When issuing loans, credit organizations sometimes require the borrower to have guarantors. They become guarantors of the return of money transferred for temporary use. Not always citizens fulfill their obligations to the fullest. There comes a time when they stop paying loans because of their own insolvency. Lawmakers have provided various weighty arguments dictated by life. Federal Law No. 127, which entered into force on November 1, 2015, freed many from debt burdens. A legal act governs insolvency proceedings. Many are interested in: what awaits in case of bankruptcy of an individual - guarantor?
How to declare insolvency of a guarantor?
When a person goes with his friend or close relative to the bank to apply for a loan, then he must accept all responsibility to the bank by signing the contract. A citizen not only mentally supports a friend in a financial transaction. From that moment on, he becomes the respondent for the actions of a friend with all the ensuing consequences. The borrower, in violation of the terms of the agreement with the creditor, stopping payments, first of all puts his guarantor in an unpleasant position.
The unlucky sponsor, by law, has to choose one of the ways to solve the problem:
- Reimburse the money spent.
- Protest bank claims in court - but you shouldn’t really count on this. Financiers are always right, they act on contractual terms, they just need to be carefully studied before signing, rather than reading fluently.
- To declare bankruptcy of a surety individual in an arbitration court.
To do this, you must:
- have a court order on debt collection in favor of a credit institution;
- initiate the initiation of enforcement proceedings;
- total debt should be more than 500,000 rubles;
- lack of opportunities for debt repayment.
If a citizen, when signing an agreement on a loan from his neighbor, does not understand the responsibility that he takes upon himself, you need to be prepared that the bank will put forward requirements for it when delayed payments are made. In difficult situations, you can find a way out to guarantors - in bankruptcy proceedings.
Civil Code participation
From the legal proceedings in civil cases it is clear that persons of different status took the opportunity to get rid of debts.
The legislation of the Russian Federation regulates the current procedures in court, when cases of bankruptcy of a guarantor of an individual are considered, by articles from the Civil Code of the Russian Federation:
- No. 361 - regarding contracts of guarantee.
- No. 363 - described liability.
- No. 367 - approves the termination of the guarantee.
In the Arbitration Court, when resolving a dispute:
- analyze all the contracts in a particular case;
- guided by the provisions of legislative acts;
- come to a certain conclusion in the final verdict.
The procedure is declarative in nature, which means that bankruptcy of a surety of an individual in judicial practice is possible. To start the proceedings, you need to appeal to the legal authority.
In what order is the process?
Unfortunately for the guarantors, lenders are with them in the same way as with the main borrowers. At the first delay, the bank employees begin to call and ask about the reason for the monetary delays. The process of bankruptcy of a surety individual is also difficult.
It consists of the following required steps:
- the first step is to file an application for the arbitral tribunal;
- collection of a documentary package with annexes to the application (consists of documents confirming financial insolvency);
- collected papers are transferred to the office of the legal department.
After consideration of the application by the court, a decision can be made:
- restructure debt;
- collect from the guarantor the debt by selling his property;
- peacefully resolve the conflict situation, approve this resolution of the dispute.
Each case, as the practice of bankruptcy of guarantors of individuals shows, has separate legal characteristics and requires individual consideration.
What is the feature
The trial itself is being held in an accelerated manner. There are no such difficulties as when considering issues of declaring insolvency of the main borrower. But the consequences of the defendants ’judgment are disappointing. Legislators have not yet honed normative acts to full perfection; judges interpret them according to their level of competence.
If the process of enforcement proceedings has begun, it is suspended on the basis of consideration of the bankruptcy of the guarantor. Methods of restructuring, the procedure for approval is approved by the court. This means that the guarantor is obliged to reimburse all costs of the loan to the creditor, being guided by the scheme developed by the arbitration.
What will happen if you neglect court decisions
In case of violation of the requirements accepted by the court, or if the restructuring has not been approved, the arbitration manager assesses the property with subsequent sale. The proceeds from sales repay the debt to the creditor. When the debt remains, it is canceled. If the balance of funds after repayment of the loan, as can be seen from the analysis of judicial practice on the bankruptcy of guarantors, they are returned to the owner.
