How to collect receivables through court? We tell you how this actually happens, how the debtor will put a spoke in the wheels and what to do if the closing documents are not signed

WHAT ARE ACCOUNTS RECEIVABLE

Let us recall that accounts receivable are debts owed to an organization from other companies as a result of business relationships with them.

Accounts receivable are part of the enterprise's property, and its collection is the property right of the creditor.

What is its significance for both sides of the relationship:

• the debtor receives additional free working capital;
• the lender expands the sales market for goods, works, and services.

Non-payment of debt can be explained by a variety of circumstances:

• evasion of the debtor from payment of sums of money;
• debtor's insolvency;
• disputes between companies regarding mutual obligations.

Thus, in general, receivables are necessary and important, but some of their types significantly complicate the activities of the creditor company, and therefore require the attention of the company’s management.

Purposes of negotiations with the debtor

For effective negotiations, be it telephone conversations or a personal meeting with the debtor, the company employee conducting the negotiations must clearly understand what goals he is pursuing and what result should be obtained.

A possible option for setting goals (negotiations can be considered completed if at least the first goal is achieved):

1. Clarification of the debtor's position.
   Is the debtor ready to negotiate? whether he recognizes the debt and is ready to repay it; reasons for debt; the debtor’s plans for repaying the debt (with what funds does he plan to repay the debt, in what time frame, are there alternative sources of income in the plan to repay the debt).
2. Finding out the financial situation of the debtor.
   Existence of debts to other creditors; sources of income of the debtor, place of work, etc.
3. Explaining to the debtor possible ways to solve the problem.
   Explaining to the debtor the possibility of debt restructuring.
4. The debtor's motivation to repay the debt.
   Explanation of the actions of the creditor when the debtor refuses or evades resolving the issue of debt repayment on the merits; an explanation of the negative consequences that may arise if the debtor refuses to resolve the issue of debt repayment on the merits; offering the debtor assistance in conducting negotiations with the employer and relatives so that they can provide financial assistance to the debtor.
5. Solving the issue of debt repayment on the merits
   . Determining the procedure, terms and methods of debt repayment; conclusion of an agreement on debt restructuring.

WHAT ARE THE TYPES OF RECEIVABLES

1. By duration: short-term – payment of the debt within 12 months from the occurrence of the obligation to pay;
2. long-term – debt payments for more than 1 year.

So, difficulties in obtaining funds arise with such types of receivables as long-term, overdue, doubtful and hopeless.

Goals of debt collection activities

The best way to start solving a problem is to define the desired end result and set goals. The goals of collection activities at the early stages of the occurrence of receivables may be (Figure 1):

1. Prevention of overdue accounts receivable.
2. Full repayment of overdue debts by the client.
3. Reaching an agreement with the client on the procedure and timing of debt repayment (debt restructuring).
4. Verification of the client’s data provided by him when receiving a loan (checking the validity of the data specified by the client when receiving a loan: client’s phone number, phone numbers of relatives and immediate circle, employer’s phone number, residence address, etc.).
5. Image formation.

Figure 1. Goals of debt collection activities

WHO COLLECTS RECEIVABLES

The circle of persons responsible for working with accounts receivable depends on the internal organization and size of the company. Typically, collection of “debts” is carried out by:

1. Head of the organization;
2. company employees (lawyers, accountants, sales and project managers, etc.);
3. specially hired specialists (legal and accounting consulting companies; debt collectors).

A special subject of debt collection is the court, which forces the debtor to pay the debt in situations where the creditor has exhausted other ways to collect the debt.

After the court decision is made, the debtor has time to voluntarily execute the act. If he does not fulfill the requirement voluntarily, the debt is collected forcibly. We'll talk about this in more detail below.

What is an organization's accounts payable and its types

Debt obligations of an organization, for which it must pay a certain amount of debt to another person, are called accounts payable.

Most often, an organization's debt arises in settlements with suppliers and contractors for providing the company with material and technical supplies. Often, company employees find themselves without timely salaries, and this also applies to accounts payable. Debts for tax deductions, fees, etc. can also be included in this category.

When evading settlements on an organization's debt, the company's management may be subject to the methods of influence provided for in Art. 177 of the Criminal Code of Russia.

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HOW TO EVALUATE PROSPECTS FOR DEBT COLLECTION

Before turning to the debtor or to the court, the creditor must understand whether the debtor violated the payment deadline, if so, how much the delay was and whether it is realistic to receive the funds.

To do this, the company manages accounts receivable.

