfy the claim, having listened to the arguments of the guarantor. However, in case of accepting the side of the creditor-plaintiff, the defendant is waiting for the recovery of the entire amount of the loan with penalties. If the defendant fails to repay the debt with personal funds, the court may initiate the sale of his property in order to close the debt to the bank.
Quite often, when applying for a loan, borrowers are faced with a situation where their own income insufficient to obtain the required loan amount. In this case, banks usually recommend attracting loan guarantors, promising customers a reduction interest rate, commission reduction and other bonuses.
From point of view financial organization attracting guarantors is beneficial because it reduces its risks. But on the part of the majority of citizens, the guarantee is still perceived as nothing more than a mere formality that does not require anything from them other than the recommendations of the borrower. How true this is, what is the responsibility of the guarantor for the loan, and how to insure yourself against trouble by deciding to take such a step - we will try to figure this out in our article.
The law defines a guarantor as follows: guarantor- this is a certain citizen or organization of any form of ownership, which is responsible to the bank for the timely and complete fulfillment by the borrower of the obligations imposed on him by the loan agreement. All the nuances of the guarantor's relationship with the bank and the borrower - terms, responsibilities, rights and obligations - are prescribed in a special guarantee agreement, which comes into force immediately after signing by all parties.
If the borrower needs 2-3 guarantors to apply for a loan, the corresponding agreement is signed with each of them. In this case, any guarantor is fully responsible to the lending institution.
Important! According to the requirements of the legislation (Article 361 of the Civil Code of the Russian Federation), guarantors do not have the right to claim funds received by the borrower in the form of a loan, as well as property acquired at the expense of these funds. However, in the event of a delay in payment or refusal of the borrower to repay the loan, it is the guarantors who will be responsible to the bank for this loan through their own property.
Requirements for guarantors vary depending on the bank and the specific loan product that the borrower wants to use. As a rule, the main points that a credit institution pays attention to are:
Everything else is at the discretion of the bank. So, some financial institutions do not allow close relatives and spouses of the borrower to guarantee, others, on the contrary, without fail make out spouses as co-borrowers. Specific requirements for a loan guarantor should be found out in the organization in which you intend to borrow.
Important! Despite the difference in requirements, the obligations of the guarantor remain unchanged, regardless of the creditor bank and the loan product purchased by the borrower. They are governed by the Civil Code of the Russian Federation, which is strongly recommended to study before agreeing to act as a guarantor for anyone.
A guarantee agreement may provide for one of two types of liability. The first one is joint responsibility- assumes the equality of obligations of the guarantor and the borrower. In this case, the bank may impose sanctions on the guarantor at the first delay in the payment of the next installment by the borrower. Responsibility of the second type - subsidiary- occurs only when the borrower is unable to continue to fulfill his loan obligations, and this fact has been proven in court.
Important! As a rule, for most banks, by default, the suretyship agreement provides for joint and several liability.
Thus, in case of violation by the borrower of the terms of the loan agreement, the bank has every right to require each guarantor to perform the following actions:
Debt repayment can be carried out both at the expense of cash, in cash and non-cash form, and at the expense of the property of the guarantor. Only real estate can remain inviolable, and then, if it is the only housing of the guarantor and acquired by him in a mortgage. Otherwise, the rights of the bank are not limited: it can not only seize any property, but also freeze the accounts of the guarantor, and oblige his employer to transfer part of his salary to repay the loan debt (no more than 50%).
Important point - the responsibility of the guarantor in case of non-payment of the loan by the borrower remains even in the event of death. If the guarantor dies before the end of the loan term, his obligations pass to his heirs. Truth, latest bank does not have the right to touch until the date of their entry into the inheritance, that is, within six months after the death of the testator. This once again proves that the guarantee is a rather risky step that can spoil the life of not only you, but also your loved ones.
Apart from financial risks the guarantor, in case of bad faith of the borrower, gets a damaged reputation. This is not about the opinion of friends and acquaintances, but, corny, about credit history. The presence of delays in payments from the borrower is also taken into account in the credit history of the guarantor. Even if you pay your own debts in full, the negligent attitude of the person for whom you act as a guarantor for a loan can make it very difficult for you to get loans in the future.
But even in the event that the borrower makes all payments on his loan in good faith, you may encounter difficulties in obtaining a loan. While the guarantee agreement is in effect, your credit limit will be evaluated by any bank, taking into account obligations under this agreement. That is, the amount of the monthly payment on the loan where you act as a guarantor will be automatically deducted from your income, and the bank will determine the possible amount of the loan for you based on the remaining funds. If the need for a loan is critical, you can remove yourself from the status of a guarantor, but this will require not only the consent of the borrower, but, first of all, the consent of his lender.