Friends or relatives who have incurred such expenses may demand that they repay other people's debts through a court on behalf of the person for whom they had to hold responsible. Then the guarantor also becomes a creditor.
Is recognition of material insolvency possible without trial
It is impossible to recognize at the legal level the bankruptcy of a surety of an individual without applying to a legal authority.
The decision at the first stage provides the basis for all the actions established by the court. Then, after the deadline for the appeal, the plaintiff is issued a decision. This means that if a person is declared bankrupt, from this moment all claims by the creditor cease. The court has exhausted all ways to repay its debts.
Is bankruptcy profitable for a creditor
Banks do not always benefit from the result of a court order, since they may not return the fully paid money and interest that accrued during the lawsuit.
By all means, lenders try to influence the borrowers themselves. Cases were recorded when a financial institution went to court, the entire evidence set was filed, but without paying a fee to the state budget.
The court session will begin only if there is a payment receipt. There is psychological pressure, calculated that the debtor will begin to search for money, borrow, sell things and find funds. Often, citizens make mistakes, are afraid of litigation. Although only such a procedure can help them, and the bankruptcy of a surety of an individual without a court decision does not officially take place.
Statement content
The outcome of the case depends on the correct bankruptcy petition. You need to seriously take the evidence base regarding lost solvency. At the conclusion of the guarantee, the opposite was presented to the creditor and material viability was proved. The document has a standard form, it includes:
- guarantor details;
- name of the Arbitration Court;
- information about the borrower;
- amount of total debt;
- obligations that were the basis for the creditor to claim money;
- name of financial manager;
- causes of bankruptcy.
The annexes list in detail all the documents that confirm the specified information.
Advisory Information
It is necessary to take bank statements about financial transactions and loan balances. This is a prerequisite for the documentation. Not all banks provide such data, again, for the sole purpose of preventing bankruptcy. The court, in turn, cannot take into account the debt unless the creditor himself confirms it. They file an application in the city where the nearest Arbitration Court is located to the place of residence of the plaintiff.
In addition to loan agreements, copies of:
- identity cards;
- certificate 2 personal income tax;
- SNILS;
- TIN;
- for pensioners - their pension certificate.
The manager will require the transfer of all plastic cards. Institutions issuing them must give a listing of financial transactions for the last 3 years.
Bankruptcy of a surety of a legal entity
It can be difficult for an ordinary person to find a guarantor, as society has accumulated bitter experience. Friends and acquaintances do not always decide to take on financial obligations - there are many of them.
Legal entities lack a guarantee. Typically, the issue of loans is decided by the founders, they also guarantee a refund. In the Federal Law on Bankruptcy No. 127, article 142 is devoted to settlements on bankruptcy proceedings as the last procedure for the liquidation of an organization.
On the one hand, legislative provisions state that if property and funds in the company’s accounts were not enough for all settlements, debts are considered repaid and production is liquidated. But from paragraph 11 of the same article it is clear that if the creditor is not satisfied with such a payment, he may demand recovery in court from the persons who signed the guarantee. In this case, the guarantor cannot return the costs, since the company no longer legally exists.
What will happen after bankruptcy
The official announcement of financial insolvency will bring certain consequences to the bankrupt:
- all debt obligations will be closed;
- such appeals cannot be initiated for 5 years;
- denial of loans from banks;
- blacklisting the database of loan operations.
In order not to pay other people's debts, you need:
- file for bankruptcy urgently by contacting arbitration;
- consider the degree of risk before signing a guarantee;
- check your credit history in a timely manner - even with loved ones.
Don’t discount subsidiary liability. This procedure is used by banks as a mechanism for returning their money from guarantors when it is impossible to receive funds from the main borrower, since it is declared bankrupt. If the creditor misses a period of one year and does not claim his rights, then he will relieve the debtor of his claims, since after that the bank is not entitled to make claims against the guarantor.
For a successful operation, it is better to seek the help of lawyers who specialize in this field. They possess knowledge in many legal subtleties and will achieve a positive result.