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Theory of everything. Responsibilities of a loan guarantor - what you need to know Court decision on surety

One way to increase your chances of getting a loan is to attract a guarantor: credit institutions are always more loyal to borrowers whose obligations are secured by guarantee agreements. Who can act as a guarantor, what requirements do banks place on him, and to what extent will he be responsible for the borrower’s failure to repay the loan on time? We will try to answer all these questions in this article, and also touch on the concept of “co-borrower” and consider how having a co-borrower can increase your chances of getting a loan.

Guarantee from the point of view of the law. Responsibility and rights of the guarantor

The institution of guarantee was created and operates on the basis of the Civil Code of the Russian Federation (§5, Art. 361 – 367). According to Art. 361, the guarantor assumes the obligation to answer to the lender for the fulfillment by the borrower of obligations in whole or in part. The guarantee agreement must be drawn up in writing.

By default, this agreement assumes joint liability of the guarantors and the borrower in the event of failure or improper performance by the latter of its obligations. According to Art. 323 of the Civil Code of the Russian Federation, in case of joint liability of the guarantors and the borrower, the creditor has the right to demand performance both from all debtors jointly and separately from any of them, in whole or in part of the debt. Usually, when a controversial situation arises, the bank files a claim, in which the defendants are the borrower and the guarantors. The guarantor is liable to the bank to the same extent as the debtor, and undertakes to repay interest, legal costs and other losses of the creditor.

In rare cases, subsidiary liability is provided (this must be specified in the contract). In this case, according to Article 399 of the Civil Code of the Russian Federation, the creditor must first present a demand for repayment of the loan to the borrower, and only then, if the latter cannot repay the debt, the demand will be forwarded to the guarantor.

According to Art. 365 of the Civil Code of the Russian Federation, if the guarantor fulfilled the obligation instead of the debtor, the rights belonging to the creditor are transferred to him in an amount corresponding to the size of the repaid part of the debt. Simply put, if your guarantor repaid a certain amount of debt on a mortgage loan for you, then he has the right to part of the property that serves as collateral for this obligation. Also, the guarantor may demand from the borrower payment of interest in the amount paid by him to the lender, and compensation for other losses.

To present a claim to the debtor for the return of funds (for example, in order to file a claim through the court), the guarantor will need the following documents: an agreement on the assignment of a claim, an agency agreement; payment documents confirming payment of bank claims; copy of the loan agreement, etc.

It is important to know the cases when the guarantee may be terminated (Article 367 of the Civil Code of the Russian Federation). These include:

making changes to the terms of the loan, entailing an increase in obligations or other negative consequences for the guarantor, if he did not give written consent to this;
repayment or closure of a loan secured by a guarantee;
transfer of debt to another person without the consent of the guarantor;
refusal of the creditor to accept fulfillment of obligations from the guarantor;
expiration of the period specified in the guarantee agreement. If the guarantee period is not specified, then the guarantee is terminated within 1 year from the date the obligation is due and provided that no claim is filed against the guarantor;
if the deadline for fulfilling the obligation is not specified and is not determined by the moment of demand, the guarantee is terminated if the creditor does not bring a claim against the guarantor within 2 years from the date of conclusion of the guarantee agreement.

Having considered the legal aspects of attracting guarantors, it is important to find out how this type of security affects the possibility of issuing a loan, its size and rate. We will talk about this further.

Guarantee and its impact on lending conditions

Banks are always more willing to provide loans with guarantees in larger amounts. For example, Sberbank is ready to issue a consumer loan under the guarantee of one or two individuals in the amount of up to 3 million rubles without commissions and at very attractive rates. At the same time, without a guarantee you will not be able to receive more than 1.5 million rubles. (rates will naturally be higher). This bank takes into account the age and solvency of the guarantors and, depending on these indicators, indicates the number of required guarantors.

Note that when calculating the maximum possible loan amount, the bank does not take into account the income of the guarantor, and they do not in any way affect the size of the loan issued. However, the credit manager is obliged to make sure that the guarantor’s income is sufficient to repay the loan issued to the borrower - i.e. that the guarantor is solvent (most banking organizations use scoring). To do this, the guarantor is asked to provide the same set of documents as the borrower.

