THE DEBT RECOVERY
In modern Russian reality, entrepreneurs often encounter with the problem of forced debt collection both legal and physical entities. Often, citizens do not have experience of litigation, objection, pointing out that if between the parties the contract is signed, the problem of debt collection should not be, because this contract is a guarantee of repayment. However, the above position is not quite true, as exemplified by the fact that in the courts there are more cases of debt collection where the applicants are legal entities. You could even say that debt collection – the most common category of cases in arbitration courts. Causes of the debt very much is and no return of funds under the loan agreements, and any default by buyer of its obligations to pay the item, and the nonpayment of work performed or services rendered.It should be noted that the concept of debt collection includes not only the reimbursement of the principal amount of the debt, but also payment to the creditor of the penalty for untimely execution by the debtor of its obligations.
In accordance with the Civil Code of the Russian Federation legal person (company, organization) shall bear property liability for its obligations with all its assets. From this rule can be made of the exception provided in the Civil Code of the Russian Federation or the constituent documents of the legal entity.
Failure to fulfill obligations of the contract to which is to organize, resulting in relation to such organization debt burden. The actual recovery of debt is possible by the presentation to the bailiffs ‘ service a writ of execution issued after the entry into force of the judgment of the court confirming both the existence of the debt and the amount to be recovered amounts.
If the debtor is a functioning legal entity with the presence of permanent income, premises, staff, it to required by court order funds from the company for a legal professional, usually do not be difficult. If the company conducts business, debt collection is either difficult or impossible.
Liability of several debtors to one creditor may be solidary or subsidiary.
In accordance with article 322 of the Civil code of the Russian Federation solidary obligation (responsibility) or the solidary requirement arises, if solidarity of an obligation or requirement prescribed by the agreement or established by law, in particular at indivisibility of a subject of the obligation.
In accordance with article 399 of the Civil code of the Russian Federation prior to the presentation of requirements to the person who, in accordance with the law, other legal acts or conditions of an obligation bears a liability in addition to liability of another person as a principal debtor (subsidiary liability), the creditor must present the claim to the principal debtor.
In accordance with the Civil Code of the Russian Federation legal person that is not performed or improperly performed obligation when carrying out entrepreneurial activities, shall be liable, unless he proves that proper performance was impossible due to force majeure, ie extraordinary and unavoidable under the given circumstances.
It should be noted that this is a time consuming procedure, which consists in the reimbursement of the principal sums and the attraction of the debtor to civil liability by the imposition of a fine, penalty, and interest for use of borrowed funds. In accordance with article 395 of the Civil code of the Russian Federation for using another’s money resources owing to their wrongful deduction, evasion from their return, other delay in their payment or unjust receipt or saving at the expense of another person interest shall be payable on the amount of these funds.
Debt collection — the procedure that includes several stages: pretrial and trial.
The pre-trial stage in cases of debt collection is an attempt to resolve the dispute without the involvement of the judiciary by restructuring the debt, a written agreement on the debt repayment installments, acceptable to both parties. The conclusion of an agreement with the debtor and decide the schedule of repayment of the arisen debt is the most optimal variant of debt collection because it allows not only quick to debt, but also reduce costs for debt collection.
The out of court phase of debt collection is the claim by the creditor to the debtor. The issue of claims to the debtor as a rule, precedes the appeal to the courts with the requirement about debt recovery, as according to the Civil procedure code and Arbitration procedure code of the Russian Federation in most cases, when suing in court the statement of claim must attach a document confirming the commitment of the parties in the pretrial order to settle the dispute.
In the text of the claim must specify the basis for the debt the amount of debt to calculate the interest on borrowed funds in accordance with the provisions of the Civil code of the Russian Federation or the size of penalties (fines, penalties) specified in the contract. The claim is sent to the legal address (or location) of the debtor. The claim States the period of voluntary repayment of debt by the debtor. In case of evasion of the debtor from funds transfer or incomplete transfer of funds within the specified period, it is necessary to prepare the petition and present it to the court.
The beginning of the judicial phase of debt recovery is the preparation and filing of a claim in court.
Drafting a statement of claim on debt collection, and preparation of claims, requiring not only theoretical knowledge in the field of civil legislation, but also practical skills of a trial attorney to recover debts. In the statement of claim it is important to correctly determine the legal position, specify required standards of the current legislation, to attach all the documents that are the basis for the debt to accurately calculate the amount of the principal debt, penalties, and forfeits (penalties), interest on borrowed funds, point to a pre-trial settlement of the dispute and attach all supporting the existence of the debt documents.
In civil proceedings a copy of the claim and all attached documents to the defendant directs the court, therefore, submitting documents to the court, it is necessary to ensure that they were filed in the proper amount – for the court, defendants, third parties.
In the arbitration proceedings documents sent to the defendant by the plaintiff alone, and the arbitration court the documents confirming the sending by the claimant of the claim’s receipt by the defendant.
Before starting court proceedings it is recommended to check the debtor at the open bases of state bodies for the presence of ongoing litigation, the lack of bankruptcy procedures, registration in the Unified state register of legal entities, etc.
Lawyer Alexander Nikitin A. has extensive experience in litigation related to debt recovery.
The procedure of debt collection includes accomplishment of the following actions:
- legal analysis of provided documents confirming the occurrence and amount of debt;
- pre-trial dispute settlement;
- determination of the real financial condition of the debtor;
- negotiations with the debtor;
- preparing and sending to the debtor a substantiated claim;
- the collection of evidence necessary for judicial debt collection;
- prepare a statement of claim on debt collection and presenting it in a court of General jurisdiction or arbitration court;
- representation of client’s interests in the case of debt recovery in the court of first and cassation (appeals), the Supervisory instances;
- obtaining a writ of execution, the presentation to its execution;
- representation of client’s interests at the stage of enforcement proceedings.
When collecting a debt can arise in a variety of situations that require individual consideration and resolution. So the procedure of debt collection should always have proper legal support. Lawyer Alexander Nikitin A. city of Simferopol has extensive experience dealing with debt recovery both with legal, and with individuals, so my clients are always confident in a positive resolution to the problem.