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How to terminate the contract of guarantee on the loan

Guarantee agreement loan

With loans now I had time to get to know almost everyone - someone like the borrower, and someone, and as a surety. As a rule, the role of the guarantor agree only close relatives and friends of the borrower, but even if the intentions are pure and that revenues allow arrears without pay on the loan, sometimes consent to bail has to bitterly regret.

By signing a contract of guarantee contract of guarantee, the guarantor borrower shares with all his duties and responsibilities to the lender. If the borrower to repay the loan will not be able to, the credit will fall on the shoulders of the guarantor, is obliged to pay the debts of others. In the case of non-payment of another loan, the bank may go to court and demand to eliminate debt from the funds and property of the guarantor. Also, do not forget about the debt transfer procedure of the loan in case of death of the borrower. Under the law, the guarantor will be required to pay the remaining amount of the loan plus interest and fines for delay loan. The chance of a successful termination of the contract of guarantee in this case is zero.

It is worth remembering that the responsibilities of the borrower and the guarantor are almost identical, but the rights under a contract from the guarantor virtually none. By signing the treaty, the guarantor prefer to think that the borrower will pay all without any delay, but when the loan becomes a problem, give up the guarantee the burden was too late.

How to terminate the contract of guarantee

Doubt the correctness of the decision after signing the contract, it should terminate until the borrower no problems, and the loan is paid without delinquency. Getting rid of the guarantee can provide banks with a new candidate to replace themselves. A new candidate for the surety must have a stable income, good credit standing and, of course, the desire to become a guarantor.

Parting with the duties of a guarantor can, if payable by credit card or loan has been transferred to the new borrower. Depending on the financial situation of the new borrower, guarantor or do not need, and if required, they will have someone else.

At the signing of the contract of guarantee is worth paying attention to the specified expiration date. If the expiration date is not specified, following the letter of the law, within a year the surety is considered free from any obligations. Treaty should be given special attention. After careful consideration of the documents before signing, or using the services of a lawyer, you can always find a place, which, if necessary, be able to help get rid of the guarantor responsibilities on someone else's loan.

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Who owns the mortgage apartment: the bank or the borrower?

There is a strong opinion that the apartment, taken out a mortgage, does not belong to the borrower and the bank, and, in the case of "force majeure" circumstances, the latter may ask the borrower to vacate living space. However, contrary to this popular belief, any bank can confirm that the borrower receives full ownership of the purchased housing, and only some of these rights are to some extent limited by the loan agreement entered into or the laws of Russian Federation.

If we consider the issue from a legal point of view, in this case, the answer given by one: the owner of "square meters" is only one person - the buyer. And as the borrower and the buyer appears, it means that he will be the owner and property. But, as mentioned above, the rights of the owner of apartment can be put into the framework, because the Federal Registration Service in parallel with registration rights records and security of real estate. In connection with this, the owner of the mortgage apartment can not sell it or exchanged for another without the permission of the bank. Apart from this restriction are taking place and others which are usually found in the agreement concluded with the bank.

Can the bank to sell the mortgage apartment?

Unfortunately, perhaps, but only if the borrower is unable to repay the debt on the mortgage. Experience has shown that many people taking mortgage apartments, faced with further payment, although at first they firmly believe that they could pull such a burden. Of course, they are malicious defaulters is not as desired, but the fact remains, however, banks have to take suitable measures.

After careful consideration of the loan agreement, we can see that the bank has every right to terminate the concluded agreement, if you type a specific number of missed payments. Sometimes a three monthly non-repayment, the bank put the "bullet" in collaboration with the borrower, but often he does not use this right, allowing a person who has taken a loan to fix the situation. However, if the borrower does not repay the debt within six months, the bank filed a lawsuit to foreclose on the mortgaged property.

There are also situations where a key role is not the absence of monthly payments plays in termination of the contract, and other violations committed in defiance of the mortgage agreement, but, fortunately, they are quite small. Most likely, the biggest reason can serve as a crude forgery, displaying information about the purchased property or the borrower's identity.

whether the borrower has the right to sell the mortgage apartment?

According to the agreement, can, but the banks to this are, to put it mildly negative, as their main benefits consist in getting interest that the borrower to overpay for the duration of the mortgage contract. And in this case, the bank lost profits, so the sale of the mortgage apartment and the early repayment of the loan does not appeal to him.

