In his twenties, he is burdened with huge debts, and now his family is homeless. It is hard for Colin to imagine that it is his father who has been honest for decades.
Colin's father borrowed only 250,000 yuan from the street small loan company. By 20 16, the Chen family has to repay more than 3 million debts and interest. In order to pay off debts, the only house in the family can only be mortgaged by auction.
After investigation, it is found that the private lending behavior with the purpose of embezzling the borrower's property and taking "usury" as the form of lending has existed for several years. With the high housing prices in first-tier cities, many lawless elements have targeted the most important asset in this family-real estate.
Printing money, snowballing usury and usury are not enough to describe this kind of private lending behavior. On the one hand, there is premeditated and organized crime, and on the other hand, there is the bottom of society that has little ability to fight back.
"Around 2014165438+10, I got a call from a small loan company. The other party said that my dad owed the company tens of thousands of yuan in loans and wanted to talk about repayment. " Colin recalled to Southern Weekend reporter.
The other party claimed that Colin's father not only owed the company tens of thousands of yuan in loans, but also owed money to several other small loan companies, and reminded Colin that according to their experience, Cheng's father had probably incurred huge debts.
At the suggestion of the other party's "kindness", Colin went to Shanghai Real Estate Trading Center to inquire and found that his only property in Shanghai had been mortgaged.
"They told me that my dad was likely to fall into the usury trap." Later, the family put pressure on Cheng Fu many times and learned that Cheng Fu not only owed a huge sum of 6.5438+0.2 million yuan, but also mortgaged and notarized the property.
From April 2065438 to April 2003, Cheng Fu borrowed 250,000 yuan from a small loan company in Yangqu Road, Zhabei District, Shanghai on the grounds of family decoration.
The other party's conditions are: the borrower borrows in his own name, the loan amount is 250,000 yuan, the repayment period is two months, and the home property is detained in the company. However, the total loan amount on the IOU must be stated as 400,000 yuan, and the extra 654.38+0.5 million yuan is regarded as the interest for the first two months.
This is called "beheading interest" in the industry, which means that usurers or underground banks deduct some funds from the principal before lending to borrowers. Usually, in order to prevent risks, the lender will directly deduct interest from the principal to ensure that the interest can be recovered. But it also makes the borrower's actual principal lower than the loan amount on the book, and leads to the actual interest rate higher than the loan interest rate agreed in the contract.
Two months later, Cheng Fu was still unable to repay the principal of 400,000 yuan. In order to repay the monthly interest, an employee surnamed Jiang took Cheng Fu to borrow money from a formal financial institution. Cheng Fu borrowed about 450,000 yuan from Rongyibao, CreditEase, Industrial and Commercial Bank of China and other institutions 10 in half a year to pay the loan interest. At this time, Cheng Fu's total loan has far exceeded the initial 400,000 yuan.
"From 20 14, they suspended the dunning for my dad and gave him a half year. But at this time, it is already' robbing Peter to pay Paul', and the principal and interest are already unclear. "
2065438+In July 2004, the company again collected debts from Chengfu. Cheng Fu, who has exhausted legal loan means, illegally cashed out his personal provident fund 1 100000 yuan through forged house purchase contracts, and handled two new credit cards, totaling about 50,000 yuan.
In September, the employee surnamed Jiang pointed out a "bright road" for Cheng Fu, borrowing from some gray small loan companies, commonly known as "empty loans". Simply put, you can get a loan on the spot without providing mortgage or guarantee. However, most of these "empty loans" have extremely high interest rates, and like the original borrowing companies, lending with "decapitation interest" has already belonged to the category of usury.
Cheng's father, already unable to return, had to borrow money from a number of usury companies. "After that, I paid back 400,000 yuan just to pay back these loan sharks. I don't know how much I borrowed. "
20 1 165438+200410.6, that is, a few days before the family found out about it, the employee surnamed Jiang signed a two-month loan contract with another lender, with the principal of/kloc-0.20 million yuan, and the loan interest rate was four times the benchmark interest rate of the People's Bank of China for the same period. The lender promises to repay the loan principal and interest of the first company for Cheng Fu, which is the same as before. The loan contract stated 6,543,800 yuan+0.2 million yuan, but only 950,000 yuan was actually lent.
