According to official information, Russians owe banks more than a trillion rubles. Loans are not taken because of a good life - the level of income is constantly declining. It is obvious that family people are particularly concerned about this problem. Will a situation arise when one of the spouses will pay for the overdue loan of the other?

Ownership order

​According to family law, spouses can determine the order of joint ownership: by law or by agreement. In other words, the spouses decide in advance whether all acquired property will be common or belong only to one of the spouses. Any loan obligation is part of the property.

If a marriage contract (Article 46 of the RF IC) has been concluded, the spouse’s personal obligations on the loan are compensated by personal property. This also means that the share of the spouse who took out the loan will be deducted from the property acquired during the marriage.

If a prenuptial agreement has not been signed, all property acquired after marriage will be shared. In this case, it turns out that responsibility for any loan taken lies with both the husband and wife. However, there are nuances here.

Does the wife pay off her husband's loans?

Here it is taken into account that the husband and wife discuss together whether to take out a loan, and if so, for what purpose. The first nuance is that situations regularly occur when, in conditions of joint responsibility, the husband takes out a loan without the knowledge of his wife. At the bank, no one asks the consent of both spouses to receive a loan, and this is fair from the point of view of the current law.

It turns out that the husband takes out a loan and spends it not on family needs, but on personal needs, or, worse, drinks away the money borrowed from the bank. The only way out for the wife in this situation is prove through the court that the funds borrowed by the husband were not spent on family needs.

Otherwise, if the loan was actually spent on the needs of the family, no matter who issued it, both will be responsible. That is, spouses will contribute equal parts to repay the loan. And here it is understood that if one of the spouses has nothing to pay, the second will pay off the debt entirely from his own funds.

Large loans

Many banks practice guarantees when processing large loans. If the spouse acted as a guarantor and the loan was issued, the debt will be repaid with the wife’s funds if the husband does not have any property.

As you can see, the consequences can be extremely negative, but at least in this case the bank has no right to take away the wife’s salary. And he won’t leave you without housing either - according to the law, no one has the right to seize real estate, if it is the only home of the family.

What happens to loans after divorce?

Based on Article 45 of the RF IC, loans, being part of the property, are divided equally after a divorce.

Mortgage debt can be transferred to the other spouse if you sign a new agreement. A mortgaged property is not owned until the loan is paid in full. It follows that exchange or sale transactions are impossible.

The court does not follow the 50/50 rule only in individual cases. For example, if one of the spouses was not employed and did not contribute money to the family budget or did not spend money on family needs and the needs of children (clause 2 of Article 399 of the RF IC). The rule of dividing the loan payment in half also does not apply if the loan was taken by the husband or wife before marriage.

How to protect yourself from bailiffs

What can you do to protect your property from encroachments by bailiffs when your husband has accumulated loans:

1. Draw up a real estate donation agreement for your wife.
2. Common property, which can be divided during a divorce or seized as a debt payment, can be gifted to close relatives.

If a bailiff violates the law and describes property that cannot be seized, you must urgently file a complaint with the enforcement service.

We strongly recommend that your wife not act as a guarantor when applying for a loan, as this jeopardizes the family’s common property. It’s better to beware of any loans, especially large ones, given the clearly unfavorable credit conditions in Russian banks.

The law does not stipulate that when one of the spouses receives a loan, it is necessary to strictly obtain consent from the other. Civil law only enshrines the presumption that the actions of a spouse are always considered to be committed with the consent of the second spouse.

However, in case of registration loan without the consent of the wife or husband for their own needs and then they must be responsible for paying them independently.

Spouse's consent to the loan

In Art. 33 of the RF IC stipulates that all acquired property during marriage (except for property received by inheritance or as a gift) is recognized as the common property of the spouses, that is, the joint ownership regime is applied to them. However, spouses can enter into a marriage contract between themselves and establish a different procedure for the ownership and disposal of property. Also, the RF IC (Article 35) enshrines the rule that spouses must use common property by mutual consent.

In addition, in Art. 253 of the Civil Code of the Russian Federation stipulates that spouses must dispose of property jointly. However, it is not necessary to obtain written consent from the husband or wife.

Therefore, when receiving a loan, obtaining written consent from the second spouse is not a prerequisite. True, when applying for mortgage loans, banks, as a rule, require that the second spouse act as a co-borrower in the agreement. For other types of loans, this practice does not exist.

