How to transfer a debt without the consent of the debtor to a third party

The assignment of the right of claim under a loan agreement is widely used in financial practice not only between large corporations with a serious staff of qualified lawyers, but also between ordinary citizens who, for some reason, seek to get rid of their property rights to the subject of the loan. In our article you will find not only information about the essence of the agreement for the assignment of the right of claim under a loan agreement (assignment agreement), but also an approximate example of its preparation.

Briefly about the assignment agreement

An assignment agreement is an agreement on the basis of which the right to claim a debt is transferred from one person to another. According to paragraph 1 of Art. 388 of the Civil Code of the Russian Federation, assignment of the right to claim debt under a loan agreement is permitted if it does not contradict current regulations. At the same time, Art. 383 of the Civil Code of the Russian Federation determines that the right of claim cannot be transferred:

alimony;
obligations arising from damage to human life or health;
other debts directly related to the identity of the party to whom the debtor has obligations.

The decision to conclude an agreement on the transfer of rights of claim may be made if the borrower performs his duties in bad faith, depriving the lender of the opportunity to dispose of his property. When signing an agreement, the assignor must guarantee the validity of his right of claim, but he does not bear responsibility for the further fulfillment by the debtor of his obligations.

According to Art. 384 of the Civil Code of the Russian Federation, the conclusion of such an agreement entails a change of lender, but does not change other provisions of the agreement. The only exceptions are cases in which such changes are provided for by the provisions of the concluded agreement.

What to do if the bank refuses to transfer the debt

A not very successful method of transfer, but possible, provided that the bank does not provide the opportunity to transfer the loan debt to a third party, is to transfer the debt on the basis of a guarantee. The new borrower is designated as a guarantor for the loan. The old borrower notarizes his obligations to his guarantor and, if required, provides appropriate guarantees. After registration, the borrower sends a letter to the bank stating that he is unable to repay the loan and transfers his payment obligations to the guarantor.

It must be admitted that this scheme has its own risks for each participant. The guarantor may stop paying the loan and all penalties will be levied on the borrower, in turn, the Borrower may renounce his guarantee obligations to the guarantor and one and the other party will have to prove his case in court. Therefore, the specialists of our portal recommend that all procedures for transferring debt be carried out through a bank.

Parties to the assignment agreement

The subjects of the agreement are:

assignee - the person to whom the right to claim the debt is transferred;
assignor - a person who transfers his own right to claim a debt to a third party.

The debtor is not a party to the transaction, however, in accordance with Art. 385 of the Civil Code of the Russian Federation, he must be notified of the fact of its conclusion (any of the parties to the agreement can send such a notification to him). The debtor may not fulfill his obligations in favor of the new creditor until he receives appropriate written notice that the right to claim the debt has been assigned.

The notice must contain:

the number of the concluded assignment agreement and information about the third party to whom the creditor’s rights were transferred;
calculation of the amount of payment to be transferred in favor of the assignee;
details of the bank account to which the debtor must transfer funds.

If the debtor has not been notified of the conclusion of a new agreement, the funds transferred by him in favor of the lender, who has acquired the status of assignor, will be accepted as repayment of the debt.

Assignment of debt to another person

In accordance with Art. 382 of the Civil Code of the Russian Federation, the assignment of the right of claim is the transfer by the creditor (assignor) to another person (assignee) of his right to demand from the debtor the fulfillment of his obligations. This means that the creditor has the right to transfer his claims when the debtor cannot pay his accounts payable on time.

The creditor may transfer his rights to another person voluntarily (under an assignment agreement) or without fail on the grounds provided for by law (for example, by a court decision, during the reorganization of an organization, etc.) (Clause 1 of Article 382 of the Civil Code of the Russian Federation).

The voluntary transfer of rights from the assignor to the assignee is formalized by an assignment agreement, which must be concluded in the same form as the original agreement (purchase and sale agreement, credit agreement, etc.), namely:

in simple written form;
in writing and registered (if the transaction for which the claims are assigned was subject to state registration);
in writing and notarized (if the original agreement was certified by a notary).