How long do the obligations of the loan guarantor last? This is determined by the surety agreement or the civil code. Usually, the contracts specify a clear term coinciding with the term of the loan agreement. But exceptions are also possible, in which one should be guided in determining the duration of the guarantee by the Civil Code of the Russian Federation.
Term limitation period in such cases is three years - it is important to remember.
Also, the obligations of the guarantor are considered completed in the event of a change in the borrower on the loan. This may happen by different reasons, but most often - in the event of the death of the borrower. Credit obligations in such a situation are transferred to his heirs, that is, they become new borrowers, and the guarantor can consider himself free. It is important to understand this, because banks often try to keep the guarantors of the loan and invite them to sign a new liability agreement on the outstanding loan, presenting this action as a mere formality. Remember, you are not required to sign such a document, and no one can force you to do so.
Important! If the spouse of the borrower acted as the guarantor, his obligations remain even after the dissolution of the marriage.
So, if you are a guarantor for a loan, the responsibility in case of non-payment by the borrower of the due contributions falls on you. What should be done first of all if the bank starts making claims against you? First of all, you need to try to find the borrower himself and find out about him. financial situation. If payment delays are associated with temporary financial difficulties, and in general your loan partner does not refuse his obligations, try to help him solve the problem as much as possible. You can find him a job or a part-time job, or pay the necessary amount to the bank for him (this, after all, is your responsibility as a guarantor).
Important! Even in the case of a one-time payment to the bank of a contribution, instead of the borrower, try to obtain a document confirming that the contribution was made from your funds - a receipt, receipt, etc.
If it is impossible to help financially, go together with the borrower to the bank and talk with the loan manager. Today, credit organizations are ready to help their customers cope with late payments. You can agree on credit holidays, a small delay or about refinancing a loan. Naturally, these negotiations should take place with the participation of the borrower.
The borrower has disappeared from sight and deliberately neglects his payment obligations, and you have a guarantee for the loan - how to avoid liability in such a situation? Start with a visit to the bank. To get started, check with the credit manager the specific requirements of the financial institution for you, find out the exact amount of debt. All this information must be supported by relevant documents.
Further, if you have such information, tell the bank where you can find a borrower or how you can collect a debt from him. Often, citizens have unofficial sources of income, hidden property, etc. Also, try to write an application for debt restructuring or at least deferral of payments. All this, among other things, will help you buy time to solve the problem and convince the bank of your trustworthiness.
Important! Remember that the bank has every right to require you to repay a loan taken under your guarantee. Therefore, do not conduct a dialogue aggressively, try to talk in a constructive manner, clarify everything for yourself possible options and suggest an alternative to the bank.
If you have received a reprieve, you can try the following:
These actions will reduce your property risks. In addition, remember that any property acquired by you during marriage is considered joint property, and cannot be seized by the bank to pay off the debt in this case. Try to collect documentary evidence of the timing of the purchase of the most valuable and large properties.
In addition to a huge number of obligations, a suretyship agreement provides you with a rather important right. In accordance with it, you, in fact, become the lender of the borrower. When paying his debts, even if in a small amount, for example, in the amount of one payment, you have the right to recover your own costs from him. That is why, even with good relations with the borrower, any assistance to him in repaying the loan must be documented. If the borrower has disappeared from sight, but he has some property left (car, real estate, etc.), you can sue them in your favor after you deal with the bank. This will help cover the costs incurred, moreover, the presence of the borrower himself is not necessary for such a court.
Under a surety agreement, the guarantor undertakes to be responsible to the borrower's creditor bank for the fulfillment by the borrower of his obligations in full or in part. As a rule, guarantors are jointly and severally liable with borrowers. However, the suretyship agreement may provide for subsidiary liability of the surety. In this case, a claim against the guarantor may be brought after the debtor has refused to satisfy the creditor's claim or the creditor has not received from him within a reasonable time a response to the claim (Clause 1, Article 361, Clause 1, Article 363 of the Civil Code of the Russian Federation; Clause 6 Review approved by the Presidium Supreme Court RF 12.07.2017).
1. Obligations of the guarantor
The obligations of the guarantor can be roughly divided into two categories:
1.1. Obligations of a guarantor by law
If the borrower fails to fulfill or improperly fulfills its obligations under the loan agreement, the guarantor is liable to the creditor to the same extent as the borrower, including repayment of the principal debt, payment of interest, penalties (fines, penalties), reimbursement of legal costs for debt collection and other losses of the creditor, caused by non-fulfillment or improper fulfillment of the obligation by the borrower, unless otherwise provided by the surety agreement (clause 2, article 363 of the Civil Code of the Russian Federation).
The fulfillment by the guarantor of obligations in practice can occur in the following ways:
Note!
