ЦБ нашел повод для тотального запрета лишних звонков должникам

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Новый закон о взыскании долгов физлиц вызвал разногласия у кредиторов и ЦБ. Банк России трактует его в части контактов с должниками чрезвычайно жестко, особенно в отношении взаимодействия с третьими лицами. Это уже вызвало волну судебных споров, причем побеждают в них пока кредиторы. Без вмешательства регулятора рынка взыскания долгов — Федеральной службы судебных приставов (ФССП) решить проблему не удастся, уверены эксперты. ФССП обещает совместно с Минюстом подготовить уточняющие поправки, которые закроют спорные вопросы, но лишь к следующему году.

Банк России продолжает настаивать на жесткой трактовке закона о взыскании долгов физлиц, указывая на недопустимость контактов кредиторов и их представителей при взыскании долга с третьими лицами. Так, на днях ЦБ подал апелляционную жалобу по спору с КПК «Илма» (см. «Ъ» от 10 мая), не согласившись с решением суда первой инстанции о допустимости звонков на работу должнику при определенных условиях (неразглашении персональной информации третьим лицам).

Как следует из текста апелляционной жалобы (есть в распоряжении «Ъ»), ЦБ нашел новые аргументы против звонков на работу заемщиков. Они заключаются в том, что заемщик указывает рабочий номер вовсе не по собственному желанию (как контактный), а из-за того, что этот пункт кредиторы включают в анкеты как обязательный для заполнения. То есть, по сути, подать заявку на кредит или заем невозможно, не предоставив контакт работодателя. Поскольку рабочий телефон предоставлялся не для целей контактов заемщика с кредитором, то и использование его при взыскании является нарушением, как и любое взаимодействие с третьими лицами. Как только представитель кредитора узнал, что контактирует не с должником, он обязан был сразу же прекратить взаимодействие, а не выяснять причины отсутствия должника на рабочем месте и т. д., следует из апелляционной жалобы ЦБ.

При этом в вопросах контактов с третьими лицами ЦБ встает на сторону должников, даже тогда, когда они не могут предоставить доказательства такого контакта. Например, МФО «Домашние деньги» в настоящее время судится с ЦБ по поводу штрафа за неподтвержденный звонок третьему лицу, который, со слов должника, совершила МФО.

Эльвира Набиуллина, глава Банка России, 18 апреля 2017 годаВступил в силу закон о коллекторской деятельности, который урегулировал вопрос взыскания долгов, и теперь на первое место выходит вопрос исполнения этого закона

Для кредиторов позиция ЦБ, который безоговорочно встает на сторону должников, как минимум неожиданна. «Полагаю, что общение кредитора с лицом, ответившим на звонок по рабочему номеру, но не являющемуся заемщиком, не должно считаться взаимодействием с третьим лицом, если оно не связано со взысканием задолженности (уточнение ф. и. о. позвонившего и т. п.)»,— отмечает финансовый директор сервиса онлайн-кредитования «Е заем» Мамука Ризаев. По словам предправления КПК «Илма» Александра Титовского, в указанном случае разговора с «третьим лицом» сотрудник не представлялся и не излагал повод звонка, не был груб или навязчив. «Мы полагаем, что если подходить к исполнению закона формально, то любые действия взыскателя можно подвести под нарушения,— отметил он.— К тому же рабочий телефон указала сама заемщица». По мнению гендиректора сервиса онлайн-займов «Робот Займер» Сергея Седова, в данном случае нельзя однозначно говорить о нарушении. «Нововведения в законодательство нередко нуждаются в подзаконных актах, без них возникают разногласия регулирующего органа и игроков рынка»,— заключает он.

По мнению участников рынка, разрешить спорную ситуацию должен новый регулятор рынка взыскания долгов — ФССП. «В законе неясна сама формулировка: что можно считать контактом с третьими лицами, как представитель кредитора может убедиться, что он взаимодействует не с заемщиком, а с третьим лицом, какой объем информации третьему лицу все же можно сообщать»,— отмечает первый вице-президент НАПКА Александр Морозов. По его словам, в ФССП уже озабочены проблемой неоднозначных формулировок и собирают случаи из практики, чтобы совместно с Минюстом подготовить и внести в весеннюю сессию 2018 года проект закона с уточнением формулировок. О подобной работе на Петербургском юридическом форуме говорил и новый глава ФССП Дмитрий Аристов. По его словам, ФССП ведет переговоры с ЦБ о взаимодействии в сфере надзора за деятельностью коллекторов и кредиторов, чтобы «объединить процессы регулирования, контроля и привлечения к ответственности».

До появления поправок как минимум еще год, участникам рынка остается вести судебные тяжбы с ЦБ или вовсе отказаться от любых контактов с третьими лицами, указывают эксперты.

Источник: kommersant.ru

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