2024 Author: Malcolm Clapton | [email protected]. Last modified: 2023-12-17 03:44
From October 1, 2015, not only legal entities, but also individuals can obtain bankruptcy status. The changes in the law are designed to help citizens start a new life: get out of the debt hole and get rid of the persecution of collectors. We will try to understand the peculiarities of the bankruptcy procedure for individuals and find out what pitfalls may lie in wait for those wishing to "write off" debts.
Apartments, cars, refrigerators, telephones - people are mired in loans. More than 15 million Russians have two or more loans. According to the United Credit Bureau, in the first quarter of 2015, a record increase in the level of overdue debt was recorded - 17.62%. These are delays in cash loans, credit cards, car loans and mortgages. The amount of overdue payments on it is almost 35 billion rubles.
The desire to live a better life sometimes turns into a collapse: income does not cover credit obligations, fines are charged, penalties accumulate - debts grow like a snowball. And although against the background of the crisis, the credit rush began to decline (people stop taking new loans, trying to pay off their existing debts as soon as possible), the number of those who have lost control over their finances is already too large.
Therefore, it was decided to follow the path of Germany, France, Finland and other countries where the bankruptcy of individuals has been practiced for more than one year. After a long debate, a new chapter appeared in the law "On insolvency (bankruptcy)" - "Chapter X. Bankruptcy of a citizen".
Today, about 580 thousand Russians fall under the bankruptcy law, which is about 1.5% of the total number of borrowers with open accounts. Also, about 6.5 million more Russian borrowers who currently do not pay on their loans for more than 90 days will be able to use this right to ease their financial situation. United Credit Bureau
Legislative changes that came into force on October 1, 2015, affect a huge number of people. We decided to find out how to declare bankruptcy and what it is fraught with.
Conditions for the onset of bankruptcy
A citizen can be declared insolvent and is obliged to initiate bankruptcy proceedings if the amount of his debts on loans, taxes, housing and communal services and other obligations exceeds 500,000 rubles, and payments are overdue by more than three months.
If the debts are less than half a million, the citizen has the right to file for bankruptcy. But you will have to prove insolvency - this is when, after making monthly payments, less than the cost of living remains on hand.
In addition to the debtor, creditors have the opportunity to initiate bankruptcy proceedings. According to experts' forecasts, credit institutions will resort to it if they suspect that a person can, but does not want to pay.
It is possible to file a petition for declaring a person bankrupt even in relation to a deceased citizen. This is important if only debts are inherited from a relative.
Bankruptcy proceedings
The general algorithm is as follows.
- A citizen applies to the arbitration court at his place of residence with a request to declare him insolvent. The application must be supported by an impressive package of documents: a list of creditors, the amount of debts and information on delays, a list of available property, the state of bank accounts, the availability of securities and luxury goods and other data characterizing the financial condition.
- The court verifies the validity of the citizen's desire to become bankrupt. They will definitely find out whether the applicant has recently made major transactions, whether he donated cars and summer cottages to his cousin on his mother’s side, whether he transferred his accounts to someone else. For attempts to conceal property and deceive the court at any stage of the process, liability is provided, including criminal liability.
- If the case is accepted for proceedings, the court will seize the debtor's property and appoint a financial manager for him. The latter is subject to the same requirements as the bankruptcy managers of legal entities. He will monitor the financial condition of the applicant, communicate with creditors, draw up a restructuring plan and, if bankruptcy is unavoidable, assess and sell the property.
So, in an insolvency case of an individual, there can be two outcomes: restructuring (there is something to pay, but the conditions need to be revised) or bankruptcy (there is no money and is not expected). Let's consider them in more detail.
Debt restructuring
One of the main tasks of a financial manager is to analyze a citizen's debts and agree with creditors a new, real, debt repayment plan.
The purpose of the restructuring is to restore solvency. Restructuring can include a decrease in the amount of monthly payments, an increase in the loan term, credit holidays and other measures that will allow a citizen to pay off debts.
But the main thing is that after the restructuring plan is approved by the court, the accrual of penalties (fines and penalties) for non-fulfillment or improper fulfillment of financial obligations stops.
The plan will take three years to complete. All this time, the debtor's rights will be limited.
