This article consists of one part and touches on current issues regarding the transfer of credit debt to a bank to third parties, most often which are collection organizations. The article also touches on the most pressing issues of the legality of debt collectors’ actions to collect debts, taking into account new judicial practice.

The points of the article are the following:

The right of banks and microfinance organizations to transfer debt under a loan agreement to third parties

Debt collection for overdue debts is regulated by Federal Law No. 230-FZ dated July 3, 2016 “On the protection of the rights and legitimate interests of individuals when carrying out activities to repay 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 latter’s right 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 credit agreement or loan (overdue debt) is carried out by concluding an agency agreement or through an assignment agreement.

In the first case, the organization with which the agreement is concluded acts in the interests of the creditor or lender. In the second case, he is an independent claimant. Under an assignment agreement, there are two persons – the assignor and the assignee. The relationship between the assignor and the assignee is regulated 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 the assignor to the 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 when carrying out activities for the return 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 must be responsible for the activities for the return of overdue debts basic. Failure to comply with this rule may be grounds for declaring the assignment agreement invalid. An assignment agreement may be declared invalid for other reasons, but this is a topic for a separate article.

Concept of banking license

According to Art. 13 of the Federal Law of 02.12.1990 No. 395-1 “On Banks and Banking Activities”, banking operations are carried out only on the basis of a license issued by the Bank of Russia in the manner established by this Law, with the exception of cases established in 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 mandatory published by the Bank of Russia in the “Bulletin of the Bank of Russia”.

Carrying out banking operations by a legal entity without a license, if obtaining such a license is mandatory, entails the recovery from such legal entity of the entire amount received as a result of such operations, as well as the collection of a fine in the amount of twice this amount to the federal budget. Moreover, the Bank of Russia has the right to file a claim against such an organization with an arbitration court for its liquidation.

For greater clarity, let us imagine the following situation:

A certain organization received, on the basis of an assignment agreement, 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 did not have a banking license.

Accordingly, this organization should be charged not only one hundred thousand rubles, but the entire amount for such transactions, including the indicated amount. Also, this organization should be charged a fine of twice the entire amount for such transactions. And so on for each violation identified during the inspection.

Accordingly, a banking license is a special document issued by the Bank of Russia to an organization to carry out banking operations, in the absence of which the organization is obliged to return all amounts received for transactions carried out without a banking license and pay a fine of twice this amount for each fact of such operation . The result may well be bankruptcy of the organization, for example, the same collectors.

Collection organizations and the basis for their activities

A collection company is an organization specializing in the collection of debts and their further collection from debtors in favor of a bank or microfinance organization under an agency agreement, or in its own favor if such debts were purchased by collectors under an assignment agreement.

The legal basis for the activity is already established in the above-mentioned law on the protection of the rights and legitimate interests of individuals when carrying out activities to repay overdue debts, as well as in the recently issued Ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 14, 2019 No. 67-KG19 -2.

To carry out its activities, a collection organization must have a fairly extensive list of documents, certified copies of which must be provided to the debtor upon his request. At the same time, only one collector from the corresponding collection organization can directly interact with the debtor, and not the entire organization as a whole.

In order to interact with relatives, acquaintances of the debtor, and his employer, collectors must meet two conditions:

• the debtor must agree to such interaction;
• the third party, which includes the above persons, did not express their disagreement.

Both conditions must be expressed in writing. It should be noted that all of the listed persons, including the debtor himself, should not be incompetent, persons undergoing treatment in hospitals, disabled people of the first group, or minors, except in cases of their emancipation in court.

Additional documents that should be followed when regulating the activities of collection organizations are the Law of the Russian Federation dated 02/07/1992 No. 2300-1 “On the protection of consumer rights” and the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/28/2012 No. 57 “On the consideration by courts of civil cases on disputes regarding the protection of consumer rights.”

The Law on the Protection of Consumer Rights is applicable in the sense that both when consuming banking services and when interacting with collectors, an individual who turns 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 position.

Carrying out activities by collection organizations to recover overdue debts

To carry out their activities to return overdue debts, collectors, first of all, must be guided by the Federal Law “On the protection of the rights and legitimate interests of individuals when carrying out activities to return 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, to carry out their activities, collectors are required to be included in the state register. 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 when carrying out activities to repay overdue debts and on amendments to the Federal Law “On microfinance activities and microfinance organizations”.

These include:

• personal meetings and telephone conversations, otherwise known as “direct interaction”;
• telegraph messages, text, voice and other messages (collectors very often confuse other messages with threats, insults, bullying, swearing) transmitted over telecommunication networks, incl. mobile radiotelephone communications;
• postal items at the place of residence or place of stay of the debtor.

