If you became a guarantor under a loan agreement, and the borrower suddenly stopped repaying the loan, do not rush to immediately return the debt to the bank for it. First of all, you need to make sure that your obligation as a guarantor has not terminated in accordance with the current legislation.
At the conclusion guarantee agreements it is generally accepted that the guarantor is responsible to the bank for the repayment of a cash loan in exactly the same way as the borrower himself, who directly needs the money. It is called "joint responsibility". In the case of joint and several liability under the surety agreement, the guarantor is responsible for repaying the loan to the bank not only in terms of the principal amount of the loan, but also in terms of repaying all interest, fines, penalties and court costs incurred by the bank.
However, not everyone knows that there are some features in Russian legislation that regulate the issue return of debt by the guarantor, in case the main borrower refuses or cannot repay the loan to the bank. Thus, if a bank or MFI is on you sued as surety, in order to return the money on the loan, this does not mean that you will pay for another person. The current laws of the Russian Federation provide for restrictions and grounds for termination of the loan guarantee agreement, What allow the guarantor does not pay the loan for the borrower, defend and defend their legal position in court on legal grounds. Let's consider some of them in more detail.
Surety agreement is always in writing, stating term the end of its action. If the term of the guarantee agreement is not specified in its text, the expiration date of the guarantee is determined by the expiration date of the loan agreement. It follows from this that if the Bank, within a year from the date of the due date for fulfilling the obligation under the agreement, did not apply to the guarantor with a claim for the return of the debt, then guarantee terminated! If the end date is not specified in the surety agreement and cannot be determined by other documents, then surety terminates if the creditor does not file a claim against the guarantor within two years from the date of conclusion of the surety agreement.
By her own death debtor a (the main borrower under the loan agreement) is not a basis for terminating the guarantee, however, it can serve as a weighty argument for filing a lawsuit with the aim of termination of the contract of guarantee. If you, as a guarantor, did not give your written consent to be responsible for potential heirs, you have every chance terminate the surety agreement judicially. Otherwise, if there are relevant clauses in the surety agreement or other written document, the guarantor is obliged to be responsible for the fulfillment by the heirs of the terms of the loan agreement that has passed to them. A similar situation occurs in the event of the death of the guarantor. Death of a surety does not entail automatic termination of the guarantee agreement. Unless otherwise provided by the guarantee agreement itself, in the event of the death of the guarantor, the heirs of the guarantor are liable under the guarantee agreement, who are jointly and severally liable to the bank within the value of the property transferred to them by inheritance.
According to the current legislation, the concept of " loan guarantee" is closely related to the concept of " principal loan obligation". The main loan obligation is understood as the amount of the principal debt (the amount of the loan received under the agreement) + interest for the entire period of using the loan. Most often, to determine the amount of the main obligation for the guarantor, they are guided by the loan repayment schedule, which is an integral part of the loan agreement. Thus, if the main borrower has paid the amounts indicated in the schedule, then it is possible to achieve early termination of the surety agreement. However, most often banks want to receive from all participants in the transaction not only the amounts indicated in the schedule, but also excess profits in the form of fines, penalties, forfeits and increased interest.
If the Bank began to require you to repay the debt as a guarantor - do not rush to immediately carry the money. First of all, you need to make sure that your obligation as a guarantor has not ended due to the payment of the principal amount of the debt. To do this, you need to contact the bank and demand an account statement to repay the loan specified in the agreement, sum up the receipts of all funds from the date of signing the agreement and compare with the total amount in the chart. If your amount turned out to be more than according to the schedule of the loan agreement, then you have the right to demand through the court the termination of the surety agreement in connection with its execution by the fact.
If the debtor for whom you have guaranteed is a legal entity, then the obligations of the guarantor will cease from the moment of liquidation of this legal entity. A legal entity is considered to be completely liquidated (ceased to exist) in the event of its exclusion from the Unified State Register of Legal Entities with an appropriate entry in its extract. In the event of the official liquidation of a legal entity, the rights and obligations do not pass by way of succession to other persons. However, the obligation is terminated by the liquidation of a legal entity (debtor, borrower) only when, by law or other documents, the fulfillment of the obligation of the liquidated legal entity is not assigned to another person (for claims for compensation for harm caused to life or health, etc.). In addition, if the guarantor did not give written consent to be responsible for the new successor debtor, the surety agreement may be terminated. Thus, before starting payments under the surety agreement, make sure that the main borrower is valid. This can be easily verified by ordering an extract from the Unified State Register of Legal Entities.
