What you need to pay attention to when becoming a guarantor under a loan agreement. Tips for guarantors Can a guarantor declare himself bankrupt

A similar mechanism is used in the presence of several obligations between the same creditor and debtor. If one of the obligations is secured by a surety and there is no unequivocal indication of which of them is repaid, the obligation that is not secured by the surety will be considered fulfilled. Termination of the guarantee in connection with the liquidation of the debtor organization, including in case of bankruptcy According to paragraph 4 of Art. 367 of the Civil Code of the Russian Federation, the security measure in question is not terminated:

death of the debtor;
reorganization of the organization.

With regard to the issue of termination of suretyship in the bankruptcy of the debtor, then paragraph 1 of Art. 367 of the Civil Code of the Russian Federation indicates that the obligation of the guarantor is not terminated only if, before the moment of liquidation, the creditor presented claims for repayment of the debt to him. Otherwise, the guarantee is subject to termination.

Termination of the guarantee in case of bankruptcy of the main borrower

At the same time, the rights of the creditor pass to him, and the debtor himself will already have to pay him the funds, and not his original creditor. What to do if the insurance company goes bankrupt? You can find out about it here.
Not always the size of the loan can be covered in full by the guarantor, even when selling his property. Then it becomes necessary to declare him bankrupt.

Individuals can also act as guarantors for companies or organizations. The fact is that firms can only answer for their debts with their property, which often creates problems.

The founders themselves do not bear any responsibility in this situation. Therefore, if the organization declares itself bankrupt, then the bank's chances of getting its money back are extremely small.
This is the reason why the owners of the enterprise have to become guarantors in such matters.

Insolvency procedure for a guarantor

Important

For information The practice of considering cases involving bankrupts and their creditors shows the frequent insolvency of both an enterprise that cannot fulfill its obligations and its guarantor. Often, a liquidation procedure (if it is an organization) or bankruptcy, if it is a citizen, is also carried out with respect to the financial guarantor.

Attention

When does the guarantor become bankrupt? A person who acts as a guarantor of the fulfillment of credit obligations becomes such by virtue of various obligations. As a rule, such grounds arise from contracts and other legal procedures.

Info

At the time of the occurrence of bankruptcy obligations, the guarantor is not going to pay off other people's debts, but thinks about a certain benefit that is promised to him for participating in financial relations. For example, a banking institution may require a mandatory guarantee when issuing a loan.

Can a guarantor declare himself bankrupt?

Two options are possible here: the claim is related to the concluded suretyship agreement or went to court because of his own debts on loans, taxes and other obligations. In the latter case, such a process will not be the bankruptcy of the guarantor, but will only become a standard procedure for recognizing the insolvency of an individual. The requirements for a potential bankrupt citizen in this situation will not differ in any way from those for ordinary borrowers: the amount of overdue obligations must exceed 500 thousand rubles, and the delay exceeds three months.

A potential bankrupt should not have the means to satisfy the claims of all creditors. If the banking organization has not declared its claims for payment of the debt, then the amount of the guarantee is not included in the amount of overdue obligations at the time of filing the insolvency claim of the bankrupt debtor.

Bankruptcy and guarantee

This situation becomes a heavy blow, in particular, for the founders of business companies, who often act as guarantors for the debts of their organizations. The courts, analyzing the enforcement of this norm of the Civil Code of the Russian Federation, also emphasize that when the main borrower is liquidated as a result of bankruptcy, the creation of unreasonable advantages for the guarantor should not be allowed. in the form of termination of the guarantee. The legislation is aimed at protecting the guarantor only from adverse changes in the underlying obligation. An unfavorable change in the main obligation is understood as its increase, for example, due to the amount of interest, which worsens the position of the guarantor.

Bankruptcy of the guarantor

Despite the fact that the guarantor is not a co-borrower, his liability to the banking institution is joint and several with the main borrower. Of course, unless otherwise provided by the contract. But most banking institutions prescribe exactly equal liability for monetary obligations from the borrower and the guarantor. This actually means that if the borrower has a delay on the loan, bankruptcy, or even if he refuses to continue to make monthly tranches, the entire debt burden is shifted to third parties. If there are several of them, this does not mean that the responsibility is distributed between them: the bank may, at its discretion, choose the person responsible for further payments.

Collection of debt from the guarantor, after the recognition of the main debtor as bankrupt.

