Some believe that the debts are given only by cowards. Are there ways within the legal framework to influence the debtor in order to fulfill his monetary obligation? Consider the requirements for the receipt and the terms of its submission, which will be the basis for asserting the existence of a debt, the aspects of calculating damages and compensation for legal expenses, legal advice of a lawyer on repayment of a debt. It is important to understand every word in the text of the written receipt, because the debtor takes someone else’s money for a certain period of time, and it will be necessary to return it for good and for good.
The fundamental novel of civil law states that the obligation is a legal relationship in which one party (the debtor) is obliged to perform a certain action in favor of the other party (the creditor) (including paying money), and the creditor has the right to demand the debtor’s performance of the obligation.
According to the receipt, the lender transfers to the borrower a certain amount of money with a payment for their use or interest-free, with a determination of the period for repaying the debt or at the first demand. And if the money is provided without interest, this must be stated directly in the receipt. Particular attention should be paid to the correct, and most importantly, full instruction of the parties to the loan, which will uniquely identify the participants in the transaction. That is, do not be lazy and except for the surname, first name, patronymic, to provide passport data (series, number, date and date), date of birth, place of registration (actual residence) and identification number. Moreover, it is desirable to check these data with each other with the original documents and to make copies of them.
According to the current legislation, the monetary obligation must be fulfilled in UAH. Even in the case of a loan in foreign currency (US dollars) in the text of the receipt, it is necessary to indicate the equivalent in hryvnia as of the date of the loan conclusion and to caution that the return should be in UAH, taking into account the official exchange rate on the day of the refund. Return the debt indicated exclusively in foreign currency is possible, but this fact will somewhat complicate the calculation of losses.
We draw attention to the fact that, taking into account judicial practice, debts in foreign currency are not subject to indexation. In simple words: the inflation index for 2017 was 113.7%, the money was provided in US dollars, the debtor did not return the debt for the whole year, under such conditions, to charge additionally and to demand from the court the recovery of 13.7% of annual inflation will be impossible. And the percentage of inflation in recent years is quite significant, so for comparison in 2013 it was 100.5%. The Supreme Court of Ukraine took the position and came to the conclusion that the official inflation index is a depreciation – a decrease in the purchasing power of a monetary unit of Ukraine – a hryvnia, and not a foreign currency, so the US dollar is not subject to indexation in the debt obligation.
Interesting for attention is the ratio of APU to receipts, which indicate the amount of debt with the writing of an incomplete currency name – only the word “dollars”. So it is not the instructions in the contract, which foreign country the currency was borrowed in debt (USA, Australia or Canada, etc.), can affect the determination of the amount of debt that is subject to proof in the order established by law. Therefore, if the creditor does not prove that he was holding US dollars, then the amount of the returned debt can, at best, significantly decrease, and at worst – do not return to the owner at all.
We are convinced that in the form of the conclusion, if you choose between a receipt written by the borrower with your own hand or a printed loan agreement between individuals, the first option is better. Since, in the event of a borrower’s refusal to recognize the fact of signing a receipt, it is possible to appoint a handwriting expertise, the object of which will be not only the signature, but the written text. In the end, it is in the interests of the creditor to conclude a notarized loan agreement, but in practice this is extremely rare.
As evidence in support of the conclusion of the loan, the courts take into account the receipts drawn up, both in Ukrainian and in Russian. We are convinced that even if there is a receipt drawn up in a foreign language, there are no obstacles to apply to the court and get a positive decision to collect the debt.
Among people there is a stereotype that a receipt must be signed in the presence of witnesses. Yes, the availability of witnesses will be an additional confirmation of the validity of the loan conclusion, because during the dispute these persons can be questioned in court. Moreover, the requirements for completing information about witnesses’ personal data are similar to filling in data on parties. However, the absence of witnesses in the transfer of money does not affect the legal effect of the conclusion of the transaction, that is, the transfer of money.
