What are the consequences of a loan guarantee for articles in newspapers? What is a loan guarantee?

When applying for instant loans, banks often ask potential borrowers to indicate in the agreement the telephone numbers of their relatives and friends who can vouch for them. Time passes, the debtor is unable to cover his debt, and the persons specified in the contract begin to be harassed with demands and threats. It is worth figuring out how to protect your rights in the case of “guarantee without consent,” since anyone can get into such an unpleasant situation.

What is important to know about surety?

In order to know how to protect your rights in the event of unlawful claims, it is important to understand what Russian civil legislation says about surety:

• Firstly , in order for the guarantor to become the borrower’s receiver in terms of monetary and non-monetary obligations, a guarantee agreement must be concluded with him (Article 361 of the Civil Code of the Russian Federation).
• Secondly , the loan agreement must contain a link directly (indicating the number and date of signing of the document) to the guarantee agreement (Article 361 of the Civil Code of the Russian Federation).
• Thirdly , the guarantee agreement must be concluded in writing, otherwise there can be no talk of any guarantee (Article 362 of the Civil Code of the Russian Federation).
• Fourth , the document specifies the amount of obligations under the loan agreement and the nature of liability (joint and several or subsidiary). If these conditions are changed in the loan agreement without notifying the guarantor, the fact of the guarantee itself becomes invalid.

Taking into account all the above provisions, it can be established that the full name indicated in the loan agreement. and contact numbers without a guarantee agreement have no legal force.

What is the threat to the person who names the guarantor without consent?

You should not think that indicating the guarantor’s information in the loan agreement without his consent does not entail any liability. In fact in this case we're talking about about a serious offense - disclosure of personal data.

In this regard, the unlucky borrower may (Article 24 FZ-152):

1. Invite to court as a defendant.
2. Oblige to pay the moral damage caused to the imaginary guarantor, in an amount determined by the court based on the circumstances.

It should be noted that the law on the protection of personal data is aimed at protecting the interests of a citizen brought into bail without consent. All he needs to do is file a lawsuit general jurisdiction at place of residence .

If collectors are rampant...

If the bank servicing the borrower limits itself to notification calls, then direct threats and blackmail can be expected from the guarantor. However, you should not get lost in this situation.

You can build your relationships with collectors according to the following scheme:

1.Ask to introduce yourself - state your last name, position, name of organization (this information will be necessary when filing a claim in court).

2. Specify the number and date of conclusion of the guarantee agreement (if such a document does not exist, then the question can be considered settled).

3.If the collector does not calm down , then you can remind him of the responsibility that involves:

• Compensation for moral damage due to unfounded claims (Article 8 of the Criminal Code of the Russian Federation).
• Compensation in the amount of 100-200 minimum wages or 180-240 hours of community service for blackmail (Article 161 of the Criminal Code of the Russian Federation).
• Imprisonment for up to 4 years for threats (Article 119 of the Criminal Code of the Russian Federation).

In this case, you will have to record the conversation with representatives of the collection company on a voice recorder in order to attach the recording to statement of claim to court .

If there is still a guarantee agreement...

There are also other, more sophisticated forms of holding the guarantor liable for the debts of the borrower. This is the forgery of a guarantee agreement, and in particular, the signature of an imaginary guarantor. Nor should one fall into despair. A forensic examination will be able to detect a forged signature.

As a result, the violator may be subject to:

• Punishment for forging a signature and a document is 2 years in prison (Article 327 of the Criminal Code of the Russian Federation).
• A fine of 120,000 rubles or imprisonment for up to 2 years for fraud (Article 159 of the Criminal Code of the Russian Federation).

If the existence of a guarantee agreement is revealed, you should contact the bank and ask for a copy of it to attach to the statement of claim..

Thus, a person who, without his consent, was made a guarantor under a loan agreement, if one of the above facts is discovered, should immediately file a claim in court. Indication in a loan agreement of a citizen’s personal data without his knowledge, as well as pressure on him regarding the need to repay someone else’s debt, entails criminal liability.