This step is called "even account" by the lender, that is, borrowing money from the next home and paying back the debt from the last home. It is this behavior that almost doubled Cheng Fu's debt.
However, at this time, the loan amount was large, and the borrower not only demanded to increase the overdue penalty interest of six ten thousandths of the daily interest, but also registered the mortgage of the real estate under Cheng Fu's name, and handled the compulsory notarized creditor's rights document in the notary office, as well as the notarized certificate of the full amount of the house purchase and sale. This also means that once Cheng's father fails to pay off his debts on time, the other party has the right to request the court to auction the mortgaged house forcibly to repay the debts.
Now the Cheng Lin family is facing this dilemma. The borrower has made a request to the court, asking Cheng Lin's family to pay off the loan principal and interest totaling nearly 6,543,800 yuan (including principal and interest of 654,38 yuan+0.244,640 yuan and penalty interest of nearly 600,000 yuan). However, because the house belongs to the joint property of both husband and wife, the court can't enforce the auction of the house until 6.5438+0.8 million yuan is recognized as the joint debt of both parties.
Colin tried to explain to the court that the loan of 6,543,800+0.8 million was "unknown", but the interest was doubled from the initial 250,000. However, under the pressure of dunning companies and loan sharks, Cheng's father is now suffering from moderate depression and anxiety, and can't talk with others smoothly.
Now, in addition to this 6.5438+0.8 million yuan, Cheng Fu's previous loans to small loan companies and usurers have not been paid off. Even if the house is auctioned, it is difficult for Cheng Lin's family to pay off their debts.
Colin can't remember how much he paid back. Excluding the contract of 6.5438+0.2 million, the repayment amount of various small loan companies, usury, credit cards and so on has reached nearly one million. In addition, with the sale of real estate and loans from relatives and friends, Colin estimates that the total repayment amount of * * * is not less than 3 million. There is only one way, such as Cheng Lins auctioning off the house.
"I just don't understand why the obvious usury is still legal from 250,000 to 1.8 million. What went wrong? " Colin questioned.
What are Cheng Lin's chances of winning? The answer given by many legal people is: it is difficult.
Because Cheng Fu only held part of the loan receipt during the loan process, he could not fully prove how the debt was from the initial 250,000 yuan to 6.5438+0.8 million yuan. Moreover, the above-mentioned loan contract documents of 6.5438+0.2 million yuan have been notarized by the notary office, which means that both parties recognize the validity of the contract. In civil economic disputes, it is impossible to cross-examine the legality of the contract.
In February of this year, a similar case was reported in the TV program "Special Service Group of Rule of Law" jointly launched by Shanghai Judicial Bureau and Shanghai TV Station. A woman in Shanghai, Xu 20 13, borrowed 40,000 yuan from a small loan company, and the debt became 654.38+0.5 million only half a year later. The lender sued the court and seized the property where she and her parents lived. Ms. Xu, who was repeatedly hit, died of a heart attack on 20 16, but the usury company still urged Xu's parents for the remaining loan.
After nearly two years of observation, Wang, a lawyer of Shanghai Maritime Law Firm, gave this kind of private lending a name: routine loan, as the name implies, is "full of routines". "This kind of' routing loan' is not uncommon now, but not many people really go to the court judgment level. Many people will settle things if they lose their houses. " Wang told Southern Weekend reporter.
In recent years, Wang has come into contact with many similar cases, including routine loans for ordinary working-class people, as well as cases specifically targeting the rich second generation and the second generation. He recorded what he saw and heard on Weibo, and summarized it into the article "Schools of Routine Loan".
According to his observation, these victims have many similarities, such as Shanghai household registration, one or more houses, weak legal awareness, and the need for small loans.
However, there is an essential difference between routine loans and ordinary usury: the borrower of routine loans does not intend to ask the borrower to pay back the money, and borrowing money is only an excuse to embezzle property. "To put it bluntly, (they) are after your house, and interest is only second."