Non-fulfillment by the guarantor of the obligations assumed in accordance with the surety agreement entails the same negative consequences for the guarantor as for the borrower. The bank may apply to the court to demand the return of the debt both to the borrower and to the guarantor. Therefore, if the court decides in favor of the bank, the debt can be recovered, including through the sale of property owned by the guarantor.
1.2. Obligations of the guarantor by virtue of the contract
Such duties are of a kind of organizational nature. For example, these may include:
Also, the guarantee agreement may provide for the obligation of the guarantor, without the written consent of the bank, not to assign, in whole or in part, his rights and obligations under the guarantee agreement to other persons.
2. Rights of the guarantor
The rights of a guarantor include the following.
1. After the guarantor fulfills his obligations under the guarantee agreement, the rights of the bank as a creditor pass to him (clause 1 of article 365 of the Civil Code of the Russian Federation).
Accordingly, the guarantor has the right to obtain from the bank all documents certifying the guarantor's claims to the borrower, as well as the bank's rights that ensure these requirements. The procedure for obtaining is determined by the surety agreement (clause 2, article 365 of the Civil Code of the Russian Federation). Such documents can be, for example, a copy of a loan agreement, payment documents confirming payment by the guarantor of the bank's claims, etc.
2. The guarantor may apply to the borrower with a demand to return to him all the amounts paid to the bank under the suretyship agreement, as well as require the borrower to pay interest on the amount paid to the bank and compensate for other losses incurred in connection with the repayment of the borrower's debt to the bank (clause 1 article 365 of the Civil Code of the Russian Federation).
Until the debtor fulfills these requirements, the guarantor may also demand the performance of obligations from other co-guarantors in an amount corresponding to their share in securing the debtor's obligations. The named shares are assumed to be equal, unless otherwise provided by the surety agreement or agreement of co-guarantors (clause 1, clause 2, article 325, clause 3, article 363 of the Civil Code of the Russian Federation; clause 1 of the Review judicial practice Supreme Court of the Russian Federation N 3 (2016), approved. Presidium of the Supreme Court of the Russian Federation on October 19, 2016).
If the borrower and the co-guarantor refuse to satisfy these requirements voluntarily, the guarantor has the right to apply to the court for the protection of his rights (clause 1, article 11 of the Civil Code of the Russian Federation).
3. The guarantor has the right to put forward objections against the bank's claims that the borrower could submit, unless otherwise follows from the guarantee agreement (clause 1, article 364 of the Civil Code of the Russian Federation). This is done, for example, if, in the opinion of the guarantor, the bank violates the terms of the loan agreement and the guarantee agreement or the rights granted to the borrower or guarantor by law, including consumer rights. At the same time, the guarantor does not lose the right to these objections even if the borrower has refused them or acknowledged his debt.
4. The guarantor has the right not to fulfill his obligation as long as the creditor has the opportunity to obtain satisfaction of his claim by offsetting it against the debtor's claim (Clause 2, Article 364 of the Civil Code of the Russian Federation).
A familiar situation for many: a friend asks to become a guarantor for him. He says that this is a formality, you just need to sign an agreement and forget about it. Is it so? Loan guarantees have long been a well-known practice, and in many cases there were no excesses, but more and more often there is information about delays or complete refusal of payments by borrowers. What consequences will entail such actions of the borrower for his guarantor?
Some banks even lower credit rate if there are guarantors
Most of all, a bank needs a guarantor: by shifting the obligation to repay a loan to several people at once, the lender is insured. In order to attract to the conclusion of a loan agreement with a guarantor, banks even reduce the interest rate.
For the borrower, such conditions are more than beneficial: the interest rate is lower and there is support. There is also a benefit for the lender - And for the guarantor? And the guarantor has no benefit at all!
The guarantor, in this case, is in a very disadvantageous position, he does not have any rights to things purchased on credit, but all debentures. In other words, both the borrower and the bank receive their benefits, and the guarantor is left with the same problems.
What should the guarantor do in this situation? It is necessary to assimilate the information that a loan guarantee implies responsibility: if the borrower does not pay the loan, the guarantor will have to assume all debts, while no benefits are provided for him by law.
The guarantor is responsible - you should not forget about it!
According to existing legislation (Article 361 of the Civil Code of the Russian Federation), the guarantor is fully or partially obliged to be responsible for the fulfillment of the contract by the debtor and is one of the parties to the contract.
Today, there are such legal concepts as a co-borrower and a guarantor, these persons have completely different rights in relation to a loan agreement and.
So, for example, a co-borrower has the same rights to the acquired property as the borrower, however, at the same time, he has the same obligations to repay the loan. With regard to the guarantor, as already mentioned, things are different. When the issue of granting a loan is decided, information on the income of not only the borrower, but also the co-borrower is taken into account.