The assignor (creditor) must attach to the assignment agreement documents certifying the right to demand from the debtor the fulfillment of certain obligations, in particular, contracts, invoices, certificates of work performed, invoices, etc.

By virtue of the provisions of clause 2 of Article 385 of the Civil Code of the Russian Federation, in the agreement for the assignment of the right of claim (assignment), it is necessary to indicate:

on the basis of what contract (agreement) this or that right arose;
what is the duty of the debtor;
list and deadlines for the transfer of documents certifying the right of claim that the assignor (creditor) must transfer to the assignee;
other information regarding the assigned rights.

It should be noted that the transfer of the creditor's rights to another person does not require the consent of the debtor, unless otherwise provided by the contract or law. However, in connection with these provisions of civil law, it must be borne in mind that if the debtor was not notified in writing of the transfer of the creditor's rights to another person, the new creditor bears the risk of the adverse consequences caused by this for him. In this case, the fulfillment of the obligation to the original creditor is recognized as fulfillment to the proper creditor. Then the assignee will have to clarify the circumstances of the transaction with the assignor, since any claims against the debtor in this case will be untenable (clause 3 of Article 382 of the Civil Code of the Russian Federation).

The fact is that the current legislation does not indicate who must notify the debtor that the rights of the original creditor are transferred to a new person under the assignment agreement - the assignor or the assignee. However, it is necessary to notify the debtor in writing about the assignment of the right of claim in order for him to repay his debt (fulfill other obligations) in relation to the new creditor. The Civil Code of the Russian Federation does not say who should do this - the assignor or the assignee.

In addition, it is necessary to notify the debtor about the assignment of the right of claim due to other provisions of the Civil Code of the Russian Federation, namely:

the debtor has the right to raise against the claim of the new creditor (assignee) the objections that he had against the original creditor (assignor) at the time of receiving notification of the transfer of rights under the obligation to the new creditor (Article 386 of the Civil Code of the Russian Federation). In particular, objections may be related to the expiration of the statute of limitations on the assigned claim, etc.;
when making an assignment of a claim, the debtor has the right to set off against the claim of the new creditor his counterclaim against the original creditor (Article 410 of the Civil Code of the Russian Federation).

Thus, notifying the debtor about the assignment of the right of claim (change of creditor) is primarily important for the assignee, since it will allow him to avoid all the adverse consequences associated with the assignment of rights. By agreement of the parties to the assignment agreement, the assignor can also notify the debtor, since the law does not prohibit this (clause 3 of Article 382 of the Civil Code of the Russian Federation).

Since the form of notification to the debtor is not established by law, such a document can be drawn up in any form.

Reflection of the assignment of the right of claim in the accounting of the creditor (assignor)

The right of claim that the assignor transfers to the assignee is part of his property rights and is taken into account as assets. Consequently, in the accounting records of the assignor, the assignment of the right of claim is reflected as its sale (disposal) in account 91 “Other income and expenses.”

Proceeds from the sale of the right of claim in accordance with clauses 7 and 16 of PBU 9/99 are recognized as other income and are taken into account in the amount established by the agreement on the assignment of the right of claim (clauses 6 and 10.1 of PBU 9/99). The proceeds from the transfer of rights in accounting are reflected in the credit of account 91 in correspondence with account 76 “Settlements with other debtors and creditors”, to which the organization can open a separate sub-account “Settlements under the agreement of assignment of the right of claim”.

As of the date of signing the assignment agreement, the accounting records reflect the following entries:

Debit 76 subaccount “Settlements under the agreement for assignment of the right of claim” Credit 91.1

– the right to claim under the assignment agreement has been exercised.

The cost of the right of claim, reflected in the assignor’s accounting, is transferred to other expenses in the debit of account 91 (clauses 6 and 14.1 of PBU 10/99). In this case, as of the date of signing the assignment agreement, the following entries are reflected in accounting:

Debit 91.2 Credit 62 (76, 58)

– the value of the realized right of claim under the assignment agreement is written off from the balance sheet.

