Litigation loan and credit. Refund of bank commissions under the loan agreement
The reason why the highest court drew attention to credit relations was the uncompromising struggle of Rospotrebnadzor with banks to establish fair terms of contracts, in particular, the right to charge commissions.
Taking into account that the Law of the Russian Federation dated 07.02.1992 No. 2300-1 “On the Protection of Consumer Rights” (hereinafter referred to as the Law on the Protection of Consumer Rights) 2 applies to credit relations with the participation of citizens, the rules on prohibiting the imposition of additional services are more stringent than with the provisions of the Civil Code of the Russian Federation. The Presidium of the Supreme Arbitration Court of the Russian Federation, through the prism of disputes between banks and Rospotrebnadzor subordinate to it, in fact, resolved the issues of applying the provisions of the Civil Code of the Russian Federation and the Law on credit relations.
It is obvious that, existing within the framework of a single legal field, this position of the Presidium of the Supreme Arbitration Court of the Russian Federation should not be ignored by the courts of general jurisdiction.
But if the picture is more than clear with consumers, then the question of charging a fee for a loan in relations related to entrepreneurial activity remains interesting. Which borrower payments can be challenged in a business relationship? On this issue, there is some practice developed by arbitration courts, as well as clarifications by the Presidium of the Supreme Arbitration Court of the Russian Federation contained in Review No. 147.
Commission for transactions under a loan agreement may be recognized as unjust enrichment of the bank
As a rule, the provision of funds under a loan agreement at a certain percentage is accompanied by additional payments: commissions for considering an application, issuing a loan, maintaining a loan account, maintaining a credit line limit, early repayment of a loan in part and (or) in full, etc. The law does not regulate these relations, in connection with which a stable practice of charging commissions has been formed in the banking environment due to freedom of contract (Article 421 of the Civil Code of the Russian Federation).
A credit institution usually appeals to this article of the Civil Code of the Russian Federation when challenging commissions by borrowers.
Prior to the adoption of Review No. 147, judicial practice in terms of contesting commissions and other payments in favor of banks was not uniform. Some courts satisfied the requirements of borrowers, others refused.
“The bank has the right to receive a separate remuneration (commission) along with interest for using the loan if it is established for the provision of an independent service to the client. In other cases, the court assesses whether these commissions can be attributed to the payment for the use of the loan” (paragraph 4 of Review No. 147).
QUOTE
Under the independent service, by virtue of the clarifications of the Presidium of the Supreme Arbitration Court of the Russian Federation, is understood such a service, in the provision of which the borrower receives an additional property benefit or other beneficial effect. Such services cannot be standard actions of a credit institution, without which the bank is not able to properly fulfill the obligations assumed by the loan agreement. The court came to such conclusions based on the provisions of Article 779 of the Civil Code of the Russian Federation. If the commission is not an independent service, such a provision of the contract is void, and the commission charged is unjust enrichment.
The second condition under which the bank commission is considered legal if the obligation to pay it is periodic, and the amount is determined as a percentage of the balance of the borrower's debt to the bank on the date of payment. As explained by the Supreme Arbitration Court of the Russian Federation, such a commission will be a sham condition covering the amount of the loan fee, however, such a condition cannot be invalidated, since, firstly, the law does not prohibit the inclusion of such conditions in the loan agreement and, secondly, the parties shaped them to their will.
Through the specified qualifications, you can consider the most commissions that exist in banking practice.
Loan Application Fee Is Illegal
In practice, this commission is paid as a lump sum. The economic goal is obvious - it is to cover the bank's estimated costs for assessing credit risks for a particular borrower. However, the payment of this commission is not conditional on the provision of any services to the borrower, as a result of which the borrower could receive an independent property benefit. Under such conditions, the collection of such a commission is illegal, and the funds received by the bank are unjust enrichment. This, in particular, is indicated in paragraph 4 of Review No. 147.
The issuance of a loan is included in the subject of the loan agreement and cannot be paid as a separate service
In practice, there is such a commission as a commission for issuing a loan. This payment is also designed to minimize the bank's expenses (losses) in the event of, for example, early repayment of the loan by the borrower.
Prior to the adoption of Review No. 147, the collection of this commission from entrepreneurs was recognized by arbitration courts as permissible and not inconsistent with the provisions of Article 421 of the Civil Code of the Russian Federation 3 .
PRACTICE
Previously, the courts in relation to debtors took an extremely categorical position.
“In cases where, on the basis of paragraph 2 of Art. 811, Art. 813, paragraph 2 of Art. 814 of the Civil Code of the Russian Federation, the lender has the right to demand early repayment of the loan amount or part thereof, together with the due
interest, interest in the amount established by the agreement (Article 809 of the Civil Code of the Russian Federation) can be collected at the request of the lender until the day when the loan amount was to be returned in accordance with the agreement ”(clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated 08.10.1998 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds").
Now the position of the Presidium of the Supreme Arbitration Court of the Russian Federation in relation to borrowers has softened. If the bank reclaims the loan amount ahead of time, the due interest is not collected until the day on which the loan amount was to be repaid. Otherwise, the bank, being a professional market participant, can place these funds and receive double income from providing the same amount of money for use (clause 6 of Review No. 147). Therefore, in the event of a breach of obligations by the borrower upon early withdrawal of the loan, the bank can count on the collection of interest until the day the loan is actually repaid and additionally on interest for one month, during which, after the borrower repays the debt, the lender may suffer losses associated with non-placement of the received funds to the new borrower.
When recovering the interest due, the court will take into account the change in interest rates on loans, as well as investigate the losses caused to the bank. It follows from this that the judicial practice is currently moving from the position of recovering lost income (lost profits) of the bank to a more fair assessment of the losses of a credit institution arising in the event of early recovery of the loan amount from the borrower.
Thus, the clarifications provided by the Presidium of the Supreme Arbitration Court of the Russian Federation in Review No. 147 indicate that arbitration courts are more conservative on the issue of the legality of charging commissions under a loan agreement, indirectly establishing the only, in fact, fee for using the loan amount - interest - in strict accordance with the provisions of Article 809 of the Civil Code of the Russian Federation.
Korolev Sergey Anatolyevich, Legal Department for Support of Insolvency (Bankruptcy) Procedures of Private Law Law Firm LLC (Moscow)
The need for a uniform approach of arbitration courts to the consideration of disputes related to the conclusion and fulfillment of credit obligations is ripe with the sharp development of the consumer and commercial lending market. Its development over the past few years has revealed the existence of important and unregulated issues. Such gaps were often used by unscrupulous parties - lending.
The author draws the right conclusions that the adoption by the Presidium of the Supreme Arbitration Court of the Russian Federation of information letters dated September 13, 2011 No. 146 “Review of judicial practice on certain issues related to the application of administrative liability to banks for violating consumer protection legislation when concluding loan agreements” and No. 147 “Overview judicial practice of resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement ”(hereinafter referred to as the Reviews) and the conditions contained therein on the payment of commissions are designed to ensure the protection of borrowers, as well as the fact that citizens, as an economically weak side of legal relations, need special protection their rights.
An important role in the adopted documents is occupied by provisions relating to the protection of the interests of borrowers, who actually do not have the opportunity to determine the terms of lending transactions concluded with commercial banks, and are forced to accept obligations imposed by banks. The provisions of the Reviews under consideration are aimed at further development of the country's economic market through lending to its participants, the establishment of economic turnover between, and the suppression of abuses committed by unscrupulous parties.
The Supreme Arbitration Court of the Russian Federation has reached the so-called balance of interests. It is to be hoped that a significant part of these important and unresolved issues by the highest court in these Reviews is resolved and arbitration courts will not face the dilemma of choosing interests subject to judicial protection in the near future.
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1. Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 17, 2009 No. 8274/09, of March 2, 2010 No. 7171/09.
2. Clause 1 of the Decree of the Plenum of the Supreme Court of the Russian Federation of September 29, 1994 No. 7 “On the practice of considering cases on consumer protection by courts”.
3. Decisions of the Federal Antimonopoly Service of the Volga-Vyatka District of December 6, 2010 in case No. A43-26116/2009, of the West Siberian District of July 5, 2011 in case No. A45-19196/2010.
4. Decree of the Federal Antimonopoly Service of the Urals District of August 15, 2011 No. Ф09-4491/11
5. For more details on the relationship between “fulfillment of duty” and “fulfillment of obligation”, see: Sarbash S.V. Fulfillment of a contractual obligation. M.: Statut, 2005. (Ch. 1, §4).
6. Resolution of the Eighth Arbitration Court of Appeal dated November 22, 2011 in case No. А81-1482/2011.
7. Decree of the Federal Antimonopoly Service of the Urals District dated October 20, 2011 No. F09-6417/11 in case No. A76-1847/11.
8. Determination of the Supreme Arbitration Court of the Russian Federation of December 8, 2011 No. VAC-13567/11.
9. Orlova O.E. The parity of interests of borrowers and banks has been restored // Topical issues of accounting and taxation. 2011. No. 22.
10. Resolution of the Twentieth Arbitration Court of Appeal dated November 24, 2011 in case No. А62-941/2011.
11. Decisions of the Fifteenth Arbitration Court of Appeal of October 19, 2011 No. 15AP-10321/2011, No. 15AP-10323/2011, No. 15AP-10328/2011.
12. Decree of the Federal Antimonopoly Service of the East Siberian District of August 21, 2008 No. A58-9193 / 07-F02-4002 / 08.
13. Bevzenko R.S. Disputes around loans // Corporate 2011. No. 11. P. 62.
14. Decree of the FAS of the Moscow District dated August 30, 2011 No. KG-A41 / 8931-11 in case No. A41-21860 / 10.
15. Federal Law No. 284-FZ of October 19, 2011 “On Amendments to Articles 809 and 810 Part 2 of the Civil Code of the Russian Federation”.
16. Rulings of the Nineteenth Arbitration Court of Appeal dated October 17, 2011 in case No. A36-1622/2011, in case No. A36-1620/2011.
A bank client has the right to close his account at any time - both the Civil Code and the law on consumer protection speak about this. But is it just as easy to end a relationship with a bank if the account is linked to a heavily indebted credit card? For a long time, the practice was ambiguous: some courts agreed to close the account - after all, obligations can be fulfilled without it. Others, on the contrary, insisted that the agreement with the client binds the credit card and the account together and cannot be closed if there is a debt. Which of the two approaches is correct, recalled the Supreme Court.
One question, different approaches
Paragraph 1 of Art. 859 of the Civil Code provides that the bank account agreement is terminated at the request of the client at any time. And if the contract is terminated, this is the basis for closing the account (clause 4 of article 859 of the Civil Code). Moreover, it is not necessary to sign an agreement to terminate the bank account agreement - the client's application is already enough. But if we are talking about a credit card to which the account is linked, closing it with a debt will be difficult, if not impossible.
Courts have different approaches to the possibility of closing an account in case of debt, notes Denis Bobyr, a lawyer at Yukov and Partners. One position is to recognize this possibility. If we analyze the provisions of Art. 421, 422, 859 of the Civil Code or Instruction of the Bank of Russia dated May 30, 2014 No. 153-I, it follows that the requirements for closing a bank account must be satisfied, since by virtue of the law the bank account agreement is terminated at the request of the client at any time, Bobyr notes. Such a conclusion, for example, was made by the Novosibirsk Regional Court in the appeal ruling dated January 31, 2017 in case No. 33-881 / 2017, in which the plaintiff sought the right to close a credit account with Alfa-Bank. The court explained: the agreement concluded between the parties is a mixed agreement containing elements of a loan agreement and elements of a bank account agreement, and a bank account agreement - one of the components of a mixed agreement - can be terminated at any time.
Rosportebnadzor received a complaint……
Rospotrebnadzor demonstrated a similar approach in 2015. Rosportebnadzor received a complaint from a citizen who was refused to close an account with MTS-Bank, and the agency saw this as a violation of consumer rights. The bank was ultimately held liable under Part 2 of Art. 14.8 of the Code of Administrative Offenses (inclusion in the contract of conditions that infringe on the rights of the consumer). The bank failed to defend its position in the courts.
The courts explain that when closing a bank account, it is still possible to fulfill obligations under a loan agreement and deposit cash at the cash desk - this method of payment is provided for by law. As a result, the presence of a person's debt does not affect the ability to close the account, and the borrower has the right, in accordance with Art. 859 of the Civil Code, send an application for termination of the account, while this will not affect the loan agreement.
However, there is another approach. It consists in the fact that opening an account by a bank is associated with the need for a person to fulfill obligations to repay a loan. That is, a bank account has not an independent, but an optional value, and its opening is due only to the servicing of a loan agreement, Bobyr notes. In this case, if the loan is not repaid, the bank has all legal grounds to refuse to close the bank account, the lawyer reminds. This approach was applied, in particular, by the Stavropol Regional Court in the appeal ruling dated 06/06/2017 in case No. 33-4114/2017. This position was also supported by the Supreme Court in another dispute about the possibility of closing an account with a loan debt.
There is a loan - there will be an account
In 2011, Tatiana Ruzaeva* took out a consumer loan from Sberbank. She was given a credit card with a limit of 20,000 rubles. and 19% per annum for a year and opened an account for operations. In 2016, Ruzaeva turned to the bank and asked to close the account - at that time her loan debt amounted to 52,091 rubles. The bank refused to do this, and the woman went to court. She insisted that the refusal violated her rights, since the ability to close the account and the obligation to return the money to the bank are not connected: the absence of an account does not relieve her of the need to return the money.
The first two instances upheld the applicant's claim. They recognized her contract with Sberbank as terminated in terms of opening a current account and ordered the bank to close it. 500 rubles were collected from the bank. non-pecuniary damage and 250 rubles. fine.