The question of the fact of obtaining consent from the husband or wife usually arises only when it is necessary to establish whether this debt is common or whether it is a personal debt of one of the spouses. This is usually the case, because debts, if any, are also subject to division. If spouses have common debts, they are distributed on the basis of Part 3 of Art. 39 of the RF IC - in proportion to the shares awarded to the spouses.

Important: the division of spouses' debts can be carried out not only in case of divorce, but even during marriage. A demand for the division of common property can be made not only by spouses, but also by creditors if, for example, the property of the debtor spouse is not enough to repay the loan. In this case, the penalty may be applied to the spouse’s share in the joint property of the husband and wife.

Neither civil nor family legislation specifies the concept of common debt of spouses; courts determine whether a loan debt is common in each individual case. In this case, the following signs are important for the court:

• Both spouses are debtors on the loan. For example, under a loan agreement, both the wife and husband are co-borrowers, or one of them is designated as a guarantor for the loan obligation. Then both of them are responsible for repaying the loan.
• Has the second spouse's written consent to receive the loan been obtained?
• The debt is registered in the name of one of the spouses, there is no written consent of the second of them, but the money received on credit was used for the needs of the family. True, this fact is difficult to prove in some cases, so the courts, when deciding this issue, proceed from the intended purpose of the loan.

That is, obtaining consent from the second spouse does not always play an important role when recognizing a debt as common; if money received under a loan agreement, for example, is spent on renovating a joint apartment, then such a debt is considered common, since it was spent in the interests of the family.

However, in order for the spouse to whom the debt is registered to achieve recognition of the debt as common, he must provide evidence that the money actually went for common family needs (purchase of real estate, repairs, vacation, etc.).

Such evidence may be:

• Checks.
• Various contracts.
• Acceptance certificates.
• Testimony of witnesses.
• account statements.

If the second spouse declares that he did not know that the husband or wife took out a loan and the plaintiff cannot provide evidence of this fact, the court may refuse to recognize this debt as common and the spouse who took out the loan will be responsible for paying it off independently.

Participation of the bank in court

When considering a case on the division of spouses' debts, the court must involve a banking institution in the case. Very often, banks do not benefit from such a division, because the more debtors there are under a loan agreement, the greater the likelihood that it may not be repaid. Therefore, many banks refuse to divide the loan between spouses, even if the loan was taken with the consent of the second spouse. However, the final decision on debt division is made only by the court.

But most often, as practice shows, the division of common debts is carried out according to the following scheme: the loan is repaid by the spouse for whom it was issued, and the second spouse undertakes to pay him compensation for part of the loan.

Even if the spouse repaid the joint loan on his own, he has the right to go to court after this to demand monetary compensation for part of the repaid loan from the second spouse.

At the same time, not all debts that spouses take on during marriage are automatically considered their joint debt. If one of the spouses took out a loan for his personal needs, this money was not spent on the family and the second spouse did not give consent to this, then the second spouse should not be liable for such a loan.

Let's say that during the marriage, the wife took out a loan for a trip to Paris. She went on the trip herself without her husband. In this case, although the loan was taken out during the marriage, these funds were spent exclusively on the wife’s personal needs, so this loan cannot be classified as the spouse’s common debts.

Only the debtor spouse is responsible for personal debts. If his own property is not sufficient to pay off the debt, the creditor may require the husband/wife's share of the joint property to be allocated to cover the debt. However, the share of the second spouse cannot be withdrawn to cover the loan amount.

Spouse guarantor

If one of the spouses is a guarantor for the loan of the second spouse, then his situation is aggravated, because if the debtor is not able to repay the debt, then the obligation to pay it falls on the guarantor.

However, the guarantor has every right not to repay this amount until a court decision is received. Without a court decision, bank representatives do not have the right to force the second guarantor spouse to repay the husband/wife’s loan.

If the guarantor has received a demand from the bank to repay the loan, then he can, at his own discretion, repay this debt without a court decision. After the loan is repaid, the guarantor spouse has the right to file a lawsuit with a request to collect the debt from the debtor spouse.

If the loan was secured by collateral, then the guarantor may demand through the court foreclosure on the collateral property, with the exception of the only housing that has been mortgaged.

Division of debts after divorce

It also happens that citizens divorced, but the debts were not divided during the division of property. For example, my husband took loan without wife's consent during the marriage to open a business, but he stopped paying the loan and bank employees are now calling his wife and demanding repayment of the loan from her.

