The larger the loan, the more responsibility lies with the borrower, since a large amount has to be paid each month. Any life trouble – illness, loss of work or close people, leads to inability to service the debt, and the borrower asks the question: what is the probability that the bank will plant for debts?
It is relatively easy to get a loan, it is more difficult to give it away, and not everyone can cope with this obligation. When the delay follows the delay, and the debt accumulates like a snowball, making it non-returnable for a short time. Since the bank will most likely attempt to return the money before going to court, suggesting options for restructuring or postponing, the reason for the decision on the enforced recovery often lies solely with the borrower, who has spent the loan amount without finding a way to pay to the bank.
Not surprisingly, the bank requires the court to call the borrower to account, warning about the responsibility of the law. In fact, the punishment in the form of deprivation of liberty is the last resort that is used within the framework of criminal liability when there are criminal acts of the borrower. It is necessary to understand the sad prospects that await the person who owes the bank.
What awaits the debtor-borrower in fact?
It is impossible to completely eliminate the risk of deprivation of liberty due to non-repayment of credit debt. Theoretically, this probability is present as long as the borrower refuses to return the funds to the bank and conceals the property. So, evading payments to the bank, this is worth remembering. However, in order to be prosecuted by law, the facts of serious misconduct must be proved.
Having allowed minor delays, the measures specified in the clauses of the contract are applied as a penalty to the borrower – a fine and fines. Seeing that the client is not going to give money, the bank turns to the collectors, instructing them to “knock out” the debt in affordable ways. Sometimes the bank gets rid of bad debt by losing the right to recover under a cession agreement with a collection agency.
Having obtained the full right of the claimant, collectors search for the borrower-debtor and try to influence through his environment, exerting psychological pressure, applying threats and spreading negative information in accessible ways. All these techniques are aimed at forcing a person to find funds for settlement with the new creditor, which is now the collector.
Having experienced the full range of tools used by claimants, the debtor prefers his case to go to court, because the court decision is often more humane, and the enforcement of the decision by FSSP employees does not give the right to harsh collector measures. The result of actions to collect is the sale of property, bankruptcy and other restrictive measures against the debtor, to whom no bank can now lend money.
However, in some cases, the case of non-payment of debt is conducted in such a way that the debtor is not accused of refusing to repay the debt, but under the article on fraud. Such cases already qualify under criminal law, and the offender is valid. imprisonment and conviction.
How to avoid prison?
In order to eliminate the danger of criminal liability and imprisonment, the borrower is advised to look for options for compromise solutions, without refusing to fulfill obligations.
The simplest option is restructuring, receiving deferred payments to solve temporary financial problems. It is more profitable for the bank to reach an agreement with the client within the framework of an out-of-court settlement than to spend money and time to consider the case in court. The sale of debt to collectors will never recover the entire amount of debt, since the bread of professional collectors is to buy debt claims for thousands and millions of rubles for a penny and force a person to pay for the same amounts.
It is the stage of pre-trial settlement, without which no consideration of the case can do, helps to eliminate the risk of negative impact of collectors and will not allow the creation of a situation where there is a risk to get a real term for a loan that has not been returned.
The complexity of the application of Art. 159.1
If there is a question about possible deprivation of liberty, most likely, the bank sees in the actions of the borrower the initial reluctance to return the money, when the whole procedure of applying for a loan is nothing more than pretense. The grounds for bringing to the answer under the Criminal Code of the Russian Federation to the bank are provided by art. 159.1 of the Criminal Code. The provisions of this article are referenced by banks and collectors, trying to convince a person to give money voluntarily, until they put him in debt.
In Russian practice, the use of Article 159.1 of the Criminal Code of the Russian Federation is extremely rare, given the number of overdue debts and the facts of violations by clients of the payment schedule. The article prescribes criminal liability for proven lending fraud.
Threats of bankers and collectors to put the debtor borrower in jail are often untenable. The court must be proved that the borrower initially planned to steal bank funds under the guise of a loan, for which he provided inaccurate information.
The difficulty of proving the fact of fraud is also in the fact that the reason for the debt is not the client’s intention to get rich, but the banal lack of money, property, savings. Financial short-sightedness leads to a debt hole, and the borrower has no idea what else to take to pay off the debts. It is unlikely that a court in such a situation will see criminal intent in actions.
There are really good reasons for which obtaining a criminal record is very likely. These cases include:
- deception of a creditor, provision of false information about yourself, work, earnings;
- provision of fraudulent documents;
- misleading with respect to the object of pledge.
It is not necessary to receive funds in a bank in order to be brought to responsibility under the Criminal Code of the Russian Federation. The bank has the right to consider actions as an attempted theft.
There are a lot of fraudsters in the credit sector, banks have to be vigilant in issuing loans. Real fraudsters often use someone else’s passports, falsify documents, attract employees of a bank as associates, registering loans on photocopies through fake people. The work of fraudsters is associated with systematic violations of the law, repeated use of criminal schemes. Single cases of processing loans for which there was a delay, are unlikely to qualify for fraud.
For what actions is imprisonment under Article 159.1 threatened?
Not every offense is entitled to be considered as a crime with the right to deprive the accused of liberty. In total, the article contains 4 elements of crimes:
- A simple composition, represented by a single deception of a creditor with the intention to appropriate the amount issued by the bank.
- Group crime with collusion of persons involved in the implementation of the fraudulent scheme.
- Criminal actions on a single deception or with the participation of a group of persons, in which an employee of a bank is involved, using his official position for criminal purposes, or large-scale fraud (from a half million rubles).
- All of the above elements of crimes, subject to the commission of an organized group, or theft in the amount of 6 million rubles.
The law establishes that for the first offense – single cases of creditor deception – the deprivation of liberty does not apply. The maximum penalty is not a prison sentence, but a 4-month arrest. In other cases, when the court proved the intentional crime involving several persons, criminals face a prison term of 4-10 years.
When should you worry?
When the bank polls the client, creating their own idea of the reliability of the borrower, the latter may mistakenly report incorrect data. The applicant for a loan does not remember the exact amount of earnings, or confuses the place of work. Sometimes for misrepresentation it is enough to keep silent about a serious problem. Fears of being attracted for providing incorrect information are groundless, since it is possible to condemn the criminal only if it is proved that the client did not intend to give the funds taken.
To get rid of the fear of deprivation of liberty and criminal liability, it is enough to start paying the bank with any possible amounts. Thus, the borrower confirms his desire to repay the debt to the bank, despite difficult life circumstances. By starting to repay the loan, the borrower demonstrates to the court that he is ready to discuss options for a refund. As a result, the judge often passes a decision ordering the return of the borrowed amount to the bank, excluding fines and penalties from the amount of the claim.
All cases of credit defaults are considered by the court individually, taking into account the positions of both parties. In order to go to prison for non-payment of a loan, the borrower will have to try to convince the court of deliberate deception and embezzlement of funds with the involvement of accomplices. It is unlikely that the borrower himself will want to convince the bank of the existence of criminal goals and conspiracy, therefore, the deprivation of liberty remains a punishment for real criminals who have deceived the bank in a fraudulent way.