The credit history of the guarantor is also checked, and the same requirements are imposed on it as the history of the borrower (for example, if a bank refuses clients who have had 60+ overdue payments in the past, then the guarantor who made a similar delay in the past will not be allowed to will suit).

Even if the terms of the loan product do not provide for a guarantee, banks may still require the borrower to find a guarantor in the following cases:

when calculating the borrower's solvency, borderline results were obtained (a minimal deterioration in the financial situation will not allow the borrower to repay the debt normally);
the borrower does not have an ideal credit history;
the borrower meets all the criteria, but the bank has unconfirmed reasons for doubt;
the borrower's age is from 18 to 20 years (in this case, a guarantee from a solvent parent or parents will be required);
retirement age of the borrower (guarantee of solvent children is required);
other cases.

A guarantee allows the bank to minimize the risks of non-repayment and fraud on the part of the borrower, including the risk of obtaining a loan using forged documents. Thanks to this, loans secured by a guarantee have more attractive terms.

Recently, in addition to a guarantee, the term “co-borrower” is often found among the characteristics of banking products. We will tell you further about what it is and what advantages and disadvantages this lending scheme has.

Co-borrowers: differences from guarantee, rights and opportunities

The co-borrower, like the guarantor, together with the main borrower is responsible to the bank for repayment of the loan in full and bears joint liability. However, from a legal point of view, it is easier for financiers to repay the debt at the expense of the co-borrower.

Co-borrowers are usually attracted when the borrower does not have enough personal income to obtain the required loan amount: when calculating the maximum loan size, the income of co-borrowers, unlike guarantors, is taken into account. Typically, co-borrowers are family members of the borrower (spouses, parents, children). One loan can involve several co-borrowers (usually up to 5). Each of them increases the possible loan amount in proportion to their confirmed income. If the borrower refuses to repay the debt, this responsibility falls on the co-borrowers.

Thus, the distinctive features of lending with the involvement of co-borrowers are as follows:

when calculating the maximum available loan amount, the solvency of the borrower and co-borrower is summed up;
The co-borrower, together with the borrower, signs a loan agreement, accepting rights and obligations equal to those of the borrower. For example, with mortgage lending, the co-borrower receives the right to become a co-owner/owner of the purchased property (remember, the guarantor can receive this right only by a court decision if it is confirmed that the loan has been repaid instead of the borrower);
in case of delays in payment of the loan and interest on the loan, the obligation to repay passes to the co-borrower automatically, and not by court decision, as is the case with the guarantor;
If a guarantor and a co-borrower are involved in the loan, then in the event of problems, claims will first be presented to the borrower, then to the co-borrower, and only then, based on a court decision, to the guarantor.

Regardless of whether a person acts as a guarantor or a co-borrower, he must remember some points and risks that he assumes.

Important to remember!

If a loan for which a person acts as a co-borrower or guarantor is not repaid on time, he, like the borrower, develops a negative credit history. In the future, banks may refuse him not only as a guarantor for another loan, but also as a potential borrower.

You should be thoughtful about guaranteeing and agree to act in this role only when you are completely confident in who you are guaranteeing for. The borrower is also advised to carefully select guarantors and co-borrowers. In a critical situation, they must take on your obligations and fulfill them.

It should also be noted that many banks (for example, Sberbank) use a spouse’s guarantee as additional collateral for a loan. At the same time, breaking the marriage bond does not relieve the guarantor from liability in the event of failure to repay the debt by the main borrower.

Only a conscious, balanced approach to the issues of guarantees and joint borrowing of funds allows you to count on much better lending conditions with a minimum of risks for loved ones.

Do you think you are Russian? Were you born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

Are you actually Russian, Ukrainian or Belarusian? But do you think that you are a Jew?

Game? Wrong word. The correct word is “imprinting”.

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.

Newborns in the USSR saw their mother for a minimum of feeding time during the first few days, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The technique is wild in its essence and effectiveness.