Receivables management methods:

1. Inventory of debts
   There are cases when an organization is required to conduct an inventory (for example, when theft is detected; during liquidation; before drawing up an annual report). But, in addition, the company can carry out inventory at any time on its own initiative.
2. Analysis of debt repayment periods
   An accountant (company manager) must monitor the timing of deposits of funds under agreements with counterparties. If the payment deadlines have already arrived, you need to draw up reconciliation reports and send payment reminders (claims) to the debtors.
3. Calculation of debt collection costs
   If it becomes clear that the debtor will not pay the debt in the near future, the creditor evaluates what he can do and how much time and money he will spend on it. In other words, we have to decide whether the game is “worth the candle.”

   For example:

   The amount of the buyer's debt under the supply agreement amounted to 20,000 rubles. + the supplier accrued interest under Art. 395 of the Civil Code of the Russian Federation.

   The supplier sent a claim demanding payment, but the buyer did not respond to it.

   The supplier decided to go to court and is now calculating the expected costs:

   • preparing a claim (a necessary and already met condition for filing a claim);

   preparation of a statement of claim (or full legal proceedings by a lawyer);

4. the amount of the state duty (if the court decision is positive and is properly executed, it will be returned to the account of the plaintiff-creditor);
5. Conducting enforcement proceedings (submitting the necessary applications and other documents).

In such a situation, the supplier will understand that the legal costs will exceed the amount of the debt collected. And if the counterparty turns out to be insolvent, then money and time will be wasted.

Then he can choose one of the following strategies:

• collect the debt yourself, spending time, but not money on lawyers;
• wait until the amount of the debt increases and exceeds the costs of collecting it.

Of course, this does not mean that in each case a claim with a claim price of 20,000 rubles. will be unprofitable. Only the supplier in this example came to this conclusion, and your situation may be completely different.

Principles of debt collection activities

Before moving on to considering the tools that can be used to achieve your goals, you need to decide on the general principles of debt collection. In our work, we highlight 5 fundamental principles of debt collection:

1. Legality
   . All actions performed by company employees aimed at debt collection must comply with the requirements of current legislation.
2. Competencies.
   A company employee must know existing financial and legal instruments that can be used to resolve a client’s debt problem (primarily these are debt restructuring programs that exist in a microfinance organization).
3. Help.
   The actions of a company employee to collect overdue debts should be aimed at helping the client resolve his debt problem.
4. Responsibility
   . The obligations stipulated by the contract must be fulfilled in full and within the established deadlines; for violation of their obligations, the client will inevitably bear responsibility under the contract and current legislation.
5. Respect for the client's honor and dignity
   . When carrying out any activities to collect overdue debts, a company employee cannot in any way belittle the dignity of the debtor or humiliate him.

WHAT WAYS ARE THERE FOR WORKING WITH DEBT RECEIVABLES?

The duration of the delay in payment, the size of the debt, the behavior of the debtor, the relationship with the head of the debtor organization - all this determines the choice of the method of influencing the faulty counterparty.

Negotiation

This method is usually used by the manager and responsible employees of the organization. Negotiations in person, by phone, in instant messengers and by email allow the parties to reach a compromise while maintaining good relations and their own business reputation.

The creditor may offer the debtor one of the following options for resolving the issue:

• rescheduling payment terms;
• offset of counterclaims;
• provision of services in exchange for payment of debt, etc.

If, as a result of negotiations, the parties came to one of the listed decisions, the agreements must be formalized in a written agreement.

Pre-trial debt collection

Even at the negotiation stage, the creditor and debtor could exchange official letters with the signatures and seals of both parties. In such letters, the parties explain the reasons for delays in payment, agree on the terms of the deferment and hope for long-term fruitful cooperation.

But if the companies do not come to an agreement, the creditor must file a claim demanding payment of the debt (or immediately go to court, which we will discuss in more detail later).

Read the contract carefully: it may contain ways to submit a claim. If there is no such condition, send the claim by a valuable letter with a list of attachments.

The debtor can fulfill your stated demand. Or he may respond with refusal, silence, or even not receive the document. These situations give the creditor the right to go to court.

Debt collection by court

Forced debt collection is a fairly effective and reliable way to obtain funds. However, an entrepreneur may need the help of a lawyer.

If both parties are legal entities or individual entrepreneurs, the creditor submits an application to the arbitration court.

What kind of application is submitted to the court:

• application for the issuance of a court order - if the amount of the claims is fixed (that is, penalties or interest are no longer due at the time of going to court) and does not exceed 500 thousand rubles.
• statement of claim - in all other cases.

Before submitting the application, you must pay the state fee. To any of the applications, attach documents confirming the debt (agreement, acceptance certificate, delivery note/invoice, reconciliation report) as well as other documents required by law.

Convenience of a court order:

• accepted quickly and without court hearings;
• does not require prior filing of a claim;
• is also a writ of execution.