In such a situation, the wife needs to:

• Contact the bailiff service that the loan was issued to the spouse without her consent; you must also provide the name of the bank where the loan was taken, if such information is known.
• Despite the fact that each spouse must be responsible for their personal loans, former spouses, for example, may have a joint apartment. To prevent bailiffs from seizing your personal property, it is better to prepare warranty cards, checks, contracts, etc., which confirm ownership, so you will avoid the possibility of seizure of your things.
• If a spouse took out a loan of several million, then it is better to sell the shared housing in advance and purchase a separate one, otherwise they may foreclose on the spouse’s share in the joint house, apartment, or cottage.

As judicial practice shows, foreclosure on the share of a husband or wife in joint housing does not happen often.

This is only possible when it comes to a multi-million dollar loan. If this is your only home, then the court cannot apply it to the debt only if the home is not . In all other cases, it is possible to allocate a share in the joint property of the debtor spouse.

The long and terrible story of my life... Never in my life have I lived as I live now. HUSBAND accumulated such a bunch of loans that at first I was in shock, then in despair, and now I’m just gone... So, in order.
On July 6 last year, I found out that my husband has 5 loans. in different banks, don’t ask how, I just found out. I had my own loans, I can easily pay off my car and a consumer loan for home renovations. Before this, there were also loans that I successfully closed. So here it is. My mother-in-law endlessly reproached me for getting a good car, while Misha drives a broken-down four-wheeler, and he WORKS so hard! I thought, I’ll give him a gift for his birthday, I’ll give him a car. I contributed 50% of the rest to the loan, it doesn’t seem to burden anything, I make good money. And then the most interesting part. On July 2 I give him a car, and on the 6th I find out about loans. I'm terrified. But you have to live somehow. We have three children, plus a foster child. We got married three years ago. I think this is my cross. I go to the bank, take out the next loan, pay off part of its loans, and a month later I find another card for which the payment is 8,000 rubles. And I’m already paying almost 100 thousand rubles a month. I screamed, but there’s nothing to do. It’s clear that we only buy cheese and sausage for children, the cosmetologists are perplexed, I’ve been going to them for years, etc. And after the new year I find out: my hubby owes people almost 600 thousand, and he has 6 more loans. And I had to take out another loan in order to pay people off. In total, my monthly payment amounted to 86 thousand rubles. and plus it’s almost 60 thousand. Naturally, I stopped paying his loans. And the most interesting thing is that those cards that I redeemed the very first time, his cards, he pulled out of my bag and cashed them. By the way: the four-wheel drive he drove was wrecked by him more than once, and the car I gave him has also already been wrecked 4 times. He works now as a taxi driver. brings in from 3 to 5 thousand a week. But the banks are starting to call, wow! Naturally, they sold a bunch of things from the house, from a mink coat to a kitchen... And his grandmother, 91 years old, God’s dandelion, has been living with us all this time. All my friends say, kick him, get a divorce. But I'm not there. I recently saw a terrible accident, and you know what I thought, it would be better if I seemed there...
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Lyubov Viktorovna, age: 45 / 04/17/2014

Responses:

1) Deal with your husband. where does he put the money? Does he have some kind of addiction or something? Either solve this problem or divorce your husband. You will not be able to repay the loans if your husband continues to take out new ones.
2) Make a loan repayment plan, taking into account your income and expenses and strictly follow it. If you can’t balance your income and expenses, then sell less necessary things, such as a car.

If you earn good money, it means you are a strong and successful person and you were able to achieve this, now you have a new goal - to deal with financial difficulties. I'm sure you can handle this.

Andrey, age: 23 / 04/17/2014

Hello!
I think you need to thank God that you still have such a good job and you can give away money somehow. that you have four children, no one dies or suffers.
Look from the outside - some people don’t see the amount of money you pay per month or for the whole year. Everything can always get worse, so you should thank God for what you have.
As for the husband, he has embarked on some kind of self-destructive path, and you, as a wife, are forced to dive deeper and deeper with him. Whether it's worth it is up to you to decide for yourself. Are you satisfied with this constant lie? Can you put up with this, are you satisfied with this situation and this behavior of your spouse. Just don’t shift the responsibility to God - that you got married and that this is “my cross”, this rather sounds like an excuse for your reluctance to interfere in the situation. God has no other hands than ours.

Margarita, age: 29 / 04/17/2014

Love, hold on! For now, accept a temporary deterioration in your financial situation. Remember - this is temporary, you have a good job, you have your own home. Fur coats and cosmetologists are all nonsense, the main thing is to take care of your nerves and health, that’s what is priceless.
It seems to me that your husband leads some kind of secret life that you do not yet know about. Just make inquiries. And then you yourself will understand how to act.