But sometimes the bank is interested in the sale of mortgage housing, if the borrower wants to move to a more comfortable dwelling house or apartment with more usable area. In this case, it takes a mortgage flats sold by the borrower, with the consent of the bank, and is followed by a new loan agreement, which involves the purchase of another mortgage housing, made out in a pledge. the debt balance of the loan the borrower is still obligated to pay out of the proceeds from the sale of the first apartment.

When changing conditions of the loan?

As mentioned above, the solvency of the borrower may falter due to various reasons, but in this case, he has a way out, which will allow him to avoid the stigma of dodgers and even to their advantage to get out of this situation. This yield is called the refinancing of the loan, which is to receive a new loan to pay off the old one, but on more favorable terms.

If the bank gives you the go-ahead, then the borrower can spend refinancing operation, without changing it. Sometimes, however, the lender does not agree to such a move, which makes the buyer of real estate mortgage to seek help from other banking institutions. As practice has shown, the second option is often a profitable first, because the conditions for obtaining and repayment of the loan from another lender may be more beneficial.

Safe and comfortable mortgage: is it possible?

Yes, probably, and all thanks to the insurance. Under current law, a mortgage borrower is obligated to insure the collateral from its loss or damage. And if the property is destroyed or comes into full uninhabitable, its customer has the right to rely on the payment of the credit balance of the loan at the expense of the insurance indemnity.

Every borrower knows that his ability to work and life may be in danger, so it is advisable to carry out insurance on these two criteria, to thereby secure and family comfortable and safe mortgage.

What happens if you do not pay the loan

If you can not repay the loan, it is better to study in advance the likely impacts and develop a plan of action. If the borrower is behaving correctly, then the non-payment of the loan - this is not a disaster for him. On the other hand, is often more profitable to give up huge monthly payments and wait for the court. During the trial, the amount owed will be fixed, and the interest will no longer accrue. About the repayment schedule of this amount will need to negotiate with the bailiffs, who are almost always willing to compromise (if you properly prepare for this step).

We begin with a refutation of the "horror stories" that the bank's employees and collectors like to talk to borrowers who find themselves in a difficult situation. So, what can not be afraid of what will not be, if you do not pay a loan to the bank:

You do not will break his legs, not cut out a kidney, do not steal your children. At the beginning of 2016 we do not know a single case when the threat of physical violence on the part of banks or collectors were executed (at least for Moscow).
You will not go to jail, do not give a suspended sentence is not sent to public works. Non-payment of the loan to the bank - it is not a crime, and when they talk about "the court for non-payment of credit", we mean not prosecuting.
Social services do not take away your children, your relatives will not be responsible for your debt (if only they were not guarantors). Loan default - it is a matter purely financial and he only concerns you and the bank.

Of course, if you do not pay the loan, there will be unpleasant moments, but everything can be prepared in advance. Our experience shows that the most effective option - it is immediately seek the assistance of a credit lawyer. At a minimum, you need to consult on the phone, but it is better to come to a lawyer for personal reception to bring the loan agreement and other documents. Only familiarized with all the materials, the specialist will be able to objectively evaluate the features of your particular situation. If for some reason you want to protect your own interests, you need to pre-examine every question that will face. All relationships with the bank after the formation of delinquency on the loan can be divided into three stages:

01. Pre-trial stage: you expect the psychological pressure and threats from the bank and collectors. To guard against this, it is necessary to fix in writing a "sneeze" and complain to law enforcement authorities.Pre-trial stage: you expect the psychological pressure and threats from the bank and collectors. To guard against this, it is necessary to fix in writing a "sneeze" and complain to law enforcement authorities.

02. Court on the loan: the bank has the right to demand the money through the courts. In this way you have a trial lasting several months. As a result, the court will make a decision and fix the amount of the debt.

03. Post-trial stage, if you just do not pay the full amount fixed in the court's decision to join the cause of the bailiffs. Usually, this means the removal of valuable property and withholding part of the salary.

Depending on how well you behave in each of these steps can take quite painlessly, or vice versa - to cost you a lot of effort and nerves. Let us consider each step separately and list the basic rules that will greatly facilitate the life of the borrower. It is important to understand that each situation has its own quirks, which are determined by not only the features of the loan agreement, but the specifics of a particular region of Russia. As the behavior of collectors, as well as the position of the judges will be significantly different for Moscow, for example, to Khabarovsk or Grozny. If we are talking about a large amount of money, we strongly recommend not only to read the general advice, but also to appeal to the local lawyer who is familiar with the practice in your area.

Loan Court passed without me - what to do?