Throughout your childhood, you wondered why you lived surrounded by strangers. The rare Jews on your way could do whatever they wanted with you, because you were drawn to them, and pushed others away. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It’s difficult to understand; the instinct took shape when you were still very far from being able to formulate it. From that moment, no words or details were preserved. Only facial features remained in the depths of memory. Those traits that you consider to be your own.

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System and observer

Let's define a system as an object whose existence is beyond doubt.

An observer of a system is an object that is not part of the system it observes, that is, it determines its existence through factors independent of the system.

The observer, from the point of view of the system, is a source of chaos - both control actions and the consequences of observational measurements that do not have a cause-and-effect relationship with the system.

An internal observer is an object potentially accessible to the system in relation to which inversion of observation and control channels is possible.

An external observer is an object, even potentially unattainable for the system, located beyond the system’s event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of “gravitational radiation” penetrating the universe from all sides from the outside. The cross section of the capture of “gravitational radiation” is proportional to the mass of the object, and the projection of the “shadow” from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of the objects and inversely proportional to the distance between them, which determines the density of the “shadow”.

The capture of “gravitational radiation” by an object increases its chaos and is perceived by us as the passage of time. An object opaque to “gravitational radiation”, the capture cross section of which is larger than its geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, using pairs of quantum entangled particles separated in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no capture cross section on the trajectories of objects that is large enough to absorb these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

An outside observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an “external observer,” will slow down exactly twice - the shadow of the black hole will block exactly half of the possible trajectories of “gravitational radiation.” If the determining factor is the “internal observer,” then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

It is also possible that these hypotheses can be combined in one proportion or another.

The person takes a lot of risks. If the main borrower cannot or refuses to pay the bank, then all obligations will be transferred to him. What should a guarantor do and how can he avoid liability for the loan? We understand all the intricacies of the issue.

Under what conditions will the guarantor have to pay for the loan?

So, a situation has arisen that a bank or collection agency approaches the guarantor with a demand to pay off the debt for another person. What should you do first?

It is necessary to “pick up” the loan agreement and read it carefully. The guarantor has already signed it, so there is no way out of the obligation. When studying, you need to pay attention to the procedure for submitting claims to the guarantor; there are two options:

the bank can immediately “issue an invoice” in the absence of payment from the borrower;
The bank requires a preliminary court decision.

In the latter case, the guarantor, until he receives a copy of the court decision that has entered into force, has every right not to pay. This is the only option to legally avoid paying a loan to a guarantor.

If the guarantor bears unconditional joint and several liability with the borrower, then, unfortunately, payment of the loan instead of the debtor cannot be avoided. And the bank has every right to contact the guarantor even the next day and demand from him payment of the monthly payment plus any accrued penalties.

How to deal with a bank

If the bank turns to the guarantor with a demand to pay off someone else’s debt, you should first clarify the following points:

the size of current liabilities (i.e. the balance of the debt, the “body” of the loan);
monthly payment amount;
duration of delay;

Then you need to find out the name of the manager who deals with overdue payments. Further conversation needs to be conducted specifically with him.

First, the guarantor needs to show that he is on the side of the bank. Here you need to discard all kindred or friendly feelings towards the debtor, because of whom you got into trouble. In this case, the main thing is to find out how not to pay if you are a guarantor, and not to resolve the conflict.

You should check with the manager whether the bank representative contacted the main borrower and found out why he refuses to repay the loan. Perhaps the debtor has some financial difficulties and just needs time to sort everything out.

Some unscrupulous banks, having granted a deferment to the main payer, begin to demand payment from guarantors or relatives of the debtor. This must be stopped at the very beginning.

However, if the borrower refuses to pay and comes into conflict with both you and the bank, liability, unfortunately, cannot be avoided.

In this case it is necessary:

bring to the attention of the manager the refusal to pay the loan on the part of the borrower;
agree to pay his debt;
in return, insist on “writing off” accrued interest and penalties and even restructuring the loan (for example, reducing the interest rate, increasing the duration of payments).