Svetlana, age: 34 / 04/17/2014

You need to stop paying off loans until you figure out what's causing them. Where and why does he spend such amounts of money? If he refuses to explain his spending, sign an agreement on separate ownership of property and separate responsibility for loans. Otherwise, it’s like throwing money into an oven. His grandmother, who lives with you, is hardly involved, please don’t take it out on her. But, understand, it is simply necessary to establish the reason why he takes loans so unrestrainedly. Perhaps he should sell the car you gave him and pay off his debts, but this only makes sense if he does not immediately generate new ones. And not to sell your mink coat, since the car given to him, in fact, is not feed for the horse. Your cross is not a stupid husband, but, above all, children. They and your old parents are the only ones to whom you really have obligations.

Anna, age: 30 / 04/17/2014

Lyubov Viktorovna, it seems to me that there is no need to despair and give up. Such situations really do happen now, and in this case it’s up to you to decide what to do and make a decision. You need to think sensibly. There is no need to panic. First of all, I wouldn’t listen to my mother-in-law. For her, her son is still the best, he works very hard, but her daughter-in-law is unworthy, and she doesn’t know what she’s doing. It seems to me that it is useless to convince my husband’s mother of anything. Secondly, he is an adult, let him think about how to pay off his loans. He took it upon himself; you are not obligated to do this. You are not obligated to sell essential items to get your husband out of debt. Also enter into additional debts, take out more loans to pay off his loans. Consult a lawyer about what to do in this situation. Who is obligated by law to do what? If you decide to sell his car to pay off his debts, then maybe that will be good. Regarding divorce, here, of course, everyone determines for themselves what to do. A friend of mine with many children had a similar case: her non-working husband took out a lot of loans, but this money never reached the family. He had no intention of giving them away. When collectors began to besiege her, and her husband began to hide from them, she decided to divorce. The reason is this: if a person puts his children at risk like this, can he still be trusted? Will it not be worse (including for them). Usually by the age of 40 people have already formed, and if an adult man is not responsible for his actions, then how can you be responsible for them? On the forum of this site you can consult about debts and get advice from people who have gone through similar situations. I wish you not to lose heart or despair, because your children need you. You definitely need to take action. Well, it’s not your fault that your husband behaves like this.

Olya, age: 42 / 04/18/2014

Lyubov Viktorovna, good afternoon!
How familiar everything is. My husband, while I was staying at home with the baby, also took out loans, first those that I knew about and could control the payments. Then the nonsense began...a loan for a home theater (what is it for??), for a new cell phone (which is more expensive than an airplane), for clothes (I don’t understand at all), then I stopped understanding what was happening. Until one fine morning (fortunately I was already working), my husband told me that ours!!! the debt is more than 1 million and he quit because he was depressed and had no strength. In such a situation, no lawyer will help you; loans taken out during marriage are repaid by both spouses. If your husband disappears somewhere, goes to the bottom, you will be the one to pay. This is the law. When the bailiffs came to me to describe my property, I was already living alone and was divorced. To my question, how can my child and I live now and why should I pay alone, they answered me... sorry for you, girl, but alas, this is what happened. I won’t describe my torment for 4 years, when I worked like crazy. As a result, I filed for divorce, there were not only loans, there was a lot of other things... but... a miracle saved me, you can’t call it anything else. Otherwise, I would still be giving away money...I won’t earn that much even if I burst. Conclusion: sell cars, rags, frills and pay everything to the banks before the case goes to court. And with your husband, of course, it’s up to you to decide... but what keeps you close to a man who doesn’t care about everything... except the fear of loneliness? Keep in mind that you don’t have to pay and go through the courts, if your nerves are strong, they won’t take your apartment, Since you have children and are registered there, they will put a cross on you (if the work is official), you will be blacklisted, etc.... and collectors... hmm, this is a separate topic, by the way, which I also covered. And suicide is such a baseness... one got credits, the second couldn’t bear it and committed suicide. What about the children? And cosmetologists and fur coats are just fur coats and cosmetologists... I speak as a person who at that time sold all the family gold and sapphire rings...
By the way, years later, even having the opportunity, I don’t buy such junk for myself anymore... they’re just rings. No more. And alas, I still can’t decide on a single loan...even though I’m working. As I remember....God take care of you. Only you can help yourself.

