Collection of accounts receivable

Collection of accounts receivable in Belarus

Step 1. Select the order of collection.

Currently, there are two main ways to recover accounts receivable in the Republic of Belarus: notarial and judicial. Notarial consists in applying to a notary with an application for the issuance of a notarial inscription. Judicial consists in applying to the economic court in the order of writ or claim proceedings. It should be remembered that the two mentioned methods are mutually exclusive. Thus, the economic court will refuse to accept the statement of claim if there are grounds for debt collection in a notarial manner. Therefore, first of all, it is necessary to find out whether there are such grounds for applying to a notary. To do this, it is worth referring to the Decree of the President of the Republic of Belarus No. 366 of August 11, 2011 "On certain issues of notarial activity" (as amended on 07.05.2015).

Currently, debt collection according to the aforementioned Decree in the order of issuance of an executive inscription is carried out under a wide range of economic contracts, such as a contract for delivery, transportation, provision of services, lease, rental. At the same time, it is necessary to carefully study the conditions for applying the appropriate procedure to a particular contract. Thus, an executive inscription under the delivery contract can be obtained only if there is a reconciliation act of mutual settlements. At the same time, according to the lease agreement, a reconciliation act is not needed, it is only enough that the rent is fixed. For example, 100 rubles for 1 month of rent.

The recoverer for the issuance of an executive inscription may apply to any notary with a statement, the content of which is regulated by the Resolution of the Ministry of Justice of the Republic of Belarus of 23.10.2006 N 63 (ed. of 10.07.2015) "On approval of the Instructions on the procedure for performing notarial actions". For the issuance of an executive inscription, a notary fee is charged in the amount of 5% of the amount to be collected, but not less than 10% of the base value and not more than 1000% of the base value.

In case of refusal of the notary to issue an executive inscription, it is necessary to demand that they issue a written refusal to make an executive inscription. Such a refusal will be the absolute basis for the acceptance of your statement of claim or application for the initiation of writ proceedings by the economic court.

Despite the fact that the notarial procedure for debt collection is somewhat more expensive in some cases, the judicial procedure for collection, it should not be neglected not only because of the obligation. The executive inscription has the force of an executive document and therefore you can not wait for several months for the adoption of a judicial act, but immediately proceed to enforcement. Promptness in the matter of debt collection can be critical, because a few months are enough for the debtor to completely go bankrupt and go into bankruptcy.

Step 2. Mandatory pre-trial settlement.

Currently, applying to the court for debt collection in economic cases requires compliance with the mandatory pre-trial procedure. Compliance with this procedure is regulated by Appendix 1 to the Economic Procedural Code of the Republic of Belarus. The term of consideration of the claim is 1 month, unless otherwise provided by the contract. The claim is sent to the debtor by express under the signature or by registered correspondence with a written notification of delivery.

The claim must contain: the name of the applicant of the claim and the person(s) to whom the claim is presented (the recipient of the claim), their place of residence (place of stay) or location; the date of the claim; the circumstances on the basis of which the claim is presented; evidence confirming these circumstances; the claim of the applicant of the claim with reference to the legislation; the amount of the claim and its calculation, if the claim is subject to monetary assessment; the bank details of the applicant of the claim (if any); a list of documents attached to the claim.

The content of the claim should not be treated carelessly. Despite the fact that the court is sometimes liberal, taking into account the principle of procedural economy, refers to minor errors in the claim, it is worth remembering that each such error is an opportunity for the debtor to refuse to make a decision in your favor or even cancel an already made decision. So, bank details are often not specified, the recoverer at the same time refers to the fact that bank details are specified in the contract. However, the legislator did not include this condition for such reasoning, and therefore the absence of bank details in the claim when the debtor takes an active position may well lead to the recognition of the pre-trial order not observed.

You should also pay attention to the content of the claimed requirements. So, often the recoverers make a claim only for the main debt, and they do not make a claim for the penalty and interest, or they simply threaten to recover them in court in case of non-payment of the claim. In case of a desire to collect penalties and interest, it is necessary to make an exact calculation of their amount in the claim.

