Debt assignment agreement - what is it?
A creditor under a monetary or other obligation may transfer his rights to another person.
Such a transfer is formalized by an assignment of rights agreement, which in legal language is called an assignment agreement. The original creditor transferring rights is called the assignor, and the new creditor is called the assignee. Assignment agreements can be concluded by both individuals and organizations. The need to transfer the debt to another creditor may be caused by various reasons (for example, reluctance to collect the debt through the court). A typical example of an assignment is the transfer of debt under a loan agreement to a collection agency.
As a rule, the assignment of the right to claim a debt is compensated, that is, the new creditor pays the original creditor a fee, the amount of which is specified by agreement between them. The amount of such payment is most often less than the amount of the transferred debt, because otherwise the new creditor will have no reason to purchase the debt. At the same time, the law does not prohibit the gratuitous assignment of the right of claim to a new creditor.
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The possibility of recovery may be lost completely. If the debtor achieves recognition of the assignment of the right of claim as invalid, then the new creditor will not be able to collect the debt and, as a result, will require the original creditor to return to him the money paid for the assignment of the right (resolution of the Fourteenth Arbitration Court of Appeal dated 03/18/13 in case No. A13-13189/ 2010). The original creditor will again be faced with the issue of independently collecting the debt from the debtor, and in such a situation the main risk is missing the statute of limitations if this debt arose long ago. As a result, the ability to collect the debt may be completely lost. The fact is that a change of persons in an obligation does not entail a change in the statute of limitations and the procedure for calculating it (Article 201 of the Civil Code of the Russian Federation), and the right of the original creditor passes to the new creditor on the conditions that existed at the time of transfer of the right (Article 384 of the Civil Code of the Russian Federation ). At the time of assignment of the right of claim, some part of the limitation period has already expired. For the new creditor, this period is not recalculated, but continues to flow. The subsequent recognition of the assignment as invalid also does not in any way affect the running of the limitation period. Even if the new creditor brought a claim against the debtor and lost, since the court declared the assignment agreement invalid, in this case the filing of this claim does not interrupt the statute of limitations (Article 203 of the Civil Code of the Russian Federation) for the original creditor. After all, in fact, the claim was brought by an improper plaintiff, and for the duration of the statute of limitations, this is the same as if the claim was not brought at all (clause 16 of the resolution of the plenums of the Supreme Court dated November 12, 2001 No. 15 and the Supreme Arbitration Court dated November 15, 2001 No. 18 “On some issues on the limitation period”, Resolution of the Federal Antimonopoly Service of the West Siberian District dated 05/08/13 in case No. A81-2276/2012).
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The prohibition on assignment of rights provided for in the contract in accordance with paragraph 2 of Article 382 of the Civil Code applies only to the classic assignment agreement, but not to the factoring agreement. Moreover, unlike an ordinary assignment, the assignment of a monetary claim to a financial agent is valid, even if there is an agreement between the client (the original creditor) and his debtor to prohibit or limit it - there is a direct rule about this in the Civil Code (clause 1 of Article 828 Civil Code of the Russian Federation). Any commercial organization can now enter into factoring agreements as a financial agent (Article 825 of the Civil Code of the Russian Federation), although previously this activity was subject to licensing. The only restriction is that a financial agent cannot be an individual (including an individual entrepreneur).
When can you transfer a debt?
The law says that debts under any obligations can be assigned to a new creditor, except for cases provided for by law.
In particular, rights of claim cannot be transferred under an assignment agreement if they are inextricably linked with the identity of the creditor (for example, the right to alimony, compensation for moral damage, etc.). As a general rule, the transfer of a debt by way of assignment usually does not require prior consent from the debtor. However, in a number of cases, assignment of rights is possible only with the consent of the obligated person, in particular:
- if an agreement between the creditor and the debtor establishes that the transfer of debt is possible only with the consent of the latter;
- if regulations provide that the transfer of the right of claim is permissible only with the consent of the debtor;
- if the fulfillment of the obligation is closely related to the identity of the creditor.
The rights are transferred to the new creditor to the same extent as they belonged to the previous creditor.
In addition, along with the main debt, the obligations securing it (penalty, etc.) are transferred. Other terms of the agreement under which the debt is transferred to the assignee also remain unchanged. It should be noted that the debt can be transferred even when there is already a court decision to collect the debt in favor of the original creditor. In this case, after drawing up the assignment agreement, you will need to go to court, which will make a ruling on replacing the party in the case. Next, with this definition and the assignment agreement, you need to contact the bailiff service.