Your task is not to enter into conflict with the bank, but to find a mutual solution. It is not your fault that you acted as a guarantor for an unreliable person, therefore you have the right to insist on respecting your interests.

Is it possible to avoid payment?

Many people are interested in loan guarantors - how to relieve liability when claims are made by the bank.

In fact, there are no legal ways to avoid paying. If you have signed an agreement, you are obliged to comply with its provisions. The only way to protect yourself from this is to try to challenge the loan agreement in court. But, as judicial practice shows, this is quite difficult to achieve, since serious reasons are needed:

recognition of the borrower or guarantor as incompetent at the time of signing the agreement;
proof that the agreement was signed under the influence of a threat, difficult life circumstances - i.e. not voluntarily;
the guarantor or borrower being intoxicated at the time of concluding the contract.

A legal basis for refusing to pay for a debtor on a loan may be a unilateral change by the bank in the terms of the loan. This is a violation of the law, therefore the guarantor is automatically released from his obligations in the presence of such facts.

Therefore, it is better not to think about how the guarantor can avoid loan payments, but to enter into a dialogue with the bank and achieve good conditions for debt restructuring.

The failed borrower will not go unpunished. When paying off someone else's debts, the guarantor automatically becomes the defaulter's creditor. He acquires the full right to go to court and demand from the defendant:

compensation for all your payments and interest;
reimbursement of loan servicing costs (for example, money transfer fees or currency conversion spreads);
legal expenses;
moral damage.

If the borrower does not have the funds to pay compensation, the bailiffs will seize his property and transfer it to the plaintiff or sell it at auction. So the guarantor will get the money spent back in any case. This removes the question of how not to pay the guarantor - you can pay the debt instead of the borrower, and then demand compensation.

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How often do people who decide to take out a loan need a guarantor? It is often necessary to enlist the support of a person who will confirm the level of income and agree to bear responsibility if the borrower has problems with loan payments. Many financial institutions agree to issue a large amount of cash only if the client brings several guarantors. However, not everyone is ready to take responsibility. It would be much simpler if the guarantor did not owe anything to the bank.

Before agreeing to a deal with a bank as a guarantor, it is worth clarifying all the nuances.

It is important to know

There is such a thing as responsibility. What is the point? If the borrower fails to cope with his obligations, they fall on the shoulders of the guarantor. That is, by agreeing to this type of transaction, the client undertakes to pay the bank the entire amount of the loan. It is no coincidence that relatives and close friends often act as guarantors. These people are confident that the borrower will cope with his obligations and there will be no problems with the financial institution. However, situations are different.

In general, there can be several guarantors. And everyone is equal in their responsibilities to the bank. When signing an agreement at a financial institution, it is worth clarifying the nuances in advance. You should only agree to completely “transparent” conditions.

Analyzing the situation

It is highly recommended to analyze all the degrees of risk when taking out a loan guarantee. It is necessary to clearly assess the borrower's capabilities. It’s not worth agreeing to a deal just out of friendship. The first thing a loan guarantee requires is responsibility. How to avoid it? It is quite difficult to answer the question. If a person has signed an agreement with a bank, he must follow its terms.

There are often cases when a person begins to be persecuted for a loan that he did not take out. As a result, it turns out that several years ago I had to be a guarantor for a neighbor or relative.

What should you consider?

Every loan guarantor wants to avoid liability, even if the chance that the borrower will not pay his loan is negligible. Therefore, before agreeing to the trail, it is worth studying the main nuances:

The borrower's solvency is the first thing you should pay attention to. After all, a loan guarantee is a liability. How to avoid it if you had to sign an agreement at the bank yourself?
It is worth considering the character traits of the borrower. Indicators such as discipline, reliability, and pedantry are very important.
First, you should find out everything about a loan guarantee: liability, how to avoid it, under what conditions it will be possible to refuse the agreement, etc.
The future guarantor is recommended to check the borrower's credit history.
It is necessary to clarify why the loan is needed and where the money will be spent. The person acting as the guarantor of the transaction has the right to know everything about it.
If there is the slightest doubt, the deal should be abandoned altogether.