- You cannot contribute your property to the authorized capital of legal entities, as well as acquire shares in them.
- You can not make gratuitous transactions, and paid and more or less large ones will have to be coordinated with the financial manager.
Nevertheless, according to experts, restructuring is beneficial to both debtors and creditors. The former will be able to ease the debt burden by preserving the property, and the latter will receive at least part of what is owed.
However, not everyone can count on restructuring. So, if a citizen has an outstanding conviction for a deliberate crime in the economic sphere, or he was brought to administrative responsibility for petty theft, deliberate destruction or damage to property, or was seen in fictitious bankruptcy, the court will refuse to review debts.
You cannot qualify for restructuring if a person has already resorted to it and since that moment has not passed eight years or if he was declared bankrupt less than five years ago.
In cases where restructuring is impossible, as well as if it was unsuccessful, a citizen can be declared bankrupt.
You are bankrupt
A citizen can be declared bankrupt only by a court decision.
After an appropriate decision is made, the property of a citizen is sold at auction in favor of creditors within six months, and the remaining debt is canceled.
Even shares in the common property of a bankrupt are subject to sale. Creditors, for example, have the right to demand the allocation and sale of the husband's or wife's share from the apartment acquired by the spouses in a legal marriage.
Can't be auctioned off:
- the only housing, including mortgage (provided that there are minor children);
- common household items (objects of art, jewelry and other luxury items worth over one hundred thousand rubles are being sold);
- personal items (clothes, shoes, etc.);
- property necessary for professional activities (for example, the car you work on);
- other property on which, according to civil and family law, collection cannot be levied.
Until the completion of the procedure for the sale of property, additional restrictions may be imposed on the citizen. For example, a court may prohibit leaving the country.
An important point. Do not think that, having become bankrupt, a person gets rid of absolutely all financial obligations. Debts on alimony, on penalties for moral damage or harm caused to life and health, you still have to pay.
Consequences of Declaring Bankruptcy
The bankrupt status is retained by a citizen for five years.
During this time, the person will be limited in some rights. For example, it is forbidden for a bankrupt to hold positions in the management bodies of companies and to lead them.
But the main thing is that having decided to take a loan again, the citizen will be obliged to report that he is bankrupt. However, according to experts, one who has once tried on this label is hardly worth relying on lending at all. “Bankrupt” is a black mark in credit history that can put an end to it.
In addition, difficulties may arise when applying for a job. If the HR department finds out that the applicant is bankrupt, then the chances of finding a job will be drastically reduced. Can a person be a responsible employee who is entangled in debt so much that he had to resort to bankruptcy proceedings?
Problems of law enforcement practice
On the first day of the law on bankruptcy of individuals, arbitration courts across the country accepted more than a hundred bankruptcy claims. Down and Out trouble started. According to the Central Bank, approximately 400-500 thousand Russians can resort to bankruptcy proceedings.
Despite the fact that the courts were actively preparing for the entry into force of amendments to the bankruptcy law, problems are inevitable and will soon begin to surface. First, arbitration courts, unlike courts of general jurisdiction, are located only in regional centers. This calls into question the availability of justice for residents of remote regions of Siberia and the Far East.
Secondly, according to lawyers, it will be difficult for an ordinary citizen to even draw up an application to arbitration, let alone prepare the necessary package of documents in the prescribed form.
Third and, perhaps, most importantly, the debtor is obliged to pay for the services of a financial manager.
Fixed cost of services of a financial manager - 10,000 rubles. Plus 2% of the debt paid under the restructuring plan or 2% of the sold property.
The problem is that it will be extremely difficult to find a financial manager willing to work for 10 thousand rubles. There are many offers on the Internet from professionals who are ready to help citizens get rid of their credit shackles. Here are just their price tags exceed the fixed rate at times.
The financial chasm is the deepest of all chasms, and you can fall into it all your life. Ilya Ilf Evgeny Petrov
The Individual Bankruptcy Law has caused a lot of controversy in parliamentary circles. In the last year alone, it was changed 11 times, and, perhaps, there will be more changes. After the law came into force, the debate moved to the expert level - economists and lawyers are looking for the pros and cons of the procedure.
We invite you to speak too. What do you think about the bankruptcy of citizens?