Elena, age: 40 / 04/19/2014

I have exactly the same situation, we lived together for so many years. I didn’t even suspect anything, I worked like hell... And we always had no money. My husband seemed to be earning some money, but then I found out that he had 8 loans from banks, and for the last two years he only told me that he was working, while he sat at home and earned nothing. I started working even more and helped pay it off. And then I find out that the banks no longer gave him loans and he took out quick loans.

For a long time I tried to figure out why he did this. In the end I concluded that my husband had gone crazy. Divorced, I feel very sorry for my son, he loves his folder very much.
It was bad, of course, and it was difficult, banks, collectors, hell all around, I worked like hell... It all ends, thank God. Now I have my own school, I do what I love, I have a good life and I am a happy person. I go on vacation, travel, I have many friends and interesting activities.
Don't give up, even the worst situations come to an end.

Manila, age: 30 / 04/10/2015

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Should a husband pay for his wife's loans during divorce proceedings? The above recommendations also apply to families where the marriage relationship has actually broken down, but the divorce has not been officially formalized or the divorce process is ongoing. The loan must be repaid by the one who formalized the obligation and participated in it as a borrower/co-borrower. The guarantor must not pay the loan until there is a court decision to do so. See also what to do if debt collectors threaten you.

What to do if your husband took out a loan without your knowledge

It is clear that if a wife finds out about an existing loan during marriage, then this situation is unpleasant and a scandal is guaranteed. But you can make a scandal as much as you like, but debt is worth paying.

Loan without the consent of the wife or husband

It also happens that citizens divorced, but the debts were not divided during the division of property. For example, a husband took out a loan without his wife’s consent during marriage to open a business, but he stopped paying the loan and bank employees are now calling his wife and demanding repayment of the loan from her.

My husband gained 15 credits without my knowledge

Since you are harnessed to go through life with this person, and are ready to do this further, you will have to sort it all out together, quite naturally.

The husband took out a loan without his wife’s consent and does not pay: what to do

My husband took out a loan that he doesn't pay. Am I responsible?

My question is the following: should I be responsible for the loans my husband took out without my knowledge and how can my daughter and I protect ourselves in this situation? I’m afraid that the situation is very serious, I don’t know the full extent and amounts, so I really hope for your advice and help. Thanks in advance!

Husband took out loans without his wife's knowledge

On July 6 last year, I found out that my husband has 5 loans. in different banks, don’t ask how, I just found out. I had my own loans, I can easily pay off my car and a consumer loan for home renovations. Before this, there were also loans that I successfully closed. So here it is. My mother-in-law endlessly reproached me for getting a good car, while Misha drives a broken-down four-wheeler, and he WORKS so hard! I thought, I’ll give him a gift for his birthday, I’ll give him a car. I contributed 50% of the rest to the loan, it doesn’t seem to burden anything, I make good money. And then the most interesting part. On July 2 I give him a car, and on the 6th I find out about loans. I'm terrified. But you have to live somehow. We have three children, plus a foster child. We got married three years ago. I think this is my cross. I go to the bank, take out the next loan, pay off part of its loans, and a month later I find another card for which the payment is 8,000 rubles. And I’m already paying almost 100 thousand rubles a month. I screamed, but there’s nothing to do. It’s clear that we only buy cheese and sausage for children, the cosmetologists are perplexed, I’ve been going to them for years, etc. And after the new year I find out: my hubby owes people almost 600 thousand, and he has 6 more loans. And I had to take out another loan in order to pay people off. In total, my monthly payment amounted to 86 thousand rubles. and plus it’s almost 60 thousand. Naturally, I stopped paying his loans. And the most interesting thing is that those cards that I redeemed the very first time, his cards, he pulled out of my bag and cashed them. By the way: the four-wheel drive he drove was wrecked by him more than once, and the car I gave him has also already been wrecked 4 times. He works now as a taxi driver. brings in from 3 to 5 thousand a week. But the banks are starting to call, wow! Naturally, a bunch of things were sold from the house, from a mink coat to a kitchen. And his grandmother, 91 years old, God’s dandelion, has been living with us all this time. All my friends say, kick him, get a divorce. But I'm not there. I recently saw a terrible accident, and you know what I thought, it would be better if I looked there.

Is the wife responsible for her husband's loan?

According to paragraph 2 of Art. 39 of the RF IC, this can happen when one of the spouses was not employed for unjustified reasons or spent the family’s money to the detriment of the family’s interests; shares in the common property of the spouses during a divorce can be recalculated in a different proportion in favor of the second spouse. This also applies to shares on loans. If the loan was issued before marriage, only the spouse for whom it was issued is responsible.