Thus, the trial of the loan passed without your participation. Most likely, of the decision, you will learn in a few months, when you will be contacted by the bailiff to demand money. Is it possible to reverse the decision if the court has passed without you? Yes, the law provides such an opportunity, but in contrast to the usual judicial process requires more complex steps, and you will have virtually no margin for error. If you properly prepare a document or file a they are not in the instance, or skip designated law terms - to rectify the situation after that even an expert can not.

In order not to miss this opportunity, the best solution - immediately contact the credit lawyer. Believe me, at this point really requires the involvement of a professional who is familiar not only with the letter of the law, but also established practice in your area. At a minimum, you need to consult a lawyer on the phone, but it is better to come to a personal welcome. If for some reason you decide to act on its own, you need to perform these steps.

01. The first thing to learn from the bailiff's name and address of the court, which deals with your business, as well as the number of the case. If the court about the last you have learned from another source (for example, you were sent by mail solution), it is necessary to find out the same information - the name of the court and the case number.

02. Then you need to come to court and ask for the case file for review; better pre-call to the office, to clarify the visiting hours and other details. Having received the case, you need to take pictures of all his sheets, so you can study them at home in a relaxed atmosphere (or later pass a lawyer).

03. In studying the case materials necessary to pay attention to the name of the final document of the trial - "default judgment" or simply a "solution". The judge may use any of the two procedures, and if you're not a lawyer, then the difference can only be set on the title of the document. Depending on whether there is the word "correspondence" in the title of this document, you will need to take a completely different steps.

04. If the decision is referred to as "correspondence", then you need to apply to the Court of First Instance an application for default judgment set aside. This statement should not just ask for the cancellation, but also list specific reasons why you do not agree with the decision. If the court satisfies this statement to begin a second trial on the loan, but with your participation.

05. If the word "correspondence" in the original decision is no, then you need to use another procedure - appellate review. In this case, you have to apply to a higher level - the Court of Appeal. An appeal will only take one meeting, and immediately makes a determination - to leave the previous decision in force, or reduce the amount of payment.

It should be understood that at each step there are many nuances and to understand all the details can only be a professional lawyer. For example, if missed deadline of a document, in some cases this problem is fatal, and in others - missed deadline can without difficulty to recover. In order to properly prepare the documents, in addition to the letter of the law is necessary to know the current practice.

Many nuances are different in different regions of Russia, so it is important not to rely on general recommendations on the internet and talk to a lawyer practicing in your city. Specialized professionals can provide information not only about the peculiarities of the region as a whole, but even of each district court. If you are in Moscow or the Moscow region, you can ask us for telephone advice, but the most effective option - it is, of course, come to the personal reception of a credit lawyer.

Can the Court of loan to go without the defendant

If the bank filed a lawsuit and is seeking to recover the unpaid loan to the borrower, the defendant (the borrower) must be notified prior to the first meeting. Notification of the defendant - it is the duty of the court; period of notice and other details are described in detail in the Code of Civil Procedure of the Russian Federation, but in practice not all legal requirements are met. Even if the court will send timely agenda, failure can occur during delivery by mail. There are cases, such as when the agenda reaches the addressee only a few months after the completion of the trial.

Quite often, the cause of non-agenda is a confusion with the address. Typical sources of problems - discrepancy between the address of the actual residence address registration, change of address registration, etc. Given the high load none of the court staff will not check the relevance of the borrower's address, which was granted by the bank (for example, an address can be specified on a copy of the credit agreement, attached to the suit). In short, the borrower does not need to be hoped that it will certainly be informed of the beginning of the trial.

If you do not know about the upcoming process (or if you ignore the resulting agenda), the Court of the loan will take place without your participation. From the point of view of the law, the court without the presence of the defendant - this is perfectly normal and does not contradict anything. In the same way as an ordinary court of debt on the loan, the process will consist of 3-4 sessions over several months. If the defendant does not appear, one or two times it may be grounds for postponement, but the final result will not be affected - the court will make a decision anyway.

How long is the court with the bank loan

Follow-up to the moment when the bank sued for non-payment of the loan, the CPC clearly defined - the Civil Procedure Code. However, the terms of these steps in practice may differ significantly from the fixed-in-law, and especially clearly manifested in the overloaded courts of Moscow. In the regions, the load on the courts usually smaller, so there GIC terms is more or less respected. If you want to know the real forecast, you need to contact a lawyer, who has a practice in your area.