Is the liability of the surety removed upon liquidation of the company? Judicial practice on this issue is as follows: there is a chance to cancel the surety only if the creditor announced his claims after making a mark in the USRR on the liquidation of the legal entity. It is believed that the guarantee as a derivative obligation ceased along with the main one.

But when the liquidation procedure has not yet been completed, it is believed that the guarantor of the legal entity must fully fulfill its obligations. If the legal entity has not been liquidated, then the person who vouches for it is also entitled to announce its claims, subject to payment of its debts. In most cases, banks prefer to collect funds directly from legal entities and become the initiator of their bankruptcy in the hope of getting back the debt by selling the liquid assets of the enterprise.

Features of bankruptcy of guarantors of individuals

The legal norms on the termination of the guarantee are applied to the guarantee for the debt of a citizen by analogy with legal entities. Despite the recognition of the main borrower, who is an individual, as bankrupt and the termination of his obligations, the guarantee continues to be valid, but only if the creditor applies to the court with an application to establish requirements for repayment of the main obligation before the decision of the arbitration court on declaring the main borrower bankrupt. The main difference between the termination of the guarantee in the event of the bankruptcy of the main borrower, depending on whether the borrower is an organization or a citizen, is at the moment of completion of the bankruptcy, after which the creditor can no longer state his claims, and the guarantee is terminated.
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.

Termination of the guarantee in case of bankruptcy of the main borrower.

One of the ways to ensure the fulfillment of any obligations is a guarantee. To use it, a special agreement is required, which sets out the rights and obligations of the parties.

But what happens in the event of bankruptcy of the guarantor of an individual? We will talk about this in this article. Content

What is a guarantee
Can a guarantor be declared bankrupt?
Grounds for declaring bankruptcy of a guarantor
How to initiate a procedure
Features of the procedure
Consequences for the guarantor in case of bankruptcy
Conclusion

What is a guarantee To begin with, let's analyze the term itself.

It denotes the obligation of a citizen to the creditor for the fact that the entrusted will fulfill it. At the same time, the obligation itself can be not only monetary, but also any other. It can appear both in the present and in the future.

Knowledge of the following articles of the Civil Code of the Russian Federation will help you:

Article 361

Under a surety agreement, the surety undertakes to be responsible to the creditor of another person for the fulfillment by the latter of his obligations in full or in part.

A guarantee agreement may also be concluded to secure an obligation that will arise in the future.

Article 362

The suretyship agreement must be made in writing. Failure to comply with the written form entails the invalidity of the surety agreement.

Article 363. Liability of a guarantor

1. If the debtor fails to perform or improperly performs the obligation secured by the surety, the surety and the debtor shall be liable to the creditor jointly and severally, unless the law or the surety agreement provides for the subsidiary liability of the surety.

2. The guarantor is liable to the creditor to the same extent as the debtor, including the payment of interest, reimbursement of legal costs for collecting the debt and other losses of the creditor caused by the debtor's failure to perform or improper performance of the obligation, unless otherwise provided by the surety agreement.

3. Persons who jointly gave a guarantee shall be jointly and severally liable to the creditor, unless otherwise provided by the guarantee agreement.

Article 364

The guarantor has the right to put forward objections against the creditor's claim that the debtor could present, unless otherwise follows from the guarantee agreement. The guarantor does not lose the right to these objections even if the debtor has waived them or acknowledged his debt.

Article 365

1. The rights of the creditor under this obligation and the rights that belonged to the creditor as a pledgee shall be transferred to the guarantor who has fulfilled the obligation to the extent that the guarantor has satisfied the creditor's claim. The guarantor is also entitled to demand from the debtor the payment of interest on the amount paid to the creditor and compensation for other losses incurred in connection with the debtor's liability.

2. Upon fulfillment by the guarantor of the obligation, the creditor shall be obliged to hand over to the guarantor the documents certifying the claim against the debtor and transfer the rights securing this claim.

3. The rules established by this article shall apply, unless otherwise provided by law, other legal acts or an agreement between the guarantor and the debtor, and does not follow from the relationship between them.

Article 366

A debtor who has fulfilled an obligation secured by a surety must immediately notify the surety of this. Otherwise, the guarantor, in turn, has fulfilled the obligation, has the right to recover from the creditor what was received unjustifiably or to present a recourse claim against the debtor. In the latter case, the debtor has the right to recover from the creditor only what was unjustly received.