When can I not make a claim? Firstly, when the mandatory claim procedure is eliminated by a written agreement of the parties. Secondly, when the recoverer applies in writ proceedings for the recovery of an amount not exceeding 100 basic units, if there is evidence of recognition of the debt by the debtor. So, if the act of delivery and acceptance of the services rendered is not signed under the contract for the provision of services, it is still worth sending a claim. After all, in this case, an unanswered claim will be the only proof of debt recognition.

Step 3. We are preparing an application for writ proceedings or a statement of claim.

First of all, probably, the reader is interested in the question: when is it better to go to court in writ proceedings, and when in a lawsuit . There is no universal answer to this question, but some general principles can be given. The advantage of writ proceedings is the low amount of state duty and the absence of the need to have a representative in court. However, it is also not difficult to get a refusal to issue a ruling on a court order in writ proceedings. It is enough only for the debtor to provide a reasoned response to your application. The degree of sufficient motivation largely depends on the discretion of the court. So, in some cases, it is enough for the debtor to write at least something, in some cases the court may reject a too "unfounded" review (for example, "we have no money," etc.). Therefore, if you are knowingly informed about the negative position of the debtor, motivated by his unwillingness to repay the debt, it is better not to spare the funds to pay the state fee and immediately file a claim. After all, an appeal by order may delay the consideration of the case in this case, based on practice, we can talk about a delay period of up to 2 months.

The content of the application for the initiation of writ proceedings and the statement of claim for debt collection is quite identical. Both documents must contain the details of the recoverer and the debtor (in the claim proceedings – the plaintiff and the defendant), the justification for the debt, evidence, information on compliance with the mandatory pre-trial procedure, calculation of interest for the use of other people's money and penalties, a description of the attached documents. The requirements for the statement of claim are contained in art . 159 of the CPC of the Republic of Belarus, the requirements for the application for the initiation of writ proceedings are contained in Article 221 of the CPC of the Republic of Belarus.

When calculating the penalty, it should be remembered that according to the legislation of the Republic of Belarus, an agreement on a penalty (penalty) can only be expressed in writing. The formula for calculating the penalty fee: (The amount of debt under the contract) *(The interest rate set in the contract) *(the number of days overdue).

The calculation of interest for the use of funds is carried out regardless of the fixing in the contract, however, in the contract the amount of interest can be increased. The formula for calculating interest: (Amount of debt) * ____% (Refinancing rate of the National Bank of the Republic of Belarus) / (number of days per year) * (number of days for which interest is accrued).

The calculated amount of the penalty may be reduced by the court if it considers it disproportionate to the violated obligations, usually it does so at the request of the debtor or if the penalty is obviously overstated. The amount of interest may be reduced only if it exceeds the amount established by law. As a rule, the amount of penalty charged cannot be more than half of the amount of the principal debt and can never be more than the entire principal debt. This is an unspoken rule. It will be especially useful to remember about it in case of applying to the court in the order of claim proceedings, because the state fee paid due to the high penalty will not be imposed on the debtor in case of refusal to satisfy the claims in terms of excessive penalties.

Step 4. Payment of the state fee.

For the consideration of claims for the recovery of receivables, the minimum state duty will be 520 Belarusian rubles, which corresponds to 25 basic values;

If the amount of recovery is from 100 to 1000 basic units, the amount of the state duty will be 5 percent of the claim price, but not less than 520 Belarusian rubles;

If the amount of collection is from 1,000 to 10,000 basic units, the amount of the state duty will be 5 percent of 1,000 basic units plus 3 percent of the amount exceeding 1,000 basic units;

If the amount of the recovery is from 10,000 base units and above, the amount of the state duty will be 1 percent of the claim price, but not less than the amount set out in the paragraph above.

When considering an application for the initiation of writ proceedings, the state duty rate for the amount of recovery up to 100 basic units will be 2 basic units;

If the amount of collection is from 100 to 300 basic units, the amount of the state duty will be 5 basic units;

If the amount of collection is from 300 basic units or more, the amount of the state duty will be 7 basic units.

When paying the state duty, it is important to correctly indicate the purpose of the payment, which should contain not only the name of the procedure (for example, for filing a claim for recovery of the principal debt, penalties and interest), but also the name of the debtor (defendant, recoverer). Details of the state fee can be found on the court's website:

When paying the state fee through the client-bank system, Internet banking, it is necessary to certify the payment order submitted to the court with the original seal of the bank.