The courts proceeded from the fact that the Civil Code and the law on the protection of consumer rights provide for the right of a bank client to close an account and this does not affect the credit obligations that have arisen. The bank account involves carrying out various operations on it, which indicates its independent nature, not related to the repayment of the loan, they added to the appeal. They pointed out that, according to the law on the protection of consumer rights, it is impossible to condition the purchase of some goods by the obligatory purchase of others.
Supreme Court…..
But the Collegium of the Supreme Court for Civil Disputes, chaired by Judge Vyacheslav Gorshkov, considered this approach to be erroneous (case No. 67-KG17-26). As the Supreme Court noted in its ruling in the case, when a bank customer enters into an agreement on the issuance and use of a credit card, it is a mixed agreement containing elements of a bank account agreement and a loan agreement.
In accordance with paragraph 1 of Art. 819 of the Civil Code, under a loan agreement, the bank undertakes to lend money to the borrower; According to the terms of the contract, the borrower undertakes to return the money with interest. Since the agreement is mixed, the obligation to repay the loan is related to the operations on the account, including its closure, the Supreme Court concluded. And the opportunity to get a loan, in principle, is associated with the conduct of operations on the account and its closure. In addition, according to the terms of use of Sberbank cards, the account is closed subject to the repayment of the overdraft and the absence of other debts. This approach is in line with Art. 421 of the Civil Code, which regulates relations under a mixed agreement, recognized the Supreme Court, and the application of the rules on the possibility of terminating the agreement at any time contradicts the essence of such an agreement - after all, it concerns only one part of it - the account. As a result, the Supreme Court canceled the acts of the lower courts and sent the case for a new trial to the court of appeal.
“In essence, the panel's conclusion seems to be correct, since in the situation with credit cards, both the use of a bank account for transactions and the use of a loan occur at the same time; these two components are inextricably linked, says Alexandra Gerasimova, Head of Practice at FBK Legal. At the same time, the justification of the board lacks logical completeness, she is sure.”
The approach to the interpretation of the norms of procedural law is also interesting, Gerasimova believes: for example, despite the establishment of the incorrect application of the norms of substantive law, the collegium did not adopt a new judicial decision, as follows from paragraph 5 of part 1 of Art. 390 of the Code of Civil Procedure, and sent the case for a new consideration on appeal, referring to the observance of reasonable terms of the proceedings. This is doubly unusual, the lawyer is sure, since the transfer to the appeal will only increase the time frame.
The Presidium of the Supreme Arbitration Court of the Russian Federation considered the Review of judicial practice on certain issues related to the application of administrative liability to banks for violating consumer protection legislation when concluding loan agreements, and in accordance with Article 16 of the Federal Constitutional Law "On Arbitration Courts in the Russian Federation" informs the arbitration courts about the developed recommendations.
Appendix: review on 32 liters.
Review of judicial practice on some issues related to the application of administrative liability to banks for violation of consumer protection legislation when concluding loan agreements
1. The inclusion in the loan agreement of the condition that in the event of a violation of obligations to repay the next part of the loan, the bank has the right to demand early repayment of the issued loan does not contradict Part 4 of Article 29 of the Federal Law "On Banks and Banking".
The bank applied to the arbitration court (hereinafter - the court) with an application to invalidate the decision of the body for supervision in the field of consumer protection (hereinafter - the body of Rospotrebnadzor) on bringing the bank to administrative responsibility, provided for in part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation (hereinafter - Code of Administrative Offenses of the Russian Federation), for the inclusion in the contract of a condition that infringes on the rights of consumers established by law.
The court of first instance found that the bank was brought to administrative responsibility for including in loan agreements concluded with citizens conditions on the right of the bank to demand early fulfillment of the obligation to repay the loan if the borrower is late in repaying the next part of the loan and paying interest for use of credit.
The court satisfied the stated requirement, indicating that this right of the bank is provided for by the provisions of Article 811 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation, the Code), therefore, the inclusion of the named condition in the contract does not contradict the law and cannot violate the rights of consumers.
The court of appeal annulled the decision of the court of first instance, refused to satisfy the bank’s application, believing that Article 29 of the Federal Law of 02.12.1990 No. 395-1 “On Banks and Banking Activities” (hereinafter referred to as the Banking Law) establishes special requirements for the content credit agreements concluded by credit institutions with citizens. In particular, in accordance with part 4 of the said article, under a loan agreement concluded with a borrower-citizen, a credit institution cannot unilaterally shorten the term of this agreement. According to the court of appeal, the disputed condition of the loan agreement provides the bank with the opportunity to file a claim for repayment of the loan not within the time period established by the agreement, but earlier than this period, which is not allowed by the provisions of this article of the Banking Law.
The Court of Cassation annulled the decision of the Court of Appeal and upheld the decision of the Court of First Instance, referring to the following.
By virtue of Article 9 of the Federal Law of January 26, 1996 No. 15-FZ “On the Enactment of Part Two of the Civil Code of the Russian Federation”, in cases where one of the parties to the obligation is a citizen using, acquiring, ordering or intending to purchase or order goods (works, services) for personal household needs, such a citizen enjoys the rights of a party to an obligation in accordance with the Civil Code of the Russian Federation, as well as the rights granted to the consumer by the Law of the Russian Federation of February 7, 1992 No. on consumer protection) and other legal acts issued in accordance with it. The right of the bank to demand early repayment of the loan amount in case of violation of the deadline for repayment of the next part of the loan is provided for by the provisions of Article 811 of the Civil Code of the Russian Federation, therefore, the inclusion of this condition in the loan agreement does not contradict the law and cannot violate consumer rights.
In addition, the court of cassation pointed out that the provisions of Part 4 of Article 29 of the Banking Law on the prohibition of unilateral reduction by the bank of the term of the loan agreement are aimed at protecting the interests of the borrower when concluding the agreement (in particular, at preventing the inclusion in the agreement of discriminatory conditions that allow the credit institution arbitrarily and unilaterally change the terms of the contract). At the same time, this provision of the Law on Banks does not regulate the consequences of a breach of a loan agreement, therefore, it cannot be interpreted as a prohibition to include in the agreement a condition on the bank’s right to demand early repayment of the loan in the event that this right is conditioned by the borrower’s violation of obligations to repay the next part of the loan or other obligations arising from such an agreement.
2. The condition of the loan agreement that in the event of a delay in the repayment of a part of the loan issued to a borrower-citizen, the interest for using the corresponding part of the loan during the period of such delay is charged twice, does not violate the rights of the consumer, since the said condition establishes the responsibility of the borrower for violation monetary obligation.
The Rospotrebnadzor body held the credit organization liable under Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation for violating the rights of the consumer when concluding a loan agreement with him, expressed in the inclusion in the agreement of the condition that in case of delay in repaying part of the loan, the interest for using the loan amount is doubled.
The bank, which did not agree with the actions of the state body, applied to the court to recognize the decision to bring it to administrative responsibility as invalid, referring to the fact that the Rospotrebnadzor body erroneously recognized the provision of the loan agreement concluded with the citizen, which contradicts part 4 of article 29 of the Banking Law and thus violating consumer rights.
The court of first instance satisfied the bank's claim, guided by the following.
As follows from paragraph six of clause 15 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 08.10.1998 No. 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money”, increased interest, obligation for the payment of which is established in the loan agreement in case of delay in the repayment of the next part of the loan, are a measure of the debtor's liability for violation of the monetary obligation.
In accordance with Article 12 of the Civil Code of the Russian Federation, the protection of civil rights is carried out in the ways prescribed by law. The court of first instance pointed out that paragraph 1 of Article 811 of the Code provides for the possibility of collecting interest from the borrower for the illegal use of other people's funds in the amount established by paragraph 1 of Article 395 of the Civil Code of the Russian Federation, which, in turn, provides for the possibility in the contract to establish a different amount of interest for illegal use of other people's money.
Thus, from the disputable provision of the loan agreement, it follows that the amount of interest by which the interest rate for using the loan increases in the event of a debtor's breach of its obligations (increased interest) is applied to the part of the loan, the repayment of which is overdue, and the indicated increased interest is charged during the delay period. This provision is a condition on the debtor's liability for violation of the monetary obligation to repay the loan amount. The establishment in the loan agreement of measures of responsibility for violation by the consumer-citizen of the obligations assumed to repay the loan does not in itself violate his rights guaranteed by the legislation on consumer protection.
In addition, the presentation by the bank of a claim for the collection of increased interest does not entail a unilateral increase in the amount of interest under the loan agreement or a change in the procedure for determining them (Article 809 of the Civil Code of the Russian Federation), which is prohibited by the provisions of Part 4 of Article 29 of the Banking Law.
By a decision of the court of appeal, the decision of the court of first instance was left unchanged, the appeal of the Rospotrebnadzor body was not satisfied.
3. The condition of the loan agreement, aimed at the direct or indirect establishment of compound interest (interest on interest), infringes on the rights of the consumer established by law.
The bank applied to the court to invalidate the decision of the Rospotrebnadzor body on bringing to administrative responsibility, provided for by part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation, for the inclusion in the contract of conditions that infringe on the rights of consumers established by law.
The court found that by the disputed decision, the bank was brought to administrative responsibility for including in the loan agreement concluded with the citizen-borrower, the conditions that in case of delay in paying the next part of the loan, the bank has the right to issue to the borrower, without additional applications from the latter, a new loan in the amount of arrears on the return of the relevant part of the loan and the payment of interest on it. The said loan was to be credited to the borrower's bank account opened with the lending bank. At the same time, the bank account agreement that was concluded by the bank with the citizen contained a condition that the bank had the right to unilaterally debit funds from the citizen's account in fulfillment of any obligations that the citizen had to the bank.
The court refused to satisfy the bank’s claim, since the disputed condition of the loan agreement, together with the terms of the bank account agreement, is actually aimed at establishing the borrower’s obligation in case of delay to pay new borrowing interest on already overdue borrowing interest (compound interest), whereas from the provisions of paragraph 1 of Article 809 and paragraph 1 of Article 819 of the Civil Code of the Russian Federation, it follows that under a loan agreement, interest is charged only on the amount of the loan. Thus, the disputed condition of the loan agreement is aimed at circumventing the provisions of the law, therefore, it contradicts them and is void. The inclusion in the loan agreement of a condition that infringes on the rights of the consumer forms an administrative offense established by Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation. Under these conditions, the bank was rightfully brought to administrative responsibility.
The court of appeal left the decision of the court of first instance unchanged, additionally indicating that civil law does not prohibit the creditor and the debtor under the loan agreement from entering into a new agreement, under the terms of which the funds issued to the borrower will be used to fulfill the obligations that the debtor already has to the creditor . The parties can achieve the same result by concluding an agreement on the novation of the obligation to pay accrued interest into a loan obligation.
However, in the present case, the disputed condition was included in a standard loan agreement with predetermined conditions. The Bank did not prove that this condition was individually discussed by the parties when concluding the loan agreement. The court pointed out that this condition is clearly burdensome for the borrower-citizen (paragraph 2 of Article 428 of the Civil Code of the Russian Federation). The defendant's reference to the provisions of paragraph 3 of Article 421 of the Civil Code of the Russian Federation was recognized by the court of appeal as unlawful, since the possibility of the parties to the contract to change the provisions of the dispositive norms of the law in contractual relations with the participation of the consumer is limited by paragraph 1 of Article 16 of the Law on the Protection of Consumer Rights, which prohibits the worsening of the situation of the consumer in comparison with the rules established by laws or other legal acts of the Russian Federation. Such a rule in the case under consideration is the provisions of paragraph 1 of Article 809 and paragraph 1 of Article 819 of the Civil Code of the Russian Federation, according to which, as a general rule, in credit relations, interest on a loan is calculated on the amount of the loan, the possibility of accruing interest on interest does not follow from these norms.
4. The provision of the loan agreement with the borrower-citizen on the right of the bank to present a claim for early fulfillment of the obligation to repay the loan in the event of a deterioration in the financial position of the borrower is contrary to the provisions of part 4 of Article 29 of the Banking Law, therefore, violates the rights of the consumer.
The bank applied to the court with an application to invalidate the decision of the Rospotrebnadzor body on bringing the bank to administrative responsibility, provided for by part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation.
During the trial, it was established that a loan agreement was concluded between the bank and the borrower-citizen, under the terms of which the bank, in the event of a deterioration in the financial situation of the borrower, has the right to demand early repayment of the loan. At the same time, the parties stipulated in the agreement that the deterioration of the borrower's financial situation means a decrease in his monthly income, indicated in the quarterly certificates submitted to the bank in the form 2-NDFL, by more than ten percent compared to the average monthly income that the borrower had at the time of issuance loan. In addition, the parties stipulated in the agreement that the termination of the employment contract between the borrower and the employer is also considered by the parties to the contract as a deterioration in the borrower's financial situation.
According to the Rospotrebnadzor body, this provision of the loan agreement violates the rights of the borrower, as it contradicts the provisions of part 4 of article 29 of the Banking Law, in particular, it allows the bank to unilaterally change the terms of the agreement on its duration.
The bank did not agree with the decision of the Rospotrebnadzor body on bringing to administrative responsibility and applied to the court to declare it invalid.
The court of first instance refused to satisfy the claim, referring to the fact that the Civil Code of the Russian Federation does not contain such a basis for the creditor to demand early repayment of the loan by the borrower-citizen, as the deterioration of his financial situation. Moreover, the provisions of Part 4 of Article 29 of the Banking Law prohibit a credit institution to unilaterally shorten the term of a loan agreement in relations with a citizen borrower.
In the case under consideration, the bank included provisions in a standard loan agreement with predetermined conditions that allow it, under certain circumstances, to unilaterally change the term of the agreement, demanding early repayment of the amount of the loan issued.