The listed methods of interaction are not exhaustive, but other actions for interaction can only be provided for in 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 when carrying out activities to repay overdue debts and on amendments to the Federal Law “On microfinance activities and microfinance organizations” establishes a restriction on the interaction of collectors with the debtor.

Such restrictions include the following:

• the use of physical force or the threat of its use, the threat of murder or infliction of grievous bodily harm on the debtor is prohibited;
• destruction or damage to property, as well as the threat of destruction or damage to property is prohibited;
• the use of methods dangerous to human life or health is prohibited;
• psychological pressure on the debtor and other persons, the use of expressions and the commission of other actions that humiliate the honor and dignity of the debtor and other persons is prohibited;
• It is prohibited to mislead the debtor regarding the legal nature, size, reasons for non-fulfillment, deadlines for fulfillment, etc. unfulfilled obligation;
• Any other unlawful harm to the debtor and other persons or abuse of right is prohibited.

And all of the listed violations are the most favorite methods of collectors when “interacting” with a debtor. Of particular note is an example of such “interaction” between collectors and 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 the problem here is the fact that this collection agency is an affiliate of JSC Tinkoff Bank, which, as you know, is not only an absentee bank, but also registered in the offshore zone of the Virgin Islands.

We should also add a few words regarding the State Register of Collection Organizations, posted on the website of the FSSP of Russia and the rights of collectors to carry out debt collection activities. The right to carry out activities to repay overdue debts arises from the moment of entry into such a register and is lost from the moment of exclusion from it. Bailiffs supervise the activities of collectors in repaying overdue debts.

A banking license is required for collectors

Since mid-May 2019, a number of changes have been made by the Determination 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 out a bank loan. After the debt was formed, the right of claim was assigned to one of the collection organizations. Then it was transferred along the chain to other collectors from one organization to another. The last collection organization to which the debt was transferred filed a lawsuit to collect the debt. The case was heard in one of the courts of the Cherepanovsky district of the Novosibirsk region. The first instance satisfied the collectors' demands. The appellate instance, which was the Novosibirsk Regional Court, agreed with this. But the defendant did not agree, and ultimately appealed, after appealing 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 that guided the Supreme Court of the Russian Federation are as follows::

• According to Art. 382 of the Civil Code of the Russian Federation, the assignment of the right to claim a debt by a bank can be transferred to another person, even without the consent of the debtor; unless otherwise provided by law or contract;
• According to paragraph 51 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 57 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights,” it is clarified that the Law on the Protection of Consumer Rights does not provide for the right of a bank or other credit organization to transfer the right claims under a loan agreement with a consumer (individual) to other persons who do not have a license to carry out banking activities, unless otherwise established by law or an agreement containing this condition, which was agreed upon between the parties. In other words, in the loan agreement, the condition on the possibility of assigning the right of claim under the loan agreement in the event of the formation of debt under it must be clearly expressed. If this condition is not clearly expressed, then, according to the meaning of the above-mentioned Determination dated May 14, 2019, this is a reason to challenge the assignment agreement.
• If in the loan agreement the condition for the transfer of debt is agreed upon, based on the above requirements, then such transfer of debt to third parties under the loan agreement is not excluded.

Based on the above, 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 activities of the collection organization are illegal and are subject to forced liquidation as a legal entity.

The second conclusion is that, even if the condition on the possibility of assigning the right of claim to third parties is clearly expressed in the loan agreement and agreed upon between the parties to such an agreement, the collection organization still needs to have a banking license.

This conclusion is based on the following:

• This condition is not clearly expressed in all loan agreements, and in others it is simply absent;
• The fact that the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation indicated that when agreeing on the assignment of the right of claim in a loan agreement, such transfer of debt “is not excluded” does not mean that the debt can be guaranteed to be sold to a collection organization.

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 the prospect of again reaching the Supreme Court of the Russian Federation.

In the meantime, the courts are again considering the existing dispute, it makes sense for persons to whom collection organizations or microfinance organizations have made relevant demands, guided by the listed legislative acts and judicial decisions of the Supreme Court of the Russian Federation, to legally challenge the claims made by the above organizations, including on the basis their lack of a banking license to carry out debt collection activities, both under credit agreements and under loan agreements taken from microfinance and microcredit companies.

Moreover, information about who has what loans is a banking secret. And this should not be forgotten by either banks, collection organizations, or borrowers.