Автор: Пушкин А.В. — Управляющий партнер юридической компании Tenzor Consulting Group
Managements of famous collection agencies share their experience of qualitative and comprehensive approach to the collection process.
During the financial-economic crisis most companies were in a difficult situation because of non-payments of contractual duties. That resulted in increase of overdue accounts receivable and reduction of negotiable monetary assets. But development of fixed income causes the increase of the role of collection organizations that fulfill professional activity in the sphere of debt collection. Nowadays debt collection gets to be a problem for most people. In some cases some specialized organizations are attracted to the debt collection process. But often the companies face a debt problem and try to remedy it by their own efforts. Therefore the qualified and comprehensive preparation of the officers of the company for debt collection actions is always topical.
Andrey Pushkin Managing partner Tenzor Consulting Group legal company
Complex approach and phasing
Topicality of debt disputes is shown by the increase of applications to the court that deal with debt collection and concomitant actions. For example according to the date of the Supreme Arbitration Court of the Russian Federation, there are over 39 thousand of applications of 2009 that declare the debtors to be bankrupts, which is 15% more than the analogous index in 2008. During the previous year the courts have collected 1056,2 billion rubles in favor of the applicant in the setting of the total sum of property requirements of 2236,0 billion rubles. Development of the modern market leads to the increase of the role of collection organizations that fulfill the professional activity in the debt collection sphere. It is considered that the professional activity in the given sphere is more effective and economically profitable. However it’s impossible to anchor all hopes on the experience of collection officers. In some cases the officers of the creditor will have to maintain the process of debt collection independently. And in this case the application of the systematized experience of collection companies will be of big interest.
To work in optimization and debt collection it is necessary to know that debt collection is not separate actions (lodging of a claim, phone talks, application to court, etc.). It is a complex of measures directed to one aim that is debt collection. And first measure is prevention of indebtedness that is a correct and timely drafting of the basic legal documents: agreements, invoices, acts of services rendered, letters of attorney. When the documents, which confirm the proper rendering of services, are in order, the process of debt collection may not end up with the court proceedings having assured the rival of the hopelessness of the struggle.
As a rule, there are some stages of work with debtor indebtedness.
First of all, it is necessary to identify the moment when the indebtedness becomes a problem. Usually the basic criterion to declare the indebtedness a problem is the sum of the debt. There can be some other criteria of problem indebtedness like duration of payment delay, behavior of the debtor, etc. Herewith it is essential to take into account some provisions of the legislation, for instance the limitations of actions upon the expiry of which the debt collection can be of low-probability.
Secondly after determination of the problem indebtedness it is time for legal evaluation of the existing situation – analysis of the documents that confirm indebtedness and justification of the sum of the debt. In case of insufficiency or legal incorrectness of the documents it is required to get or correct them, and to identify the legal position of the creditor, possibility and ways of debt, penalty collection.
The third stage is negotiations with the debtor. At this stage the debtor shows his good conscience and the further steps of the parties to eliminate the indebtedness.
Amicably or aggressively?
Actually after the preliminary procedures described above there are two legal methods of pressure on the debtor: claim and court. The claim method is used with fair loaners that undergo temporary difficulties. And ideally it ends up with the agreement between the creditor and the loaner that the parties are pleased with. The agreement must content the obligation that caused indebtedness, and the mechanisms and terms of the debt redemption. Moreover it is essential to draft reconciliation with the data of basic documents that confirm the sum of the debt for the parties to confirm the subject of the agreement. Both the documents are signed by the parties and can serve as evidence for judicial proceedings in future.
The second variant is to conclude an agreement of compensation for termination of the contract. If the debtor can not fulfill his obligations according to the basic contract in monetary terms, the indebtedness can be discharged by other liquidation property. According to the article 409 of the Civil Code of the Russian Federation on the consent of the parties the obligation can be terminated after the compensation instead of fulfillment (in money terms, property transfer, etc.). Such a variant is preferable provided if the financial situation of the debtor is getting worse. One more alternative is debt novation. In accordance with the article 414 of the Civil Code of the Russian Federation the financial obligation can be substituted by other obligation between the same persons that stipulates other subject or method of fulfillment (novation).