The court also noted that the worsening of the borrower's financial situation in itself cannot be grounds for filing a claim for early repayment of the loan, since this circumstance may occur due to objective reasons, without being related to the borrower's own illegal actions.
The court considered that the mentioned provisions of the agreement violated the rights of a consumer-citizen who is a borrower under a loan agreement, in connection with which the bank was lawfully brought to administrative responsibility, therefore, it refused to satisfy the bank's application.
The court of appeal left the decision of the court of first instance unchanged, the bank's demand to invalidate the decision of the Rospotrebnadzor body - without satisfaction, indicating the following.
The provisions of Part 4 of Article 29 of the Banking Law are aimed at preventing the reduction of the term of the loan agreement, and, consequently, the term for fulfilling obligations under such an agreement on the basis of the unilateral expression of the will of the creditor, not due to the violation by the borrower of the terms of the agreement.
The deterioration of the financial position of the borrower entails an increase in the risk of non-repayment of the loan received from the bank. However, this is a normal business risk that the bank, as a commercial organization carrying out a systematic profit-making activity in issuing loans, always bears.
The Court of Appeal upheld the opinion of the Court of First Instance that the worsening of the borrower's financial situation in itself may not entail non-fulfillment or improper fulfillment of a monetary obligation by him. In this regard, giving the bank the right to demand early repayment of the loan on a basis not provided for by the provisions of Chapter 42 of the Civil Code of the Russian Federation contradicts Part 4 of Article 29 of the Law on Banks and violates the rights of the consumer.
By decision of the court of cassation, these judicial acts were left unchanged.
5. The condition of a long-term loan agreement with a borrower-citizen that the fee for using the loan amount consists of a constant percentage and a variable value depending on market fluctuations does not in itself contradict the provisions of Articles 29 and 30 of the Banking Law, legislation on protection consumer rights and does not violate consumer rights.
The Rospotrebnadzor body issued a resolution on bringing a credit institution to administrative responsibility for including in a loan agreement for the purchase of an apartment conditions that infringe on consumer rights established by law (Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation).
The credit organization, not agreeing with this decision, applied to the court to declare it invalid, believing that the terms of the loan agreement do not violate the rights of consumers and, therefore, there are no grounds for bringing it to administrative responsibility.
The court of first instance refused to satisfy the claim, establishing that, in accordance with the terms of the loan agreement concluded by the credit institution with the borrower-citizen, the fee for using the loan amount consisted of two components: a constant percentage and a variable value (MosPrime rate). The court agreed with the argument of the Rospotrebnadzor body that the inclusion in a loan agreement with a citizen of a condition on the possibility of changing the interest rate for using a loan, depending on fluctuations in rates in the interbank lending market, violates the provisions of Part 4 of Article 29 of the Law on Banks, which does not allow changing the terms of the loan agreement (in particular, conditions on interest for using a loan) without the consent of the citizen.
In addition, the court pointed out that the provisions of Part 8 of Article 30 of the Banking Law and paragraph four of paragraph 2 of Article 10 of the Law on Consumer Rights Protection exclude the possibility of issuing loans to individuals with the so-called floating interest rate, since in this case the right of the consumer cannot be secured to receive information about the total cost of the loan, the total amount of the loan and the repayment schedule.
By the decision of the court of appeal, the decision of the court of first instance was canceled, the claim of the credit institution was satisfied.
The court of appeal recognized that the provisions of part 4 of article 29 of the Banking Law cannot be interpreted as restricting the right of the parties to the loan agreement to establish such a procedure for determining the fee for using the loan, which would provide for its automatic change depending on the fluctuations of one or another economic indicator (rate refinancing of the Bank of Russia, the exchange rate, the settlement index (for example, the MosPrime rate), etc.), which do not depend on the discretion of the bank. In the case under consideration, the change in the amount of the fee for using the loan (both upwards and downwards) is not carried out in connection with the unilateral actions of the credit institution, while there is no change in the terms of the loan agreement. Moreover, part 4 of article 29 of the Banking Law contains an indication that a loan agreement with a borrower-citizen may contain not only a fixed amount of interest on the loan, but also a method for determining the fee for the loan, which includes the condition of constant and variable percentages.
In addition, the appellate court, having assessed the nature of the agreement concluded between the parties, under which the loan was issued for 25 years, considered that in such long-term credit relations, the changing interest rate allows the parties to the agreement to take into account possible risks in advance (changes in inflation or average interest rates for similar loans, etc.).
The Court of Appeal also found that the provisions of Part 8 of Article 30 of the Banking Law and Paragraph 4 of Clause 2 of Article 10 of the Consumer Rights Protection Law do not prevent a bank and a borrower-citizen from concluding a loan agreement with the condition of a variable interest rate on the loan. The disputed agreement contains a calculation of the full cost of the loan, and in this calculation, the bank indicated the MosPrime rate that existed at the time of the conclusion of the agreement. The same calculation contains an indication that with an increase or decrease in the MosPrime rate, the amount of interest payments for using the loan will increase or decrease proportionally. In accordance with the fourth paragraph of paragraph 2 of Article 10 of the Consumer Protection Law, the borrower must be informed of the amount of the loan, the full amount payable by the consumer, and the repayment schedule for this amount. The disputed loan agreement contains this information, determined on the basis of the MosPrime rate that existed on the date of its conclusion.
6. The credit institution was lawfully brought to administrative responsibility for including in the agreement with the borrower-citizen a provision stating that the loan agreement concluded by the parties is not considered by them as an adhesion agreement and the rules of Article 428 of the Civil Code of the Russian Federation are not subject to the relations arising between the parties , since this provision of the contract infringes on the rights of the consumer established by law.
The Rospotrebnadzor body brought the credit institution to administrative responsibility for the offense provided for by Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation (inclusion in the contract of a condition that infringes on the rights of the consumer established by law).
The credit institution, not agreeing with this decision, challenged it in court, pointing out that it had not committed any violations of consumer rights.
Considering the dispute, the court found that the loan agreement concluded by the credit institution with the borrower-citizen, in the section "Final Provisions" contained a provision that this agreement was not considered by its parties as an agreement of accession and to the relations that arose between the credit institution and by the borrower, the rules of Article 428 of the Civil Code of the Russian Federation do not apply.
At the court session, the representative of the credit organization explained that the named condition of the loan agreement cannot violate the rights of the consumer, since it has an exclusively informational character. In addition, according to the plaintiff, the rights of the borrower cannot be considered violated, since the indication in the contract of non-application of one or another rule of law to the relations of the parties does not mean that the court, resolving a dispute that arose in connection with this contract, will not be able to apply those rules. law which it deems applicable in the present case.
The court of first instance dismissed the bank's application on the following grounds.
In accordance with paragraph 1 of Article 428 of the Civil Code of the Russian Federation, an accession agreement is a contract, the terms of which are defined by one of the parties in wording or other standard forms and could be accepted by the other party only by joining the proposed agreement as a whole.
The court considered that when a credit institution concluded a controversial loan agreement with a borrower-citizen, the latter was actually deprived of the opportunity to influence the content of the agreement. This circumstance is confirmed both by the testimony of the borrower, who indicated that when drawing up the contract, the bank employee refused to consider the changes proposed by the citizen (in terms of changing the condition for the jurisdiction of disputes arising under the contract), and by the explanations of the representative of the credit institution that, in accordance with the The bank's internal rules standard texts of loan agreements concluded within the framework of pre-developed loan products are not subject to change at the suggestion of borrowers.
Thus, within the meaning of paragraph 1 of Article 428 of the Civil Code of the Russian Federation, this agreement concluded between a credit institution and a citizen borrower should be qualified as an accession agreement, therefore, the borrower has all the rights of a party that has acceded to the agreement
(Clause 2 of Article 428 of the Civil Code of the Russian Federation). The inclusion in the contract of conditions that infringe on these rights is an administrative offense, liability for which is provided for by Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation.
The Court of Appeal left the decision of the Court of First Instance unchanged, and the appeal of the credit organization - without satisfaction.
7. The condition of the loan agreement that disputes on the bank's claim against the borrower-citizen are considered by the court at the location of the bank violates consumer protection legislation, therefore the bank was lawfully brought to administrative responsibility for the offense provided for by Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation.
The credit institution was brought to administrative responsibility for including in the loan agreement a condition that violated the rights of consumers. As such a condition, the Rospotrebnadzor body regarded the provisions of the agreement that disputes on the bank’s claim against the borrower are considered by the court at the location of the bank, and disputes on the borrower’s claim against the bank are considered at the choice of the borrower by the court at the place of its location or stay, or at the location of the bank , or at the place of conclusion or execution of the loan agreement.
The bank applied to the court to declare the decision and order of the Rospotrebnadzor body invalid, indicating that the disputed provision of the loan agreement does not worsen the legal position of the borrower when they present claims against the bank and does not contradict the provisions of paragraph 2 of Article 17 of the Consumer Rights Protection Law, since literally reproduces them. This article of the Law does not determine the jurisdiction of cases on the claims of the organization against the consumer related to the violation by the consumer of his obligations under the contract. Therefore, the jurisdiction of such disputes can be determined by the contract.
The Court of First Instance dismissed the application on the following grounds.
The provisions of paragraph 2 of Article 17 of the Consumer Rights Protection Law provide the consumer with the opportunity to independently determine the court in which his claim against the counterparty will be considered, primarily based on the criterion of convenience for the participation of the consumer himself in the proceedings. At the same time, the legislator has not established procedural rules for the consideration of disputes in which the consumer is the defendant, since, as a general rule, a claim is brought to the court at the location of the defendant (Article 28 of the Civil Procedure Code of the Russian Federation). In this regard, cases involving consumers will always be considered in court at the place of residence of the consumer. The court pointed out that this guarantee, provided to the consumer-citizen by law, cannot be changed or canceled by the contract.
Under these circumstances, the court considered that the inclusion of a controversial provision on the jurisdiction of disputes in a loan agreement, which is a model, with predetermined conditions, infringes on the rights of the consumer and is an administrative offense, for which the bank was lawfully held liable.
8. The inclusion in a loan agreement with a borrower-citizen of the condition on insurance of his life and health does not violate the rights of the consumer, if the borrower had the opportunity to conclude a loan agreement with the bank without the said condition.
The bank applied to the court with an application to invalidate the decision of the Rospotrebnadzor body on bringing it to administrative responsibility, provided for in part 2 of article 14.8
Code of Administrative Offenses of the Russian Federation, for the inclusion in the loan agreement of a condition that infringes on the rights of consumers established by law.
The court of first instance considered that the issuance of a loan under a loan agreement concluded by a bank with a borrower-citizen was conditioned by the conclusion by the borrower of a life and health insurance contract. The court pointed out that in the situation under consideration, the bank conditioned the borrower's receipt of a loan by the need for the mandatory purchase of another service - life and health insurance of the borrower, which is prohibited by the provisions of paragraph 2 of Article 16 of the Consumer Rights Protection Law.
The court of appeal annulled the decision of the court of first instance and satisfied the bank's claim, stating the following.
As seen from the materials of the case, when issuing loans to citizens, the bank applied the rules developed by it for issuing loans to individuals for the purpose of acquiring vehicles. In accordance with these rules, life and health insurance of the borrower refers to measures to reduce the risk of non-repayment of the loan, and the rules provide that a loan can be issued to the borrower even in the absence of an insurance contract, but in this case a higher interest rate is set on the loan. As follows from the evidence presented by the bank, the difference between these two rates is not discriminatory. In addition, it follows from the mentioned rules that the bank's decision to grant a loan does not depend on the borrower's consent to insure his life and health in favor of the bank. The loan agreement also contains a condition that the amount of the borrower's debt on the loan (in terms of the principal amount of the debt and interest accrued but not paid for using the loan) is reduced by the amount of insurance compensation received by the bank from the insurance company upon the occurrence of an insured event.
The court also noted that the difference between the interest rates for insured and uninsured loans was reasonable. As can be seen from the loan application signed by the borrower, he chose the loan option, which provides life and health insurance as one of the mandatory conditions, with a lower interest rate.
Thus, the circumstances of the case indicate that there was no imposition of insurance services when issuing a loan. Consequently, the bank was unlawfully held administratively liable for violating consumer rights.
9. The provisions of the loan agreement that a citizen-borrower opens a current account with a creditor bank, through which a loan is issued and repaid, do not violate paragraph 2 of Article 16 of the Law on Consumer Rights Protection, since the opening of such an account and all operations on it is carried out by a credit institution without charging a fee.
The credit institution challenged in court the decision of the Rospotrebnadzor body, by which it was brought to administrative responsibility for the inclusion in the loan agreement of a condition that infringes on the rights of consumers (Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation). As such, the Rospotrebnadzor body considered the provision of the agreement that the citizen-borrower opens a current account in the bank, through which the loan is issued and repaid (to repay the loan, the borrower deposits funds into the current account, which are then debited by the bank against monthly payments on the loan) . The Rospotrebnadzor body believed that in this case the bank made the issuance of a loan conditional on the obligatory conclusion of an agreement on the provision of another banking service - a bank account agreement.
The court of first instance dismissed the bank's claim, pointing out that consumer protection legislation contains a prohibition on imposing goods, works and services on the consumer by conditional on the purchase of some goods (works, services) by the obligatory purchase of other goods (works, services) (paragraph 2 of Article 16 Consumer Protection Act). In this case, according to the court, the conclusion of a loan agreement was conditional on the conclusion of another agreement with the bank - a bank account agreement.
The Court of Appeal annulled the decision of the Court of First Instance, and satisfied the bank's claim, guided by the following.