There are also rules to follow in routine loan operation: first, in the name of hidden rules of the industry or interest payment in advance, induce borrowers to sign IOUs with an amount twice or much higher than the actual loan amount. Then through one or more rounds of "flat accounts", the borrower's loan amount will be doubled and the house will be mortgaged. After the borrower signs the bank transfer, the lender takes away the withdrawal cash, leaving transaction receipt as evidence of contract performance.
At this time, both borrowers and borrowers in the contract are individuals, which also lays the groundwork for winning the lawsuit of private lending disputes in the future.
In Wang's view, the whole process of routine loan has shown the characteristics of "organized crime", such as gang committing crimes, and each process is done very carefully; Another example is to use intimidation, threats and other means to force borrowers to sign relevant agreements. "This kind of gang is even equipped with special lawyers to guide their men how to achieve their goals under legal procedures."
Zhang Feng is now a practicing lawyer in Beijing Jincheng Tongda and has worked in a notary office for many years. He explained to the Southern Weekend reporter that the logic of the court or judge lies in finding out the facts related to the contract. First, whether the contract was signed is true and legal, and second, whether the contract was actually performed.
In order to avoid legal obstacles as much as possible, regular lenders will also start from these two points. The first is to ensure the authenticity of the loan contract. Therefore, in Colin's case, the other party used notarization to prove the authenticity and validity of the creditor's rights relationship, ensuring that the court could not question it.
Secondly, the loan amount will be consistent with the figures in the contract to ensure that the bank flow is consistent with the flow of the loan contract, but in essence, it requires the lender to repay part of the loan in other ways (that is, reduce interest rates). For example, in Cheng Fu's case, the lender asked Cheng Fu to take out the cut interest money and return it to the lender immediately after receiving the money. Because it was returned in cash, Cheng's father could not prove the true whereabouts of the funds, so the court still determined that the actual loan amount was the number written in the contract, that is, the contract was effectively performed.
According to the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Private Lending Cases, if the annual interest rate agreed by both parties does not exceed 24%, the lender has the right to require the borrower to pay interest at the agreed interest rate. However, if the interest rate agreed between the borrower and the borrower exceeds the annual interest rate of 36%, the interest exceeding the annual interest rate of 36% shall be deemed invalid.
In other words, the part where the interest rate of private lending is higher than 36% can be identified as usury and is not protected by the court. However, this does not include the principal.
In order to ensure that the loan amount can be doubled smoothly, the loan amount in the conventional loan contract will be much higher than the actual amount, thus expanding the principal amount. Do the same if the loan is overdue. After several twists and turns, the loan amount has doubled, but the interest still conforms to the relevant provisions of the law.
"In this case, it is difficult for the borrower to overturn the contract. Unless sufficient evidence can be provided to the court to prove that the contract is invalid, such as forging signatures and fictional parties, the borrower can only question whether the loan interest is reasonable in the form of general civil cases. " Zhang Wei said.
Step by step, the only way to get the borrower out is to mortgage the property.
Li Zhongyuan is a "lucky" man. He paid off the account before he was even, and now he is in a debt dispute. Slightly different from the situation in Cheng Lin, Li Zhongyuan is not unable to repay the loan, but has encountered various "difficulties" from the conventional lenders in the process of repayment.
Li Zhongyuan runs an instrument processing factory in Tonglu, Hangzhou. On June 5438+ 10 this year, he borrowed 654.38+million yuan from a local microfinance company. "For a sum of100,000 yuan, he actually issued a list of 530,000 yuan."
Because he was eager to borrow money, and he had similar borrowing experience before, Li Zhongyuan knew it was normal to exaggerate the contract amount, so he didn't question the loan figure which was too different from the actual one. However, when the repayment was due, Li Zhongyuan informed the other party to withdraw money. The other party first shirked the repayment procedure on the grounds of "something happened" and "forgetting to bring the contract", and then asked Li Zhongyuan to tear up the evidence of IOUs in his hand on the spot.
"I definitely don't agree, so I had an argument with these people. Fortunately, I reported to the police at that time and made notes and recordings to prove that I did repay the loan, otherwise it would really be unclear. " Li Zhongyuan has a lingering fear.
He used the word "cunning" to describe these routine loan personnel. In his view, the other party tried every means to hinder their repayment, in order to make the loan incur overdue fees. Once the principal and interest roll up, plus the amount of penalty interest, it will be beyond their tolerance in a few days. Coincidentally, a property in Li Zhongyuan was mortgaged to this microfinance company.