Thus the indebtedness according to the delivery agreement can be transformed into the service contract in accordance with which the debtor executes a piece of work (renders services) necessary for the creditor. However concluding the agreement the creditor is imposed with some limitations. Particularly there can be some difficulties with calculation of penalties to the amount of the debt. For example, the tax bodies consider that the penalty amount that are not included into the schedule of restructuring are liable to be paid on general terms. Calculation of penalty to the amount of the restructurable debt and application of measures of forced collection are terminated after taking a decision. Thus restructuring of indebtedness fulfilled on the basis of the decree of the Government of the Russian Federation dated from November 09, 2005 № 672, which is in fact a kind of installment of tax payment that is a change of its payment term.
Accept amicable methods of pressure on the debtor there are some aggressive ones. Within the limits of the law one can fulfill such methods as smear campaign that is distribution of damaging information about the debtor-company; application to the official security agencies for investigation of legality of debtor’s actions. One can apply to tax service or militia, for the debtor can be suspected of tax non-payment, fraud, etc. Suspicion is enough to impel the debtor to concession. As a less severe variant of pressure one can apply to the investigating bodies. Despite the legislative efforts to limit the influence of periodicity and terms of examination of the debtor’s economic activity, the fact of examination will negatively reflect on the debtor’s work. Also there is chance to discover some infringes that can cause an administrative duty of the debtor and participation of a superior company. It is applicable if your debtor is not an independent company but a subsidiary or a dealer of a big corporation. In this case talks with the head office can make the debtor consider the possibility of debt discharge more actively and amicably. Furthermore the head office can participate here financially, so called economic blockade of the debtor. This variant can be realized if you know business contacts of the debtor and have own ones. Write a warning letter (one, two or three letters, it depends on the situation) and if the debtor keeps ignoring you, you can easily make a claim to the court. There is a hazard of court proceedings, collection of the debt, interests and court charges. Along with it if the debtor doesn’t discharge the debt within the terms set by the court, it will ruin his credit history. Just the fact of the written claim with the threat of the court proceedings will induce the debtor to be more open to your requirements. During the examination most things depend on the correctness of the inspection officers. That can lead to the situation that the additional documents provided to the court by the inspection as the documents received beyond the scope of tax inspection, which is infringe of a procedure of collection of evidence of debtors breaches, can not be declared possible according to article 68 of the Arbitration Procedure Code of the Russian Federation.
Managements of famous collection agencies share their experience of qualitative and comprehensive approach to the collection process.
During the financial-economic crisis most companies were in a difficult situation because of non-payments of contractual duties. That resulted in increase of overdue accounts receivable and reduction of negotiable monetary assets. But development of fixed income causes the increase of the role of collection organizations that fulfill professional activity in the sphere of debt collection. Nowadays debt collection gets to be a problem for most people. In some cases some specialized organizations are attracted to the debt collection process. But often the companies face a debt problem and try to remedy it by their own efforts. Therefore the qualified and comprehensive preparation of the officers of the company for debt collection actions is always topical.
Andrey Pushkin
Managing partner Tenzor Consulting Group legal company
Complex approach and phasing
Topicality of debt disputes is shown by the increase of applications to the court that deal with debt collection and concomitant actions. For example according to the date of the Supreme Arbitration Court of the Russian Federation, there are over 39 thousand of applications of 2009 that declare the debtors to be bankrupts, which is 15% more than the analogous index in 2008. During the previous year the courts have collected 1056,2 billion rubles in favor of the applicant in the setting of the total sum of property requirements of 2236,0 billion rubles. Development of the modern market leads to the increase of the role of collection organizations that fulfill the professional activity in the debt collection sphere. It is considered that the professional activity in the given sphere is more effective and economically profitable. However it’s impossible to anchor all hopes on the experience of collection officers. In some cases the officers of the creditor will have to maintain the process of debt collection independently. And in this case the application of the systematized experience of collection companies will be of big interest.
To work in optimization and debt collection it is necessary to know that debt collection is not separate actions (lodging of a claim, phone talks, application to court, etc.). It is a complex of measures directed to one aim that is debt collection. And first measure is prevention of indebtedness that is a correct and timely drafting of the basic legal documents: agreements, invoices, acts of services rendered, letters of attorney. When the documents, which confirm the proper rendering of services, are in order, the process of debt collection may not end up with the court proceedings having assured the rival of the hopelessness of the struggle.
As a rule, there are some stages of work with debtor indebtedness.
