Borrow and cry – Newspaper Kommersant No. 1 (7446) dated 01/09/2023
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Citizens began to face more problems when obtaining loans secured by housing, despite the direct ban on such lending for any players other than banks. According to experts, such cases have spread due to insufficiently accurate explanations from the Ministry of Finance about the possibility of loans for housing for entrepreneurs. Lawyers believe that the practice must be urgently stopped and uniform judicial practice will help in this.
As lawyers told Kommersant, in 2022, cases of illegal lending secured by apartments intensified in order to take them away. Such loans are issued by individuals to citizens who own housing, disagreements between the parties are resolved in an arbitration court, while transactions are notarized, says one of Kommersant’s interlocutors. Usually in such cases, the loan amount is significantly less than the value of the property and is issued for business purposes, although the borrower is not a businessman, adds another lawyer.
Dmitry Myltsyn, a lawyer at the Moscow Bar Association Yakupov & Partners, confirms that such cases are “quite common.” The ONF specifies that “the account goes to hundreds.” Mr. Myltsyn believes that the increase in the number of such cases “could have been affected by a combination of economic circumstances, caused, among other things, by an increase in the debt burden of citizens to banks and, at the same time, the need to attract borrowed funds to repay previously issued loans.”
Previously, the practice of fraudsters lending to citizens secured by real estate was suppressed. Such schemes were used both to take away the apartments of negligent borrowers, and to cash out maternity capital through loans for housing in microfinance companies. Resonant cases (see “Kommersant” dated August 4, 2019) became the reason for the ban on issuing loans secured by residential real estate, leaving such an opportunity only to banks.
But on November 1, 2019, amendments came into force, according to which MFIs lost the right to issue loans to citizens secured by housing, except when a loan is issued for business purposes. Last summer, the Ministry of Finance also issued clarifications, where, with reference to the above laws, it called it illegal for individuals to issue loans not related to entrepreneurial activity to other citizens secured by real estate.
However, these clarifications were interpreted differently, namely, as allowing for the possibility of issuing loans secured by residential real estate for business purposes. According to Yevgenia Lazareva, head of the All-Russia People’s Front “For the Rights of Borrowers” project, even non-residents can now issue loans secured by housing, which “allows scaling up unfair practices and violating the constitutional right of citizens to housing.” “In addition, the legislation does not require a condition in the agreement to confirm the intended use, if the loan is issued for business purposes,” she notes. “These gaps in the legislation create enormous difficulties in upholding the rights of citizens and combating unfair practices – the courts last for several years, and, despite the criminal cases against these creditors, only a few victims managed to prove the invalidity of the transactions.”
Alexandra Ulezko, Head of the Bankruptcy Group at Kachkin & Partners, adds that the activities of such creditors can be qualified by law enforcement agencies under Art. 171 of the Criminal Code of the Russian Federation (illegal entrepreneurship), and the victim may demand in court to invalidate loan and pledge agreements. The money will have to be returned in any case, but “probably, it will be possible to save the property and reduce interest.”
Experts believe that the problem must be solved very quickly. “Loans should be provided only by organizations that have the appropriate license, the fact of having a license can be checked on the Central Bank website,” she points out. “At the same time, it is important to understand that no matter how good the conditions may seem, the consequences can be very sad.” To combat such cases, Dmitry Myltsyn believes, it is necessary to form an unambiguous judicial practice on the cancellation of such transactions between citizens, issue a detailed explanation of the criteria for classifying activities as entrepreneurial, limiting the possibility of registering such transactions with Rosreestr, registering such transactions with notaries and transferring funds for such transactions .
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