Betrayed trust

And before you tactfully start questioning, try to find out on your own what the money could have been spent on. Study your credit history - you can learn a lot from it. And only then start the conversation.

My husband took out a loan without my knowledge and is not paying it back! Need advice

I didn’t know about these loans and the banks didn’t call me and didn’t ask for my consent.

A pressing question is whether the wife is responsible for her husband’s loans

By listing the spouse as a guarantor, banks insure themselves against problems, since they will be able to demand repayment of the debt from the wife, who acted as a guarantor and signed the agreement to provide her husband with a loan.

Husband takes out a loan without his wife's knowledge

1. Possession, use and disposal of the common property of spouses is carried out by mutual consent of the spouses.

A resident of the capital, Anton (name changed), came up with an interesting scheme on how to live comfortably. He collects loans from different companies and banks and... does not pay them. He has no property - he transferred everything to his relatives long ago, his income is minimal, and in fact there is nothing to take from him. Letters from the courts are coming in batches, the bailiffs are very familiar with it, but no one can do anything about it. Can such actions really go unpunished or does the law still make it possible for creditors to get their money back, MK-Estonia asks.

Anton, of course, is not the only one so cunning and smart. Almost everyone has a friend who lent money and then struggled to get their money back. Some haven't received it yet.

“Initially I didn’t even think that the matter would take on such proportions,” Anton confesses. – When I took out the first loan, I honestly intended to pay it back. But then I realized that I couldn’t cope. And then they suggested to me: transfer the property to other people and register for the minimum wage, the rest is in the envelope. It worked. Then I took out another loan - from another company. And then again and again. But if I could return everything back, I would first transfer the property to relatives, and then take out loans. And so, if there is a competent bailiff, you can dig in.”

So far, he adds, no one has succeeded. He tells all the creditors that he does not refuse to repay the debts, but, sorry, there is no money now. At the same time, he drives a car that is not registered to him, and lives happily in a well-furnished apartment, which is also not registered to him. He eats well, dresses decently and smiles a lot.

There's another loophole

Is it really possible to do this and nothing will happen for it?

“In a situation where a person without property and with minimal income takes out all kinds of loans, the company issuing the loan must thoroughly check his credit history and ability to repay the loans received,” says Evgeniy Tverdokhlebov, a sworn lawyer from Advokaadibüroo Vindex. “This verification is carried out by comparing data from various sources, including the register of debtors.”

Also, the sworn lawyer emphasizes, the credit institution must first explain to the client all the possible risks before issuing money.

“For example, there are periods in the economy when people lose their jobs en masse, real estate prices fall, and after the sale of mortgages, the proceeds may not be enough to repay the loan. It is worth making sure and documenting that the client understands this when planning to enter into an agreement,” lists Evgeniy Tverdokhlebov.

At the same time, the company that issued the loan will have to prove the fact of explaining the risks, so it must take care of this. If this was not done, then the client can then say in court that the creditor did not warn him, and he himself does not possess such knowledge.

“The State Court has repeatedly ruled that in some cases it is possible to get rid of the need to repay a loan if, when issuing it, the mentioned obligations were not fulfilled, and because of this the loan was taken or given by mistake, that is, without taking into account all relevant circumstances,” - the sworn lawyer emphasizes.

And in such cases, according to him, if the creditor fails to prove that he checked the client’s solvency and warned him about the risks before concluding the contract, the debtor can sue for damages and set off the creditor’s claim with his own claim. And then the court can release the debtor from the obligation to repay the loan (in the amount of damage).

“Although the State Court has repeatedly pointed out this possibility, lower courts usually decide otherwise, collecting amounts received by the debtor,” adds Evgeny Tverdokhlebov.

That is, it turns out that Anton could have acted differently: he was caught up in the fact that the companies where he took out loans did not explain such things to him. And he assures that they did not explain. And through the court, seek to have his loans written off altogether in this case. But this only works if there was no initial malicious intent to steal property from creditors.

Buyers and relatives should be careful!

“Firms that issue loans must check their clients, sometimes several times,” adds Evgeniy Tverdokhlebov. – It may be that when a person entered into an agreement, he still had property and income. And then the situation changed, the income decreased. To prevent this from happening, it is important for lenders to regularly update their data and pay attention to such changes.”

What to do if the debtor transferred everything to his relatives, but he himself is as naked as a falcon?

“If property is registered in the name of relatives, then it is assumed that the relative knew about the person’s debts, even if in fact he was not aware,” explains the sworn lawyer. “And in this case, the deal may be cancelled.”