Step 5. Filing documents in court.

The statement of claim is submitted to the court in two copies with copies of documents certified by the head of the claimant or a representative by proxy, usually a lawyer or a full-time legal adviser. The court will independently send a copy of the statement of claim to the defendant. Filing an application for the initiation of writ proceedings differs in that the recoverer independently sends a copy of the application to the debtor and sends a postal receipt to the court for such direction.

Documents can be submitted to the economic court by express with delivery to the office or by mail (registered correspondence). It is recommended to specify your mobile phone number in the documents. This will allow the court to send notifications via SMS messages, which will allow you to respond promptly to relevant information.

If you are not located at the legal address, you must specify the postal address indicating the person responsible for receiving correspondence.

Step 6. Consideration of documents in court - obtaining an enforcement document.

In writ proceedings, the court within 5 working days sends to the recoverer a ruling on the acceptance of an application for writ proceedings. The application is considered within no more than 20 working days from the date of its receipt by the court. In case of compliance of the application and the documents attached to it with the legislation, the absence of a reasoned recall of the debtor, the court adopts a ruling on the court order, which takes effect immediately, however, the debtor will have the right to appeal this ruling that has entered into force within 10 days. Therefore, experienced lawyers here advise not to rush to use the right to issue a payment claim to the debtor's account within 10 days. Often debtors simply do not know that writ proceedings are being conducted against them, having not been at the legal address for a long time, which is their problem, and not the problem of the recoverer or the court. However, seeing the money being debited from the account, they promptly take measures to cancel the definition. After 10 days, they will be practically unable to do anything. Thus, consideration of the application for the initiation of writ proceedings may take up to 1 calendar month. Although sometimes, taking into account the workload of the courts and the transfer of documents by mail, this period may take up to 1.5 months.

In the claim proceedings, the consideration of the claim takes longer, the term here depends on the complexity of the case. So, a case of recovery under a supply contract in which the defendant does not take an active position, skips meetings or does not object to the claim, can be considered within 1.5-2 months. A dispute on damages from a Russian company located in Vladivostok, if the contract establishes the jurisdiction of the case to the Economic Court of the city of Minsk, may take up to one year. The preparatory meeting is held by the court within 15 days from the date of receipt of the statement of claim to the court.

In the claim proceedings, the economic court makes a decision that comes into force if the defendant does not file an appeal within 15 days from the date of issuance. In this case, the economic court issues a court order to the recoverer, which will be, like the ruling on the court order, an executive document.

Consideration of the case in the order of writ proceedings is carried out without judicial proceedings, in the case of claim proceedings, the presence of a representative is necessary. The representative may be the head of the enterprise, its full-time employee, as well as a lawyer. Simple cases in which the court does not need to receive oral explanations from the parties can be considered without the participation of representatives if there is a corresponding petition from the plaintiff.

Step 7. Enforcement.

First of all, it is necessary to issue a payment request with an enforcement document to a known debtor's account. Therefore, it is so important that the settlement account is indicated in all business contracts. Usually, the accounting department of the enterprise is engaged in making a claim. It is important here not to "overdo" such a requirement. It is often forgotten about until the bank itself returns it along with the documents due to the impossibility of execution. If there is no write-off of funds on the payment request, it is worth withdrawing it after 2 weeks. In case of partial write-off, it is possible to keep the claim in the bank for 1 month. These are just recommendations based on the experience of a lawyer-collector.

If there is no write-off of funds on a payment request or their partial write-off, the recoverer submits an application for initiation of enforcement proceedings to the enforcement department at the location of the debtor. The executor, having received an application for the initiation of enforcement proceedings with an attached enforcement document and a payment request returned from the bank, shall, within 3 days, issue a resolution on the initiation of enforcement proceedings. It should be remembered that the deadline for submitting an enforcement document for collection is 6 months and it is not easy to restore the deadline in case of a pass.

In the course of compulsory enforcement, the debtor is given 7 days for voluntary execution of the court decision. In the absence of this, the executor seizes all accounts and property of the debtor, in the absence of property, the executor summons the debtor to give explanations. Debtors who are individual entrepreneurs may be subject to restrictions in the form of a ban on leaving the territory of the Republic of Belarus, deprivation of the right to drive a vehicle.

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