According to current legislation, the guarantor is jointly and severally liable to the creditor. However, based on Art. 361 of the Civil Code of the Russian Federation, he does not have the right to property that was purchased using loan funds. What responsibility the borrower and the guarantor bear and how the interests of the latter are protected are indicated in this article.

Liability of the guarantor to the creditor

Art. 363 of the Civil Code of the Russian Federation states that the loan guarantor bears joint liability in the event of non-payment by the title borrower. At the same time, he can demand compensation for losses incurred after full repayment of the debt. This right is granted by Art. 365 Civil Code of the Russian Federation.

Here are the consequences that await both lending participants if payment deadlines are missed:

• according to Federal Law-218.
• Calculation of penalties in accordance with Federal Law-353 and Federal Law-102.
• Possibility of alienation collateral property according to Federal Law-2872-1.
• Excitation enforcement proceedings and seizure of all accounts of the debtor and guarantor in accordance with Federal Law-229.
• Imprisonment for up to 2 years for malicious evasion of financial obligations (Article 177 of the Criminal Code of the Russian Federation) or for fraud (Article 159 of the Criminal Code of the Russian Federation).

Typically, guarantors will not acknowledge their obligation to make payments on the title borrower's loan without realizing the consequences.

Pre-trial collection

Pre-trial debt collection is carried out by collection companies and by the creditor himself. The responsibility of the guarantor in case of non-payment of the loan by the borrower is similar, therefore it is possible to demand payment from both lending participants by all by legal means according to Federal Law-230.

While working with:

• Telephone conversations to clarify the reasons for the overdue payment and the requirements for repaying the debt as soon as possible.
• Informing relatives about the presence of financial problems, without going beyond the provisions of the Bank Secrecy Act.
• Carrying out visits to the place of residence of the borrower and guarantor.
• Visits to work with the debtor and the guarantor.

These are all possible ways of influence. If they do not bring results, then a decision is made to transfer the case to court and initiate enforcement proceedings.

What are the consequences of enforcement proceedings?

According to Federal Law-229, the debtor and the guarantor have 5 days after transferring the case to a FSSP specialist to voluntarily repay the debt.

After this period, the collection of data on the status of accounts and the availability of personal property begins. If no movements occur on the account, then the bailiff decides to seize the existing accounts and withdraw money from them to pay off the debt.

By law, you can only withdraw part of the funds from your salary card. But the bailiff does not know what exactly the salary is, so a complete write-off occurs from all accounts. After this, you need to write an application for the return of part of the money, providing a complete package of documents.

The mortgage guarantor has the same responsibility in case of non-payment, but he is not responsible for his personal residence. According to Federal Law No. 102, the bank has the right to sell the collateralized property through an auction in the event of no payment on the loan. In this case, the proceeds go to pay off the debt.

What to do if you can’t pay as scheduled

As soon as the title borrower realizes that he cannot make payments according to the repayment schedule for various reasons, he is obliged to inform the bank and the guarantor about this. If the problem is objective in nature, then bank employees may offer to arrange refinancing or. These are programs that will help you reduce your debt burden and continue making payments on schedule.

During the entire time that one of the specified program, payment must be made. If the title borrower is unable to do this on his own, then he must be assisted by a guarantor.

It is worth keeping all payment receipts so that later on the basis of Art. 365 of the Civil Code of the Russian Federation to demand compensation from the debtor for losses incurred.

Can a guarantor refuse to fulfill his financial obligations?

The law does not provide for such a right. But the borrower has the opportunity to change the guarantor if there are objective reasons. These include:

• Divorce, as a result of which the guarantor ceases to be a relative.
• Death of the guarantor.
• He has financial difficulties, as a result of which he cannot fulfill his financial obligations if the borrower is unable to make payments.
• Moving to another city or country.
• Other reasons that the bank deems valid.

To change the guarantor, you need to write a corresponding application to the bank explaining the reason. If the answer is positive, you must provide collateral or another person to secure the debt and reduce banking risks.

