The Demanding Countermeasures. Alternative ways to influence the debtor

What to do if the debtor turned out to be a “hard nut to crack” and it was not possible to collect debts from him by “encashment settlement accounts of debtors”, “cooperating with bailiffs”, “collecting from controlling persons” and “through the bankruptcy procedure”?

Turning on the heavy legal artillery!

Need to start criminal prosecution, file an application with the OFAS about bad faith, “click” on the partners and counterparties of the debtor, use any other working methods. They will be discussed below!

Method number 1. Initiation of criminal prosecution

It should immediately be noted that in order to apply this measure of influence on anyone, you will need the help of a criminal lawyer. The object of this method are the controlling persons of the debtor, who are by no means legally illiterate. It is with them that need “work”, applying the Criminal Code, and specifically …

Part 1 Art. 315 of the Criminal Code of the Russian Federation, which provides for punishment for malicious failure to comply with a court decision. More!

The filing of an application for initiation of a criminal case must be preceded by a certain procedure. If it does not exist, the criminal case will either not be initiated at all, or will be closed at the initial stage with the note “there is no corpus delicti”.

Therefore, “preparation” is mandatory, the essence of which is as follows.

• According to the regulations for the work of bailiffs to search for the debtor and his property, they must visit the debtor twice within the established period at the address of the organization indicated in the Unified State Register of Legal Entities to have a conversation with the head of debtor.
• If there is no head of debtor on site, and most often it happens, then the bailiffs draw up an act on the conducted search (recovery) activities and the lack of results on them due to the impossibility of meeting with “responsible persons”.
• Further, a decision is made to terminate the enforcement proceedings due to the impossibility of recovery. It is these documents (act and resolution) that become the basis for bringing the controlling persons of the debtor to criminal liability under Part 1 of Art. 315 of the Criminal Code of the Russian Federation.

Method number 2. The complaint about the debtor to the OFAS

If your debtor is a construction company that is a member of the SRO (Self-Regulatory Organization), then the collection task is a little easier. The OFAS (Office of the Federal Antimonopoly Service) will help, you should write a statement of bad faith to this body.

What will this give? A working company simply cannot afford to lose its membership in the SRO, since joining it was previously a way for the company to obtain the right to construction activities. Accordingly, the exclusion is equal to the loss of the right to exercise building functions.

Thus, an application to the OFAS about bad faith is a guaranteed “chance” to fly out of the SRO, and in the debtor in any case, since construction is a long process, there are existing contracts, including state contracts, the non-completion of which can threaten very big troubles.

Method number 3. Action through partners and counterparties of the debtor

Any working enterprise values ​​its reputation! Therefore, the very fact of filing an application for declaring a debtor bankrupt is a negative event for a legal entity!

Partners – creditors, contractors, investors, leasing companies and clients of the debtor, potentially, can terminate any relationship with him, and this, we repeat, is unacceptable for a working enterprise.

In practice, the very fact of warning the debtor that it may be necessary to inform the partner about his financial condition makes the latter want to solve the problem faster. Not an entirely ethical way, but in such cases the result is important.

Method number 4. Need to act comprehensively

It is important to understand that the choice of a method for collecting foreign debts depends on the specific situation – the financial situation of the debtor, the number of collectors, the stage of the case, the amount of debt, etc. At the same time, the law does not prohibit, and lawyers strongly recommend, to fight in a comprehensive manner, using all applicable collection tactics.

The general “picture” of a complex collection, for example, is as follows!

Need to publicate a message on the federal resource, we are waiting for the legal 15 days, and during this period no one forbids to independently Encashment settlement accounts of debtors.

The accounts turned out to be empty, no one forbids leaving a writ of execution in one of the banks, money may appear.

Also, in parallel, you can initiate enforcement proceedings, bankruptcy is not a hindrance to this.

After filing a bankruptcy petition with the court, should to continue to negotiate with the debtor and its representatives in order to close the problem out of court.

Etc. Any strategy can work!

The only thing to remember is that sitting and waiting for everything to resolve itself is not an option for real debt collection. If there is no time and experience to engage in “knocking out”, then legal business support from practicing specialists is a real option for prompt and effective recovery.

11.02.2022

335