assignment of the Bank under the credit agreement to a third party who does not have a banking license - the law of any such action the Bank?
In other words, if the borrower is not properly perform its obligations under the Treaty - whether the right bank "to sell the debt" collection agency.
On this issue, there were several points of view of modern science.Ambiguity and jurisprudence on this issue.
All this prompted the author to write this article.
will understand in this matter on the basis of the current legislation.
so.According to Art.382 of the Civil Code the right (requirement), belonging to the creditor on the basis of liability may be transferred to another person in the transaction (cession), or go to another person on the basis of law.
to go to the creditor's rights to another person without the consent of the debtor, unless otherwise provided by law or contract.
Thus, if the law or the contract does not provide for special cases of vesting requirements obligation from one lender to another - the debtor's consent is not required.
According to Art.388 of the Civil Code assignment of a claim a creditor to another person is permitted if it is not against the law, other legal acts or the contract.
And the second part of the article speaks of avoiding without the consent of the debtor's assignment under an obligation in which the identity of the lender is essential for the debtor.
So, the law says about the particular case where the debtor is required consent to the assignment of claims - it is essential for the debtor to the creditor.
The lending bank is essential for the debtor is clearly expressed by the following factors.
1. A license to conduct banking activities.
considered the issue must be taken together as banking - is not only a work for the opening of bank accounts and issuing loans.It's also the consequences of improper performance of obligations under the contract, it is also a penalty for unsettled contracts.
Banking belongs to the category of business activity.And the investigator carried out at your own risk.Ieall the risks associated with non-payment of the loan, lie on the side of the lender - Bank.Thus, the concept of banking activities and issues related debt collection contracts.
In addition, the presence of the license stipulates compliance with certain licensing requirements.Non-compliance with these requirements entail suspension of the license until the revocation.Compliance with these licensing requirements controlled by the state, through its public authority - the Central Bank of the Russian Federation.
Thus, it is clear that the borrower when you contact the bank expects government control over the activities of the Bank.And for the full activity of the bank, including the activities of the recovery of arrears.
have the collection agency is not licensed to conduct banking operations, including debt collection.
2. Compliance with bank secrecy in the manner of Art.26 of the Federal Law "On Banks and Banking Activity.
So according to Art.26 of the Federal Law "On Banks and Banking Activity", the Bank is required to maintain banking secrecy.The concept of banking secrecy include information about the state of current accounts opened with the bank, the presence or absence of accounts payable, and so on.
becomes clear that the Bank is not entitled to disclose banking secrecy to third parties.
In addition, many loans are accompanied by the opening of bank accounts (eg credit cards).
This factor influences the choice of the borrower - to apply for a bank loan or borrowing from the organization, which has no banking license.After all, if the borrower applies to the Bank with a request to grant him a loan, the borrower rightly expects that in the event of a possible deterioration in its financial condition, the Bank will not distribute information pertaining to bank secrecy.For this reason, many borrowers are choosing a bank loan, and the loan is not in a private organization.
3. Under the current legislation of the Russian Federation - NACE code for collection of overdue bank debt - is absent.
Consequently, the activities of collection agencies are currently illegal.Collectors do not have the right to engage in collection of overdue debts.In addition, the borrower takes the money in the bank rather than the "uncle in the street", which confirms the significance of the Bank to the borrower.
Thus, the analysis of the current legislation makes it clear that the Bank may not, without the borrower's consent to transfer their rights to the repayment of the loan with the interest due under the loan agreement to a third party that does not have a banking license.
However, in practice, bankers say that when applying for a loan - the borrower has given its consent to the processing of personal data, thereby confirming their consent to assignment of any third party.
with such objections and we can not agree on the following grounds.
First, the processing of personal data in accordance with the Federal Law "On personal data" includes quite different information than those transferred under the contract of assignment of claims (cession).The structure of personal data include the following information: Surname, name, patronymic, address of residence and registration.Place of work, phone numbers - ie,personal information about the borrower.When the assignment of claims are transmitted (processed) quite other information relating to the execution by the borrower of its obligations under the Treaty.
In addition, when applying for a loan the borrower agrees to the processing of their personal data only to solve the problem - to provide a loan or a loan to refuse.
Regarding the execution of the loan agreement, Bank staff do not speak and do not explain to the borrower.Therefore, in accordance with Art.10 of the RF Law "On Protection of Consumer Rights" these actions can be qualified as misleading about the properties of the services provided.
In addition, the consent of the borrower must be expressed determined.The idea is that the phrase in the agreement "any third party" is not based on law.The consent of the borrower must be expressed specifically that the borrower agrees to the transfer of the creditor (the Bank) is a specific third party indicating its registration address, the actual implementation of activities, TIN, BIN.
in such loan agreements do not find, therefore, in this part is also a violation of applicable law.
Thus, we can conclude.
1. The Bank, which is subject to licensing - not only work on a loan, but also work on the collection of a debt with the borrowers.
2. Assignment of the Bank's claims under the loan agreement without the consent of the borrower is illegal.
3. The consent of the borrower should be clearly expressed, ie,its consent must be specifically defined by the third party to whom the Bank transfers its claim.