Debt collection from a surety is a consequence of a surety - a fairly common way of securing debt obligations. In accordance with the legislation, the guarantor must be responsible to the lender for the fulfillment of obligations to pay the loan by the borrower in full or in part.
Instructions
Step 1
Please note that in the Russian lending practice, most often the borrower and the guarantor are jointly and severally responsible for paying the debt. But the Civil Code does not prohibit the establishment of subsidiary liability, when the guarantor is obliged to answer for the debts of the borrower only in the absence of funds from the latter. In case of joint liability, the creditor has the right to demand from the surety and the debtor the performance of obligations jointly or from each separately. In this case, the guarantor may be responsible for the payment of interest, reimbursement of legal costs and other expenses incurred by the creditor in collecting the debt.
Step 2
When collecting a debt from a surety, pay attention to some of the nuances. In accordance with the legislation, the creditor has the right to collect from the guarantor only the amount of the principal debt on the loan and interest for using it, but also the amount of fines for their late return. However, the surety agreement may provide for the responsibility of the surety only for the return of the amount of debt and interest on it. In this case, the creditor has no right to demand from him the return of penalties and fines.
Step 3
When drawing up a statement of claim to the court, be sure to take into account the duration of the surety agreement. The law stipulates that the creditor can collect the amount of debt from the surety only within one year from the moment of violation of the terms of the contract, and subsequently only the debtor will be liable to the creditor. But in some cases, the term of the surety can be fixed in the contract. In this case, the term of the loan agreement may exceed the term of the surety agreement. In such a situation, the creditor is not entitled to recover the amount of the debt from the guarantor before the expiration of the loan agreement, since it is impossible to establish the actual fulfillment of the debtor's obligations to him.
Step 4
When going to court to collect a debt from a surety, consider the jurisdiction of the cases. If a bank applies to a guarantor who is a legal entity, then such a case will be considered by an arbitration court. If a claim is brought against an individual, then you should go to a court of general jurisdiction.