Risks
The assignee risks the following:
- Failure by the borrower to fulfill its direct obligations - violation of the terms of repayment of funds is most often associated with the difficult financial situation of the defendant or his unreliability. Another common reason for non-repayment is simple ignorance that the creditor and, accordingly, his details have changed. To avoid such problems, the party acquiring the right to claim the debt must make sure that the debtor is aware of the assignment procedure. If inaccuracies were made during the execution of the initial papers, the borrower can challenge the current agreement.
- Features of taxation - everything is relatively simple here. If the collection fee exceeds the amount of the debt obligation, then the collector is obliged to pay income tax. When the assignment payment is less than the debt, the assignment is written off as a loss. When preparing such documents, it is important to take into account the deadlines - if an overdue debt is reissued, then the process of writing it off will be much more difficult.
- Invalidation of the contract. Such a decision is made by the court when the transaction is fictitious or carried out in violation of current legislation.
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In legal practice, there are also cases when the original agreement clearly stated a ban on the sale of obligations or the debtor simply does not agree to change the credit institution. Many nuances may arise with the registration of a cession for property that is pledged. Such precedents are resolved with the help of highly qualified lawyers in the manner prescribed by law. You can get professional legal assistance at.
Form and essential terms of the assignment agreement
Sample contract.
The agreement on the assignment of rights should be concluded in the same form as the agreement under which the rights are transferred to the new creditor. That is, if the main agreement is concluded in simple written form, then the assignment agreement must be drawn up in simple written form. If the main agreement is certified by a notary, then the assignment of debt, accordingly, must be notarized. If the transaction, the rights under which are transferred to a new person, is registered in Rosreestr, then the assignment agreement is subject to registration (unless otherwise provided by regulations).
The only essential condition of the assignment agreement is its subject. The subject is the right of claim, which is transferred to the new creditor. The text of the agreement should describe the essence of the transferred right of claim and indicate on the basis of which documents it arose. At the same time, it is not at all necessary to reflect in the contract the reasons and motives for such a transfer.
The agreement or court decision from which the transferred right arises must be attached to the assignment agreement.
If such an agreement has annexes, then they also need to be transferred to the new creditor. All other terms of the agreement on the assignment of rights are considered additional and are included in the text of the agreement at the discretion of the parties. All of the above is presented more clearly in a sample agreement for the assignment of the right to claim a debt, available on our website.
Nuances of the assignment agreement
When concluding an assignment agreement, you need to take into account a number of nuances:
- It is advisable to reflect in the text of the agreement a condition regarding which of the parties and within what period of time informs the debtor about the transfer of the right of claim to the assignee. It is more logical to assign this responsibility to the new creditor, since by virtue of the law it is he who bears the risk of the consequences of failure to notify the debtor.
- If the debtor, who has not been notified of the transfer of debt, fulfills the obligation to the original creditor, then he is considered to have fulfilled his obligation. And in this case, the new creditor will have to recover from the previous creditor the amount of debt that he unreasonably received.
- The transfer of the right of claim can be formalized not only by a bilateral, but also by a tripartite agreement (with the participation of the debtor).
- The compensation agreement should specify the amount and procedure for payment of the remuneration paid by the assignee. If the parties enter into a gratuitous agreement, it is best to explicitly state in the agreement that the new creditor has no obligation to pay remuneration.
- The former creditor is not responsible for the fulfillment of the obligation by the debtor. An exception will be the situation when he acts as a guarantor of the obligated person to a new creditor.
Types of assignment agreement in case of insolvency of an enterprise
In legal practice, there are several types of agreements in case of insolvency of a legal entity:
- Free and compensated - in the first case, cases from one credit organization are transferred to another without compensation, in the second - for a certain fee. According to the norms of the Civil Code, official agreements to change the creditor between legal entities on a free basis are illegal, since they have no economic benefit.
- Tripartite – here it is necessary to obtain the borrower’s consent to resell his debt obligations. A standard agreement has a bilateral nature (between the assignor and the assignee), where the defendant does not influence its signing in any way, but is only notified of the fact of conclusion by a special letter.
- According to writs of execution, a similar situation is allowed by the Civil Code of the Russian Federation, but if the court decision has already gained force, then the court must be notified of this type of transaction.
- Free and paid - often debt obligations are sold for less than the amount of the original debt. This covers the risks and inconveniences of the receiving credit institution.
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Sample form of an agreement for the assignment of the right to claim a debt
In the event that an agreement on the assignment of the right of claim is required, a sample form for it will look something like this:
TRANSFER AGREEMENT _g.________________ “___” ______________ _____ g. ___________________________________________________________________, referred to as the “Assignor”, represented by ________________________________________, acting on the basis of ______, and _________________________________, referred to as the “Assignee”, represented by ____________________________________, acting on the basis of ________, have entered into an Agreement as follows:
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