Colin has encountered a similar situation. At the beginning of 201200,000, the loan was about to expire, and Cheng Lin had considered selling the house for repayment by herself, but at this time, the house had been mortgaged, and only the creditor agreed to cancel the house mortgage could he enter the house selling procedure, but the other party shirked that he could not find the party and could not cancel the house mortgage.
"The mortgagor is an employee named Jiang found for my father. How could he not find it? Later, we asked the real estate transaction center and the notary office for the contact information of the other party, and the phone and text messages did not respond. " Colin recalled.
Until the day when the contract was overdue, the debt collector "arrived late", claiming that Cheng Fu's loan was overdue and he needed to pay an additional penalty of 72,000 yuan. Cheng Lin realized that everything had been calculated.
"From the beginning, I sealed up my family's house, and later settled accounts and made real estate mortgages. Now I have postponed the borrowing time. The purpose is to make you owe as much as possible and prevent you from selling your house to pay off your debts. " Colin suddenly.
The reality is that, no matter from borrowing, collecting interest, debt collection and house auction disposal, routine loans have formed their own industrial chain.
Yifeng once had contact with routine loan personnel. During his years as a lawyer, he helped his clients buy real estate from these loan officers.
As far as he knows, some individual investors or companies requisition such properties in batches in the market, all from small loan companies. Because the price is much lower than the market price (generally 50% off), many people are watching it.
"Generally, the lender and the borrower sign a house sales contract, and the customer helps the borrower pay off the loan to the small loan company, and the borrower then sells the house to such investors. However, there is a problem with this property. Usually, people live in it. Sometimes, some children sell houses to pay off debts, but their parents still live in the house. " Yi Feng revealed.
Usually, in order to prevent this situation, the lender will ask the borrower to sign a house lease agreement on the grounds of "preventing the borrower from being unable to repay the loan". On the one hand, it is convenient for debt collectors to "collect debts" at home, and they will not be arrested by public security organs for picking troubles or illegally breaking into other people's houses. On the other hand, it will make the suspect "legally" occupy other people's houses, and there is reason to drive the previous residents out of the house.
Yi Feng also believes that the above-mentioned routine loans have violated the law in essence, and they are essentially "using legal forms to cover up illegal purposes".
Although there is no problem in legal procedure on the surface, it is not impeccable in legal identification. "For example, no one can be found at the time of repayment, the loan and transfer contracts are inconsistent, the penalty interest is too high, and there is even fraud and coercion. The court can consider it. "
At this stage, the investigation of this kind of routine loan can only rely on public security investigation means, and finally it will be dealt with by extortion and fraud. Many legal persons also said that from a purely civil point of view, there are not many solutions to similar cases, and they can only think more from the perspective of criminal offences.
"Civil trials attach importance to evidence in black and white, while criminal cases can be subjective and intentional, and comprehensive judgments can be made. Conventional loans are typical. Every part looks legal, but together it is a criminal case. " Wang Yiyi said.
According to his observation, at present, when the court hears the case of routine loan, it still handles such cases as civil economic disputes due to limited evidence. However, considering the special circumstances of the case, it will be "inclined" to the victims in the implementation process, such as delaying the auction of houses as much as possible, or not implementing the auction for those victims who only have one house.
However, these measures only increase the criminal cost of routine loan personnel in disguise, and cannot fundamentally solve the problem of identifying the illegal nature of routine loan.
Yi Feng explained to the Southern Weekend reporter that at present, the economic investigation department does not intervene in economic dispute cases, and the public security rarely investigates similar private lending cases unless it involves illegal fund-raising.
From 2065438 to the beginning of September, 2006, the public security department of Shanghai dispatched more than 200 police officers to launch a concentrated crackdown on similar usury in several districts and counties of Shanghai, destroying three criminal gangs headed by Zhang, Huang and Zhu, and arresting more than 30 suspects including Yao, the head of Shanghai Real Estate Agency Co., Ltd.
"How to grasp the boundary between civil and criminal cases may be a problem that needs to be considered in daily loan cases." Yi Feng said.