Continuing our regular column, we bring to your attention a new thematic article. Today, Mark Wilson, a practicing lawyer and renowned consultant, shares his experiences. He is also a certified psychologist, author of many articles, including federal government behavioral interview questions as one of his favorite topics. Mark kindly agreed to share his life hacks with our readers.
By lending money, of course, we hope that they will be returned to us. But what if a friend or acquaintance turned out to be a dishonorable person and in every possible way evades his obligations? Experienced legal advisers at Federal Resume Guide will tell you how to lend properly and when to go to court.
How to lend? How to draw up a debenture?
In order to lend money, you need to draw up a loan agreement. Under this agreement, one party (lender) transfers ownership of money to the other party (borrower) or other things determined by generic characteristics, and the borrower agrees to return to the lender the same amount of money (loan amount) or an equal amount of other things he received of the same kind and quality . A loan agreement is considered concluded from the moment of transfer of money or other things, unless otherwise provided by legislative acts.
A loan agreement must be concluded in writing if the amount exceeds at least 10 times the size of the base amount, and in cases where the lender is a legal entity, regardless of the amount. In support of the loan agreement and its conditions, a debenture of the borrower or other document proving the transfer of a certain amount of money or a certain amount of things to him by the lender may be presented. The debenture must contain all the details of the borrower and the lender: full name, address of the place of residence, passport details, loan amount and date of debenture of the debenture. If there are witnesses, it is necessary to reflect all the data for the witnesses.
Is notary certification of a debenture required?
For execution of a loan agreement, notarization of debentures is not required, this is not provided for by law. A notary can be certified by a request of the parties that enter into a loan agreement.
What to do if the debtor does not fulfill the conditions specified in the debenture? The borrower is obliged to return the amount received on time and in the manner provided for by the loan agreement. If the term for repayment by the contract is not established or determined by the time of demand, the loan amount must be repaid within 30 days from the day the lender submits a request for it, unless otherwise provided by the contract. If the debtor does not return the money within the period specified in the contract, it is necessary to apply to the court with a statement of claim for the recovery of funds under the loan agreement.
What should I do if the debtor avoids meeting with the person from whom he borrowed, or completely changed his place of residence?
In this case, it is necessary to apply to the court with a statement of claim for the recovery of funds under the loan agreement. The debtor’s place of residence may be considered to be the last known place of his stay to the plaintiff.
Are the relatives responsible for the citizen’s debts?
First of all, it is necessary to determine what kind of relatives are in mind, since in different regulatory legal acts of Belarus the circle of persons defined as relatives is different.
As a rule, citizens are not liable for the debts of their adult and competent relatives. But situations where relatives act as guarantors are common. In this case, they are liable to the creditor jointly and severally with the debtor – their relative, if he does not fulfill or improperly fulfills his obligations.
After the death of a relative, along with the inheritance burdened with debts, debts also pass. However, each of the heirs shall be liable for the debts of the testator only to the extent of the value of the inherited property transferred to him.
What to do with the debts of the spouses, which were issued before the registration of marriage?
Marriage does not exempt from the payment of debts arising prior to the registration of marriage. At the same time, collection of outstanding debt can be applied both to property owned by the debtor, and to his share in the total property of the spouses acquired after marriage, which would be due to him when this property was divided.
In this case, it is worth considering the issue of concluding a prenuptial agreement between future spouses or spouses, excluding the common joint property regime in respect of property acquired by the non-debtor spouse after marriage.
How can I obligate the debtor to return the money if he really does not have it? What restrictions can a court impose?
If the debtor does not comply or evades the execution of the requirements of the writ of execution, the court may take the following measures in relation to it:
• temporarily restrict exit from the country;
• temporarily restrict in driving motor vehicles, small motorized vessels whose engine power exceeds 3.7 kilowatts (5 horsepower), as well as in hunting. The exception is cases when these rights are needed by the debtor due to disability or as the only means of generating income. Moreover, restrictions are set for a period until the debtor fulfills the requirements contained in the writ of execution, but no more than five years;
• temporarily restrict visits to gambling establishments.
With what legal methods can you try to collect debts before going to court? How can one not get into the field of view of law enforcement agencies as a blackmailer?
Before applying to the court with a lawsuit, you can try to voluntarily resolve the dispute, including by sending the debtor a proposal in writing.
If the actions of the debtor show signs of fraud, i.e. there is reason to believe that he took possession of the property or acquired property rights through fraud or breach of trust, you can contact the police with a statement. Perhaps a check by law enforcement agencies will make the debtor recall the need to fulfill obligations.