Honest citizens will write off everything – Newspaper Kommersant No. 205 (7406) dated 11/07/2022
[ad_1]
The assumption of unbearable credit obligations in itself cannot be a basis for refusing to write off the debts of a bankrupt citizen. Banks, as professional market participants, must bear the risks of non-repayment of loans if the debtor has provided reliable information about his financial situation. Such conclusions were made by the Supreme Court of the Russian Federation (SC) in the bankruptcy case of Elena Shchegoleva. Lawyers note the consistent development of the position of the Supreme Court in support of debtors and admit that this may lead to a revision of the rules for issuing loans.
On November 3, the Supreme Court published a decision on the case of refusal to write off the debts of a bankrupt citizen. Retired Elena Shchegoleva took loans from Alfa-Bank and Sberbank for a total of 2.25 million rubles, but could not repay them, so she decided to go bankrupt. In November 2021, the Arkhangelsk Region Arbitration Court completed the sale of the debtor’s property, but refused to write off her debts. The appeal and cassation upheld the decision.
The courts saw the debtor’s bad faith “in building up accounts payable on the eve of bankruptcy” (the last loan was taken three months before the initiation of the procedure) and “taking on obviously unfulfillable obligations – monthly loan payments exceeded the debtor’s income.”
The court rulings also state that Elena Shchegoleva “did not prove the expediency” of the loans and “deliberately avoided” repaying the debts.
Ms. Shchegoleva filed a complaint with the Supreme Court, pointing out the lack of evidence of her illegal and dishonest behavior. The case was referred to the Economic Collegium, which released the debtor from obligations.
The Supreme Court explained that increasing debts to banks can be considered unfair “only if the necessary information is concealed” (income, place of work, other debts, etc.) or “deliberately providing false information”. But in this case, there was nothing of the kind, and there were no signs of deliberate and fictitious bankruptcy.
Prolonged non-satisfaction of the creditor’s claim, the Supreme Court clarified, in itself “is not a malicious evasion.”
The latter should be expressed “in the persistent willful unwillingness of the debtor to fulfill the obligation when possible” and “usually not limited to simple inaction.” A malicious debtor can hide income, alienate property, change his place of residence without notifying the creditor, or lead an obviously luxurious lifestyle, but such actions by Elena Shchegoleva have not been established.
Moreover, the board emphasized that “banks, being professional participants in the credit market, have ample opportunities to assess the creditworthiness of a citizen” and make decisions on issuing funds based on the results of inspections. Therefore, if the loan is approved, “the bank’s subsequent reference to the unreasonable actions of the borrower, who assumed excessive obligations in the absence of a source of repayment of the loan, cannot be taken into account,” the decision says.
“The Supreme Court has outlined the difference in statuses and competencies between ordinary citizens and banks, and this is fair,” says Valeria Gerasimenko, general director of the Union of Autonomous Organization SRO Northern Capital. The new decision develops the position of the Supreme Court of 2019 that taking loans by a citizen due to a “biased assessment of financial capabilities and life circumstances” is not a basis for refusing to write off debts, says Anna Larina, Executive Director of the Help Management Company. The Supreme Court distinguishes between the bad faith and unreasonableness of the debtor, and if a person simply miscalculated his strengths and capabilities, then following the results of bankruptcy, debts are written off, explains Kambulat Karashev, a bankruptcy lawyer at Lemchik, Krupsky and Partners.
The Supreme Court imposes the risks of poor-quality verification of borrowers on the bank if it is provided with all the necessary and reliable information about the property status of a citizen, says Roman Volkomorov, a lawyer from the De Jure Law Office.
In his opinion, information about the borrower’s income is “objectively enough” to determine the maximum possible credit burden, especially for small loans. If a citizen did not lie to the bank, then it would be a mistake to impose all costs on him and refuse to write off debts, Anna Larina agrees, “otherwise an imbalance is created in the relationship between the lender and the borrower.” However, Mr. Karashev emphasizes, unscrupulous debtors will also try to apply the position of the Supreme Court to themselves, so the courts need to “carefully study the circumstances of each case.”
Kambulat Karashev admits that the consistent explanations of the Supreme Court, which protect bona fide debtors, may eventually “push the management of banks to revise the instructions for assessing the financial position of the borrower.”
[ad_2]
Source link
