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- The payment is red: creditors will not be able to charge fines on the debts of the deceased
The payment is red: creditors will not be able to charge fines on the debts of the deceased
Lenders will be prohibited from charging fines and penalties on the debts of deceased borrowers. The measure will be extended until their relatives take over the inheritance rights. The relevant bill was adopted in the State Duma, the deputies supported the initiative unanimously. The innovation eliminates the gap existing in the legislation, experts say. At the same time, creditors will not suffer serious financial losses. Izvestia found out how the new norm will work.
Combating abuse
The State Duma adopted in the second and third readings a bill prohibiting lenders from abusing the imposition of fines on debts of deceased borrowers. The norm affects the period before the entry of relatives into the inheritance. The document amends the federal law "On Consumer Credit (Loan)". The new mechanism will apply to all types of loans, including mortgages.
Another innovation introduced by the adopted measure is the ban on early repayment of the loan.
The explanatory note to the draft law states that today, in accordance with the requirements of the Civil Code of the Russian Federation, relatives who have accepted an inheritance are responsible for the debts of the testator in proportion to their share. A six-month period has been set for inheritance. However, often the heirs do not even know about the debts of the deceased, they are informed by creditors. The case may come to court claims — relatives receive demands to repay the loan debt in full, taking into account fines and penalties accrued for improper fulfillment of obligations by an already deceased borrower.
"These situations occur because the current legislation does not prohibit the heirs of a deceased borrower from demanding payment of credit debts and the imposition of fines (penalties, penalties) under consumer loan agreements for improper fulfillment of credit obligations prior to inheritance," the authors of the initiative note. The new amendments are designed to eliminate the existing legislative gap.
The initiative was previously supported by the Russian government. At the same time, the Cabinet proposed to take into account a number of technical details, such as clarifying terminology.
The editorial board of Izvestia sent a request to the Federal Notary Chamber. No response has been received at the time of publication.
Without spaces
In the structure of the loan obligation, it is necessary to distinguish between interest for using the loan and a penalty, recalls Evgeny Grafkin, lawyer and managing partner of Grafkin & Partners. The current rules establish that the obligations arising from the loan agreement are not terminated by the death of the debtor and are part of the inheritance. And during the period when the inheritance is open, both interest for using the loan and penalties are accrued, the expert points out.
The consolidation in the law of a moratorium on the accrual of fines and penalties on debts of deceased borrowers for six months from the date of the opening of the inheritance case, as stated, is the usual elimination of a legislative gap, the Popular Front expert believes. Analytics", project manager of the NF "For Borrowers' Rights" Evgeniya Lazareva.
Recently, banks and microfinance organizations have not penalized close borrowers before inheriting.
"But this happens only in cases where the heirs are aware of the obligations of their relative or testator and apply to the lender themselves immediately after the borrower's death," the Izvestia interlocutor clarifies.
Often, borrowers, signing a loan agreement, do not care about saving their loved ones from having to pay their debts in case of death, she draws attention. They do not inform their relatives about their obligations and do not insure their lives.
— Therefore, there is a law enforcement practice when creditors oblige to repay the debts of the deceased with additional sanctions even before entering into the inheritance. This becomes a separate problem and tragedy when debts arose under the influence of fraudsters, and the heirs were dependent on the deceased. Unfortunately, such situations are not uncommon in our practice," Lazareva points out.
The new rule, according to Nikita Chaplin, a member of the State Duma Committee on Budget and Taxes, is designed to eliminate obvious injustice. The six-month deadline for inheritance is set by law, and the heirs cannot physically complete all the documents faster.
— At the same time, banks, taking advantage of the legal gap, continue to charge penalties, significantly increasing the debt burden. Our bill puts an end to this practice, prohibiting any penalties in the period between the death of the borrower and the entry of the heirs into the rights, — the deputy emphasizes.
However, it is not entirely correct to say that banks and other lenders deliberately abuse penalties on debts of deceased borrowers, says Nikolay Filippov, Director of Risk Methodology and Data Analytics at the United Credit Bureau. They often implement their own processes in accordance with the concluded loan agreements, being unaware that the borrower has died.
"If obligations are not fulfilled because relatives do not know about the loan, then from the moment of the borrower's death until the moment when the lender finds out about it, fines, penalties and penalties will be accrued solely as a result of the terms of the contract," the expert explains.
It cannot be said that banks used to abuse the opportunity to charge a penalty earlier because the law did not explicitly prohibit them from doing so, says Grafkin. However, sometimes creditors are in no hurry to find heirs and claim a refund, which is why decent amounts of penalties have accumulated.
Cases when the creditor, even before the potential heirs enter into the inheritance, tries to interact with them in order to collect the debt with additional arguments in the form of increasing fines, are possible only after obtaining consent to such interaction from potential heirs, Filippov notes. The lack of such consent violates the law on collection activities.
The path to justice
The new rule will help protect the rights of relatives who inherit, and balance the balance of interests, Evgenia Lazareva is convinced.
— The death of a borrower is a force majeure circumstance that does not allow servicing loans and borrowings. It is unfair to burden people who have also lost a loved one with fulfilling obligations that they have not yet assumed," she believes.
It is also important that the rule applies to mortgage borrowers. This is especially true for families who have lost a breadwinner, Nikita Chaplin is sure.
— Now they will have the opportunity to safely issue an inheritance for housing, without fear that during this time the bank will charge exorbitant penalties or begin the procedure for the withdrawal of the only housing, — says the parliamentarian.
Meanwhile, the Council under the President of the Russian Federation for the Codification and Improvement of Civil Legislation believes that the new measure unreasonably infringes on the rights of creditors, Lazareva draws attention. However, in her opinion, given the underdevelopment of the life insurance institute in Russia, this position is very controversial.
— Even by insuring his life, the borrower does not receive guarantees of full and unconditional debt coverage — this is how the financial market works. Therefore, when approving the disbursement of borrowed funds, as the stronger party to the agreement, the lender is obliged to take into account the likelihood of sudden death of the client in its risk management strategy, the expert believes.
This innovation will not affect the commercial activities of banks in any way, Nikolai Filippov notes. Banks will cancel fines unnecessarily accrued due to ignorance about the borrower's death, but these amounts are incomparable with the total amount of accrued interest.
Creditors retain the right to receive the principal debt and legitimate interest, and only the possibility of artificially increasing debt through penalties is eliminated. According to Chaplin, this is a fair measure consistent with international consumer protection practices.
The new rule protects the rights of those who inherit, but it does not provide unlimited opportunities to use such a delay, limiting the period to six months, which also ensures the safety of banks, adds Evgeny Grafkin.
— After assuming the rights, the heirs are still responsible for the debts of the testator, but now without unreasonable penalties for the period of paperwork, - Nikita Chaplin summarizes.
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