The provisions of paragraph 2 of Article 16 of the Consumer Rights Protection Law are aimed at protecting the property interests of the consumer from the actions of the counterparty, which caused the purchase of the goods the consumer needs by the purchase of another product that the consumer does not need and for the purchase of which the consumer would not want to bear the costs. Thus, paragraph 2 of Article 16 of the Consumer Rights Protection Law does not cover cases where a service (in the present case, the service of opening and maintaining a bank account) related to another service provided to the consumer (issuing a consumer loan) is provided to the consumer free of charge. The Court of Appeal pointed out that it follows from the bank account agreement that the bank does not charge remuneration for transactions on the account (for issuing, receiving, transferring funds on the account), the bank account agreement is valid until the date of full repayment of the loan. In this regard, the controversial condition of the loan agreement cannot violate the rights of the citizen-borrower, therefore, the decision of the Rospotrebnadzor body is illegal.
The court of cassation left the decision of the court of appeal unchanged, the cassation appeal of the Rospotrebnadzor body - without satisfaction.
10. The establishment in the loan agreement of a penalty for the borrower's refusal to receive a loan is contrary to consumer protection legislation.
The Rospotrebnadzor body brought the bank to administrative responsibility for the inclusion in the contract of a condition that infringes on the rights of consumers (part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation). The decision to bring to administrative responsibility was challenged by the bank in court. In the statement, the bank indicated that the said condition does not violate the rights of consumers, since it establishes the responsibility of the borrower for evading his acceptance of the proper fulfillment of the obligation to issue a loan.
At the court session, a representative of the Rospotrebnadzor body explained that an audit of loan agreements concluded by the bank with citizens revealed that all agreements contain a condition on the right of the bank to recover from the borrower who refused to receive a loan, a fine in the amount of one percent of the loan amount agreed by the parties. Since the Law on the Protection of Consumer Rights does not provide for the possibility of recovering a penalty from consumers for refusing to fulfill obligations under the contract, the Rospotrebnadzor authority considered that the bank included a condition in the contract with the consumer that worsened the position of the latter, and brought the bank to administrative responsibility.
The court refused to satisfy the bank's application on the grounds that consumer protection legislation proceeds from the fact that the consumer has the right, within a certain (usually insignificant) period of time from the moment the contract was concluded with the seller (executor), to refuse to perform the contract without any - or negative consequences for themselves (Articles 25 and 32 of the Consumer Rights Protection Law). Despite the fact that, in relation to bank lending to citizens, there is no special regulation of the consequences of a consumer's refusal to receive a loan, the consumer cannot be forced either to accept the loan amount or to pay a fine for refusing to receive it. In addition, the Civil Code of the Russian Federation, as a general rule, establishes that the borrower has the right to refuse to receive a loan in whole or in part, notifying the lender about this before the deadline for its provision specified in the agreement (paragraph 2 of Article 821 of the Code). The establishment of other consequences of refusal to receive a loan in an agreement with a borrower-citizen significantly violates his rights as a consumer.
The Court of Appeal left the decision of the Court of First Instance unchanged, the bank's appeal - without satisfaction.
11. In case of repayment of a loan through third parties (another bank, payment system), the risks associated with a delay in crediting the borrower's payments to the correspondent account of the bank for repayment of the loan lie with the borrower.
The Rospotrebnadzor body brought the bank to administrative responsibility for the inclusion in the contract with the citizen-borrower of a condition that infringes on the rights of consumers (part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation). As such a condition, the Rospotrebnadzor body considered the provision of the loan agreement that in the event of repayment of the loan through other banks, through payment terminals, Internet payment systems, all the risks associated with a delay in crediting the funds paid by the borrower as a return of the loan to the correspondent account of the bank , lie with the borrower. According to the authority of Rospotrebnadzor, such a distribution of risks infringes on the right of the consumer to freely choose the method of repaying the loan.
The court granted the bank's claim, stating the following. A citizen-borrower cannot be limited in the ways of repaying a loan, he has the right to make payments to repay a loan by any legal means. If the borrower repays the loan or part of it not at a bank branch, but through a third party (another bank, payment system), the borrower's monetary obligation to repay the loan will be considered fulfilled at the time the funds are credited to the correspondent account of the creditor bank (Articles 309, 316 , 408 of the Civil Code of the Russian Federation).
The controversial condition of the loan agreement cannot be considered infringing on the rights of the consumer, since it establishes a fair distribution of risks associated with a delay in crediting funds returned to the bank by the borrower to the correspondent account of the bank. Thus, due to the fact that the choice of the person through whom the borrower makes the payment for the repayment of the loan is carried out by the borrower, the risks of improper performance by this person of the obligation to credit funds to the correspondent account of the bank are assigned to the borrower, unless from the agreement or information provided to the borrower bank, it does not follow that the bank informed the borrower about the possibility of repaying the loan through specific organizations (credit organizations, payment systems, etc.).
Based on the foregoing, the court considered that the bank was unlawfully brought to administrative responsibility.
By decisions of the courts of appeal and cassation instances, the decision of the court of first instance was left unchanged.
12. The terms of the loan agreement on the prohibition of early repayment of the loan within a certain time, as well as on the charging by the bank of a commission for early repayment of the loan, violate the rights of the consumer, since, within the meaning of the provisions of consumer protection law, the bank is not entitled to refuse to accept or otherwise restrict early execution borrower-citizen obligations under the loan agreement.
The bank applied to the court with an application to invalidate the decision of the Rospotrebnadzor body on bringing it to administrative responsibility for violating consumer rights (part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation).
The court found that the bank was brought to administrative responsibility for violating the rights of consumers, expressed in the inclusion in the loan agreement concluded with the citizen, the conditions that the borrower does not have the right to repay the loan ahead of schedule during the first three months of the loan agreement, as well as charging by the bank of a commission for early repayment of the loan if the loan was repaid to the bank before the expiration of the sixth month of the loan agreement.
The court considered that these provisions of the loan agreement (both in terms of the prohibition on early repayment of the loan, and in terms of charging a fee for early repayment) do not comply with Article 32 of the Law on the Protection of Consumer Rights, according to which the consumer has the right to refuse the services of the contractor at any time when the condition of payment to the contractor of the expenses actually incurred by him related to the fulfillment of obligations under the contract. The court pointed out that the bank did not provide evidence that it incurred any costs in connection with the issuance of the loan. Consequently, the collection of funds for early repayment of the loan is contrary to the named article of the Law on the Protection of Consumer Rights. The court came to the conclusion that the bank was rightfully brought to administrative responsibility, and refused to satisfy his application.
The Court of Appeal annulled the decision of the Court of First Instance, and satisfied the bank's application, citing the following. Chapter III of the Law on the Protection of Consumer Rights regulates the specifics of the performance of work and the provision of services under contracts concluded by the consumer with the executing organization. At the same time, the Consumer Rights Protection Law does not contain special rules governing relations in the field of consumer lending, which would, among other things, establish the right of a borrower-citizen to refuse a loan, returning the amount of money received only within a short period of time after receiving a loan without any negative financial consequences for themselves. Consequently, the norms of the Civil Code of the Russian Federation on loans and credits are subject to the relations of the parties under a loan agreement, taking into account the provisions of Chapters I and IV of the Law on Consumer Rights Protection.
In accordance with paragraph 2 of Article 810 of the Civil Code of the Russian Federation, the amount of a loan granted at interest may be returned ahead of schedule with the consent of the lender. The provisions of the loan agreement indicate that the bank agreed to return the loan only after the expiration of the first three months of the loan agreement. Establishing a commission for early repayment of a loan made before the expiration of the sixth month of the loan agreement also does not violate the rights of the consumer, since the consumer was aware of this condition from the text of the loan application signed by him.
In addition, the Court of Appeal noted that the commission for early repayment of the loan is intended, among other things, to compensate the bank's expenses related to the issuance of a loan to the borrower (study of the borrower's solvency, etc.).
The court of cassation annulled the decision of the court of appeal and upheld the decision of the court of first instance, indicating that the provisions of Article 315 of the Civil Code of the Russian Federation do not mean that the debtor under a monetary obligation, the creditor of which is a credit institution, is not entitled to fulfill the obligation ahead of schedule.
Legislation on the protection of consumer rights in the provision of services proceeds from the fact that in relations with the participation of the consumer, the latter is granted the right to refuse to fulfill obligations under the contract, returning to the counterparty everything received in the transaction and reimbursement of the expenses actually incurred by him (Article 32 of the Consumer Rights Protection Law) . The named provision of the Law is subject to application to the disputable legal relations of the parties to the loan agreement by analogy (Article 6 of the Civil Code of the Russian Federation).
The court of cassation also noted that the predetermined commission for early repayment of the loan is not actually incurred expenses of the bank, therefore, the establishment in the loan agreement, in fact, of the fee for early repayment by the borrower-citizen of the loan amount violates consumer protection legislation.
In this regard, the terms of the loan agreement concluded with the borrower-citizen, on the prohibition of the borrower within three months of repaying the loan ahead of schedule, as well as on charging a fee for early repayment of the loan, violate his rights as a consumer, so the bank was rightfully brought to administrative responsibility.
13. The inclusion in the loan agreement of the condition that the services of the bank are paid by the borrower in accordance with the tariffs approved by the bank, which he has the right to change unilaterally during the term of the agreement, violates the rights of the consumer, since the named condition contradicts the provisions of Article 310 of the Civil Code of the Russian Federation and article 29 of the Banking Law.
The bank applied to the court to invalidate the decision of the Rospotrebnadzor body to bring it to administrative responsibility for committing an administrative offense - the inclusion in a loan agreement concluded with a borrower-citizen, a condition that violates the rights of the consumer.
The court found that this loan agreement contained a condition that payment for additional bank services related to the execution of the loan agreement was carried out in accordance with the tariffs set by the bank. The agreement also contains a condition that the bank has the right to unilaterally change the rates by notifying the borrower by sending him an e-mail message to the address specified by the borrower, as well as by posting new rates on the bank's official website on the Internet.
Bringing the bank to administrative responsibility, the Rospotrebnadzor body considered that the inclusion of this condition in the contract violates the rights of the consumer, as it allows the bank to unilaterally change the terms of the contract concluded with the citizen.
The court refused to satisfy the application of the bank, guided by the following. According to Article 310 of the Civil Code of the Russian Federation, a unilateral refusal to fulfill an obligation and a unilateral change in its conditions are not allowed, except as otherwise provided by law. A unilateral refusal to fulfill an obligation related to the performance by its parties of entrepreneurial activity, and a unilateral change in the terms of such an obligation are also allowed in cases provided for by the contract, unless otherwise follows from the law or the essence of the obligation. Consequently, in relations with citizens, a unilateral change in the terms of obligations is not allowed, unless otherwise follows from the law. In accordance with Part 4 of Article 29 of the Banking Law, under a loan agreement concluded with a borrower-citizen, a credit institution cannot unilaterally change the amount of the commission fee for operations performed, therefore, the inclusion in the agreement of a condition that allows the bank to unilaterally change the amount of remuneration for certain operations performed by the bank under the loan agreement does not comply with the Law and violates the rights of consumers.
By the decisions of the courts of appeal and cassation instances, the decision of the court of first instance was left unchanged, the appeal and cassation complaints of the bank were not satisfied.
14. The condition of the loan agreement on the collection by the bank of a fee for issuing certificates of the state of debt of the borrower-citizen on the loan is contrary to the law and violates the rights of the consumer.
The Rospotrebnadzor body brought the bank to administrative responsibility for committing an offense under part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation, which resulted in the inclusion in the loan agreement of the condition that the issuance by the bank of certificates of the state of the borrower's debt is paid, the cost of this service is determined by the bank's tariffs.
The bank challenged the decision of the Rospotrebnadzor in court.
The court of first instance satisfied the bank's claims, noting that by issuing a certificate to the borrower on the state of the debt under the loan agreement, the bank provides him with a service that is payable. The parties agreed on the procedure for determining the cost of this service in the contract, indicating that it is determined by the bank's tariffs.
The court of appeal overturned the decision of the court of first instance and dismissed the claim, referring to the fact that the remuneration for banking operations under a loan agreement concluded with a borrower-citizen cannot be changed unilaterally, which may occur as a result of a change by the bank tariffs (Part 4 of Article 29 of the Banking Law).
The court of cassation also considered that the bank's application was not subject to satisfaction, but at the same time changed the reasoning part of the decision of the court of appeal, indicating the following.
Within the meaning of paragraph 4 of paragraph 2 of Article 10 of the Consumer Rights Protection Law, the consumer always has the right to know about the amount of his debt to the bank, the amount of interest paid, upcoming payments with a separate indication of the amount of interest payable and the remaining loan amount. The implementation of this right of the consumer cannot be conditioned by the payment of any remuneration for the provision of such information. In this regard, the provision of the loan agreement that the provision of the necessary information to the consumer is paid, contradicts Article 10 of the Law on the Protection of Consumer Rights. Consequently, the bank was rightfully held liable for committing an administrative offense.
15. The condition of the target loan agreement that all the costs of repaying the record of a legal mortgage that encumbers the apartment purchased by the borrower is borne by the borrower violates the rights of the consumer.
The credit institution applied to the court to declare illegal the decision of the Rospotrebnadzor body to bring it to administrative responsibility for including a condition in the contract that violates the rights of consumers (Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation).
The court found that the applicant was brought to administrative responsibility for committing an administrative offense, expressed in the inclusion in the loan agreement for the purchase of an apartment, concluded with a borrower-citizen, the conditions that the repayment of a legal mortgage in relation to an apartment purchased with funds received from a credit organization, funds are carried out by the borrower independently on the basis of a certificate from the credit institution on the absence of debt on the loan and a power of attorney for the right to apply for repayment of the mortgage on behalf of the credit institution, and the costs of notarizing this power of attorney are borne by the borrower.
