In practice, situations often arise when a replacement of a creditor under an agreement occurs. This procedure is called the assignment of the right of claim, or cession.
The essence and features of the assignment
Assignment is the assignment of the rights to claim a debt to a third party. For example, such an agreement is concluded between a bank and a collection agency. The latter acquires the right to demand payment of the loan debt. It should be noted that the term cession has other meanings that do not relate to lending activities. So, it can imply the transfer of rights to securities, accounts receivable, an agreement of equity participation or the transfer to another state of its territory.
An assignment agreement must be distinguished from a simple assignment. In the latter case, not only rights are transferred, but also obligations. For example, when the rights are transferred under an equity participation agreement, the party has not only the right to demand money from the equity holders, but also the obligation to complete the building.
A feature of the assignment is that the assignor (creditor) is not responsible for whether the debt will be paid. The debtor may well evade his obligations and demand from the creditor to compensate the losses the assignee cannot.
Legislative aspects of replacing a creditor in Russia
Within the framework of an assignment, the party that transfers the rights of claim is called the assignor, and the one that receives them is the assignee. The documentary evidence of a transaction is called a title. The assignment must be made in writing. The legal basis for the assignment of rights of claim is contained in the Civil Code of the Russian Federation. In particular, in Articles 382-390. It is possible to transfer rights under a loan agreement both on a reimbursable and free basis.
During the assignment, only the replacement of the creditor takes place, all rights and obligations remain. This means that if the lender could demand payment of fines and late fees from the borrower, then the assignee can also collect the amount of the debt, taking into account the penalties. At the same time, the assignor cannot transfer more rights than he has. The borrower also has all the rights that were enshrined in the contract with the primary lender.
According to the latest decisions of the Supreme Court of 2012, the assignment of the right to claim a loan to an organization that does not have a banking license became impossible without the consent of the borrower. Also, he must be notified of the transfer of rights that took place. If this did not happen, the borrower can fulfill his obligations to the old lender and this will be lawful.
It is important to note that before the borrower is convinced of the legality of the claims of third parties, he may not fulfill his obligations until the legality of their transfer is confirmed. Therefore, when communicating with collectors, you must first demand from them documents under the assignment agreement.