First of all, it is necessary to identify the moment when the indebtedness becomes a problem. Usually the basic criterion to declare the indebtedness a problem is the sum of the debt. There can be some other criteria of problem indebtedness like duration of payment delay, behavior of the debtor, etc. Herewith it is essential to take into account some provisions of the legislation, for instance the limitations of actions upon the expiry of which the debt collection can be of low-probability.
Secondly after determination of the problem indebtedness it is time for legal evaluation of the existing situation – analysis of the documents that confirm indebtedness and justification of the sum of the debt. In case of insufficiency or legal incorrectness of the documents it is required to get or correct them, and to identify the legal position of the creditor, possibility and ways of debt, penalty collection.
The third stage is negotiations with the debtor. At this stage the debtor shows his good conscience and the further steps of the parties to eliminate the indebtedness.
Amicably or aggressively?
Actually after the preliminary procedures described above there are two legal methods of pressure on the debtor: claim and court. The claim method is used with fair loaners that undergo temporary difficulties. And ideally it ends up with the agreement between the creditor and the loaner that the parties are pleased with. The agreement must content the obligation that caused indebtedness, and the mechanisms and terms of the debt redemption. Moreover it is essential to draft reconciliation with the data of basic documents that confirm the sum of the debt for the parties to confirm the subject of the agreement. Both the documents are signed by the parties and can serve as evidence for judicial proceedings in future.
The second variant is to conclude an agreement of compensation for termination of the contract. If the debtor can not fulfill his obligations according to the basic contract in monetary terms, the indebtedness can be discharged by other liquidation property. According to the article 409 of the Civil Code of the Russian Federation on the consent of the parties the obligation can be terminated after the compensation instead of fulfillment (in money terms, property transfer, etc.). Such a variant is preferable provided if the financial situation of the debtor is getting worse. One more alternative is debt novation. In accordance with the article 414 of the Civil Code of the Russian Federation the financial obligation can be substituted by other obligation between the same persons that stipulates other subject or method of fulfillment (novation).
Thus the indebtedness according to the delivery agreement can be transformed into the service contract in accordance with which the debtor executes a piece of work (renders services) necessary for the creditor. However concluding the agreement the creditor is imposed with some limitations. Particularly there can be some difficulties with calculation of penalties to the amount of the debt. For example, the tax bodies consider that the penalty amount that are not included into the schedule of restructuring are liable to be paid on general terms. Calculation of penalty to the amount of the restructurable debt and application of measures of forced collection are terminated after taking a decision. Thus restructuring of indebtedness fulfilled on the basis of the decree of the Government of the Russian Federation dated from November 09, 2005 № 672, which is in fact a kind of installment of tax payment that is a change of its payment term.
Accept amicable methods of pressure on the debtor there are some aggressive ones. Within the limits of the law one can fulfill such methods as smear campaign that is distribution of damaging information about the debtor-company; application to the official security agencies for investigation of legality of debtor’s actions. One can apply to tax service or militia, for the debtor can be suspected of tax non-payment, fraud, etc. Suspicion is enough to impel the debtor to concession. As a less severe variant of pressure one can apply to the investigating bodies. Despite the legislative efforts to limit the influence of periodicity and terms of examination of the debtor’s economic activity, the fact of examination will negatively reflect on the debtor’s work. Also there is chance to discover some infringes that can cause an administrative duty of the debtor and participation of a superior company. It is applicable if your debtor is not an independent company but a subsidiary or a dealer of a big corporation. In this case talks with the head office can make the debtor consider the possibility of debt discharge more actively and amicably. Furthermore the head office can participate here financially, so called economic blockade of the debtor. This variant can be realized if you know business contacts of the debtor and have own ones. Write a warning letter (one, two or three letters, it depends on the situation) and if the debtor keeps ignoring you, you can easily make a claim to the court. There is a hazard of court proceedings, collection of the debt, interests and court charges. Along with it if the debtor doesn’t discharge the debt within the terms set by the court, it will ruin his credit history. Just the fact of the written claim with the threat of the court proceedings will induce the debtor to be more open to your requirements. During the examination most things depend on the correctness of the inspection officers. That can lead to the situation that the additional documents provided to the court by the inspection as the documents received beyond the scope of tax inspection, which is infringe of a procedure of collection of evidence of debtors breaches, can not be declared possible according to article 68 of the Arbitration Procedure Code of the Russian Federation.
Source: Dolgovoy Factor