The main condition for banking organizations when providing lending services is the presence of a guarantor. In this way, financial companies guarantee their stability: the guarantor is proof that the borrowed amount will be returned with the interest agreed in the contract. Liability of the guarantor If the borrower fails to repay the loan, it is clearly defined by law: the person who has assumed the obligation must repay the debt in accordance with the previously executed agreement.

Who can become a guarantor

The list of bank requirements for the guarantor is even more extensive than for the borrower. The person responsible for paying the debt must have the following characteristics:

• be over 21 years of age;
• be permanently registered in the region where the loan was received;
• have a regular income and be officially employed;
• have own capital or property suitable for collateral;
• have a credit history with no overdue payments.

The listed requirements are standards, but do not exhaust the wishes of all banking organizations. In some cases, additional requests may be presented to the guarantor. For example, most financial companies prefer to see the borrower's relatives as guarantors: in this way, the bank reduces the likelihood of disputes arising in the future.

When can you become a guarantor?

The decision to take on the role of guarantor should be carefully considered. The liability of the guarantor in case of non-payment of the loan by the borrower is calculated equally with the direct recipient of the loan. In other words, if you are late, you will be required to return the entire amount along with a late fee.

You can agree to conclude an agreement only if you are confident in the borrower’s solvency. You need to make sure that he has a regular income, establish regular contact and regularly request information about the status of the debt.

When concluding an agreement, the guarantor carefully studies all the provisions, becomes familiar with his responsibilities and receives a copy of the document for personal use. You can only leave your signature on the original copy with completed pages.

If in the future you would like to take out a loan yourself, you will have to refuse the guarantee. If there is a delay in payment, this circumstance will be reflected in the guarantor’s credit history. In addition, the amount that the bank is willing to lend to a person acting as a guarantor may be significantly lower than desired.

There are three legal grounds on which the bank has the right to contact the guarantor to demand payment of the debt:

1. The borrower does not make payments and refuses to contact the bank.
2. The loan recipient has lost his ability to work and has lost his permanent income sufficient to pay off the debt.
3. Death of the borrower.

Despite the fact that the obligations of the guarantor are fixed in the contract, a way out of every situation can be found. Most likely, for these purposes you will have to hire a lawyer and go to court to protect the rights of the guarantor.

Legal assistance to loan guarantors:

How can a guarantor avoid liability for a loan?

First of all, the guarantor clarifies the reason why bank employees turn to him to repay the debt. Depending on which of the three situations became the basis for such treatment, you should proceed as follows:

• Contact the borrower and find out why he stopped making payments on the loan. If the loan recipient experiences temporary financial difficulties, he will repay the debt on his own in the future.
• Repay the debt yourself in order to subsequently take advantage of the rights of the guarantor enshrined in the agreement.
• Go to court to protect your rights. Such a measure should be resorted to only if the guarantor has reason to believe that the obligation to repay the debt will be lifted by a court decision. Otherwise, the final payment amount will increase due to fines, accrued interest and the cost of hiring a lawyer.

If the guarantor cannot pay the loan, they resort to one of the legal ways to resolve the problem:

• conclude an agreement on the implementation of the guarantor’s responsibility for the loan on more favorable terms (increasing the payment period, reducing the interest rate, etc.);
• provide evidence of bankruptcy or incapacity of the guarantor. To do this, provide the appropriate papers or medical certificates.

According to Art. 365 of the Civil Code of the Russian Federation, the guarantor has the right to exercise the rights of the lender in relation to the borrower. After repayment of the debt, the responsible representative may demand compensation for material and physical damage, including through the sale of the borrower’s property at auction.

I will be happy to answer all questions in the comments to the article.

My friend wants to take out a loan for a car - 500 thousand rubles for three years. But not a car loan, but a consumer loan, so as not to pledge the car and not buy comprehensive insurance. The bank said that a guarantor is needed, and a friend asks me. He says that this is a formality for the sake of loan approval - I just need to sign the agreement, but he is the borrower and he will pay.