On a note!

Additionally, the guarantor needs to understand whether he himself will be able to pay the loan for the borrower if something happens. It is worth noting that people with low income cannot become a guarantor of a transaction with a bank. A financial institution agrees only to those guarantors who can realistically repay the debt if problems arise. However, no one wants to pay money for another person. How can a loan guarantor avoid possible problems? The only way is to agree only to win-win deals.

There is one more nuance that you should pay attention to. Financial institutions often look at the credit history of a client who seeks to become a guarantor. In addition, a person who is responsible for someone else's debt obligations loses the chance to use the services of a bank. It is not always possible to take out a loan to a person who is already a guarantor for someone.

How to find a way out if the borrower fails to meet his obligations?

If an unpleasant situation does occur, the client does not repay the loan, and the bank turns to the guarantor, it is worth carefully reviewing the agreement again. Experienced lawyers argue that some clauses can be interpreted differently. A loan guarantee is a liability. An experienced specialist will tell you how to avoid it. However, the lawyer will have to pay for the services. It is unlikely that everything will be settled without any losses.

The guarantor can sue the bank. The ideal solution would be to draw up an additional agreement, according to which the debt will have to be repaid on more favorable terms.

Another option is a claim for the insolvency of the guarantor. You just need to submit documents confirming your lack of income. It will be possible to win the case if the guarantor cannot work for health reasons. You will have to provide official medical certificates.

What about the borrower?

It is worth understanding that responsibility primarily lies with the client who executed the loan agreement. The guarantor is only a secondary subject. However, many financial institutions, without waiting for payments for several months, begin to put pressure on the guarantor, while forgetting about the borrower. What to do in this situation? How to avoid liability as a guarantor? All you need to do is contact the borrower. And in this situation you can go to court. But the claim will have to be filed not against the financial institution, but against the person who borrowed the money.

Through the court, it will be possible to squeeze out from the borrower the amount that he owes to the bank. In rare cases, liability is shared equally between the parties. This situation is possible if the borrower, for a number of reasons, cannot fully cope with debt obligations and provides certificates confirming his financial situation.

When does the bank have the right to demand repayment of the loan from the guarantor?

There are a number of situations in which a financial institution can legally demand payment of a debt from a person who acts as a guarantor. However, some banks may resort to threats in other cases. Therefore, every person who agrees to a guarantee must know his rights and obligations. The list of situations in which you will have to pay off someone else's debt is not that long.

The borrower stopped paying the loan and does not contact the bank.
The borrower has become disabled and is physically unable to earn sufficient income to repay the loan.
Death of the borrower.

It is worth noting that you can still find a way out of any situation. The most difficult is the third point. But even if the person who took out the loan dies, the guarantor can count on his life insurance. If such an agreement has been drawn up, part of the compensation may go towards paying off the loan. But it is possible that you will also have to go to court. If a person is unable to work, he will receive a pension from the state. And in this case, you can count on a positive outcome. Through the court, if desired, it will be possible to achieve restructuring. Debt payments will occur in minimal installments, based on the size of the borrower’s pension.

In what situations can a guarantor challenge the bank’s decision?

If the borrower has ceased to cope with his debt obligations, how can the guarantor avoid paying off the loan? First of all, it is worth analyzing the situations in which the client has the right to challenge the bank’s decision. It is worth remembering that a financial institution can demand payment of the debt from the guarantor no later than 6 months after the borrower has ceased to cope with his obligations. If more than six months have already passed, the guarantor of the transaction has the right to challenge any decisions of the bank.

There is another situation that often happens. If the borrower does not repay the debt, banks begin to demand money back from relatives. It turns out that they did not even know that the agreement had been concluded. It is important to know that the guarantee is confirmed by a signature. If no documents have been certified, then there are no obligations to the bank!

The guarantor will be able to refuse payments on the loan if he pays alimony in an amount that exceeds 75% of his monthly income. However, the problem will have to be resolved through the courts.

The incapacity of the guarantor is also a reason for refusing obligations to the bank. The client's health condition must be officially confirmed by a medical certificate.