During the court session, the representative of the credit institution explained that this condition of the contract cannot violate the rights of the borrower, since it is he who has an interest in the speedy repayment of the mortgage and the release of real estate from encumbrances, and the credit institution creates the necessary conditions for him to do this. In addition, the credit institution does not have a sufficient number of employees who could personally submit mortgage repayment applications on its behalf.
The court refused to satisfy the application for invalidating the decision of the Rospotrebnadzor body, stating the following. In accordance with Article 25 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)”, a mortgage registration entry is canceled on the basis of a joint application of the mortgagor and the pledgee. Consequently, the law establishes the duty of the pledgee, together with the pledger, to apply to the body for registration of rights to real estate and transactions with it with an application for the redemption of the mortgage registration record, therefore, the full imposition on the citizen of all organizational and financial costs of filing such an application infringes on his rights as a consumer .
Guided by these considerations, the court came to the conclusion that the corresponding provision of the loan agreement violated the rights of the consumer, and refused to satisfy the bank's application.
16. Assignment by a bank to a person that does not have the status of a credit institution of a claim not fulfilled on time under a loan agreement with a borrower-citizen does not contradict the law and does not require the consent of the borrower.
The credit organization was brought to administrative responsibility by the Rospotrebnadzor body for violating consumer rights (Part 1 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation), expressed in providing consumers with false information regarding the possibility of the bank ceding the right to claim overdue debt under a loan agreement to third parties without the consent of the debtor. This information was included by the bank in the standard conditions for granting and servicing a loan and in the text of a standard loan application. According to the authority of Rospotrebnadzor, this information does not comply with the provisions of paragraph 2 of Article 388 of the Civil Code of the Russian Federation, since the assignment of the right to claim without the consent of the debtor in a consumer lending agreement is impossible, since the identity of the creditor is essential for the debtor.
The credit organization applied to the court with an application to recognize the decision of the Rospotrebnadzor body as invalid.
The court of first instance dismissed the claim, supporting the arguments of the Rospotrebnadzor body. In addition, the court in its decision noted that the assignment of claims under a loan agreement may lead to the fact that the right to claim against a citizen borrower will be transferred to third parties that are not credit institutions. By virtue of paragraph 1 of Article 819 of the Civil Code of the Russian Federation, only a bank or other credit institution that has the appropriate license can provide funds on credit.
The court of appeal changed the decision of the court of first instance, excluding from its reasoning part the argument that the assignment of a claim under a loan agreement is contrary to paragraph 1 of Article 819 of the Civil Code of the Russian Federation, and indicating that this argument is erroneous and contrary to established judicial practice. The rest of the court's decision was upheld.
The court of cassation on the cassation appeal of the credit organization canceled the decision of the court of first instance and the decision of the court of appeal and declared the decision of the Rospotrebnadzor body invalid. The court pointed out that the requirement to return a loan issued to an individual under a loan agreement is not one of the requirements that are inextricably linked with the identity of the creditor. According to Article 382 of the Civil Code of the Russian Federation, the consent of the debtor is not required for the transfer of the rights of the creditor to another person, unless otherwise provided by law or the contract, while the legislation of the Russian Federation does not contain a rule that would establish the need to obtain the consent of a borrower-citizen to cede to a credit institution the claims arising from from the loan agreement. When a claim for repayment of a loan is ceded (including when the assignee does not have the status of a credit institution), the terms of the loan agreement concluded with the citizen do not change, his position does not worsen (Articles 384 and 386 of the Civil Code of the Russian Federation), guarantees provided citizen-borrower by the legislation on consumer protection are preserved. The court of cassation also pointed out that the assignment of claims arising from the loan agreement does not violate the regulatory provisions on bank secrecy (Article 26 of the Banking Law), since in accordance with part 7 of this article, the assignee, his officials and employees are obliged to keep known information constituting bank secrecy, and these persons bear legal responsibility for its disclosure (including in the form of an obligation to compensate the borrower for the damage caused by the disclosure of bank secrecy).
In connection with the foregoing, the court of cassation came to the conclusion that there was no objective side of the administrative offense in the actions of the credit institution, the responsibility for which is provided for by Part 1 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation.
17. The bank, to which the rights under the loan agreement were transferred by way of singular succession, cannot be held administratively liable for the inclusion in the loan agreement of conditions that violate the rights of the consumer.
The Rospotrebnadzor body conducted an audit of the bank's activities for compliance with consumer protection legislation. During the audit, it was found that a number of loan agreements, for which the bank was the lender, and the borrowers were citizens who are not individual entrepreneurs, included conditions that violate consumer rights (on the collection of one-time fees for considering a loan application, for issuing a loan, additional fees for repaying a loan in cash at a bank branch, about the possibility to unilaterally change the size of the loan rate, and also about the fact that all disputes between the bank and the borrower are considered in court at the location of the bank).
The Rospotrebnadzor body brought the bank to administrative responsibility for the inclusion in the contract of conditions that violate the rights of consumers (part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation).
The bank did not agree with bringing to administrative responsibility and applied to the court to recognize the decision of the Rospotrebnadzor body as invalid, indicating that there were no grounds for holding it liable, since these loan agreements were concluded between the borrowers and another bank, and the applicant himself acquired the rights under these agreements in the order of assignment. Objecting to the application, the Rospotrebnadzor body argued that, by virtue of the provisions of Chapter 24 of the Civil Code of the Russian Federation, the new creditor bears all the full responsibility provided for by law, including to the debtor; the bank's fault in committing an administrative offense is expressed in the fact that after acquiring rights under loan agreements, it did not offer borrowers to change the terms of the agreements that violate consumer rights.
The court of first instance granted the bank's application, guided by the following. The inclusion in loan agreements of conditions that violate the rights of consumers took place at the conclusion of these agreements by the bank - the applicant's legal predecessor - with the borrowers. The provisions of Chapter 24 of the Civil Code of the Russian Federation regulate civil relations between the new creditor and the debtor and do not apply to relations related to the commission by the assignor of administrative offenses in the field of consumer protection. In order to hold a person accountable, the administrative body had to prove that it was this person who committed the offense. However, it follows from the materials of the case that the conditions violating the rights of consumers were included in the loan agreements by the assigning bank, which subsequently ceded its rights under them to the applicant. The court came to the conclusion that the applicant did not commit the administrative offense imputed to him, therefore bringing him to administrative responsibility is unlawful. The court also noted that in the event of a dispute, citizens-borrowers are not deprived of the right to refer to the fact that the relevant provisions of loan agreements violate consumer rights law and, therefore, are invalid (Article 16 of the Consumer Rights Protection Law).
By decisions of the courts of appeal and cassation, the decision of the court of first instance was left unchanged, the appeal and cassation complaints of the Rospotrebnadzor body were not satisfied.
In another case, the bank challenged the decision of the Rospotrebnadzor body to bring to administrative responsibility on the basis of part 2 of article 14.8 of the Code of Administrative Offenses, referring to the fact that the rights under the loan agreement, which established the obligation of the citizen-borrower to pay a fee for maintaining a loan account, were assigned to a third party (collection agency), so he cannot be held administratively liable. The court disagreed with this argument, pointing out that the bank, having concluded a loan agreement with the borrower citizen, containing provisions infringing on the rights of the consumer, committed an offense, liability for which is established by part 2 of article 14.8 of the Code of Administrative Offenses of the Russian Federation. The subsequent assignment of rights under such an agreement to third parties does not affect legal relations that have arisen in connection with the commission of an administrative offense.
The Supreme Court of the Russian Federation monitored the practice of resolving disputes arising in the field of credit relations involving individuals by courts.
An analysis of the statistical data provided by the courts in this category of cases allows us to conclude that the parties to civil law relations have increasingly resorted to judicial protection of violated rights, freedoms and legally protected interests.
The number of cases on the issues under consideration for the period from 2009 to 2012 indicates a steady growth trend (more than three times) of applications of interested persons to the courts and justices of the peace for resolving disputes in the field of lending to citizens. At the same time, in 2011, compared with 2010, the courts noted a slight decrease in the number of cases on certain types of disputes. This is primarily due to the fact that the judicial practice that has developed on a number of legal issues has allowed the parties to settle them out of court.
A significant part of civil cases in credit disputes are cases of claims for debt collection from borrowers and guarantors - individuals, foreclosure of property pledged to secure the repayment of a loan, for early repayment of a loan declared by credit organizations. Individuals, as well as public consumer organizations and territorial bodies of Rospotrebnadzor acting in their interests, as a rule, apply to the court or justices of the peace with claims to invalidate certain terms of loan agreements, recover losses in connection with this, terminate the pledge or guarantee.
The purpose of this review is to consider the issues of application by the courts of the legislation governing relations between banks, other credit institutions and individuals related to the fulfillment of credit obligations.
1. Disputes arising from credit relations with the participation of individuals are under the jurisdiction of courts of general jurisdiction.
The Supreme Court of the Russian Federation, exercising its constitutional powers to clarify issues of judicial practice in order to ensure its unity, in the Review of Legislation and Judicial Practice of the Supreme Court of the Russian Federation for the second quarter of 2006, approved by the Presidium of the Supreme Court of the Russian Federation on September 27, 2006, indicated that the agreement lending, the guarantor of which is an individual who is not an entrepreneur without forming a legal entity, is not related to his entrepreneurial or other economic activity, therefore, the requirements arising from the specified agreement are subordinate to a court of general jurisdiction.
Despite this clarification, cases of incorrect application of the rules on the jurisdiction of these disputes continue to occur in judicial practice.
Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the ruling of the court, which terminated the proceedings on the case of the bank's claim against an individual entrepreneur and his guarantor (individual) for the recovery of debt on a loan.
When terminating the proceedings, the court, in particular, proceeded from the fact that the loan agreement concluded between the bank and the individual entrepreneur (defendant) provided for the condition that the dispute be under the jurisdiction of the arbitration court.
Meanwhile, the jurisdiction of civil cases is determined by law and cannot be changed by agreement of the parties (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 23, 2010 No. 18-B10-66).
In another case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the termination of proceedings in the part of the bank's claims against the state unitary enterprise (hereinafter - SUE) for the recovery of debt under a loan agreement, for foreclosure on property pledged under a pledge agreement equipment and under an agreement on the pledge of goods in circulation.
Terminating the proceedings in this part, the courts proceeded from the fact that consideration of the claims filed by the bank, including against guarantors - individuals, is possible separately from the consideration of claims against the main debtor - the SUE; the requirements presented to the SUE are of an economic nature and arise from entrepreneurial activity.
In addition, the loan agreements concluded between the bank and the State Unitary Enterprise provide for the consideration of disputes by an arbitration court.
Reversing the court rulings in the case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation indicated that a creditor’s claim brought simultaneously against both the debtor and the guarantor, who are jointly and severally liable to the creditor, is subject to consideration within the framework of one case (paragraph 1 of Article 363 of the Civil Code of the Russian Federation ).
According to clause 1 of part 1 of article 22 of the Code of Civil Procedure of the Russian Federation, courts consider and resolve lawsuits involving citizens, organizations, state authorities, local governments on the protection of violated or disputed rights, freedoms and legitimate interests, in disputes arising from civil, family, labor , housing, land, environmental and other legal relations.
On the basis of Part 3 of Article 22 of the Code of Civil Procedure of the Russian Federation, the courts consider and resolve cases provided for in Parts 1 and 2 of Article 22 of the said Code, with the exception of economic disputes and other cases referred by federal constitutional law and federal law to the jurisdiction of arbitration courts.
In accordance with Part 4 of Article 22 of the Code of Civil Procedure of the Russian Federation, when applying to the court with an application containing several interconnected claims, of which some are subordinate to a court of general jurisdiction, others to an arbitration court, if separation of claims is impossible, the case is subject to consideration and resolution in a court of general jurisdiction .
In this case, the bank's claims for debt collection under the loan agreement dated April 29, 2010 were filed against both the main debtor - the State Unitary Enterprise, and the guarantors - individuals (not having the status of individual entrepreneurs). At the same time, the plaintiff did not withdraw his claims against any of the defendants during the consideration of the case.
When terminating the proceedings in the part of the claims filed against the debtor - SUE, the court did not take into account that the joint and several nature of the liability of the debtor (legal entity) and guarantors (individuals), given the creditor's claim against all these joint and several debtors at the same time, does not allow the court make a decision on the separation of the stated claims based on the subject composition of the dispute and, therefore, the dispute that has arisen is under the jurisdiction of a court of general jurisdiction.
The reference of the court to the existence of an economic dispute between the parties arising from entrepreneurial activity is unfounded, since the conclusion of a surety agreement, the essence of which is the obligation of the guarantor to pay the debtor's creditor a sum of money if the latter fails to fulfill this obligation, is not entrepreneurial activity, that is, independent, carried out on own risk by activities aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services (paragraph 1 of Article 2 of the Civil Code of the Russian Federation).
The fact that the loan agreement dated April 29, 2010, concluded between the bank and the SUE, provides for the resolution of disputes in an arbitration court has no legal significance, since the guarantors (defendants in the case) are not parties to the loan agreement.
Under such circumstances, the bank's claims in terms of debt collection under this loan agreement, the fulfillment of obligations under which is secured, among other things, by suretyship agreements, were subject to consideration in a court of general jurisdiction in relation to all defendants and the grounds provided for by law for terminating the proceedings in this part in relation to The court did not have a GUP (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 6, 2012 No. 23-KG12-5).
1.1. The introduction of a monitoring procedure in relation to a legal entity that is a debtor under a loan obligation secured by a citizen's surety does not change the jurisdiction of the consideration by a court of general jurisdiction of the creditor's claim for the recovery of debt from the guarantor.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized as unlawful the termination of proceedings in the case of a bank's claim against a limited liability company and against guarantors (individuals) for the recovery of debt on a loan.
