Publication date: 05.06.2024
lawyer, 23 years of experience in enforcement.
Collector anti-fundamental principles.
Frequent cases of large debts to banks, as well as deliberate abuse by borrowers, prompt banks, other financial institutions or creditors to look for effective methods of solving problem loans. One of them is the participation of collectors, who are assigned the primary role of forcing the debtor to pay the debt. It is important to note that creditors turn to the services of collectors primarily in the most extreme cases, when it is obvious that there is no mutually beneficial agreement between the debtor and the creditor.
As a general rule, the involvement of debt collectors is beneficial because their involvement reduces monetary losses of financial institutions due to bad loans, and together with the potential communication with debt collectors, this is already a strong motivational factor for many to repay the debt on time.
However, their actions, in the absence of formal legal regulation, can currently be characterized as counterintuitive and partly legal (and sometimes illegal). Such situations will free the hands of collectors, which will sometimes force them to bend the stick in order to achieve the desired result. Other cases involve them acting improperly by forcing people to pay off bogus credit card debt.
In cases where this happens, it is important to stand up to collectors.
Any demand for debt payment must have legal confirmation: the conclusion of a legally formalized credit agreement and the existence of debt (default of the debtor). Generally, a creditor must file a lawsuit, but creditors often involve third parties, including debt collectors. The partnership of a bank or other financial institution with a debt manager can take several institutional and legal forms (for more information on them, see the section "How a bank should properly formalize its cooperation with a debt manager"). Regardless of the chosen form of cooperation, the collector must have the necessary authority to communicate with the borrower and take any actions regarding the existing debt.
However, it is important to recognize that the concept and legal status of the collector in Ukraine is still not defined, as a result, there is no need to discuss their specific rights and obligations regarding the concept. In this regard, the powers of collectors cannot exceed the list of rights and obligations of the debtor under a specific loan agreement.
As a result, collectors do not have special powers (they cannot exert psychological or physical pressure on the debtor, cannot limit or violate his rights or freedoms in any way, cannot apply coercive measures).
Considering that anyone can actually participate in debt collection now, as long as the person calls himself a representative of the creditor and addresses the debtor, the first and most important step is to establish the identity of the debt collector and assess whether he has the necessary authority.
Not only is the borrower prohibited from participating, but he must also communicate with the collector on a daily basis if the latter is unable to provide or verify the cause of the debt. In this case, the debtor is recommended to contact the financial institution or the individual with whom the loan/credit agreement was concluded to find out the authority of the debt collector and the reason for the debt.
Even if the debt was repaid in accordance with the procedure specified in Art. In case of debt under the civil code of more than 1,500 US dollars (in cases where the consent of the borrower is not required), the Debtor must be notified in writing of the change of the person to whom he must pay the debt. If such notice was not sent to the debtor, payment of the debt to the original creditor would not be considered a breach and would be considered a lawful discharge of one's debt. That is, the transferred funds will be credited to the payment of the debt.
In addition, the collector's cooperation depends on the collector's accurate description of its authority with respect to the right to demand payment of the debt.
If the collector talks about his authority, without having any documents or legal actions, the debtor has legal grounds to contact law enforcement agencies for the purpose of collecting the debt or other illegal actions of the collector. However, the legal definition of the activities of collectors and their lack of sufficient powers are not an excuse for borrowers who accrued debt but are late in returning it.
In particular, one of the most common ways to collect money from the debtor is psychological pressure, which includes any phone calls at any time of the day, home visits, threats and blackmail. In addition, it is important to recognize that the law does not give anyone the power to implement these measures (even for those who are in arrears). In this case, the debtor can apply to the law enforcement agencies with a claim on suspicion of committing crimes against him, the evidence of which is found in the actions of the debt collector. It is possible to be involved in hooliganism, As a means of proving the illegality of collectors' actions, it is advisable to use Art. 32 of the Constitution of Ukraine, which prohibits interference in personal and family life.
If collectors are not limited to the influence of psychology, but are limited to illegal entry into the debtors' home, the latter can take additional measures of self-defense, guided by Art. 30 of the Constitution of Ukraine, which protects the inviolability of housing and prohibits access to housing or other personal belongings (except when a court order is required). In addition, it is worth remembering that according to part 5 of Art. 36 of the Criminal Code does not exceed the necessary threshold of defense and does not entail criminal liability for the use of weapons or other means or objects for protection against violent or illegal entry into housing or other property, regardless of the degree of crime. damage to a natural person (Persons).
The list of possible legal ways to encourage the borrower to pay the debt to collectors is modest. As mentioned earlier, their powers are limited to those related to the debtor in the loan/credit agreement. That is, collectors are representatives of the creditor under a power of attorney, or after obtaining rights of claim under another contract, they can appeal to the debtor with a complaint, talk to him or sue him, all of these are options for debt settlement, etc.
In addition, it is important not to confuse collectors with executors, which can be both public and private. The main legal norms that guide executors in their actions, regardless of the nature of their actions, are the laws "On enforcement proceedings" and "On bodies and persons", which regulate the procedure for the enforcement of court decisions and the administration of justice. The main difference between executors and debt collectors is that the latter have a formalized legal description and order of activity.
The basis for the executor's appeal to a particular debtor are executive documents, an exclusive list of which is given in the Law "On Executive Proceedings". That is, executors solve the issue of debt collection already in the presence of an executive inscription, notarial record, etc. regarding the debt. They will never be referred to as creditors, their agents, debt collectors or other terms, and they can always prove their legal status with a certificate from the Department of Justice. Possibilities of collecting debts from executors are determined by criminal procedural legislation.
Sometimes collectors put physical or psychological pressure on the debtor, as well as on his family, friends and employees. The purpose of such pressure is to additionally help the borrower repay the debt sooner. In this case, persons who are close to the creditor, but have nothing to do with the debt, can apply to the court for their protection, this is done due to the pressure that is exerted on them (for example, applying to law enforcement agencies with statements about the commission of illegal actions). actions against them). In addition, the behavior of collectors is considered moral damage, the monetary value of which is required in court.
Collectors can also ask about an already paid loan. In this case, the borrower must notify the debt collector and provide the latter with copies of documents confirming the final fulfillment of the debt obligation (for example, a letter from the bank about repayment of the debt, etc.).
Currently, the Verkhovna Rada has several draft laws on regulation of the status and features of the collection activity registered for consideration by the deputies. These are particularly significant projects. 6417-1 "On the peculiarities of the performance of professional duties regarding the payment of overdue debts", No. 2615 "On the protection of consumers against abuse by collectors" and others. However, for now, borrowers can use the lack of regulation in this area to their advantage, although this still does not relieve them of the responsibility to pay their debts responsibly.
Legal service "Consultant" provides all types of legal services, including online legal services. Specialists of our service will make a legal analysis of the situation for the rehabilitation procedure and help collect the necessary documents and, if necessary, accompany the court proceedings.