Article 367. Termination of suretyship

1. A suretyship terminates with the termination of the obligation secured by it, as well as in the event of a change in this obligation, entailing an increase in liability or other adverse consequences for the surety, without the consent of the latter.

2. The suretyship is terminated with the transfer to another person of the debt under the obligation secured by the suretyship, if the surety has not given the creditor consent to be responsible for the new debtor.

3. The suretyship is terminated if the creditor refused to accept the proper performance offered by the debtor or surety.

4. The guarantee shall terminate upon the expiration of the period specified in the guarantee agreement for which it was given. If such a period is not set, it shall be terminated if the obligee does not file a claim against the guarantor within a year from the date of the due date for the performance of the obligation secured by the surety. When the term for the performance of the principal obligation is not indicated and cannot be determined or determined by the moment of demand, the suretyship shall be terminated if the creditor does not file a claim against the surety within two years from the date of conclusion of the surety agreement.

A friend asked me to be a guarantor for his loan. I agreed to help, and he suddenly stopped paying on the loan. I received a subpoena, and I'm afraid that the bailiffs will deduct money from my salary. What can be done?

For many Russians, the help of guarantors is perhaps the only way to get a loan. Since, by law, the bank is not obliged to issue loans to each applicant, the borrower must as much as possible confirm his solvency and the ability to repay the loan. Of course, the bank actively uses any means to ensure the return of money issued on credit. That is why guarantees are widely used.

Unfortunately, the majority of Russians are willing to meet their friends or relatives halfway and, without looking, sign a surety agreement, “because I trust him,” “well, he will pay.” We recommend that you be extremely careful when agreeing to a loan guarantee, and here's why.

The guarantee has one main consequence - if the borrower for any reason cannot pay the loan, the bank will recover his debt from the guarantor. In this case, the guarantor is obliged to be responsible for the return of the principal debt on the loan, and for non-payment of interest on the loan, as well as reimburse the bank's legal costs (state duty). The law provides that the borrower and his guarantors are jointly and severally liable to the bank for non-repayment of the loan. This means that the court decision will not specify who and what specific part of the debt is obliged to pay to the bank.

Solidarity means with anyone and in any proportions. Theoretically, they can recover 100% of the debt from one of the guarantors.

In practice, it turns out that in the case of joint recovery, the debt is repaid by those of the borrowers and guarantors from whom the bailiffs found a regular income or property. It also happens that the borrower himself has an informal job or irregular income, no property. It turns out that in this case, guarantors are paying for it with the bank. Of course, bailiffs have the right to foreclose on the money of the guarantor, and withhold part of his salary, and seize property, and prohibit travel abroad.

If you nevertheless signed a guarantee agreement and your borrower stopped paying, we recommend the following actions.

In no case do not ignore court hearings to collect debt under a loan agreement.

Be sure to get subpoenas, because if you refuse to receive them or return the subpoena to the court with an expired retention period, you will still be considered notified of the date of the meeting. In this case, the court will issue a default judgment, and you will only find out about the problem after the bailiffs start bothering you.

Upon receipt of a bank statement of claim:

carefully study the documents sent to you from the court. If you were only sent a summons, be sure to go to court and read the case materials (take a picture of them with a digital camera or phone). Judges cannot refuse to familiarize you with the case and, as a rule, immediately when you submit an application for familiarization, they give you the opportunity to look at the case;
note, whether any illegal commissions and payments were included in the loan agreement. If there were such payments, you can object to them and declare the conditions for their payment invalid. All amounts of illegal commissions must be excluded from the amount of debt, and if the borrower actually paid these commissions, they must be returned to him;
look, whether the borrower has signed an insurance contract(e.g. disability, job loss). If there was such insurance and the borrower stopped paying precisely because of the insured event, we recommend that you file a petition with the court to involve the insurance company in the case. In the event of an insured event under a valid insurance policy, the insurance company will have to pay insurance compensation. Perhaps it will be able to cover the entire debt or some part of it;
note, whether any additional agreement to the loan agreement was concluded between the borrower and the bank which you don't know about. If such an agreement was signed without your consent, and it increases the amount of your liability as a guarantor or entails other adverse consequences for you, you have the right, with reference to Article 367 of the Civil Code of the Russian Federation, to declare the termination of the guarantee;
check the debt calculation submitted by the bank. Have all borrower payments been accounted for? What did the bank write off the incoming payments for? If they went to pay penalties or commissions, this is illegal, because it violates the order of repayment of the obligation established by law (first the costs of obtaining performance, then the interest on the loan, then the principal debt, then everything else). If the bank has accrued very large forfeits or penalties, file a petition to reduce the forfeit under Article 333 of the Civil Code of the Russian Federation;

Be sure to prepare your written explanations and alternative calculation of the debt. Remember that your interests in the case can be represented by a lawyer (including your relative by proxy or oral petition).