I don’t want to let my friend down: he dreams of this car so much. Yes, and it’s inconvenient to refuse. This doesn't threaten me, does it? I am not a borrower, I do not receive money from the bank and I do not pledge my property. Explain what a guarantee actually means and should I agree? My friend is not the most disciplined borrower; he has already defaulted on loans before. But why do I feel sorry for signing a piece of paper?

Kostya, you are sure good friend, but do not rush to agree to guarantee someone else’s loan. First, understand the consequences and assess the risks.

Ekaterina Miroshkina

economist

A guarantee is a guarantee for the bank and help for a friend. But for you this can result in big problems, loss of money and property.

What is a surety

A surety is an obligation to answer for the debts of the borrower. When you agree to become a guarantor, it is as if you are telling the bank: “If anything happens, I agree to pay the debt of the person who takes out the loan. When he stops paying you, come to me - I will repay everything with interest and penalties.”

That is, the guarantee imposes responsibilities on you. This is not just a formality, but a way to ensure the debtor’s obligations. It seems to you that you are simply helping a friend, but in fact you are taking on a huge responsibility: you are risking your money and property.

What responsibility does the guarantor bear?

The guarantor is responsible for the debts of the borrower to the bank. If your friend takes 500 thousand rubles from the bank with your guarantee, then deposit monthly payments he should. But if your friend stops paying, the bank has the right to demand the entire debt from you.

As a rule, guarantors are jointly and severally liable. This means that the bank can demand the entire amount from any of you, or collect part from the borrower, and part from you. There may be a clause in the contract under which money for a friend can be debited from your account.

And if the case goes to court, you will even be required to pay court costs. It turns out that a friend took out a loan, a friend also spent this money, he doesn’t pay the bank again, and all expenses and debts will be written off from you. Or they will transfer the debt to the bailiffs, block your cards and prevent you from traveling abroad.

This is not arbitrariness on the part of the bank, but a responsibility provided for by law that you will voluntarily take upon yourself. If you have a car, it can be taken to pay off the debt. But by that time my friend will easily sell his car: it is not mortgaged and without encumbrances.

How to refuse a guarantee

It is impossible to terminate the guarantee simply at will and without the consent of the bank. Even if you quarrel with a friend, stop communicating, disperse to different cities and, in general, realize that he was never your friend, the guarantee will still be valid.

To terminate the guarantee, you need to pay off the debt. This can be done by the borrower himself, or by you as a guarantor. But as long as there is a debt, the guarantee is valid.

Sometimes a contract of agency is valid only for a certain time, and then terminates: then liability also ceases. There is also the option of transferring debt: let’s say the bank transfers your friend’s debt to another person, but you do not agree to be responsible for it. But these are special cases. In practice, the guarantor has to be fully responsible for the borrower.

The guarantee does not terminate even after the death of the guarantor. Let all guarantors live long, but if this happens, then the obligations for the borrower's debts will pass to the heirs of the guarantor. For example, if a father guarantees for a friend, then the children will inherit not only an apartment, but also a guarantee for the debts of this friend. And they may be left without property, although neither they nor their father have ever received money from the bank.

If the borrower pays on time

Then you really are in no danger. When your friend repays the loan, your guarantee will automatically end - the bank will not require anything from you. But this is only if the friend actually makes payments in good faith for all three years.

If the guarantor has to pay the borrower's debts

If you pay off your friend's debts to the bank, you have the right to demand this amount from your friend. That is, the rights of the creditor will be transferred to you. You can collect the entire amount, file a lawsuit, submit a writ of execution to the bailiffs, ask to seize a friend’s car and write off money from his card.

Formally, your friend is obliged to return to you everything you paid for him. But this will be your relationship with your friend. And it’s not a fact that you will be able to get your money back. But you will definitely lose a friend.

Should you agree to be a guarantor for someone else's loan?

