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Sep 16, 2020
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General regime receipt. What debt will not bailiffs come, but investigators

Such a warning paper from the bailiffs was recently received by Navalny's associate, lawyer Lyubov Sobol. According to various court decisions, she must pay more than 34 million rubles in total. She was given an official warning of criminal liability in case of non-payment of the debt, and before that, a debt suddenly appeared on her current bank account, to which the debit card is attached - minus 34,019,871 rubles 59 kopecks, that is, the bank made a technical overdraft and now it will produce writing off funds to pay off the debt in a non-authoritative manner.

In theory, banks should not write off more than the amount on the debtor's debit card. The Supreme Court of the Russian Federation also indicated this in its determination (Determination of the Armed Forces of the Russian Federation of February 19, 2019 No. 44-KG 18-27), but in practice everything happens quite differently.

Bankers' tricks for minus on the account

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Increasingly, car dealerships began to offer an interesting, at first glance, deal: they sell a car at a discount, but for this the client needs to get a loan. The conditions seem to be tempting: the obligations to the bank can be repaid ahead of schedule, even tomorrow, and 10-20 thousand rubles discounts (and often 50-100 thousand rubles) are not superfluous. However, in the end, the gullible client loses money. What's the catch?

According to the law, the bailiffs, having received a writ of execution, initiate proceedings and give the debtor five days to voluntarily repay the debt (Article 30 of Law No. 229-FZ "On Enforcement Proceedings"). In reality, the bailiff sends the order by mail. And if the debtor did not take it, then this enforcement proceedings will not stop. According to Art. 69 of Law No. 229-FZ, the bailiff levies foreclosure primarily on money, including non-cash, then on property, shares in companies, etc. Until the information about the foreclosure reaches the owner of the account, the bank will already fulfill the order of the bailiff and write off the money. After all, it is quite obvious that debiting from an account is the fastest and easiest way to withdraw money. If there is not enough money on the account to pay off the debt, then all accounts in the bank are "frozen" and all amounts received by the bank will be written off automatically until the entire debt and the amount of the execution fee for the work of the bailiff, which the debtor also pays, is collected. At the same time, the banks have already worked out a system that allows them not to violate the ruling of the Supreme Court. Technically, if a bank client has a minus on the account, equal to the requirements of the bailiffs, the bank allows overdraft, that is, lending to the account. This is permitted by law, and the bank in its agreement, when opening an account, as a rule, immediately provides for such an opportunity (Article 850 of the Civil Code of the Russian Federation). And funds are written off to pay off the debt not directly (for example, from a card), but from accounts that are related to clients, but are not credit (for example, from 42,301), thus the law is observed and the determination of the Supreme Court is fulfilled. And the debtor only has to pay.

What the bailiffs can't reach

Photo © TASS / Kirill Kuhmar

Photo © TASS / Kirill Kuhmar

Article 101 of Law No. 229-FZ lists the types of income that are not subject to collection. These are, for example, alimony, maternity capital, compensation for health damage, and so on. But in automatic mode they can write off this too. The fact is that, despite the law, the bailiff does not know in advance which funds from the funds received at the debtor's account are not subject to collection at all, and which are subject, but limited (for example, no more than 50% is taken from salaries in enforcement proceedings, in cases with alimony - up to 70%). In theory, he can make such a request, but usually if the debtor himself did not notify the bailiff of the restrictions in writing, then the bailiff simply sends his order to the bank, and there, according to the requirements of the law, they must calculate the amount of money that can be foreclosed and at the same time take into account the existing restrictions (Law No. 12-ФЗ dated 02.21.2019), but often banks act automatically: a resolution came - they wrote off from all accounts. At the same time, problems may arise with the return of illegally debited funds. Therefore, in such cases, one must be very vigilant.

When is criminal responsibility

The current Criminal Code contains Article 177, which establishes the possibility of criminal prosecution of the debtor for non-payment of the loan. However, such liability arises when two conditions are met: the amount of the debt exceeds 1.5 million rubles and the evasion is deliberate and malicious. If such facts are revealed, the maximum punishment can be very serious - up to two years in prison.

The law does not provide a separate explanation of what is meant by the concept of "malicious" in this case, but it follows from judicial practice that in order to prosecute a debtor must not only know that enforcement proceedings are being conducted against him, but also have the necessary funds to pay off the debt, either hide their sources of income, or take actions that prevent the collection of debt (for example, transactions to alienate their property, transfer it to third parties, etc.), or deliberately refuse to take measures to correct their unfavorable financial situation.

How not to fall under the law

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First of all, it should be understood that in most cases the bailiff is not interested in participating in a criminal prosecution simply because he has a lot of enforcement proceedings that he would like to end with collection, and not involving law enforcement agencies and dragging out the case for years. Therefore, as a rule, the bailiffs, as soon as they receive the material for execution, rush to "attack" the debtor's accounts, that is, to draw up the necessary documents as quickly as possible to write off any funds in any banks that they can reach. Moreover, the law provides for such a possibility.

But if it was not possible to quickly write off something to pay off the debt and the debtor does not have any property that can be foreclosed, then the bailiffs do not miss the opportunity to "remind" of criminal liability. True, they “forget” to mention that if the debtor is not hiding and does not take actions to conceal money or property, then there is no corpus delicti in his actions.

In any case, if the bank suddenly announced that the accounts were frozen for enforcement proceedings (or a notification about the issuance of such an order was sent to the home address), a number of actions should be taken:

Firstly, you should immediately check on the FSPP website if there is a debt. There you can also find out the name of the bailiff who conducts the proceedings, the name of his department and his office phone number.

Secondly: you should go to an appointment with the bailiff with documents on income, which cannot be foreclosed. At the same time, if the salary was written off, you need to submit a certificate from the place of work, if the pension or allowance is a certificate from the authority that transfers these payments (for example, the Pension Fund of the Russian Federation).

Photo © TASS / Kirill Kuhmar

Photo © TASS / Kirill Kuhmar

Third: you should contact the bank. If you have a loan, write an application for a loan vacation, and explain in words that until the issue with the bailiffs is resolved, it will be impossible to contribute money to repay the loan, since they are also subject to write-off by his order. In some cases, banks are accommodating, in some they are not, but getting an official answer from the bank is worth it.

To initiate a criminal case against the debtor, it is necessary that the facts of his evasion from paying off accounts payable are established, that is, the debtor must perform the necessary actions (or inaction) for this, but have a real opportunity to pay off his debt. If this is not possible, then there is no intent to commit this crime, and therefore the debtor cannot be brought to criminal liability.

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Maxim Grekov
Maxim Grekov
Bayazitova Alexandra
Bayazitova Alexandra

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