What to do as a guarantor after a court decision

If you think that the court ignored some of your arguments and incorrectly assessed all the circumstances of the case, you have the right to appeal it to a higher court (appeal) within 1 month from the date of the decision. When filing a complaint, the decision will only come into force after the case has been heard in a higher court.

It happens that a court decision on debt collection is made without the participation of guarantors and the borrower. In this case, it is called absenteeism. You can first try to cancel a court decision in absentia in the same court, and if nothing works out, there is always the possibility of filing an appeal in the general manner. Please note that an appeal against a court decision to collect a debt, as a rule, makes sense only in exceptional cases. For example, if you have not signed any surety agreements.

If, for objective reasons, you cannot pay off the amount of the debt at a time by a court decision, we recommend that you apply to the court that made the decision with a request for an installment plan or a deferral of execution of the decision.

We do not recommend hiding from bailiffs. You can come to the bailiff for an appointment and agree that you will pay off the debt regularly. In this case, the bailiffs can meet you halfway and will not apply harsh repressive measures. However, it is worth remembering that all oral agreements with bailiffs have no legal force and do not guarantee you protection from property seizures. The best way is to arrange for the execution by installments through the court.

Still definitely needed transfer to the bailiff any available information about the property, work, income of the main borrower, Preferably in writing with proof of delivery.

The guarantor repaid the debt or part of the debt on the loan for the borrower

The law provides that when the guarantor fulfills obligations under a loan agreement, he acquires the right to demand from the borrower the return of all the amounts that he paid for the borrower on this loan. In addition, you can demand payment of interest on the amount paid to the bank and compensation for all your losses.

loan agreement;
guarantee agreement;
a court decision to recover the amount of debt under a loan agreement;
decisions on the initiation of enforcement proceedings against you and on its completion;
receipts for payment of debt to bailiffs or account statements if money was debited from your account;
if the bailiffs withheld a debt from your salary, take a certificate from the accounting department at the place of work about the amount of deductions;
order from the bailiffs a certificate of the amount that you actually paid for the debtor;
if in connection with this situation you have suffered any losses, keep supporting documents (this may be the cost of a lawyer who helped you to deal with the case in court, interest on a loan if you took out a loan to pay off a debt, etc.).

Within 3 years from the date of full repayment of the debt for the borrower, you can file a lawsuit with the court at the place of his residence demanding the recovery of all the amounts you paid for the borrower.

In our country, loans have long been very popular, but these loans are not always returned. In this regard, during the issuance of a loan, banks try to somehow insure themselves by requiring the borrower to have guarantors, they bear a very big responsibility - when guaranteeing for someone, you must definitely familiarize yourself with all the nuances in order to warn yourself against unpleasant things in the future. situations.

The liability of the guarantor is confirmed by the contract

Simultaneously with the loan agreement concluded by the borrower, a surety agreement is drawn up. It is in this agreement that the basic requirements for the guarantor are indicated, as well as his. It is in your interest to read it carefully before signing your autograph. Before vouching for someone, you need to remember the most basic thing - by signing a guarantee agreement, the borrower and his guarantor have the same liability to the credit institution. In other words, if the borrower becomes insolvent, then his responsibility passes to the guarantor, respectively, he will also have to repay the loan debt. There can be several guarantors for one loan - the more their number, the easier it will be for the borrower to issue a loan. In the event that there are several guarantors, obligations to the credit institution are assigned to all of them equally or to the one who, in the opinion of the bank, will be the most financially secure.

What is the risk of the guarantor?