How can a guarantor avoid liability for a loan? Let's sum it up

Before signing any agreement with a bank, it is worth weighing the pros and cons. You should only agree to a deal that you can be sure of. It is worth remembering that a loan guarantee is a liability. And how to avoid it? First of all, you should learn your rights and responsibilities. Indeed, often the demands of financial institutions are completely illegal.

To reduce the risk of non-payment of loan debt, banks use various techniques. One such technique is the requirement of a loan guarantee. The borrower can provide guarantors for long-term loans, for example, a mortgage, and for short-term ones, for example, consumer ones. If there are guarantors, the risk of non-payment of debt for the bank is reduced.

Due to this, the borrower can receive a lower interest rate on the loan. On the one hand, for the borrower, guarantors are a guarantor of more favorable conditions for receiving the required amount, but on the other hand, for guarantors this can be quite dangerous, because they will be responsible for paying off the debt for the borrower who was unable to pay the loan.

Often relatives, friends, neighbors, and acquaintances are taken as guarantors. Not every person is ready to refuse such a request. However, the guarantor needs to understand the full essence of responsibility. Guaranteeing for someone is not just witnessing the fact of issuing a loan, but it is the need to repay the debt if the borrower cannot pay. Thus, if someone desperately asks to become his guarantor, it is worth considering that you can find yourself in his position and also seek financial help.

Who is a guarantor?

This is the third party of the loan transaction between the bank and the borrowers. He bears full or partial obligations to repay the debt if the main borrower cannot pay. The guarantor confirms the client's solvency and is instructed to return the money to the bank from his own income. After signing the contract, the parties become responsible for fulfilling their obligations under the transaction. The relationship between the parties is sealed by a guarantee agreement. The larger the loan amount, the more guarantors the bank may require.

The Civil Code of the Russian Federation states that guarantors bear equal responsibility with the borrower to the bank. The creditor has the right to demand that the guarantor repay the debt (Article 323 of the Civil Code) until the loan is repaid.

Many people confuse the meanings of “co-borrower” and “guarantor”, thinking that they are the same thing. The main difference is that the co-borrower has equal rights to the acquired property as the borrower, while the guarantor does not have such rights and assumes only the obligation to repay the borrower’s debts. Also, the income of the co-borrower will be taken into account when calculating the maximum loan amount, and the income of the guarantor will not affect this in any way. But the bank imposes quite strict requirements on guarantors:

Positive credit history.
No debts or existing loans.
"White" salary.
Income is higher than loan payments.
Official employment
Availability of property.

If the borrower stops paying his debts, the guarantor is obliged to repay:

Main debt.
Interest charges.
Fines, penalties, penalties.

If the guarantor is unable to pay the debt, then the bank can seize his property, apartment, car, etc.

Rights of the loan guarantor.

Although the guarantor assumes the burden of payment, without having rights to the acquired property (if we are talking about a mortgage), he has a number of rights enshrined in Art. 365 Civil Code of the Russian Federation. Upon fulfillment of the assumed obligations, the guarantor becomes a creditor of the debtor and has the right to demand compensation from him for losses caused. So, if we are talking about a mortgage that was repaid by the guarantor, he can sue the borrower for part of the apartment or all of it as debt compensation.

The guarantor can avoid paying the debt if the bank makes changes to the loan agreement without prior approval. The contract may also specify a guarantee period, for example, the first 10 years. If the deadline has passed, the guarantor is also not obliged to pay. If payment of the loan ceases due to the death of the borrower, the obligations of the guarantor also cease. It is worth remembering that surety debts are inherited.

When taking on the responsibilities of a guarantor, everyone must remember that this loan will be reflected in his credit history and will be listed as his own. If the guarantor plans to take out a loan in the near future, he may be refused due to his credit load.

Thus, before signing a surety agreement, it is worth assessing your ability to repay the debt as if it were your own. Even if the borrower is a relative, friend, good acquaintance, etc. it is necessary to assess its solvency. If there are suspicions that a person is not entirely trustworthy, then it is better to refuse than to “bite your elbows” later.