If the debtor is bankrupt, is the guarantor free from debt obligations? The essence of the bankruptcy procedure is such that after its completion, the bankrupt debtor is forgiven all debts that he could not cover at the expense of his property. So after declaring the debtor bankrupt, if the main obligation under the contract is repaid or forgiven during the bankruptcy procedure, then the guarantee is considered automatically executed due to the absence of the main obligation of the borrower. It is not necessary to pay under such a guarantee agreement, it is necessary to achieve a debt cancellation in a bank or terminate the guarantee agreement through the court on the basis of a bankruptcy decision and completion of the bankruptcy proceedings of the main debtor-borrower. You can check the bankruptcy of a legal entity on the official website of the Arbitration Court of your region, or by ordering an extract from the Unified State Register of Legal Entities, in which this information will be reflected.
In order to simplify litigation to collect debts from the borrower and guarantors, there are often standard forms of contracts that indicate the maximum amount for which a guarantee is provided. Thus, if your agreement specifies the maximum amount (most often this is the loan amount + accrued interest for the period of the agreement), for which you provide your guarantee, then the Bank does not have the right to demand repayments from you as a guarantor in excess of this amount specified in the agreement . Those. Your obligations are limited to a certain figure, even if the actual debt of the borrower exceeds it several times.
It is possible to recognize the surety agreement as invalid only if the main loan agreement was signed with violations. For example, the signing of loan documents was carried out by officials without the appropriate authority, or forged, or the relevant agreements were signed without the written consent of the legal spouses, or the bank committed serious violations of Russian laws and consumer rights when issuing or accompanying a loan, charges illegal commission fees.
Such serious flaws can only be sorted out in court. If you find such violations in your loan transaction with the bank, then you should file a lawsuit with the court for a detailed clarification of the circumstances and subsequent termination of the surety agreement. You should not hope that the court will understand all the intricacies and intricacies of your case, as a rule, judges do not like to understand a bunch of documents and proofread the fine print of loan agreements and guarantees to understand the real picture. More often, judges take the side of the bank according to the principle: “I took the money - return it!”. Therefore, if you want to terminate the guarantee agreement, then you need to prepare in advance, study all the documents and develop your legal position to defend your interests in court.
The man is taking a big risk. If the main borrower cannot or refuses to pay the bank, then all obligations will be transferred to him. What should a guarantor do and how to avoid liability for a loan? We understand all the intricacies of the issue.
So, such a situation has occurred that a bank or a collection agency approaches the guarantor with a demand to pay off the debt for another person. What should be done first?
It is necessary to "lift" the loan agreement and read it carefully. The guarantor has already signed it, so you can't avoid obligations. When studying, you need to pay attention to the procedure for presenting requirements to the guarantor, there are two options:
In the latter case, the guarantor, until he receives a copy of the court decision that has entered into force, has every right not to pay. This is the only way to avoid payments on the loan to the guarantor legally.
If the guarantor is unconditionally jointly and severally liable with the borrower, then paying the loan instead of the debtor, unfortunately, cannot be avoided. And the bank has every right to apply to the guarantor even the next day and demand from him the payment of a monthly payment plus accrued penalties.
If the bank turned to the guarantor with a demand to pay off someone else's debt, the following points should first be clarified:
After that, you need to find out the name of the manager who deals with delays. Further conversation should be conducted specifically with him.
First, the guarantor needs to show that he is on the side of the bank. Here you need to discard all family or friendly feelings for the debtor, because of which you got into trouble. In this case, the main thing is to learn how not to pay if you are a guarantor, and not to settle the conflict.
You should check with the manager whether the bank representative contacted the main borrower, whether or not he found out why he refuses to repay the loan. Perhaps the debtor has some financial difficulties, and he just needs time to sort things out.
Some unscrupulous banks, having granted a delay to the main payer, begin to demand payment from the guarantors or relatives of the debtor. This must be stopped at the very beginning.