Receipt of payment from the assignee under the agreement of assignment of the right of claim is reflected as follows:

Debit 51 (50) Credit 76 subaccount “Settlements under the agreement for assignment of the right of claim”

– payment has been received from the assignee under the assignment agreement.

If the amount of income from the transfer of a claim exceeds the size of the claim itself, then when transferring property rights the assignor has an obligation to charge VAT (paragraph 2, clause 1, article 155 of the Tax Code of the Russian Federation).

Who can be the parties to such an agreement?

An assignment agreement can be concluded:

Between legal entities. Such an agreement may be concluded, among other things, in the event of a reorganization of an existing organization, in which a new enterprise is created, which is its full legal successor.
Between individuals. An agreement of this kind may be concluded:
- when distributing property during a divorce;
transfer of obligations from children to parents, etc.

At the same time, it is worth remembering the legislative restrictions established by Art. 383 Civil Code of the Russian Federation.

Between a legal entity and an individual. This type of assignment is possible when a legal entity is abolished due to the impossibility of further fulfilling its financial obligations if they are assumed by its general director or founder.

Types of assignment agreements depending on the terms of the agreement

Depending on what conditions the concluded agreement contains, the following types of assignment agreements are distinguished:

Tripartite agreement - in this case, the debtor is a full participant in the transaction, therefore it can only be concluded with his consent, in contrast to the standard bilateral agreement, in which it is enough to send a notification to the debtor about the accomplished fact of concluding a new agreement.
Compensatory or gratuitous assignment. In the first case, the assignor pays the assignee a certain remuneration for the fact that he assumes the right to collect the debt from the debtor. As a rule, assigned debts are problematic and assignors, transferring their rights, strive to repay at least part of the losses they incurred as a result of non-repayment of the loan subject. Sometimes the remuneration is paid by the assignee - for example, in the case when the loan was issued with interest and all subsequent cash receipts (including transfers made by the debtor as payment for the use of funds provided to him) will be transferred to him. A gratuitous assignment agreement does not provide for the payment of a fee for the assignment of a claim by either party.

How does the procedure for transferring the right of claim take place?

The transfer of the right of claim is carried out through the conclusion of an assignment agreement between the assignee and the assignor, which must necessarily reflect the following points:

information about the parties between whom legal relations arise;
information about the debtor who has obligations to repay the debt;
description of the subject of the contract;
the procedure for resolving controversial issues arising during the exercise by the parties of their rights and obligations;
other information that may be relevant in each specific case.

It is important to remember that if the main transaction was concluded in simple written form, then the additional agreement, in accordance with paragraph 1 of Art. 389 of the Civil Code of the Russian Federation, must be concluded in the same form. It does not need to be notarized. If the assignment agreement is related to the transfer of rights to real estate, it must be registered with Rosreestr.

The following must be attached to the agreement:

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an act of acceptance and transfer of the subject of the agreement, which lists all the documents confirming the fact that the assignor has the right to demand repayment of the debt from the borrower;
other additional agreements that amend the provisions of an already concluded agreement and become an integral part of it (if necessary).

How to sell debt to collectors

The transfer of rights to all claims gives collectors the opportunity to gradually squeeze money out of the debtor. But first you need to follow the sales procedure correctly. Two cases are considered - for those debts for which there is already a writ of execution, and for debts on a receipt.

Sale by writ of execution

The creditor has the right to transfer claims at any stage of collection. Including when a writ of execution has already been received in court. Moreover, the presence of this document allows you to obtain a debt by force.

Before transferring such a right, the creditor must:

Notify the debtor at least 30 days in advance that his debt will be transferred to third parties.
Obtain a writ of execution through the court.
Submit the writ of execution to the bailiffs and wait for the opening of enforcement proceedings.
Choose a collection agency that is convenient for you.
Provide all known information about the debtor and borrower.
Negotiate all the conditions for the transfer of rights and draw up an assignment agreement.
Submit all documents related to the debt.
Notify the debtor that his debt has been transferred.
Transfer the assignment agreement to the bailiffs to replace the assignee from the creditor to the collection agency.