First of all, of course, their material well-being. In the event that the borrower ceases to cover the loan, the guarantor will have to pay for him the entire remaining loan, including interest, as well as penalties for late payments (if any). Being a guarantor, a person’s ability to take out a loan from a bank during this period decreases. A loan can only be given with very good material wealth, but it will not be very large. Another unpleasant outcome may be that you say goodbye to your ideal credit history, it will become significantly damaged. You risk saying goodbye not only to your credit history, but also to your own property. The suretyship agreement contains a clause stating that in the event of insolvency or in case of refusal to pay the loan by both the borrower and the guarantor, it is against the latter that the administrative recovery of property will be issued in court. If you act as a guarantor for your spouse, then keep in mind that during a divorce, your financial obligations to the bank will not go anywhere. If your ex-spouse cannot pay the required amount to repay the loan, then this will have to be done by the guarantor, that is, you. However, you can become a guarantor without even knowing it. Of course, the implementation of such schemes is possible only with the participation of bank employees. Borrowers-swindlers provide false documents, thus making an outsider a guarantor of the loan. In this case, a random guarantor can prove his "non-participation" in the loan only in court.

Before agreeing to a guarantee, you need to clarify all the nuances

It must be remembered that the responsibility of the guarantor is very serious. Before agreeing to a guarantee, you need to carefully read all the nuances and the ensuing consequences, even if the borrower is a person close to you. To get started, familiarize yourself with the amount of the loan, the calculation of interest on it, so you will definitely know the full amount of monthly payments. Find out the terms for which the loan is taken so that you know exactly for what period you take responsibility. Be sure to know the financial situation and financial capabilities of the person for whom you decided to vouch. Remember that if a borrower has enough money just to make it to the next paycheck, then he may regularly overdue his payments. In turn, the bank imposes fines on such delays, which it is likely that you will have to pay.

How to protect yourself with a guarantee?

In several cases, the guarantor may have the opportunity to challenge the decision of the bank. Namely - if the lender contacted you later than six months from the date of delay in payments from the borrower, or if you pay alimony in the amount of 70% of your income, or if you are unemployed with no personal property. There is only one way to completely protect yourself from an unfavorable outcome with a guarantee - never be a guarantor. But there are friends, relatives and just close people whom you cannot refuse. In this case, when agreeing to a suretyship, you must always be absolutely sure of the borrower's financial situation and prudence. You must also be sure of your financial support. You need to hope for the best, but at the same time you should always consider the negative consequences.

As can be seen from the analysis of banking performance indicators, banks are increasingly asking borrowers to provide them with a guarantor for loan obligations. Giving his consent to the guarantee, the candidate must know and understand some of the factors that affect the attitude towards the guarantor, both the bank and the borrower.

There are many objective reasons that can affect the course of events. A potential guarantor is simply obliged to familiarize himself with the documents that the borrower provided to the bank. Soberly assess its solvency and the trend in the financial condition of the borrower. He must weigh the amount of the loan for which he is going to act as a guarantor.

Take into account what costs will arise, given the proposed interest rate on the loan. As well as penalties that may be applied in case of late repayment of the debt. Conduct an assessment of possible risks if he has to repay the loan. When signing a suretyship agreement, your signature must be left on each page, after carefully rereading it. One copy must be picked up and kept at home. When the loan is returned to the bank, it is advisable for the guarantor to take a certificate of repayment of the loan. In view of previous experience, there are several tips for future guarantors.

To be a guarantor or not to be?

Before deciding to become a guarantor or not, you need to consider this possibility based on your own risks and your financial situation. If in doubt, it is better to abandon this noble role. When deciding to help your friend or loved one, it is important to get comprehensive information about the loan. The term of the loan, at what interest rate, whether penalties or fines are provided for late repayment of the loan. It is important to know for what purpose a loan is taken (a loan for education, a loan secured by VTB real estate, or is it a Preferential car loan 2015). It is necessary to calculate the amount of periodic payments on the loan in order to measure the ability. If a potential borrower is a crystal-clear and completely decent person, this cannot mean that he is insured against all sorts of troubles associated with a decrease in his solvency. If such things are not taken seriously, problems can overtake the guarantor.

You never need to act as a guarantor for loans of completely strangers, and even more so strangers. Before you express your consent to act as a guarantor for a particular loan, you need to be absolutely sure that in the event of a problem situation when you have to bear joint and several liability on an equal basis with the borrower, he will definitely be able to cope with this without harm to his own family. If the funds are not enough to pay off the debts that have arisen, the bank may apply to the court to recover the debt at the expense of the property of the guarantor.

Being a guarantor is a very noble mission, but it comes with responsibility and great risk. Therefore, when deciding to become a guarantor, you need to protect yourself from the loss of your own funds, litigation and simply moral stress.