A guarantee may be quite justified from the point of view of risks and liability. For example, when a husband guarantees his wife on a loan for common property. Or business partners vouch for each other: they need money for development, the debt is actually common. Children can vouch for their parents if their parents take out a mortgage for them. Then it is reasonable to answer for someone else’s debts: the guarantor receives benefits from this, uses money, property, and has guarantees.

But if there are no such guarantees and the borrower does not take money for your general needs, you can be a guarantor, but only if two conditions coincide.

You are confident in who you are vouching for. Friendship and even family relationships are not enough for confidence. Judicial practice knows many examples when a brother guaranteed for his sister, a son-in-law for his father-in-law, and even a husband for his wife, and then the guarantors paid for the debts of the borrowers. Everyone has their own criteria for confidence, but they need to be assessed with a cool head.

You are ready to pay the borrower's debts and lose money. You can be a guarantor for a loan of 100 thousand rubles or at least with collateral in the form of a car. There are things more important and more expensive than money. Maybe this friend once helped you a lot and you don’t mind even half a million. Then agree. But if something goes wrong, be prepared to be left without money and without a friend.

Judicial practice: how surety works

Loan for 200 thousand rubles. The woman took out 200 thousand rubles on credit and spent it on personal needs. She had a guarantor. When the woman stopped paying and owed the bank 84 thousand rubles, they began to collect this amount from the guarantor. He tried to challenge the decisions: they say that he himself did not receive this money and did not spend it. But it didn’t work out: the court recognized the bank’s right to collect the debt from the guarantor.

Loan for 1,000,000 RUR. The borrower took a million at interest, but did not pay it back on time. But he also had a guarantor. The debt grew to 2 million rubles, the courts sided with the creditor. Now the guarantor will pay 2 million rubles, although he did not personally take the money. It seems that there was no point in guaranteeing and taking on a huge debt. But there was collateral - some real estate of the borrower. The guarantor thought that he was not risking anything - if anything happened, the bail would be taken away. However, it later turned out that the pledge agreement was concluded, but not registered. That is, it is invalid. You will have to pay 2 million rubles and a state fee.

Loan for 1,500,000 RUR. In another story with the borrower and guarantor, the bank was not paid anything at all. They took 1.5 million rubles, but never made payments. As a result, 2.2 million rubles came up with interest. This money is collected from the guarantor - they have the right. The court's decision is in favor of the bank.

In all these cases, the surnames and initials of the borrower and guarantor indicate that they are relatives. That is, the guarantee was conscious, out of friendship or because family relations. But for the court this does not matter: the creditor collects the entire amount of the debt from the guarantor or at the expense of his property.

How often do people who decide to take out 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 bear responsibility if the borrower has problems with loan payments. Many financial institutions agree to issue a large amount of cash only if the client brings several guarantors. However, not everyone is ready to take responsibility. It would be much simpler 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.

Important to know

There is such a thing as responsibility. What is the point? If the borrower fails to cope with his obligations, they fall on the shoulders of the guarantor. That is, by agreeing to this type of transaction, the client undertakes to pay the bank the entire amount of the loan. It is no coincidence that relatives and close friends often act as guarantors. These people are confident that the borrower will cope with his obligations and there will be no problems with the financial institution. However, situations are different.

In general, there can be several guarantors. And everyone is equal in their responsibilities to the bank. When signing an agreement at a financial institution, it is worth clarifying the nuances in advance. You should only agree to completely “transparent” conditions.

Analyzing the situation

It is highly recommended to analyze all the degrees of risk when taking out a guarantee for a loan. It is necessary to clearly assess the borrower's capabilities. It’s not worth agreeing to a deal just out of friendship. The first thing a loan guarantee requires is responsibility. How to avoid it? It is quite difficult to answer the question. If a person has signed an agreement with a bank, he must follow its terms.

There are often cases when a person begins to be persecuted for a loan that he did not take. As a result, it turns out that several years ago I had to be a guarantor for a neighbor or relative.

What should you consider?