In practice, there were instances when the text of the debt receipt contained unnecessary conditions that complicated the trial. As examples, there may be formulations: I undertake to repay the debt “for renting an apartment”, “for an automobile purchased” and others. In fact, there is no written evidence of a property lease contract or the sale of a car. In such cases, it is necessary to build the right legal strategy for the protection of rights before going to court.
To the requirements, on the return of funds on the basis of the receipt, the general limitation period of 3 years is applied. However, a partial refund of the debt, which can be confirmed by evidence or the sending of a claim (claim) for the return of a debt in an obligation that has not been determined, are those circumstances that interrupt the limitation period. In the end, the application of the statute of limitations has the right to ask the opposite side, which is sometimes forgotten.
When applying to the court with the requirements for the return of debt, it is advisable to ask to recover compensation for losses from inflation, 3% per annum and compensation for damages. The amount of losses in the form of incurred material costs and moral damage in practice is difficult to prove by creditors, and courts have the right to reduce the claimed amount of losses, taking into account the proportionality with the amount of debt. Courts, assessing the amount of recovery of moral harm, including taking into account the nature of the violation and the requirements of reasonableness and justice. The lender must prove the circumstances under which he expected to return his funds on time, with the purpose of using these funds, for other personal purposes. And as he could not use, for him unfavorable circumstances came, which caused him losses or even moral suffering.
And what about when the violation of a timely return of money is not due to the fault of the borrower, but through the fault of the creditor. For example: the lender could for a long time move to another place of residence or change phone numbers, and other means of communication are missing or unknown. The borrower is exempted from paying interest and charging losses for the time when the loan was repaired, if the creditor refuses to receive money or committed (did not commit) the actions that prevent the debtor from fulfilling his duty. Therefore, if the borrower proves that for reasons beyond his control, he could not return the money on receipt – he is discharged of responsibility. And the correct solution in this situation will be the payment of money due to the deposit of a private notary.
The court has the right to reduce the amount of damages and penalties levied from the debtor, if the creditor intentionally or by negligence contributed to an increase in the amount of losses caused by the breach of the obligation, or did not take measures to reduce them.
When applying for a qualified assistance of a lawyer, in the future judicial civil case on recovery of a debt on receipt, it is necessary to provide evidence of incurred court expenses in a timely manner. In view of recent changes in civil procedural legislation, when applying to a court it is necessary to provide a preliminary estimate of the costs of legal assistance to a lawyer.
When applying to the court with claims of a property nature, especially in significant monetary terms, for the purpose of real recovery of funds from the debtor, it will not hurt to ask the court to seize the borrower’s property as security for the claim. Property that can be seized must be commensurate with the claimed requirements in value terms. Such property should belong exclusively to the borrower in order to warn against possible treatment of co-owners or other bona fide purchaser with the requirements for exclusion from arrest.
When deciding the issue in court on recovering money on receipt, the court will oblige to return the debt, which was determined at the time of applying to the court or at the time of making the decision. However, the existence of a court decision to collect a debt on a receipt that the debtor continues to fail to fulfill does not terminate the legal relations of the parties to the loan agreement and does not release the debtor from liability for non-fulfillment of the monetary obligation. That is, with the provision of funds for a specific interest, despite the adoption of a court decision, interest accrual continues to occur until the debt is fully repaid.
Having received the writ of execution on recovery of money from the debtor, the borrower can apply to the State Executive Service or private contractor for the purpose of compulsory execution of the court decision. The Institute of Private State Performers began to operate not so long ago. A private performer has the right to exercise his functions only after entering information about him into the Open Unified Register of Private Performers. In case of contacting the state executive service, we advise you to apply to qualified lawyers with a view to the actual prompt execution of all measures of compulsory collection. Such measures are: seizure of all movable and immovable property, inventory of property at the place of residence of the debtor, sale of property, seizure and writing off of funds from settlement accounts, prohibition of traveling abroad and others.