Banks are arguing with bailiffs about the rules for sending notices to debtors

The Supreme Court of the Russian Federation (SC) will look into the legality of banks sending messages to citizens about overdue loans from a number with an alphanumeric identifier (alphanumeric name). Bailiffs believe that the hidden number violates the law and the rights of citizens. The law does not provide a clear answer as to whether banks have the right to use alpha names in notifications. Lawyers do not see any big risks for citizens if the Supreme Court “does not allow overly free interpretations of the law that will allow creditors to abuse it.”

The Supreme Court will consider a case in which Rosselkhozbank is challenging an administrative fine under Part 1 of Art. 14.57 of the Code of Administrative Offenses of the Russian Federation for illegal actions against a citizen as part of the return of an overdue debt. In September 2022, bailiffs fined the bank 50 thousand rubles, considering it a violation of Law 230-FZ “On the protection of the rights and legitimate interests of individuals when carrying out activities to repay overdue debts” that the credit institution sent messages to the borrower about the overdue debt “from a telephone number with the letter identifier RSHB.” The bailiffs regarded this as “the use of a hidden alphanumeric number,” which prevents the borrower from identifying the sender.

Rosselkhozbank challenged the fine in arbitration court, but lost in three instances. According to the courts, “the name RSHB does not allow the debtor to identify either the number from which the interaction is carried out, or the cellular operator, or the legal entity itself,” which “makes it impossible for the debtor to establish contact with the sender.” The actual phone number is hidden, which violates 230-FZ, the court documents say.

The bank appealed to the Supreme Court, explaining that the Law “On Information” and the Decree of the Government of the Russian Federation dated December 31, 2021 “On approval of the rules for the provision of telematic communication services” make it possible to notify borrowers not only via radiotelephone communication networks, but also through “electronic messages using protocols information exchange and technological platforms” (telematic electronic messages). They are sent “technologically without using a telephone number, as well as a dedicated telephone set/subscriber station as a means of communication.” Under the agreement with VimpelCom, Rosselkhozbank was allocated the name RSHB, which “is unique,” ​​and the operator transfers it “unchanged.” The name of the bank and telephone number for contact were in the text of the message. The case was transferred to the economic board, the hearing is scheduled for February 7.

“Banks have long been using alphanumeric names in messages, including to debtors. This is convenient because it allows you to identify them as senders, and in the era of the general fight against spam, it helps to draw additional client attention to the information,” explains the head of the NSFR Andrey Emelin. But Kommersant’s source in the market admits that “the law has neither direct permission to use an alphanumeric name nor a ban, although there are strict rules on how banks can contact borrowers in arrears.” Large banks confirmed to Kommersant that the problem is urgent; disputes with bailiffs often arise because of alpha names.

The position of the FSSP is set out in the manual dated June 22, 2022, approved by the director of the service, Dmitry Aristov. The agency proceeds from the fact that the law does not allow this format of communication with citizen borrowers regarding an overdue loan, equating the alpha name to a hidden number: “The requirement to send SMS messages with the ability to identify the sender is aimed at preventing anonymous influence on the debtor and creating conditions for implementation of state control over the sender’s activities.”

But judicial practice on the issue is not uniform, the document admits, so the FSSP may allow the use of an alpha name if the message “allows you to accurately identify the sender without resorting to other sources and contains contacts for communication.”

In total, according to Article 14.57 of the Code of Administrative Offences, in 2022, bailiffs imposed administrative fines of 286 million rubles, which is 40% more than in 2021. The growth occurred mainly due to fines imposed on microfinance and credit organizations. Disputes with bailiffs in arbitration courts in approximately half of the cases (52.5%, according to the Court’s Department at the Supreme Court for the first half of 2023) end in a victory for business. There are no statistics on claims specifically from banks. According to Pen & Paper lawyer Denis Dragunov, banks more often lose such disputes, but most of them do not concern alpha names – these cases “only recently became the subject of litigation.”

“With the development of technology, such disputes are inevitable, but it is important to maintain a balance of interests between the creditor and the debtor,” emphasizes Mr. Dragunov. In his opinion, “against the backdrop of a sharp increase in debt, especially in the field of consumer lending, such disputes will only become more common,” especially given the growing scale of fraud in the financial market. According to the Central Bank of the Russian Federation, at the beginning of December 2023, the volume of overdue debts amounted to 1.09 trillion rubles, an increase year-on-year of 6.8%.

Pavel Kovalenko, director of the anti-fraud center at Informzashita, believes that “alphanumeric names are much more protected from substitution than ordinary ones.” But even here, he clarifies, fraud is possible if, for example, “there are vulnerabilities in the telecom operator’s network, an unscrupulous employee cooperates with scammers, or specialized software is used to replace alpha names or international SMS routes, where control may be less strict.”

Mr. Emelin clarifies that the State Duma is currently considering amendments to 230-FZ, which could consolidate the right of banks to use alpha names in the mailing list. Until these amendments are adopted, the Supreme Court can give an interpretation of the legislation, says Denis Dragunov.

In this case, the bank did not hide or change its number, it signed in every message and indicated contact details, therefore, it did not violate the law, says Pavel Novikov, partner of the law firm Melling, Voitishkin and Partners. In his opinion, if the Supreme Court supports the bank’s arguments, “borrower citizens will most likely not suffer, since there were no attempts to intimidate or put pressure on the debtor by sending messages from unknown numbers, and all communication was carried out quite officially.” However, Mr. Dragunov emphasizes, “to protect the interests of individual borrowers, it is important that the Supreme Court provides clear guidelines and does not allow overly free interpretations that would allow creditors to abuse things.”

Anna Zanina, Maxim Buylov, Olga Sherunkova, Tatyana Isakova