However, if the borrower refuses to pay and goes into conflict with both you and the bank, liability, unfortunately, cannot be avoided.
In this case it is necessary:
Your task is not to go into conflict with the bank, but to find a mutual solution. It is not your fault that you acted as a guarantor for an unreliable person, therefore you have the right to insist on observing your interests.
Many are interested in loan guarantors - how to remove liability when making claims from the bank.
In fact, there are no legal ways to avoid paying. If you have signed a contract, you must comply with its provisions. The only way to protect yourself from this is to try to challenge the loan agreement in court. But, as judicial practice shows, this is quite difficult to achieve, since serious grounds are needed:
The legal basis for refusing to pay for the debtor on the loan may be a unilateral change in the terms of the loan by the bank. This is a violation of the law, so the guarantor is automatically released from his obligations in the presence of such facts.
Therefore, it is better not to think about how the guarantor can avoid repayments on the loan, but to enter into a dialogue with the bank and achieve good conditions for debt restructuring.
A failed borrower will not go unpunished. When repaying other people's debts, the guarantor automatically becomes the defaulter's creditor. He acquires the full right to go to court and demand from the defendant:
If the borrower does not have the funds to pay compensation, then the bailiffs will seize his property and transfer it to the plaintiff or sell it at auction. So the guarantor in any case will receive back the money spent. This removes the question of how not to pay the guarantor - you can repay the debt instead of the borrower, and then demand compensation.
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Today, there is a rapid growth in lending to citizens and organizations. Naturally, the institute of guarantee is developing. That's why jurisprudence termination of surety agreement considers it important and highlights various grounds for it. There are general termination rules that specify how a surety is terminated. The most acceptable reason for terminating a surety is the full fulfillment of obligations by both the surety and the borrower.
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How often do people who decide to take a loan need a guarantor? It is often necessary to enlist the support of a person who will confirm the level of income and agree to be responsible if the borrower has problems with loan payments. Many financial institutions agree to give out a large amount of cash only if the client brings several guarantors. However, not everyone is ready to take responsibility. It would be much easier if the guarantor did not owe anything to the bank.
Before agreeing to a deal with a bank as a guarantor, it is worth clarifying all the nuances.
There is such a thing as responsibility for what is the point? If the borrower can not cope with their own, they fall on the shoulders of the guarantor. That is, by agreeing to such a deal, the client undertakes to give the bank the entire amount of the loan. It is no coincidence that relatives and close friends often act as guarantors. These people are sure that the borrower will cope with their obligations and there will be no problems with the financial institution. However, situations are different.
In general, there may be several guarantors. And everyone is equal in their duties to the bank. When signing an agreement at a financial institution, it is worth clarifying the nuances in advance. It is worth agreeing only to completely “transparent” conditions.
It is strongly recommended to analyze all the risks when taking a guarantee for a loan. It is necessary to clearly assess the capabilities of the borrower. Agreeing to a deal just out of friendship is not worth it. The first thing that a loan guarantee requires is responsibility. How to avoid it? It is rather difficult to answer the question. If a person has signed an agreement in a bank, he must follow its terms.
Often there are cases when a person begins to be prosecuted for a loan that he did not take. As a result, it turns out that a few years ago I had to be a guarantor with a neighbor or relative.
Every loan guarantor wants to avoid liability, even if the chance that the borrower will not pay his loan is negligible. Therefore, before agreeing to a trace, it is worth studying the main nuances:
In addition, the guarantor needs to understand whether he himself, in which case, will be able to pay the loan for the borrower. It is worth noting that low-income people cannot become a guarantor of a transaction with a bank. A financial institution agrees only to those guarantors who can really pay off the debt in case of problems. However, no one wants to pay money for another person. How can a loan guarantor avoid possible problems? The only way is to settle only for win-win deals.
There is another nuance to which attention should be paid. Financial institutions often look at the credit history of a client who seeks to become a guarantor. In addition, a person who is responsible for other people's debt obligations loses the chance to use the services of a bank. It is not always possible to take a loan to the person who already acts as a guarantor for someone.
