Assignment of Claim Rights (cession) in the Lending Area

Assignment of claims by the Bank under a loan agreement to a third person who does not have a banking license - are such actions of the Bank lawful?

In other words, in the event that the borrower improperly fulfills its obligations under the Agreement - does the Bank have the right to "sell the debt" to the collection agency.

On this issue, several points of view have arisen in modern science. Ambiguity and judicial practice on this issue.

All of the above motivated the author to write this article.

We will deal with this issue on the basis of the norms of the current legislation.

So. According to Art. 382 of the Civil Code of the Russian Federation, the right (claim) belonging to the creditor on the basis of the obligation can be transferred to another person under the transaction (assignment of the claim) or transferred to another person on the basis of the law.

For the transfer to another person of the rights of the creditor, the consent of the debtor is not required, unless otherwise provided by law or by the contract.

Thus, if the law or the contract does not provide for special cases of transferring the rights of claim under the obligation from one creditor to another - the consent of the debtor is not required.

According to Art. 388 Civil Code of the Russian Federation Assignment of a claim by a creditor to another person is allowed, if it does not contradict the law, other legal acts or the contract.

And part two of the said article speaks about the prevention, without the consent of the debtor, of the assignment of the demand for the obligation, in which the identity of the creditor is of significant importance to the debtor.

So, the law says about a particular case, when the debtor requires consent to the assignment of rights of claim - this is an essential value of the creditor for the debtor.

In the sphere of lending, the Bank's significant importance for the debtor is clearly expressed by the following factors.

1. Availability of a license to conduct banking activities.

It is necessary to consider this issue in aggregate, since banking activity is not only the activity of opening bank accounts and issuing loans. This is also the consequences of improper performance of obligations under the contract, it is also the recovery of uncompleted contracts.

Banking activity refers to the category of entrepreneurial activity. And the investigator is at his own risk. Those. All risks associated with non-payment of a loan lie on the side of the lender - the Bank. Thus, the concept of banking activities includes the collection of debts under contracts.

In addition, the availability of a license stipulates compliance with certain license requirements. Failure to comply with these requirements entails the suspension of the license until its cancellation. Compliance with these licensing requirements is controlled by the state in the person of its state body - the Central Bank of Russia.

Thus, it becomes clear that the borrower, when applying to the Bank, expects control from the state over the activities of the Bank. And for the full activity of the bank, including for activities to collect arrears.

The collection agency does not have a license to conduct banking activities, including collection of debts.

2. Compliance with bank secrecy in the manner of art. 26 of the Federal Law "On Banks and Banking.

So according to Art. 26 of the Federal Law "On Banks and Banking Activities" the bank must keep bank secrecy. The concept of bank secrecy includes information on the status of current accounts opened with the bank, the existence or absence of accounts payable, and so on.

It becomes clear that the Bank has no right to disclose information about bank secrecy to third parties.

In addition, many loans are accompanied by the opening of bank accounts (for example, credit cards).

This factor affects the choice of the borrower - apply for a loan to the Bank or take a loan from an organization that does not have a banking license. After all, if the borrower appeals to the Bank with a request for a loan, the borrower rightly expects that in the event of a possible deterioration of its financial condition, the Bank will not disseminate information relating to bank secrecy. For this reason, many borrowers choose a loan from the Bank, rather than borrowing from a private organization.

3. Under the current legislation of the Russian Federation - the code of OKVED for collection of overdue bank debts - is absent.

Consequently, the activities of collection agencies are currently illegal. Collectors do not have the right to collect arrears. In addition, the borrower takes money from the Bank, and not from the "uncle on the street", which confirms the materiality of the Bank for the borrower.

Thus, when analyzing the current legislation, it becomes clear that the Bank does not have the right to transfer its rights of demand for the repayment of the loan amount with the interest due under the loan agreement to a third person who does not have a banking license without the borrower's consent.

However, in practice, bankers say that when obtaining a loan - the borrower gave his consent to the processing of personal data, thereby confirming his consent to the assignment of claims to any third party.

With such objections also can not agree on the following grounds.

Firstly, the processing of personal data in accordance with the Federal Law "On Personal Data" includes completely different information than those that are transferred under the contract of assignment of rights of demand (cession). The personal data includes the following information: Surname, name, patronymic, address of registration and residence. Place of work, telephone numbers - i.e. Personal information about the borrower. At assignment of the rights of the requirement absolutely other data concerning execution by the borrower of the obligations under the Contract are transferred (are processed).

In addition, when applying for a loan, the borrower agrees to the processing of their personal data only to resolve the issue - to grant a loan or to refuse a loan.

With regard to the performance of the loan agreement, the Bank's employees do not say anything 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. The point is that the phrase in the contract "to any third party" is not based on the law. The consent of the borrower must be expressed specifically that the borrower agrees to transfer the rights of the creditor (Bank) to a particular third party, indicating its registration address, actual performance of activities, TIN, OGRN.

In the loan agreements you will not find such, therefore, in this part there is also a violation of the current legislation.

Thus, we can conclude.

1. The activity of the Bank, which is subject to licensing, is not only the activity of issuing a loan, but also the activities on recovering the amount of debt from borrowers.

2. The assignment by the Bank of its claim rights under the loan agreement without the consent of the borrower is illegal.

3. The consent of the borrower must be definitely expressed, i.е. In its consent, the third party to whom the Bank transfers its rights of claim must be specifically identified.