In terminating the proceedings in this case, the court proceeded from the fact that in relation to the company (defendant) the procedure of observation was introduced by the ruling of the arbitration court, an interim manager was approved, in connection with which, taking into account the provisions of Articles 63 and 71 of the Federal Law of October 26, 2002 No. 127 -FZ “On Insolvency (Bankruptcy)”, consideration of claims against this defendant for the recovery of credit debt outside the framework of a bankruptcy case considered by an arbitration court is impossible and the case is not subject to consideration and resolution in civil proceedings.
Meanwhile, the current legislation does not provide for a rule according to which a dispute on the recovery of debt from a guarantor under an obligation secured by a surety can be considered by an arbitration court with the participation of an individual.
According to paragraph 1 of Article 363 of the Civil Code of the Russian Federation, if the debtor fails to perform or improperly performs the obligation secured by the surety, the surety and the debtor shall be liable to the creditor jointly and severally, unless the law or the contract provides for subsidiary liability of the surety.
The court in the case established that the surety agreements concluded by the bank with individuals provide for the joint and several liability of the guarantors for the fulfillment of monetary obligations by the borrower - a limited liability company.
Thus, when terminating the proceedings against the guarantors, the court did not take into account that these defendants (guarantors) are individuals, the legal relations between them and the bank are outside the scope of legal regulation of the Federal Law “On Insolvency (Bankruptcy)”, taking into account the subject composition of the arising legal relations under surety agreements, this dispute is under the jurisdiction of a court of general jurisdiction (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 6, 2010 No. 18-B10-27).
1.2. The procedural form of involving the debtor and the guarantor as subjects of joint and several liability that arose for them simultaneously and in an equal amount is to involve them as co-defendants.
In cases where banks file claims against the guarantor and the borrower separately, based on the provision of paragraph 1 of Article 363 of the Civil Code of the Russian Federation on the joint and several liability of the guarantor and the debtor to the creditor in case of non-performance or improper performance by the debtor of the obligation secured by the guarantee, the courts have questions about the need to involve in the case other subjects of joint liability and their procedural status.
As a general rule, if the subject of an obligation secured by a surety is indivisible, the joint and several liability of the debtor and the surety arises for them simultaneously and for each of them has an equal volume. The substantive legal claim of a bank or other credit organization for the collection of a debt with joint and several liability of the debtor and the guarantor may be filed against each of them separately, both in full and in part of the debt.
The procedural form of bringing to participation in the case the subjects of joint and several liability that arose for them simultaneously and in an equal amount is to involve them as co-defendants. In the event that the creditor requires the collection of the debt only from the guarantor, the court has the right, on its own initiative, to involve the main debtor in the case (paragraph two of part 3 of article 40, part 2 of article 56 of the Code of Civil Procedure of the Russian Federation). The question of the intervention of co-respondents in the case is resolved by the court in the course of preparing the case for trial (Item 4 of Part 1 of Article 150 of the Code of Civil Procedure of the Russian Federation).
When considering such cases, claims against guarantors and borrowers are presented by banks separately to various courts: against guarantors (individuals) - in courts of general jurisdiction, and against borrowers (legal entities) - in arbitration courts.
If the creditor's statement of claim for debt collection is filed with a court of general jurisdiction only against the guarantor, then when a decision is made on the merits of the stated claim, a legally significant circumstance that is included in the subject of proof is the fact of execution of the decision of the arbitration court to collect debt under this loan agreement from the main debtor and the amount of satisfied claims of the creditor.
Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the court decisions on satisfaction of the bank's claims to recover from the debtor (individual entrepreneur) and his guarantors (individuals) in a joint and several manner the amount of the debt and foreclosure on the property pledged to secure the repayment of the loan, taken without establishing and investigating these circumstances.
In resolving the case and satisfying the stated requirements, the courts proceeded from the fact that the obligations assumed under the loan agreement by the defendant were not properly fulfilled, the surety agreements concluded between the bank (claimant) and individuals (defendants) provide for joint and several liability of guarantors, and therefore the amount of the principal debt, interest and penalty are subject to recovery from the debtor and guarantors jointly and severally.
Meanwhile, the courts established that earlier by the decision of the arbitration court from the same debtor - an individual entrepreneur in favor of the bank (the plaintiff in this case) the amount of debt under the same loan agreement was collected (principal debt, interest for using the loan, penalty for late payment of interest) and foreclosed on the subject of pledge with the establishment of its initial sale price. This decision of the arbitration court entered into force, enforcement proceedings were initiated, the bailiff issued a decision on the transfer of the seized property for sale. These circumstances were not assessed (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 3, 2009 No. 49-В09-16).
2. An analysis of judicial practice indicates that the application of the provisions of the law on the jurisdiction of cases in disputes arising from credit legal relations is not uniform.
The Plenum of the Supreme Court of the Russian Federation, in Resolution No. 17 of June 28, 2012 “On Consideration by Courts of Civil Cases on Disputes on the Protection of Consumer Rights”, clarified that the provision of credits (loans) to an individual is a financial service, which also relates to the sphere of regulation Law of the Russian Federation "On the Protection of Consumer Rights" (subparagraph "e" of paragraph 3).
The said decision (paragraph 26) also clarifies that if the statement of claim is filed with the court by the consumer in accordance with the terms of the agreement on jurisdiction concluded by the parties, the judge is not entitled to return such a statement of claim with reference to paragraph 2 of part 1 of article 135 of the Code of Civil Procedure of the Russian Federation. However, the judge is not entitled, referring to Article 32, Clause 2 of Part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation, to return the statement of claim of the consumer disputing the terms of the agreement on the territorial jurisdiction of the dispute, since by virtue of parts 7, 10 of Article 29 of the Code of Civil Procedure of the Russian Federation and clause 2 of Article 17 of the Law Russian Federation "On the Protection of Consumer Rights" the choice between several courts that have jurisdiction over the case belongs to the plaintiff.
Earlier, a similar position was reflected in the jurisprudence of the Supreme Court of the Russian Federation in a ruling issued in a case with similar factual circumstances on a citizen's claim against a bank to invalidate the terms of a bank deposit agreement on resolving disputes in a court at the location of the bank.
Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, canceling the court rulings on the refusal to satisfy the claims in this case, proceeded from the provisions of Part 7 of Article 29 of the Code of Civil Procedure of the Russian Federation and paragraph 2 of Article 17 of the Law of the Russian Federation “On Protection of Consumer Rights”.
At the same time, the Judicial Board indicated that the legislator, in order to protect the rights of consumers, in particular (in this case) of citizens-depositors as an economically weak party to the contract, introduced additional mechanisms of legal protection, including in the issue of determining the jurisdiction of civil cases with their participation . The inclusion by a bank in an accession agreement (Article 428 of the Civil Code of the Russian Federation), including in a term bank deposit agreement, of a provision on the jurisdiction of a dispute to a particular court (in particular, at the location of the bank) infringes on the consumer’s rights established by law (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 10, 2011 No. 5-B11-46).
Thus, judicial practice proceeds from the possibility of challenging by a citizen on the basis of part 7 of article 29 of the Code of Civil Procedure of the Russian Federation, paragraph 1 of article 16 of the Law of the Russian Federation "On Protection of Consumer Rights" the terms of the agreement on the territorial jurisdiction of disputes in cases where it is included by the counterparty in the standard form of the agreement that, taking into account the rule on alternative jurisdiction provided for by the above-mentioned norms, as well as the provisions of Article 421 and paragraph 2 of Article 428 of the Civil Code of the Russian Federation on its validity and on the conditions for terminating or amending the adhesion agreement, does not violate the rights of the borrower - an individual only when he had the opportunity to conclude a loan agreement with a bank and without the named condition.
At the same time, if the condition contained in the loan agreement, which determines the territorial jurisdiction of cases arising between the disputing parties to credit relations, has not been challenged in the manner prescribed by law and is valid, then this condition continues to be valid on the day the case is considered by the court.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the court decision on the return, on the basis of paragraph 2 of part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation, of the bank's statement of claim for the recovery of credit debt from the borrower, filed with the court in accordance with the terms of the loan agreement on the territorial jurisdiction of the dispute, according to the following grounds.
In accordance with Article 32 of the Code of Civil Procedure of the Russian Federation, which regulates contractual jurisdiction, the parties may, by agreement among themselves, change the territorial jurisdiction for this case before the court accepts it for its proceedings. Jurisdiction established by Articles 26, 27 and 30 of this Code cannot be changed by agreement of the parties.
It follows from the above-mentioned norm that the parties have the right to change by agreement between themselves the territorial jurisdiction of the case established by law before the court accepts the application for its proceedings. The parties are not entitled to change the exclusive and generic (subjective) jurisdiction, which is determined by law. An agreement on jurisdiction may be included in a civil law contract, including an accession contract.
An indication that all disputes related to the loan agreement are subject to consideration in a court of general jurisdiction at the location of the bank or its separate division that issued the loan is contained in a clause of the loan agreement concluded between the bank (claimant) and the borrower - an individual (defendant). ).
Guided by the principle of optionality of the civil process, the parties, using the right to choose between several courts, determined the jurisdiction for all cases related to the execution of the loan agreement, including this case.
Since the agreement of the parties on the definition of territorial jurisdiction, reached on the basis of Article 32 of the Code of Civil Procedure of the Russian Federation, is binding not only for the parties, but also for the court, the court did not have the statutory grounds for returning the statement of claim filed by the bank to the court in accordance with the contractual jurisdiction.
The agreement on changing the territorial jurisdiction was concluded between the parties before filing a statement of claim with the court in the manner prescribed by law, was not disputed by anyone and was not recognized as invalid (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 22, 2009 No. 5-В09-115 ).
2.1. Law enforcement practice shows that the courts have not yet developed a uniform approach to resolving the issue of territorial jurisdiction for considering cases related to foreclosure on real estate pledged to secure the repayment of a loan. In this regard, a number of courts raise the question of the legality of applying to the relations under consideration the rule of exclusive jurisdiction, provided for in Article 30 of the Code of Civil Procedure of the Russian Federation.
It should be recognized as justified the current judicial practice, which proceeds from the fact that the requirement to foreclose on real estate pledged to secure the repayment of a loan is not an independent dispute over the rights to this property. The substantive and legal prerequisite for such a disputed relationship is the debtor's failure to fulfill a credit obligation, which implies the satisfaction of the creditor's requirements at the expense of the value of the collateral, and therefore Article 30 of the Code of Civil Procedure of the Russian Federation is not applicable to credit relations.
This approach to resolving disputes about jurisdiction has been unambiguously established in the courts of the Republic of Bashkortostan, the Kabardino-Balkaria Republic, the Altai and Stavropol Territories, as well as in the courts of the Belgorod, Bryansk, Volgograd, Irkutsk, Lipetsk, Novosibirsk, Oryol, Samara, Sverdlovsk, Ulyanovsk and Pskov regions (on materials of judicial practice).
Thus, by the ruling of the district court, it was denied the satisfaction of the petition of the defendant's representative for the transfer of jurisdiction to another district court of the same city of the civil case on the bank's claim against the borrower (individual) for the recovery of debt under the loan agreement and foreclosure of the pledged property.
In refusing to satisfy the petition for the transfer of the case to jurisdiction at the location of the pledged real estate, the court of first instance proceeded from the fact that the requirement to foreclose on the subject of pledge is not vindication, but is one of the ways to satisfy the plaintiff's monetary claims, therefore, this claim is not the provisions of Article 30 of the Code of Civil Procedure of the Russian Federation on exclusive jurisdiction apply.
The Judicial Collegium for Civil Cases of the Regional Court, when issuing a ruling to leave the said ruling of the court of first instance unchanged, proceeded from the fact that claims for foreclosure on mortgaged real estate do not relate to claims for rights to such property, but are related to resolving the issue of preferential receipt the mortgagor's creditor of satisfaction from the value of the pledged property before other creditors of the debtor. There is no dispute about the right to real estate, to which the law relates the rule of exclusive jurisdiction of disputes (according to the case law of the Novosibirsk Regional Court).
By a ruling of a district court judge on the basis of paragraph 2 of part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation, the credit institution's statement of claim against a citizen for the recovery of debt under a loan agreement with foreclosure on the pledged property filed with the court at the location of the subject of pledge was returned. In determining jurisdiction, the plaintiff referred to Article 30 of the Code of Civil Procedure of the Russian Federation, indicating that claims for rights to residential and non-residential premises are brought to the court at the location of these objects. Returning this application as filed in violation of the rules of jurisdiction, the court proceeded from the fact that the rule of exclusive jurisdiction in this case is not applicable, since the requirement stated in the claim to foreclose on the mortgaged apartment by selling it at a public auction cannot be regarded as a dispute over the right to real estate (based on the case law of the Ulyanovsk Regional Court).
The ruling of the Irkutsk Regional Court left unchanged the ruling of the Angarsk City Court of the Irkutsk Region in the case of transferring the case on the claim of the bank against the borrower for foreclosure of property, for the recovery of the amount of debt, interest and penalties under jurisdiction to the Kuibyshevsky District Court of the city of St. Petersburg.
When issuing the ruling, the court of first instance was guided by the provisions of Article 32 of the Code of Civil Procedure of the Russian Federation, according to which the parties may, by agreement among themselves, change the territorial jurisdiction for this case before accepting it for their own proceedings. An agreement on jurisdiction can be included in a civil law contract, including a credit one.
The court established that, according to the terms of the loan agreement, in the event of disagreements between the creditor and the borrower regarding the execution of the agreement, disputes are considered at the location of the creditor - the legal owner of the mortgage. The location of the creditor, who is the owner of the mortgage, is determined in accordance with its charter in the city of St. Petersburg. Since the agreement of the parties on the definition of territorial jurisdiction, reached on the basis of this article, is binding not only for the parties, but also for the court, under these circumstances, this case could not be considered by the Angarsk City Court.