It happens that a debtor transfers his apartment, for example, to his mother, and his car to his sister. They, in turn, quickly sell this property. Is it possible to cancel such transactions?

“It’s possible,” says the sworn lawyer. – If the assertion is not refuted that they knew that the transaction caused damage to creditors and still sold the property, then the damage caused in the amount of the market value of the apartment and car can be demanded from them. Because there is a presumption that they knew that such a transaction would worsen the position of the creditor. And it turns out that there was one debtor, but there will be two or three.”

As for the new buyers of the apartment and car, to whom their mother and sister sold them, then, according to Evgeny Tverdokhlebov, there are nuances.

“If the property was purchased at a price below the market price, then both creditors and the manager may also assume that the buyer should also have known about the worsening position of the creditors. In this case, there is a risk that a lawsuit will be filed against the buyer to cancel the transaction, and he will be involved in various disputes,” says the sworn lawyer about the consequences.

That is, imagine: you buy an apartment, take out, say, a loan from a bank. Then it turns out that the apartment was sold to you by the relatives of a person who has problems with debts. As part of bankruptcy proceedings, a lawsuit is filed against you to take your apartment. If the court decides that the deal is strange and there is reason to believe that you knew about the worsening position of the creditors, then the purchased apartment will be taken away from you and the deal will be cancelled.

You become a regular lender like everyone else, and all you can do is hope for the best and wait for them to suddenly have money. And it’s good if they have money - but what if there’s nothing to take from them? As a result, any real estate buyer runs the risk of being left homeless, and at the same time, he will have to pay the bank every month for an apartment that he does not have through no fault of his own.

“And sometimes activities to save property can have criminal consequences,” emphasizes the sworn lawyer. “Therefore, you can participate in various schemes that at first glance may seem very profitable only if you have a clear understanding of the consequences and confidence that everything is being done legally. If we are talking about expensive transactions, then it will be beneficial to seek the help of a specialist who will tell you about the pitfalls and consequences.”

Bankruptcy: pitfalls

Anton says that he has one more option - if they press him too hard, he can simply declare himself bankrupt. However, this option is not as simple as it seems.

“Firstly, within the framework of bankruptcy proceedings, the bankruptcy manager has the right through the court to reclaim the debtor’s property,” says lawyer Danil Lipatov from Progressor Õigusbüroo. “Depending on the circumstances, the court may invalidate a transaction aimed at seizing the debtor’s property and concluded 5 years ago.”

Thus, if the bankruptcy trustee proves that Anton initially had malicious intent, and he began to transfer the property to third parties when the smell of frying began, then the transactions may be cancelled.

At the same time, it is more profitable for Anton to declare himself bankrupt than for creditors to initiate the same proceedings.

“The state fee when filing a bankruptcy application for a creditor is 300 euros, for a debtor 10 euros,” the lawyer emphasizes.

At what amount can we talk about starting bankruptcy proceedings? Can a person be declared bankrupt, for example, because of 200 euros?

“If we are talking about private individuals, then a prerequisite for initiating bankruptcy proceedings is a creditor’s claim of at least 1,000 euros. But a bankruptcy petition can be filed with a smaller requirement, if during the year unsuccessful enforcement proceedings were carried out on this requirement,” explains Danil Lipatov.

It is believed that this is a simple and convenient way to get out of debt. Is this true? What are the pitfalls?

“Bankruptcy proceedings are not the simplest legal procedure, which has a number of mechanisms that protect both the interests of the debtor and creditors,

– the lawyer emphasizes. – 5 years after the initiation of bankruptcy proceedings, the court, at the request of the debtor, may release him from fulfilling the remaining obligations and terminate the proceedings. If the debtor diligently fulfills his obligations, this can be done 3 years after the initiation of bankruptcy proceedings.”

As for the statute of limitations, some say 3 years, some say 10 years. Which number is correct?

“Three years is the statute of limitations for collecting debts if the creditor does not sue. If there is already a court decision, then it can be executed within 10 years,” explains the lawyer.

Debt out of nowhere: you can get on the list of debtors even without having debts

Estonia has an official debt register. All debtors, both individuals and companies, are included there. However, as practice shows, those who have never had debt can also get into it. And proving your innocence and clearing your debt history in the end turns out to be quite difficult.