If we talk specifically about Moscow, the ordinary court for non-payment of the loan lasts from 3 to 9 months. If your interests will be represented by a professional lawyer, he will be able both to reduce and to extend this, depending on what tasks you face. For example, when our customers put a maximum goal to tighten litigation, we are increasing the length of about one and a half years. During this time, our clients have time to correct financial position or simply redistribute the movable and immovable property "right" way.

The above terms as the court takes on the loan - this is only approximate guidelines. More accurately predict the duration can be only after reading all the details of a particular situation. For example, the speed of the courts depends on the season: in January-February, cases are markedly slower than in November and December, when the judges need to close the maximum number of cases before the New Year. The average for Moscow "plug" for each stage of the trial for non-payment of the loan is provided in the following table:

Step number in the trial phase duration
1 The bank filed a lawsuit in court "zero" point of the trial
2 The Court held a preliminary meeting from 1 to 6 weeks
3 The court held a major meeting (hearing on the merits) One meeting - from 2 to 6 weeks, usually takes two to three meetings. Thus, the hearing occupies substantially total of 4 to 18 weeks.
4 Borrower (or his lawyer) was the court's decision and filed an appeal from 2 to 4 weeks
5 The appeal is considered by the appellate court from 3 to 8 weeks
6 Bank received the appeal from the determination of 1 to 4 weeks
TOTAL of 11 to 40 weeks

If you need a more accurate estimate for the timing of the trial, we recommend that you contact our lawyers for advice on the phone. Even a short conversation often helps to get an answer to the key issues and avoid typical mistakes. However, if your situation has reached the Court, or you expect to trial in the near future, we strongly recommend that you go to a lawyer's personal reception. Trust our experience, only a professional lawyer can confront in court the bank's lawyers, who not only knows all the details of the laws, but sometimes personally familiar with court staff.

When the bank sued for non-payment of loan

If your debt is large enough, and you can not negotiate with the bank about its restructuring, it will almost certainly end the matter by the court. How much considered big enough to go to court - this question depends essentially on the concrete bank of Russia and the region. For example, in Moscow by the court usually end those loans for which the total debt (including interest and penalties) exceeds 50-100 thousand rubles.

As for the Bank of maturities in the court, there is no certainty there is, and can only talk about the exemplary orientations. As mortgage banks typically sue relatively quickly, after an average of 3-6 months after the formation of the debt. By car loans is longer, usually in the range of 4-12 months after the borrower stopped paying. Naturally, if the debtor is trying to establish a dialogue with the bank or make any payments to these terms may significantly increase. In rare cases, the bank can simply "forget" about the debt for many months, until the expiration of the period of the loan.

For simple consumer credit spread on terms even more than for mortgages and car loans. How many bank sues for nonpayment of the loan - this is determined by many factors: the size of the debt, the bank's characteristics, peculiarities of the reservoir, the behavior of the borrower, etc. Large banks (for example, the Savings Bank) appeal to the court quickly - literally within 3-5 months after the borrower stopped paying. Banks less, especially if they are actively using the collectors go to court much more slowly - in six months, a year or even more.

Here are a few examples, typical for Moscow; for other regions of the data, of course, can not be true. Suppose you have a loan in the Moscow Credit Bank, the balance owed 300 thousand rubles, you stopped paying, and no longer comes in contact with either the bank or the collector - in this case, wait for going to court about six months. If in the same initial situation somehow communicate with the bank and periodically answer calls collectors (promising to pay everything, everything, but later), the maturity period of the court may increase up to a half or two years.

How to win the court on the loan from the bank

First of all it is necessary to explain what is meant by "win" or "lose" Court of overdue loans. If you took out a loan, but had not paid it in accordance with the terms of the contract, the court will confirm the almost inevitable that you owe the bank a certain amount. Exceptions to this rule are extremely rare (for example, when the statute of limitations has passed on the loan), and for them it is better not to hope. The difference between the "win" and "lose" is what it will indicate the amount of the judge in his decision.

As a general rule, until the case comes before the court decision, the bank has time to count the borrower astronomical interest and penalties for violation of payment schedule. Sometimes the interest and penalties for late several times higher than the full amount of the loan issued by the bank initially. If your hand is not competent objection, it is likely that the full amount together with interest and penalties the court will record in its decision. If you bring a credit lawyer who will prepare the necessary documents and protect your interests in court proceedings, the total amount in the judge's decision may be reduced by several times.