At the same time, the court did not agree with the plaintiff's arguments that, by virtue of Article 30 of the Code of Civil Procedure of the Russian Federation, this case is subject to consideration in the court at the location of the immovable property, which must be levied, since the rules of exclusive jurisdiction do not apply to this claim. The claim for foreclosure on the pledged property is not a dispute over the rights to such property, but is connected with the resolution of the issue of priority receipt by the creditors of the pledgor of satisfaction from the value of the pledged property over other creditors of the debtor (based on the case law of the Irkutsk Regional Court).
2.2. Certain difficulties in practice raise the question of whether the term of the loan agreement (guarantee agreement) on the jurisdiction of the dispute at the location of the bank, agreed between the creditor and the borrower (guarantor), is recognized as valid in the event of assignment of claims for overdue credit debt to third parties.
An example of the correct application of legislation on this issue is the practice of the courts, which, based on the provisions of Article 44 of the Code of Civil Procedure of the Russian Federation, proceed from the fact that succession in substantive legal relations entails procedural succession. When the right of claim is assigned by the bank to another person, the provisions on contractual jurisdiction agreed in the agreement between the original creditor and the debtor shall remain in force. However, it should be borne in mind that the new creditor has the right to bring a claim under the rules of jurisdiction that are agreed in the contract. For example, if the loan agreement contains a clause on the settlement of disputes at the location of the bank with an indication of its legal address, then the organization in whose favor the assignment of the claim was made has the right to apply to the court at the location of the original creditor (based on the judicial practice of the Sverdlovsk Regional court).
3. As practice shows, when resolving questions on the application of limitation periods in cases of the analyzed category, the courts, taking into account the current legislation, take into account the clarifications of the joint decisions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation that remain valid, including:
In Resolution No. 2/1 of February 28, 1995 “On Certain Issues Related to the Entry into Force of Part One of the Civil Code of the Russian Federation”, which provides that the application for the application of the limitation period does not prevent the consideration of the application of the plaintiff-citizen for recognition of a good reason for missing the limitation period and its restoration, and also that the limitation period missed by a legal entity is not subject to restoration, regardless of the reasons for its omission (paragraph 12);
In Resolution No. 6/8 of July 1, 1996 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation” (paragraph 32) on the time limits for filing claims for invalidation of a void transaction;
In the resolution of November 12, 15, 2001 No. 15/18 "On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation period" (in the part that does not contradict the current legislation).
Judicial practice proceeds from the fact that in disputes arising from credit legal relations, the requirement to protect the violated right is accepted for consideration by the court, regardless of the expiration of the limitation period, which is applied by the court only at the request of the party to the dispute, made before the decision was made (Article 199 of the Civil Code RF). When calculating the limitation periods for claims for the recovery of overdue debts under a credit obligation that provides for performance in the form of periodic payments, the courts apply the general limitation period (Article 196 of the Civil Code of the Russian Federation), which is to be calculated separately for each payment from the day when the creditor found out or owes was aware of the violation of his rights. According to the requirements for the recognition of one or another term of the loan agreement as null and void, the courts, based on paragraph 1 of Article 181 of the Civil Code of the Russian Federation, apply a three-year limitation period, the course of which is calculated from the day when the execution of the insignificant part of the transaction began. If there is a statement by a party to the dispute about the omission of the limitation period, having established the fact that this period was missed without good reason (if the plaintiff is an individual), in accordance with Part 6 of Article 152 of the Code of Civil Procedure of the Russian Federation, the courts decide to dismiss the claim without examining other factual circumstances on case.
3.1. A significant number of issues in the practice of the courts are related to the application of limitation periods for claims related to the consequences of the invalidity of a void transaction.
In cases of the analyzed category, such questions arise, in particular, when considering claims of citizens-borrowers against banks for the collection of commission amounts for opening and maintaining a loan account, paid under the terms of loan agreements in the form of lump-sum or periodic payments along with interest for using the loan.
The established judicial practice proceeds from the invalidity (insignificance) of this condition of the loan obligation.
Thus, when considering a specific case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized as legitimate the conclusions of the court on the invalidity (insignificance) of the terms of the loan agreement on the payment of a commission for opening and maintaining a loan account of a borrower-consumer (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 17, 2011 No. 53-B10-15).
As a general rule, the claims of the borrower filed after the expiration of the limitation period in the absence of valid reasons for missing it, as stated by the creditor (defendant), are not subject to satisfaction. By virtue of paragraph 1 of Article 181 of the Civil Code of the Russian Federation, the limitation period for a claim to apply the consequences of the invalidity of a void transaction, which is three years, begins from the day when the execution of this transaction began.
Judicial practice proceeds from this rule in cases where the defendant claims that the deadline has been missed to protect the violated right at the claim of the citizen-borrower on the application of the consequences of the invalidity of the void term of the loan agreement, which provides for the payment of a commission for opening and maintaining a loan account. The limitation period under these circumstances is calculated from the day when the borrower began the execution of the invalid (insignificant) part of the transaction, namely from the date of payment of the disputed payment. At the same time, the courts take into account the requirement of civil law to terminate the obligation by proper performance (paragraph 1 of Article 408 of the Civil Code of the Russian Federation).
A study of law enforcement practice has shown that, in general, the courts correctly apply the legislation on limitation periods when considering cases in which obligations under loan agreements have been fulfilled (terminated). An example of a justified refusal to satisfy the debtor's claim against the creditor for the reverse recovery of the amount of the commission paid for the period of the loan agreement is the following case.
On April 16, 2011, the borrower applied to the district court with a request to the bank to invalidate the terms of the loan agreement concluded between them on March 17, 2007, on charging a commission for opening and maintaining a loan account, as contrary to the provisions of Article 16 of the Law of the Russian Federation "On the protection of rights consumers”, applying the consequences of the invalidity of the transaction, recovering from the defendant the commission paid by the plaintiff, compensation for non-pecuniary damage.
In the course of the trial, the bank stated that the applicant had missed the limitation period, which, according to the defendant, should be calculated from the moment the credit agreement began to be executed.
In resolving the dispute and refusing to satisfy the claim, the district court in its decision indicated that the Civil Code of the Russian Federation, as an exception to the general rule in relation to claims related to the invalidity of void transactions, provides for a special rule (paragraph 1 of Article 181 of the Civil Code of the Russian Federation), in accordance from which the limitation period for the said requirements is determined not by a subjective factor (the knowledge of the person concerned about the violation of his rights), but by objective circumstances characterizing the beginning of the execution of the transaction. Such legal regulation is due to the nature of the relevant transactions as void, which are invalid from the moment they are made, regardless of whether they are recognized as such by the court (paragraph 1 of Article 166 of the Civil Code of the Russian Federation), and therefore do not have legal force, do not create any rights and obligations as for the parties to the transaction as well as for third parties.
Consequently, since the right to bring a claim in this case is associated with the onset of the consequences of the execution of a void transaction and aims to eliminate them, it is precisely the moment the execution of such a transaction begins, when one or another non-legal result derived from it, is chosen in the current civil legislation as governing the calculation of the statute of limitations.
Based on the foregoing, the court concluded that the limitation period had expired on the plaintiff's claims to invalidate part of the loan agreement dated March 17, 2007, since the execution of the disputed transaction began at the time the borrower made the initial payment on account of the said commission on April 17, 2007, while he filed a corresponding claim with the court after the expiration of the limitation period - on April 16, 2011.
The conclusion of the court on the omission of the limitation period at the stated request is based on the norms of the current legislation and the explanations contained in the decision of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 “On Certain Issues Related to the Application part one of the Civil Code of the Russian Federation” (clause 32), resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 12, 15, 2001 No. 15/18 “On Certain Issues Related to the Application of the Norms of the Civil Code of the Russian Federation on statute of limitations” (clause 8 in terms of determining the moment of calculation of the term) (based on the case law of the Belgorod Regional Court).
Similarly, the courts refuse to satisfy the claims of debtors to recover a commission for opening and maintaining a loan account paid under a loan agreement, the obligations under which they fulfilled ahead of schedule, and the claim was filed outside the limitation period.
Thus, by a court decision to satisfy the claims of the borrower against the bank on the application of the consequences of the invalidity of a void transaction in the form of a refund of the commission paid for opening and maintaining a loan account, it was refused with reference to the plaintiff missing the three-year limitation period, since the court found that the loan agreement containing the condition for such a commission was concluded on November 15, 2007, the loan obligation was repaid by the borrower ahead of schedule on November 15, 2010, and he filed a lawsuit with the court on January 31, 2011, that is, with the omission of the three-year period established by paragraph 1 of Article 181 of the Civil Code of the Russian Federation.
At the same time, the court rejected the plaintiff's arguments that since the loan agreement provides for the payment of the disputed amount in periodic payments, the limitation period for reverse collection should be calculated separately for each payment (commission). In the decision, the court indicated that paragraph 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 12, 2001 No. 15/18, to which the plaintiff referred, interpreting the provisions of Article 181 of the Civil Code of the Russian Federation, regulates the rules for applying the limitation period for claims for the recovery of overdue time payments and does not apply to legal relations related to claims for the return of the executed under the transaction, which are not regulated by the provisions of Article 200 of the Civil Code of the Russian Federation (based on the judicial practice of the Kaliningrad Regional Court).
At the same time, the practice of resolving disputes by courts on the application of the consequences of the invalidity of the void term of a loan agreement on the payment of a commission for opening and maintaining a loan account (an insignificant part of the transaction) in cases where the term for fulfilling the loan obligation has not expired, and the claim by the debtor is filed after three years term from the moment of commencement of execution of the insignificant part of the transaction. When considering such cases, the courts do not always take into account that the debtor's claims for the recovery of commissions paid by him to the creditor, filed after the expiration of the limitation period in the absence of good reasons for missing it, as stated by the creditor (defendant), are not subject to satisfaction (paragraph 2 of Article 199 , Article 205 of the Civil Code of the Russian Federation).
The courts also do not always take into account that a special limitation period for void transactions is provided for in paragraph 1 of Article 181 of the Civil Code of the Russian Federation to protect the violated right by applying the consequences of the invalidity of such a transaction (Article 12 of the Civil Code of the Russian Federation).
At the same time, a void transaction is invalid from the moment it is made, regardless of whether it is recognized as such by a court (paragraph 1 of Article 166, paragraph 1 of Article 167 of the Civil Code of the Russian Federation).
Law enforcement practice shows that the lender does not in all cases voluntarily exclude from the contract the invalid condition of the loan obligation.
Within the meaning of paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation”, if the limitation period is missed, the debtor does not shall be deprived of the right to file a claim for the invalidation of a void transaction that does not give rise to legal consequences and is invalid from the moment of its completion.
By virtue of Article 199 of the Civil Code of the Russian Federation, a claim for the protection of a violated right is accepted for consideration by the court, regardless of the expiration of the limitation period, which is applied by the court only at the request of a party to the dispute, made before the court makes a decision. Thus, if the limitation period is missed, the debtor loses the right to recover from the creditor the funds paid by him in the form of a commission for opening and maintaining a loan account, along with interest for using other people's funds (paragraph 1 of Article 395 of the Civil Code of the Russian Federation). However, if the creditor’s relationship with the debtor is ongoing and at the time of the consideration of the case, the agreement concluded between them continues, then the court, refusing to satisfy the debtor’s claims to apply the consequences of the invalidity of an insignificant part of the transaction due to the expiration of the period for exercising this right, has the right to check the transaction in this part on the subject of its validity and, if it is recognized as contrary to the law, indicate in the reasoning part of the decision that the trace is void. Otherwise, the refusal of the court to establish the nullity of the terms of the loan agreement, which has no legal force, will entail the occurrence of an unlawful result in the form of the obligation of the party to the transaction to fulfill it in the invalid part.
The Plenum of the Supreme Court of the Russian Federation, in paragraph 5 of the Decree of December 19, 2003 No. 23 “On the Judgment”, with reference to part 3 of Article 196 of the Code of Civil Procedure of the Russian Federation, indicated that the court has the right to go beyond the stated requirements and on its own initiative on the basis of paragraph 2 of Article 166 The Civil Code of the Russian Federation to apply the consequences of the invalidity of a void transaction (void transactions include transactions specified in Articles 168-172 of the said Code).
Based on this interpretation, when resolving disputes between the creditor (plaintiff) and the borrower (respondent), for example, on the early recovery of the amount of debt under a loan agreement that arose within the limitation period, the courts reduce the amount of debt to be collected by the amount of the commission paid by the borrower for opening, maintaining and servicing a loan account, regardless of whether counterclaims were made by the defendant on this issue or not.
Thus, by absentee court decision, the bank's claims against the debtor (borrower-citizen) for the recovery of debt under the loan agreement were partially satisfied.
Taking into account that the total debt of the defendant on the loan included the debt on the commission for the issuance of funds, the commission for maintaining the account and the commission for settlement services, the court refused to satisfy the bank's claims for the recovery of the debt from the borrower on the indicated commissions, collecting the debt from him under a loan agreement, consisting of the amount of the principal debt and interest for using the loan (based on the judicial practice of the Tver Regional Court).
3.2. The running of the limitation period for a claim for the collection of debt on a secured loan obligation subject to performance in installments begins from the day the borrower fails to make the next payment and is calculated separately for each overdue payment.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the court decisions to refuse to satisfy the claims of the bank to recover the amount of the debt from the guarantor due to the lapse of the limitation period, given the following.
The court established that, under the terms of the agreement, the loan must be repaid by the borrower on a monthly basis, no later than a certain date of the month following the payment month, in accordance with an urgent obligation, which is an integral part of the loan agreement. Thus, the loan agreement provides for the fulfillment of the obligation in installments (Article 311 of the Civil Code of the Russian Federation). Since the borrower did not fulfill the obligation to make the next payment within the period established by the agreement, it was from this date that the bank, according to the terms of the agreement, had the right to demand joint and several fulfillment of the obligation from the borrower and the guarantor.