But it turns out that the debtor receives a “letter of happiness” unexpectedly. Therefore, the law reserves the debtor’s right to file an objection in court, and the court cancels its order. The creditor has only one thing left to do - file a claim to recover the same amounts.

The claim is free of such shortcomings. Moreover, if the price of the claims is below 800 thousand rubles. for legal entities and below 400 thousand rubles. For individual entrepreneurs, court hearings are also not held.

Just don’t forget that according to Art. 4 of the Arbitration Procedural Code of the Russian Federation, before filing a claim, you must comply with the claim procedure for resolving the dispute. If a claim has not been submitted, the court will not consider your claim.

What amounts will the court recover in favor of the creditor:

• main debt;
• penalty or fine, if provided for in the contract / interest on the amount of debt;
• compensation for legal services (often not in full);
• compensation for the paid state duty (in full if the plaintiff’s demands are fully satisfied).

But, unfortunately, if the debtor is actually insolvent, a judicial act and a writ of execution will not work a miracle - you will be officially right, but you will be left with an unfulfilled court decision, that is, without money.

Execution of a court decision

The issued court order has the force of an executive document. A court decision made as a result of consideration of a claim does not have this property. Therefore, after considering the case, you need to obtain a writ of execution from the court to execute the judicial act.

What to do next? Submit a court order or writ of execution of your choice:

1. to the bailiff service at the debtor's address;
2. to the bank where the debtor's current account is known to you.

If you are confident in the debtor's solvency, the second method is faster and more effective. The bank will find out that the defendant has the required amount in his current account and will transfer it to you.

In situations where you do not know the details of your current account or it turns out that there are no funds on it, you should contact the bailiffs.

Keep in mind that most often simply submitting documents to the FSSP is not enough. Monitor the process of execution of a judicial act:

• provide information about the debtor known to you (actual address, director’s contacts, etc.);
• ask what measures have been taken by the bailiff;
• if necessary, appeal the actions (inaction) of the bailiff.

Your activity will speed up the progress of enforcement proceedings.

Selling debt

Often an entrepreneur does not have the resources to negotiate with the debtor, wait for a long time for payment, and handle claims.

In this case, a convenient way to get rid of the receivable debt is to sell it to collection agencies or other organizations.

The transaction is formalized by an agreement on the assignment of the right of claim (assignment agreement) between the original and new creditor. If the original agreement was concluded in notarial form or underwent state registration, the assignment agreement must go through the same procedures. In addition, one of the parties assumes the obligation to notify the debtor of a change of creditor.

Since the risk of non-receipt is sold along with the debt, the price of such an agreement (contract) is set at an amount less than the amount of the debt.

Debt collection activities

Activities that can be carried out to collect receivables in the early stages of their occurrence:

• SMS informing the borrower about the presence of debt;
• conducting telephone conversations with the borrower about the procedure and timing of debt repayment;
• informing about the existence of debt and ways to repay it by mail;
• conducting personal negotiations with the borrower about the procedure and timing of debt repayment;
• conducting negotiations with relatives, employers, and friends of the debtor.

It is very important to record (record) all actions of company employees aimed at debt collection, and the results of these actions. This will help in the future to analyze the effectiveness of using each tool, and will also allow you to organize control over the performance by company employees of their debt collection duties (the debt collection process, as a rule, is not the most pleasant and interesting). In general, a properly organized system of accounting and monitoring the level of receivables, as well as a system of recording activities carried out by company employees aimed at debt collection, half ensure the success of solving the problem of reducing the level of overdue receivables.

We strongly recommend that you regulate all debt collection procedures, write standard texts of SMS messages, texts of notifications that will be sent to the debtor by mail, “scripts” for conversations with debtors (standard diagram, algorithm for talking on the phone, using pre-prepared phrases and phrases). In general, the less you leave to the discretion of the final performers, the higher the efficiency of events and the lower the risks for the company as a whole.

We strongly recommend that the regulations for working with debtors include provisions limiting the capabilities of company employees when communicating by telephone or in person with the debtor or persons from his environment, such as:

1. A company employee is strictly prohibited from representing himself on behalf of another organization or institution: “police officer”, “bailiff”, “collection agency employee”, etc.
2. A company employee is strictly prohibited from uttering expressions containing a direct or indirect threat to the life and health of the client or those around him.
3. A company employee is strictly prohibited from uttering expressions that are contrary to the constitutional and other rights of citizens: “... they will take away the apartment ...”, “... they will take away the property ...”, “... they will force you to work ...”, etc.
4. An employee of the company is strictly prohibited from uttering expressions containing a direct or indirect threat of illegal actions against the Client or his environment on the part of the company or third parties.