Collector rescued from Onishchenko

Collectors who will get work? Hour somewhere in Russia legally only what has not yet been noticed. Note - so begin to doubt. Occurred in March, a public exchange of harsh "remarks" between, on the one hand, Rospotrebnadzor, on the other - the National Association of Professional Collection Agencies (NAPCA) and the Association of Russian banks has led to an amazing situation: the collection business was partially de-legitimize. Federal Service could result in many arguments in favor of the existence of a reservoir, at least legally questionable. Consent is not required. One of the arguments is OLTC in terms of agency altogether "concrete." Activities related to the collector assignment of claims on loans (cession). Meanwhile, the Civil Code requires that if a "person" is significant for a creditor of the debtor, the assignment of claims can only be done with his consent. But the collector - clearly inferior substitute for the bank as a lender. He does not keep accounts, and loan does not. Therefore, the assignment can only occur with the consent of the borrower. However, bankers, and collectors with this argument disagree. President Alexander Morozov said NAPCA "F.", which inextricably linked debt with the creditor's personality emerges only in liabilities such as alimony or compensation for the harm caused to health. The loan agreement to the bank for this category include: the borrower to the bank should have no nothing personal. Bank - this is not her ex-husband. Attorney law firm "Rappoport and part-ners," Eugene Oreshin also notes that in 2007, the Supreme Arbitration Court issued an informational letter in which he pointed out that "the assignment of bank creditor's rights under a credit agreement to a legal entity other than a credit institution, not contradict the law. " This mystery is great there. Another argument Rospotrebnadzor due to the fact that by passing the collector information about the debtor, the bank violated bank secrecy. The argument also seems to be serious. However, market participants with him again disagree. Deputy Head of Department on work with troubled assets VTB24 Natalia Silk believes that the legal possibility of a temporary "break" banking secrecy stems from a combination of the two regulations. On the one hand, art. 6 of the Law "On personal data" says that the processing of personal data carried out in accordance with federal law defining its purpose, the conditions for obtaining personal data and the range of subjects whose personal data to be processed, as well as defining the powers of the operator. On the other hand, Art. 385 of the Civil Code obliges the lender to transfer the right requirements, submit documents certifying the claim, and to provide information relevant to the implementation requirements. Thus, the Civil Code in this case is thus the law, which establishes rules for the transfer of personal data "is important to understand that this is not a bona fide customer - like Natalie Silk. - Borrowers, the obligations of which are assigned or transferred to the work of collection agencies and whose personal data are processed at the same time, are inherently unfair participants of transactions whose terms are often non-payment is calculated in years. The assignment or transfer of their obligations and, as a result, data transmission, in fact, due to default on obligations. Attempts to prove the illegitimacy of the borrowers or data assignment of debts are in fact attempts to avoid liability for breach of contract. " Strong argument, but, on the other hand, everyone has the right to protect its interests by all legitimate means. Alexander Fedorov, chairman of the collection agency "Center YUSB" and chairman of the collecting agencies of public organization "Business Russia", counters the argument of bank secrecy in another way. In his view, the legitimacy of excessive transparency provided by the loan agreements: Almost every credit agreement contains a clause stating that the right to reclaim the debt may be referred to a collection agency. Respectively, can be sent personal data and the borrower. When people sign these contracts - they agree with this position. To whom to complain. Collectors do not like the Federal Service and its leader, Gennady Onishchenko, because it prevented to perform the main function - to protect the rights of consumers. At the sale of the loan the borrower loses the collector the right to protect their rights as a consumer, since the bank as a provider of services to its relationship terminated, and the collector is not a service provider to extend credit. As a result, the borrower can not take advantage of the law "On protection of consumer rights." Some collectors - in particular, Alexander Fedorov ("Center YUSB") - with this argument even agree. However, Alexander Morozov (NAPCA) believes that the debtor may propose to the new creditor all the objections which he had to remain a creditor, that is, to the bank. And if the borrower has motivated objections to the requirements of the claim, he has every right to show their collector. According to the head of the association, the borrower is entitled to protection from unreasonable demands by the same means the collector, which can be applied to the bank. Natalie Silk (VTB 24) adds another counter-argument: the assignment of rights is always going after the bank has fully complied with its obligations under the loan. The rest of the obligations and rights, which becomes a collector, do not belong to the exclusive activities of credit institutions and can be made by any civil law subjects. In theory, so it looks smooth, but experience