If the income of the co-borrower is lower than the amount required to repay the loan, then the contract will not be drawn up. No such requirements are imposed on the guarantor in time, so the maximum loan amount in this case will be higher.
When drawing up a loan agreement, the bank informs the parties about the type of guarantee, which are:
The solidarity type of cooperation is used much more often, as it protects the side of the creditor. With this type of relationship, loan obligations are imposed on the borrower and the guarantor equally. When drawing up an agreement with subsidiary liability for a loan from a guarantor, it is quite difficult: for this, it is necessary to prove that the borrower is unable to repay the debt. Especially in cases where the borrower is hiding from the bank and then it is impossible to prove his insolvency.
Agreeing to be a guarantor, you need to carefully read the documentation
The guarantor is exposed to the following risks:
In cases where the borrower does not repay the loan on time, additional interest may be charged in addition to the principal amount of the loan, late fees and penalties. All this responsibility is transferred to the guarantor.
Credit history in the event of a delay in payment deteriorates not only for the borrower, but also for his guarantor.
When the guarantor wants to issue a loan or loan himself, the prospective lender may refuse to do so or limit the amount, referring to the fact that he is already a guarantor for the loan. If the guarantor refuses to pay on someone else's loan, the bank may go to court to recover these funds from it. If the guarantor is unable to pay the overdue loan, he risks losing
It is quite difficult to refuse a guarantee, for this you need to obtain consent from the borrower and the lender. If one of the spouses is the guarantor of the other, then it is almost impossible to terminate this contract during a divorce. Obligations under the guarantee of the guarantor may be inherited.
But in these cases, the law provides for some reservations: the heir pays the debt if he entered into and the loan debt does not exceed the entire inherited amount.
If there are several guarantors for the loan, the bank has the right to decide to collect the debt from all equally, dividing the rate or choosing one that seemed more solvent to the creditor.
When the bank stops receiving monthly payments on the loan, it begins to act on the guarantor:
The guarantor has his own obligations
In accordance with the contract, the guarantor may be responsible for:
The guarantor who signed the loan agreement falls under great responsibility, but he also has legal rights prescribed in the Civil Code. According to article 365 of the Civil Code, the guarantor, who has fulfilled all his obligations under the loan, receives all the rights of the creditor, that is, the right to demand from the borrower to cover the losses he has suffered, including:
After the full repayment of the loan, the bank issues the relevant documents to the guarantor:
All rights that should be presented to the debtor pass to the guarantor. The main condition for obtaining rights under the loan by the guarantor is the full repayment of the debt, as well as:
Loan guarantees can ruin your credit history
If, after paying all the funds on the loan, the borrower refuses the guarantor, the latter may apply to the judicial authorities. The guarantor may object to the bank about the requirements presented to him, if these requirements, in his opinion, can be satisfied by the borrower himself.
This is provided for by law with the proviso that no other requirements are specified in the loan agreement. Also, the guarantor may refuse his obligations if the bank has violated:
The guarantor may raise all these objections to the creditor even if the borrower recognizes his debt or waives these claims.
The guarantor may not fulfill his obligations under the contract as long as the creditor can satisfy his claims at the expense of the debtor.
As a result, it is worth considering whether it is worth obliging yourself to become a guarantor for a loan, even if the person who asks for a guarantee is a good friend or, after all, very often friendships end from the moment when a financial issue becomes between friends. Of course, it's worth hoping for the best!
The dangers of a loan guarantee can be found in the video consultation:
A guarantor is a person who guarantees the fulfillment by the borrower of obligations under the loan agreement. He actually takes responsibility to the credit institution for the return of the loan. The bank and the guarantor conclude a separate agreement between themselves, which specifies all the rights and obligations of the parties. In case of default by the borrower to the creditor, the guarantor faces the same liability as the main borrower. If there is a court decision, the bank can recover and sell the property of the guarantor to pay off the debt, in accordance with the terms of the agreement. However, in addition to obligations, the guarantor has a number of rights in relation to the main borrower.
The guarantor has the following rights:
If the guarantor has made full repayment of the debt and loan agreement terminated, he has the right to claim against the borrower. He has the right to file a lawsuit in court to recover the debt by force through enforcement proceedings. This applies not only to the amounts paid to the bank, but also to all costs incurred by the guarantor during the performance of its obligations. To do this, the guarantor must have the following package of documents:
If the guarantor has information that the borrower deliberately evaded fulfilling his obligations and hid his property, he can apply to the police and prosecutors to bring the borrower to criminal liability.
There are a number of cases when the bank does not have the right to require the guarantor to fulfill its obligations:
Even if a situation has occurred when the borrower completely refused to fulfill his obligations, and the guarantor was left alone with the bank, you should carefully study your rights and take all possible measures to repay the debt.