Credit lawyer can quickly evaluate the prospects of your business and give concrete estimates on how much you can claim to reduce the bank's requirements. You can call our experts right now and get a brief consultation by phone. However, for a more detailed analysis, we recommend you to come to a personal welcome, taking with him all the available documents (loan agreement, payment schedule, bank statement, etc.) Believe me, if the issue of credit came to the court, without the help of a specialist you do not manage, and attorney's fees will pay for themselves several times.

How are hearings in the case of credit

The court with the bank loan (as any other civil court) takes place in two stages: first a preliminary hearing, then the main. In this case in the main proceedings can take place several court sessions. More specifically, the meeting can be transported, if not complied with all the conditions for starting the process. Thus, you or your lawyer will need the credit to go to the court 3-4 times or more. The duration of each session depends on many factors and can vary over a very wide range - from 10-20 minutes to several hours.

So, the first meeting with the judge at the preliminary hearing takes place. Date and time of the beginning of the meeting shall be specified in the summons received by you; the date and time can be specified on the website of the court. Basically, on a preliminary hearing on credit cases can come "empty-handed", without any pre-prepared documents. Afraid of a preliminary hearing is not necessary because there are no major decisions are not taken. In fact, a simple man (not a lawyer) from the preliminary hearing may make only one - on what day and time will be assigned to the main hearing.

The main hearing is significantly different from the pre-both from a legal and from a worldly point of view. Firstly, you can not come "empty-handed", this step is required to prepare an objection to the claim of the bank requirements. Simply put, you have to write legal language, why the bank is wrong, and what you want from the judge. Yet, as a rule, you need to make a detailed table with your version of the calculation of the remaining debt, which corresponds to the law, and you are willing to pay. If for some reason you have not prepared such documents (or prepared them wrong), you can assume that the court lost.

Second, in the main court hearing on the non-payment of the loan you will have to answer "tricky" questions of lawyers of the bank and possibly judge. It is important to remember that into account when it will be accepted only the answers are based on the letter of the law, but not on domestic considerations. Stories about the hard life situation, not supported by legal arguments, often cause a negative reaction on the part of the judge. If a person is trying to soften every day for many years - believe me, sooner or later it starts to irritate him.

Third, the result of the main proceedings is a final decision, binding on all parties. In other words, after a few sessions judge says that a citizen Ivanov to pay the bank "Hrenobank" one million rubles (or three million, if a citizen Ivanov failed to properly protect their interests). And if the debtor does not comply with this decision voluntarily, the money will have to beat the bailiffs. Unlike banks and collectors, bailiffs have have all the necessary tools to not only ruin your life, but at the same time and get the full amount specified in the court decision.

Remember that the court's decision depends entirely on how well the documents will be available on your part and as a clear case you (or your lawyer) will pick up during the meeting. If you do not have legal training, we strongly recommend that you do not even try to do it all on their own. Against you perform specialized bank lawyers who every day are judged in such cases and can easily "knock down" your reference to the credit agreement and the laws. If you do not agree with the bank's requirements, and really want to challenge them, you will inevitably need to contact a lawyer for help in the court of the loan.

How is the court with the bank loan

The greater the amount of your debt, the more likely that eventually the bank will sue. If the judge will take the side of the bank and make a decision unfavorable to you, you have almost no chance to rectify the situation. Thus, it is important to clearly plan your actions immediately, as soon as the loan deal has appeared in court. As practice shows, the best option - to immediately consult with a credit lawyer.

How can I check that the bank filed a lawsuit
Typically, the borrower finds that the bank filed a lawsuit for non-payment of the loan, when it detects a summons in the mailbox. Almost certainly is, this document (the bank or the collectors there is no need to fake it), but if you are in doubt, you can easily verify its authenticity. To do this, you need to find on the Internet site of the court from which received a summons, and in the "case management" use the search by last name. If your credit is really the case in this court, you can directly on the site to get basic information on it, as well as the exact date and time of the meeting.

In some cases, instead of sending summons by mail, you can simply call the office of the court. Of course, under the guise of court staff can call from the bank or collection agency, to put pressure on you. Sometimes borrowers openly call from the bank and told that the court filed a claim, but it is not too late to settle all on good terms. In any case, if the upcoming trial, you will learn on the phone, try to find out the exact name of the court, the date and time on which the meeting is scheduled. Then you can go to the website of the Court and verify all information.

If you do not know the name of the court, it is necessary to check a few options, because each court has its own website. First of all you need to determine which territorial court refers your place of residence, as well as the location of the bank. In addition, you will need to check, not specified whether a particular court in your loan agreement. If on the websites of these vessels is not mentioned your name, it is almost certain the bank did not file a claim on your loan.