shows that if the bank made a mistake in calculating the interest, penalties, etc., the weight-TI talks about it with the collector is useless - it's like that phone call corrupt . Without fear of anger Onishchenko. Perhaps all of these disputes will be resolved after the law "On regulation of the recovery of bad debts." Originally the bill called "On the collection activity," but when joined to its development banking associations, the range of issues covered by them has become much broader. Now the document is to finalize in the Ministry of Economic Development, the plan must be submitted to the government in the second quarter. Alexander Morozov expressed hope that the project will get into the Duma by year's end. However, many respondents "F." experts suggest that the adoption of this law is due not so much legal as a social necessity - he must reassure anxious people and their advocates in the government. So far kollektorstvo seemingly flourished without the law, but, according to Alexander Morozov, the activities of professional debt collectors proceeds "in a high social risk." Obviously, the reaction of people to attempt to get them to perform above their obligations may be most acute. "So we felt it was time very clearly defined rights and responsibilities of all participants in the process of debt collection. This notion of "collection activity", the criteria to be met by collection agencies, the mechanism of regulation of their activities and responsibilities ", - the president NAPCA. And Alexander Fedorov said that the law is useful for everyone. Banks - to work, "not fearing wrath Onishchenko," collectors - to finally get a clear fix all the procedures in the chain of relationship the bank - borrower - a collector, borrowers - to protect their interests. The bifurcation. However, for the collectors themselves the law is not quite convenient, since their activities impose on some of the "burdens". In particular, they will be obliged to unite in self-regulatory organizations, which will create compensation funds, and without fail to maintain liability insurance. It will be possible disciplinary action against unscrupulous collectors - until their disqualification. The law contains some restrictions on the activities of collectors - in particular the ban on night calls to debtors. Around some of the provisions of the law has turned neshutochnye discussion. One of the points of concern - that of the debtor to pay for sewers. Some collectors offer a perspective cancel penalties and interest, replacing them with compensation for debt recovery costs. "But this is only an idea, a topic for discussion, - said Alexander Morozov. - It is obvious that such innovation requires a detailed study, developed, on the one hand, not affected the interests of the creditor, and on the other - had happened further increase the financial burden on debtors. " Lawyer Eugene Oreshin notes that in any case to act the principle according to which the transfer of rights from the bank to the collector should not in any way impair the position of the citizen. That is, the collector may receive no more than a bank, namely, the legal costs incurred in the case. Another controversial point of the bill - the right of collectors to request and receive information on debtors to the state authorities. If this provision passes, the collector can be a good "cover" - for example, for a private detective agency, or simply for fraud or corruption. "I do not understand why this provision is contained in the law - said" F. "Alexander Fedorov (" Center YUSB "). - Let's fantasize: a collection agency (even though his head) goes to the MVD or FSB, "Give me some information on such a borrower." The answer is obvious. It turns out that we are trying to pass a law that clearly will not be executed. Why? "However, in NAPCA of opportunity to receive information about citizens not refuse. "The ability to obtain relevant and reliable information on income and property of the debtor that his place of residence, your phone will greatly facilitate the work of collectors - confirms the president NAPCA Alexander Morozov. - But we understand that in order to make it work in practice, will make a great effort. We need to create a working mechanism of the interaction with the relevant authorities to establish and build process. This is tedious and hard work, but necessary and promising. But you should start with the legal norms, is the foundation. " The presence of differences in the current version of the bill suggests that "the move", he will not be accepted. According to Alexander Fedorov ("Center YUSB"), "the bill will be finalized very seriously, and more correctly - rewritten. It takes about a year. " Accordingly, the Duma, he can come only at the end of next year. "If the Federal Service sees significant deficiencies in the activities of collectors, it is necessary to develop approaches to address these shortcomings, polish and correct regulation of collection activity, and not" cut straight from the shoulder "and does not prohibit it based on sophisticated legal casuistry (" substitute bank "," Banking secrecy , "etc.), - concluded the lawyer Eugene Oreshin. However, even collectors recognize that a new segment will purge the financial market only benefit. "We must bear in mind that most cases of illegal actions of collectors that are discussed in the press, associated with the work of a small, shady companies that call themselves collectors, but do not actually have anything to do with professional, reliable agency - said Alexander Morozov. - To free the citizens and the market of such "lzhekollektorov" also will be able to law. "