The editor received a letter from Anastasia. A month ago, she decided to buy a new mobile phone in installments and went to the Elisa representative office to do this. But there the girl was taken aback by the fact that they could not arrange an installment plan for her, since she was listed as a debtor in Krediidiinfo. Anastasia was very surprised, because she has no debts and never had any.

Prove that you shouldn't

“When I arrived home, I went online to my debt history in Krediidiinfo, and in fact, I had a debt to the collection company Creditreform since 2013. That is, for three whole years I didn’t know that I had a debt,” says Anastasia. – Creditreform explained that I owe Oriflame. And then I remembered that I actually ordered products from them with delivery through a postal machine. But it so happened that I couldn’t pick up the parcel, and it had to go back to Oriflame.”

The girl explained the situation to the collection company and asked how it happened that she did not know about her debt for three years. Creditreform told her that they sent letters to some address that turned out to be completely unfamiliar to Anastasia. She gave her email address and received a document indicating a debt of 12.84 euros and a penalty of 33.51 euros, for a total of 46.35 euros.

After this, Anastasia again wrote a statement to the collection company that she did not owe anyone anything. Three weeks later, a response came from Creditreform that didn’t really explain anything. They referred to a document from Oriflame and asked to liquidate the debt.

“Oriflame sent them a document containing only my first name, last name and address, as well as a debt for one product, although I ordered two separately from them on the same day. That is, I should have received two parcels in two Smart Post cells on the same day. This surprised me, where did the second parcel go if I didn’t pick it up too? – Anastasia is surprised. “In addition, this so-called document contains signature lines and document numbers, which, of course, were empty, since I made an order on the Internet, there were no contracts.”

The promised one has been waiting for three years

The girl contacted Creditreform again and tried to explain that the parcel had been returned to the sender, that she could not receive it, to which she was then told to pay for the contract and draw up a payment schedule.

“They couldn’t listen or didn’t want to. They just wanted her to pay. For what, they themselves don’t know and can’t explain. I said that anyone could make such an agreement, and now what, should everyone pay? - the involuntary debtor is indignant. “In the end, I called Oriflame myself and explained the situation. They answered that there were two parcels, I took one, but not the second. I was very surprised. In Smart Post, before opening a cell, you need to make a payment through a bank terminal. And they tell me that I took it without paying.”

As a result, the Oriflame accountant made a request to Smart Post, was convinced that an error had occurred, and promised to settle all matters with the collection company. A day later, Anastasia discovered that her debt was closed, but the debtor’s mark would hang on her for another three years, which is how long the debt history is stored in the register. And during this time, the girl will not be able to take out loans or arrange installment plans for herself.

“First I called Krediidiinfo and explained the situation to them. They said that Creditreform should contact them and provide all the information. Or for me to write a statement. It turns out that I have to do the work for the collection company again! – Anastasia is perplexed. – I started calling Creditreform again, my patience was already at its limit. The only response I heard was that it was not their mistake, and the history of the debt itself would be cleared in three years. When they had already driven me crazy, I said that I would go to court and write to newspapers and the Internet. Five minutes later they called me back and said in a friendly voice that everything would be fixed by the evening. There was no longer any talk about the fact that this was impossible. It turns out that it is very easy to make a person a debtor by mistake, but they are reluctant to correct this and do not consider it necessary to apologize. It’s easier for them if I just pay 46 euros!”

Different situations

Unfortunately, Anastasia did not indicate her last name, and it was not possible to contact her to clarify MK-Estonia’s personal information, despite repeated attempts. Therefore, Creditreform was unable to comment on this specific case.

“Since we don’t know who approached you, we can only speak generally about how some of our work is going. Creditreform deals with debt collection on a daily basis, where debtors are both private individuals and legal entities. Since there are many people in debt, it is absolutely normal that different situations arise,” says Bernela Ader, head of the debt collection department at Creditreform Eesti OÜ.

Part of the daily workflow, according to Ader, is finding out the identity of the debtor and reporting the debt situation in order to find a solution. Notifications are provided through the usual methods, including email and SMS.

“In the event that our repeated notifications are not responded to, a decision is made on the advisability of continuing the process, based on the specific case. In general, I can say that we always act ethically and comply with applicable laws. We consider it important to listen, understand and act according to the situation,” concluded Bernela Ader.

Public Relations Advisor of the Personal Data Protection Inspectorate Maire Iro explains that if a person discovers that his data has been entered into the debt register by mistake, then in order to remove it from the register, he can contact the company AS Krediidiinfo. Claim resolution procedures can be found on their website. If it is impossible to reach some kind of mutual decision in this way, you can go to court to protect your rights.