If the debt was transferred under a writ of execution, then collectors do not have the right to charge interest or penalties on the amount indicated in the writ. They will have to collect as much as it is written in it, and not a ruble more.

In addition, the collection agency does not have the powers of bailiffs. It cannot impose any restrictions on the debtor. He has the right only to look for funds and report them to the bailiffs so that they can collect them.

Sale by receipt

It is possible to transfer debt by receipt instead of a full-fledged agreement. This is a less common and popular option, used mainly by individuals, but still quite common.

Unfortunately, collectors do not buy such debts as willingly as debts with writs of execution. After all, you will have to do most of the work yourself. And less money is given on receipt. But it's worth a try.

The conditions and procedure are approximately the same as in the case of transfer of the rights of a creditor with a writ of execution. In the same way, you need to discuss all the conditions, notify the debtor and conclude an assignment agreement.

The difference between an assignment agreement and a factoring agreement

By its legal nature, an assignment agreement is close to a factoring agreement, the concept of which is established by Art. 824 Civil Code of the Russian Federation. A factoring agreement involves the provision of financing by one party under the condition of assignment of the monetary claim on the loan to the other party. In other words, one party transfers (or undertakes to transfer) to the other a certain amount of money, and in return receives from it the right to demand money from the borrower. It is obvious that a factoring agreement can be considered a special case of an assignment agreement, however, the current civil legislation determines a separate procedure for regulating legal relations arising during its conclusion.

Differences between factoring and assignment:

The subject of factoring is the financing of the client, while the assignment of monetary claims to them acts as security for such financing (Article 824 of the Civil Code of the Russian Federation). The subject of the assignment is the transfer of the right to claim the subject of the loan, which can be not only money, but also other material assets.
Factoring services can be provided exclusively by commercial organizations (Article 825 of the Civil Code of the Russian Federation), while any legal entities, including individuals, can enter into an assignment agreement (clause 1 of Article 382 of the Civil Code of the Russian Federation).
Further assignment of the right to claim debt received as a result of concluding a factoring agreement is allowed only if the parties have an appropriate agreement (Article 829 of the Civil Code of the Russian Federation). In case of assignment, a subsequent assignment can be made even if such an agreement does not exist between the parties.

Scope and conditions

The Civil Code of Russia specifies all cases when it is necessary to apply an assignment agreement:

Transfer of rights to a third party based on a court decision.
Assignment of rights in accordance with the rules of succession. For example, receiving an inheritance, if we are talking about individuals, or when dissolving an enterprise, when the recipient of the funds is a financial company.
The powers of the lender are transferred to the insurance company if the borrower intentionally caused the occurrence of an insured event described in the contract. This process in the legal field is referred to as subrogation.
The guarantor, who is not liable under it, is forced to fulfill the terms of the debt obligation.
Other cases and events that are prescribed in the Civil Code of the Russian Federation.

Examples of such situations can be given not just one, but many: transfer of rights under a mortgage, rental of premises or a car, dissolution of an enterprise, etc. Although in most cases the agreement is sealed with the signatures and seals of the assignee and assignor directly, in some of them it is still required certification by a notary.

In addition, when concluding such an agreement between the parties, a number of rules must be observed in order for the transaction to be considered legal. Worth considering:

The debtor's consent to carry out the procedure is not necessary, but written notification of the assignment is necessary.
Delegation of contractual rights must take place within the framework of the current legislation of the Russian Federation.
It is necessary to indicate the full or partial nature of the assignment of rights.
In addition to the principal debt, interest, penalties, fines, etc. can also be transferred by assignment. The exact calculation of these indicators must be displayed in the document.
It must be noted in the agreement if it is gratuitous in nature. Otherwise, the contract is considered to be compensated by default.

Transfer of debt is recognized only if all legal requirements are met.