If an unpleasant situation nevertheless occurred, the client does not repay the loan, and the bank turns to the guarantor, you should carefully study the contract again. Experienced lawyers argue that some points can be interpreted in different ways. A loan guarantee is a responsibility. How to avoid it, an experienced specialist will tell you. However, the lawyer will have to pay for the services. It is unlikely that everything will be settled without losses.
The guarantor can sue the bank. The ideal solution would be to draw up an additional agreement, according to which you will have to repay the debt on more loyal terms.
Another option is a claim for insolvency of the guarantor. It is only necessary to submit documents confirming the absence of income. It will be possible to win the court if the guarantor cannot work for health reasons. You will have to provide official medical certificates.
It should be understood that the responsibility lies primarily with the client who has drawn up the loan agreement. The guarantor is only a secondary subject. However, many financial institutions, having not waited for payments for several months, begin to put pressure on the guarantor, while forgetting about the borrower. How to be in this situation? How to avoid the liability of the guarantor? All you have to do is contact the borrower. And in this situation, you can go to court. But the claim will not have to be filed against a financial institution, but already against a person who borrowed money.
Through the court, it will be possible to squeeze out from the borrower the amount that he owed to the bank. In rare cases, liability is shared equally between the parties. This situation is possible if the borrower, for a number of reasons, cannot fully cope with debt obligations and provides certificates confirming his financial situation.
There are a number of situations in which a financial institution is legally entitled to demand payment of a debt from a person who acts as a guarantor. However, some banks may resort to threats in other cases. Therefore, each person who gives consent to a guarantee must know his rights and obligations. The list of situations in which you have to pay someone else's debt is not so long.
It is worth noting that you can still find a way out of any situation. The third point is the most difficult. But even if the person who took the loan dies, the guarantor can count on his life insurance. If such an agreement has been drawn up, part of the reimbursement may go to pay off the loan. But it is possible that you will also have to go to court. If a person has lost his ability to work, he will receive a pension from the state. And in this case it will be possible to count on a positive outcome. Through the court, if desired, it will be possible to achieve restructuring. Debt payments will occur in minimal installments, based on the size of the borrower's pension.
If the borrower nevertheless ceased to cope with his debt obligations, how can the guarantor avoid repayments on the loan? First of all, it is worth analyzing the situations in which the client has the right to challenge the decision of the bank. It is worth remembering that a financial institution can demand payment of a debt from a guarantor no later than 6 months after the borrower has ceased to cope with its obligations. If more than six months have already passed, the guarantor of the transaction has the right to challenge any decisions of the bank.
There is another situation that often happens. If the borrower does not pay the debt, banks begin to demand the return of money from relatives. At the same time, it turns out that they did not know that the contract was concluded. It is important to know that the guarantee is confirmed by a signature. If no documents have been certified, then there are no obligations to the bank!
The guarantor will be able to refuse payments on the loan if he pays alimony in an amount that exceeds 75% of his monthly income. However, the problem will have to be resolved through the courts.
The incapacity of the guarantor is also a reason for waiver of obligations to the bank. The client's state of health must be officially confirmed by a medical certificate.
Before signing any contract with a bank, it is worth weighing the pros and cons. It is worth agreeing only to the deal in which you can be sure. It is worth remembering that a loan guarantee is a liability. And how to avoid it? First of all, you should learn your rights and obligations. After all, often the requirements of financial institutions are completely illegal.
One of the simplest and most reliable ways to insure against non-payment of loans has long been considered the guarantee of an individual. In pursuit of a client, many banks simplify the procedure for issuing loans a little, canceling the "extra" bureaucratic details. However, to provide large loans with a total amount of more than 200,000 - 300,000 rubles. requirements are still stringent.
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Like the borrower himself, the guarantor must meet the requirements of the bank. After all, if the borrower refuses to pay monthly payments, this will have to be done by the person who vouched for him.
So, the list of requirements is as follows:
At the request of the bank, a certificate of income for 4-6 months must be provided in the form of 2NDFL, the form of which can be downloaded at.
Based on the data provided, a decision is made as to whether the guarantor himself, if necessary, will be able to independently secure the borrower's credit obligations.
The legislation of the Russian Federation establishes the responsibility of the guarantor for obligations to the credit institution on an equal basis with the lender himself.
So in case of delays, he will be obliged to return to the bank not only the unreturned part of the loan, but also all interest, including fines, commissions, and penalties.