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 the trail, it is worth studying the main nuances:

• The borrower's solvency is the first thing you should pay attention to. After all, a loan guarantee is a liability. How to avoid it if you had to sign an agreement at the bank yourself?
• It is worth considering the character traits of the borrower. Indicators such as discipline, reliability, and pedantry are very important.
• First, you should find out everything about a loan guarantee: liability, how to avoid it, under what conditions it will be possible to refuse the agreement, etc.
• The future guarantor is recommended to check the borrower's credit history.
• It is necessary to clarify why the loan is needed and where the money will be spent. The person acting as the guarantor of the transaction has the right to know everything about it.
• If there is the slightest doubt, the deal should be abandoned altogether.

Note!

Additionally, the guarantor needs to understand whether he himself will be able to pay the loan for the borrower if something happens. It is worth noting that people with low income cannot become a guarantor of a transaction with a bank. A financial institution agrees only to those guarantors who can realistically repay the debt if problems arise. However, no one wants to pay money for another person. How can a loan guarantor avoid possible problems? The only way is to agree only to win-win deals.

There is one more nuance that you should pay attention to. 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 someone else's debt obligations loses the chance to use the services of a bank. It is not always possible to take out a loan to a person who is already a guarantor for someone.

How to find a way out if the borrower fails to meet his obligations?

If an unpleasant situation does occur, the client does not repay the loan, and the bank turns to the guarantor, it is worth carefully reviewing the agreement again. Experienced lawyers argue that some clauses can be interpreted differently. A loan guarantee is a liability. An experienced specialist will tell you how to avoid it. However, the lawyer will have to pay for the services. It is unlikely that everything will be settled without any losses.

The guarantor can sue the bank. The ideal solution would be to draw up an additional agreement, according to which the debt will have to be repaid on more favorable terms.

Another option is a claim for the insolvency of the guarantor. You just need to submit documents confirming your lack of income. It will be possible to win the case if the guarantor cannot work for health reasons. You will have to provide official medical certificates.

What about the borrower?

It is worth understanding that responsibility primarily lies with the client who executed the loan agreement. The guarantor is only a secondary subject. However, many financial institutions, without waiting for payments for several months, begin to put pressure on the guarantor, while forgetting about the borrower. What to do in this situation? How to avoid liability as a guarantor? All you need to do is contact the borrower. And in this situation you can go to court. But the claim will have to be filed not against the financial institution, but against the person who borrowed the money.

Through the court, it will be possible to squeeze out from the borrower the amount that he owes 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.

When does the bank have the right to demand repayment of the loan from the guarantor?

There are a number of situations in which a financial institution may legally has the right to demand payment of the debt from the person who acts as guarantor. However, some banks may resort to threats in other cases. Therefore, every person who agrees to a guarantee must know his rights and obligations. The list of situations in which you will have to pay off someone else's debt is not that long.

• The borrower stopped paying the loan and does not contact the bank.
• The borrower has become disabled and is physically unable to earn sufficient income to repay the loan.
• Death of the borrower.

It is worth noting that you can still find a way out of any situation. The most difficult is the third point. But even if the person who took out the loan dies, the guarantor can count on his life insurance. If such an agreement has been drawn up, part of the compensation may go towards paying off the loan. But it is possible that you will also have to go to court. If a person is unable to work, he will receive a pension from the state. And in this case, you can 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.

In what situations can a guarantor challenge the bank’s decision?

If the borrower has ceased to cope with his debt obligations, how can the guarantor avoid payments on the loan? First of all, it is worth analyzing the situations in which the client has the right to challenge the bank’s decision. 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 his 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 money from relatives. It turns out that they did not even know that the agreement had been 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 refusal of obligations to the bank. The client's health condition must be officially confirmed by a medical certificate.

How can a guarantor avoid liability for a loan? Let's sum it up

Before signing any agreement with a bank, it is worth weighing the pros and cons. You should only agree to a deal that you can be sure of. 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 responsibilities. Indeed, often the demands of financial institutions are completely illegal.