The guarantor, before he agrees to put his signature in the contract, should seriously weigh all the pros and cons:
It is necessary to carefully study the terms of the contract, to identify those opportunities that will later fully protect the rights.
It is worth correctly assessing the possibilities for repaying a loan, while taking into account that the loan itself may not be issued until the full repayment of guarantee obligations.
Civil Code of the Russian Federation Art. 361 establishes equal obligations of the borrower and the guarantor to the creditor.
So, by virtue of the law, the bank will not make any differences in the requirement to return the loan amount, all accrued interest, fines and penalties between them and will recover them from whom it will be easier to do this.
This is what joint and several liability looks like. Despite the absence of any rights to the property acquired on credit, the guarantor is obliged to make payments according to the same scheme (schedule) as the borrower, if he stops paying.
The bank has the right to immediately apply to the guarantor if 1-2 payments are not received on time.
But due to contractual obligations, which are fixed by the loan agreement, a different scheme for imposing liability on the guarantor may be proposed.
We are talking about the so-called subsidiary liability, when the bank has the right to collect payments from the guarantor only if he has strong evidence that the borrower himself is not able to pay them.
Then, in a judicial proceeding, the obligation to pay is transferred to the guarantor.
Before agreeing to a guarantee, any applicant must independently determine both his prospects for the coming years and the guarantees for the borrower to receive income.
In addition, it is worth finding out the following information, both about the upcoming transaction and the borrower itself:
The purpose of obtaining a large loan is also important, the lack of clearly defined plans for the guarantor can become a reason for abandoning a dubious adventure.
After signing the loan agreement, the guarantor becomes an equal party in the relationship between the borrower and the bank. Therefore, he is entitled to certain rights both under the contract and under the law.
For example:
Despite the very strict requirements, the guarantor is given the opportunity to relieve himself of part of the obligations, for example, illegally accrued fines and return all or at least part of the money from the borrower, including at the expense of his property.
When signing the contract, the guarantor receives an obligation to repay someone else's loan. This follows not only from the contract, but also from the current legislation of the Russian Federation.
Even if he disagrees, he will subsequently have to make payments, while the bank may demand in court the enforcement of the loan amount and accrued interest and penalties.
He can do this, both in relation to the borrower and the guarantor.
It is necessary to think about whether the guarantor is ready to bear the burden of loan repayments before signing the documents. Subsequently, it will be too late to do this and you will have to pay for the fact that one day you wished to meet a loved one or colleague.
The requirements of credit institutions to guarantors as a whole fully comply with those that apply to borrowers.
It is on the part of the lenders that there is a difference in that the guarantor does not have the right to use the item or service purchased on credit. And in front of the bank "everyone is equal."
Depending on the stage of cooperation, the bank may require the guarantor to:
Banks have no other rights, for example, they do not have the right to independently, without his written notice, write off funds from the guarantor's accounts to pay off the debt on the loan.
The future guarantor must be aware that his act can seriously affect his entire future life.
So, the main risks of the guarantee are:
Any of these examples can greatly complicate the life of a person who is not afraid to take on such responsibility.
In the Civil Code of the Russian Federation, a whole paragraph is allocated in Chapter 23 to describe the requirements for a suretyship agreement and the obligations / rights of the surety.
It mainly describes the requirements, both to the guarantor himself and to the content of the contract. It also fixes the main obligations, in particular, to repay the loan in case of refusal of the borrower, regardless of the true reason.
It is on the basis of these articles that protection of violated rights may subsequently be needed, for example, if the borrower has the opportunity to repay the loan, but does not do this for personal reasons.
The protection of the material interests of the guarantor may consist not only in the reduction of probable penalties.
In some cases, it is possible to completely avoid loan repayments. And for this, you can not terminate the loan agreement, but only recognize it as void or invalid, including its individual clauses.
The guarantor can be completely released from all credit obligations in several cases:
Liability can be avoided if the bank, without written notice to the guarantor, has significantly changed the terms of the loan.
Or a long period has passed since the borrower stopped making payments on the loan.
But in all cases, except for voluntary repayment, you will have to go to court, which is authorized to terminate the surety forcibly in case of significant violations in the surety agreement, loan agreement, etc.
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