Meanwhile, in this case, the claim was filed by the bank more than a year after the due date for the fulfillment of the relevant part of the obligation and, as a result, the termination of the surety agreement regarding the return of funds beyond the one-year period by virtue of paragraph 4 of Article 367 of the Civil Code of the Russian Federation.
At the same time, the Judicial Board pointed out that the agreement concluded between the bank and the guarantor cannot be considered terminated in the part that concerns the guarantor's liability for failure to fulfill the loan agreement to repay the loan before the expiration of one year from the moment the right to claim the fulfillment of the corresponding part of the obligation arises (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 6, 2009 No. 46-В09-27).
3.3. In order to form a consistent law enforcement practice when considering similar cases related to requirements for the invalidity (insignificance) of additional payments levied by banks from borrowers-citizens when providing loans to them, the courts in each specific case should find out whether certain amounts are a payment for the provision of independent financial services or they are provided for standard actions, without which the bank would not be able to conclude and execute a loan agreement.
In the latter case, judicial practice correctly recognizes such terms of the loan agreement as not corresponding to the interrelated provisions of Articles 819 and 845 of the Civil Code of the Russian Federation, Articles 5 and 29 of the Federal Law "On Banks and Banking", Article 57 of the Federal Law "On the Central Bank of the Russian Federation", Articles 166 and 167 of the Civil Code of the Russian Federation and paragraph 1 of Article 16 of the Law of the Russian Federation "On the Protection of Consumer Rights", and the amounts paid to the bank in their execution are subject to return when resolving claims for the application of the consequences of the invalidity of a void transaction (based on judicial practice).
4. As an additional way to ensure the fulfillment of a credit obligation, only voluntary insurance by the borrower of the risk of his liability is allowed.
Thus, the Judicial Collegium for Civil Cases of the Regional Court, canceling the decision of the District Court regarding the invalidation of the clause of the loan agreement, according to which the borrower, within five working days from the date of issuance of the loan, is obliged to conclude and provide the bank with a policy and contract for life and health insurance for the entire the term of the agreement, indicating the bank as the beneficiary, proceeded from the fact that the provisions of the current legislation do not exclude the possibility of including in loan agreements the terms of life and health insurance by the borrower.
As the court pointed out, Part 2 of Article 935 of the Civil Code of the Russian Federation provides that the obligation to insure one's life or health cannot be assigned to a citizen by law.
However, such an obligation may arise from a citizen by virtue of an agreement. In accordance with Article 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to conclude an agreement.
According to Article 329 of the Civil Code of the Russian Federation, the fulfillment of obligations can be ensured, in addition to the methods indicated in it, by other methods provided for by law or an agreement.
The above legal norms indicate that loan agreements may provide for the possibility of the borrower to insure his life and health as a way to ensure the fulfillment of obligations, and in this case, the bank may be indicated as the beneficiary.
In this case, the panel of judges did not establish grounds for recognizing the contested clause of the loan agreement as infringing on the rights of the consumer in comparison with the rules established by laws or other legal acts of the Russian Federation in the field of consumer protection, and therefore invalid. Despite the provision of obligations with an insurance contract, the borrower did not refuse to draw up a loan agreement and receive a loan, did not object to the conditions proposed by the insurance company, did not offer other insurance companies (based on the case law of the Omsk Regional Court).
In another civil case, the court, refusing to satisfy the plaintiff's claims against the bank to invalidate the terms of the loan agreement on the need to insure the life and health of the borrower, also proceeded from the proof of the voluntary choice by the borrower-citizen of the conditions for securing the fulfillment of the loan obligation.
The court in the case found that when issuing a consumer loan to citizens, the bank applied the rules it developed for issuing loans to individuals, according to which life and health insurance of the borrower is a measure to reduce the risk of loan default. These rules stipulate that a loan can be issued to a borrower even in the absence of an insurance contract, but in this case a higher interest rate is set on the loan. In assessing the evidence presented by the bank, the court found that the difference between the two rates is not discriminatory. In addition, it follows from the above rules that the bank's decision to grant a loan does not depend on the borrower's consent to insure his life and health, indicating the bank as the beneficiary.
The court also noted that the difference between the interest rates for insured and uninsured loans was reasonable. According to the application for a loan signed by the borrower, he chose the loan option, which provides life and health insurance as one of the mandatory conditions, with a lower interest rate (based on the case law of the Arkhangelsk Regional Court).
4.1. The inclusion in the loan agreement of a condition on the obligation of the borrower to insure his life and health, which is actually a condition for obtaining a loan, indicates an abuse of freedom of contract.
For example, by a court decision, the borrower's claims against the bank to invalidate the terms of the loan agreement, which conditioned the borrower's receipt of a loan by the need to purchase another service - life and health insurance of the borrower, were satisfied.
The court motivated its decision by the fact that, since credit agreements are concluded by citizens with banks for consumer purposes, these legal relations between them are referred to as consumer relations and are regulated by the Law of the Russian Federation “On Protection of Consumer Rights”, paragraph 2 of Article 16 of which prohibits conditional on the provision of certain services by the mandatory provision of others services. This prohibition is intended to restrict the freedom of contract in favor of the economically weaker party - a citizen - and is aimed at implementing the principle of equality of the parties. At the same time, this prohibition is mandatory, since it is not accompanied by the clause "unless otherwise provided by the contract." Therefore, its violation in the form of the obligation to conclude an insurance contract, by which the bank conditional on the issuance of a loan, entails the nullity of this part of the contract (Article 16 of the Law of the Russian Federation "On Protection of Consumer Rights", Article 168 of the Civil Code of the Russian Federation). In addition, by virtue of the direct indication of paragraph 2 of Article 935 of the Civil Code of the Russian Federation, personal life or health insurance is voluntary and cannot be imposed on a citizen by anyone as an obligation that conditions the provision of another independent service to him.
When resolving this dispute, the court found that the borrower did not have the opportunity to conclude a loan agreement without this condition, since the evidence that the provision of mortgage lending services by the bank is conditioned by the provision of another service (life and health insurance) is the provisions of the clauses of the loan agreement, in according to which, in case of non-fulfillment or improper fulfillment by the borrower of obligations regarding the conclusion of a personal insurance contract, the creditor has the right to demand full early fulfillment of the obligation. In the case under consideration, the inclusion by the bank in the loan agreement of the borrower's obligation to insure his life and health is actually a condition for obtaining a loan, without which the borrower will not acquire the right to receive the money he needs. Such actions are an abuse of the freedom of contract in the form of imposing unfair contract terms on the counterparty (based on the case law of the Sverdlovsk Regional Court).
4.2 The bank's requirement to insure the borrower in a specific insurance company named by the bank and the imposition of insurance conditions when concluding a loan agreement is not based on law.
For example, by decision of the district court, the borrower's claims to invalidate the terms of the loan agreement on the insurance of the borrower in a certain insurance company are satisfied.
The court came to the conclusion that by establishing in the contract as the insurer the only legal entity (an indication of a specific insurance company), the defendant obliges the borrower to insure only in this insurance company, thereby violating the right of an individual consumer to the freedom provided for in Article 421 of the Civil Code of the Russian Federation as in the choice of a party to the contract, and in the conclusion of the contract itself. This decision was left unchanged by the court of cassation (based on the case law of the Sverdlovsk Regional Court).
4.3 Losses caused to the borrower as a result of the delay in the insurance payment, which ensures the fulfillment of the loan obligation, are subject to compensation by the insurer in full.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation canceled the court rulings made in the case of a citizen's claim against an insurance company for damages and interest for the use of other people's money, in part of the refusal to compensate for losses on the following grounds.
The court in the case established that on the day the bank and the citizen concluded a loan agreement (February 15, 2008 for a period up to February 15, 2012), an insurance contract was concluded between the same citizen (debtor) and an insurance company, the subject of which was insurance of his life and health . On the basis of the concluded contract, the citizen was issued an insurance policy, from which it follows that the insured risk is the permanent complete loss of the insured person's ability to work (disability of groups I and II) during the period of validity of the insurance contract for any reason. The beneficiary under the agreement is the bank.
On January 23, 2009, the debtor was diagnosed with disability group II due to a general disease indefinitely. The insured event was announced on February 20, 2009. The insurer refused to pay insurance compensation. The amount of insurance compensation was collected from the defendant by a court decision dated July 10, 2009. Since the insurer fulfilled its financial obligations untimely, the insured (citizen) suffered losses due to overpayment of interest on the loan.
When resolving the dispute, the courts proceeded from the fact that the claim of the plaintiff (citizen) to recover damages from the defendant (insurer) cannot be satisfied, since the delay in payment of insurance compensation violated the right of the person to whom it was intended, that is, the bank (beneficiary under the loan agreement). ). In such a situation, the collection of interest under a loan agreement from an insurance company in favor of the debtor would mean replacing his obligation to pay the loan (pay interest) on the terms stipulated by the agreement, and imposing this obligation on a person who is not a party to the obligation.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the conclusions of the court on the following grounds.
According to Article 309 of the Civil Code of the Russian Federation, obligations must be duly performed in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements, in accordance with business practices or other usually imposed requirements.
By virtue of paragraph 2 of Article 314 of the Civil Code of the Russian Federation, an obligation not fulfilled within a reasonable time, as well as an obligation, the term for the fulfillment of which is determined by the moment of demand, the debtor is obliged to fulfill within seven days from the date the creditor presents a demand for its fulfillment, unless the obligation to fulfill at another time does not follow from the law, other legal acts, the terms of the obligation, business practices or the essence of the obligation.
As stated in Article 393 of the Civil Code of the Russian Federation, the debtor is obliged to compensate the creditor for losses caused by non-performance or improper performance of an obligation. Losses are determined in accordance with the rules provided for in Article 15 of the said Code.
On the basis of Article 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or the contract provides for compensation for losses in a smaller amount.
Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (actual damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right was not violated (lost profit).
If the person who violated the right received income as a result of this, then the person whose right was violated has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income.
The fact that the bank was the beneficiary under the insurance contract and did not refuse to receive the insurance payment testifies to its consent to the early execution of the loan agreement by receiving insurance payment from the insurer, which ensured its claim under the loan agreement in the amount that it had by the time satisfaction.
Accordingly, in case of early fulfillment of the insurer's obligation by timely (within seven banking days) payment of insurance compensation to the bank, the debtor's obligations to the bank would be considered fulfilled.
Meanwhile, the insurer evaded fulfillment of its obligations under the insurance contract, in connection with which the credit obligations between the bank and the debtor were not terminated and the applicant, being a bona fide party to the loan agreement, paid the bank the loan debt.
The courts did not take into account that if the insurer fulfilled its obligations under the insurance agreement in a timely manner, the debtor's obligations under the loan agreement would be terminated and the payments that he was obliged to make in pursuance of the loan agreement would be his income.
Thus, in view of the untimely fulfillment by the insurer of its obligations, the losses caused to the citizen (the debtor under the loan agreement) are subject to compensation in accordance with Article 15 of the Civil Code of the Russian Federation (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 22, 2011 No. 77-B10-7 .)
4.4. When granting loans, banks are not entitled to independently insure the risks of borrowers. However, this does not prevent banks from entering into relevant insurance contracts on their own behalf in the interests and with the voluntary consent of borrowers.
The judicial board proceeded from this legal position, leaving unchanged the decision of the district court to refuse to satisfy the requirements for recognizing the clause of the loan agreement as null and void in terms of including the payment for connecting to the insurance program in the loan amount.
The court in the case established that in the application-questionnaire for issuing a loan there is a column on connecting to the Voluntary Life and Health Insurance Program, while the borrower must write “agree” or “disagree” with his own hand, which was done by him. In the application for insurance, the borrower was informed and agreed that for connection to the Insurance Program, the bank has the right to charge him a fee in accordance with the bank's tariffs, consisting of a commission for connecting the client to this Program and compensation of the bank's expenses for paying insurance premiums to the insurer.
The Bank presented evidence of the conclusion of the insurance contract and the transfer of the insurance premium to the insurer. When concluding the borrower's insurance contract and determining the fee for connection to the Insurance Program, the bank acted on behalf of the borrower. This service, like any contract, is paid by virtue of the provisions of paragraph 3 of Article 423, Article 972 of the Civil Code of the Russian Federation.
Evidence that the plaintiff's refusal to connect to the Insurance Program could lead to a refusal to conclude a loan agreement was not presented to the court.
In case of unacceptability of the terms of the loan agreement, including in terms of connection to the Insurance Program, the borrower had the right not to assume the above obligations. Meanwhile, handwritten signatures in the application for insurance, the application-questionnaire confirm that the plaintiff knowingly and voluntarily assumed obligations, including payment to the bank of a fee for the provision of services for concluding an insurance contract (based on the judicial practice of the Altai Regional Court).
5. The terms of the loan agreement, containing the grounds for its early termination, not provided for by law, are invalid.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, recognizing as correct the decision of the court of first instance on partial satisfaction of the borrower's claims to recognize the terms of the loan agreement as invalid, indicated the following.
In this case, the borrower filed a lawsuit to invalidate the terms of the loan agreement, according to which the lender has the right to unilaterally demand from the borrower early repayment of the loan amount, payment of interest and commission due if the borrower intends to change or has already changed his place of residence or has ceased employment with his employer and has no other permanent source of income; regardless of the reason, the technical condition of the pledged car has deteriorated, resulting in a decrease in its collateral value by 40% or more; the borrower announced the termination of the demand bank deposit agreement concluded with the creditor; the borrower did not submit, at the request of the creditor, a certificate of income for the requested period within 10 calendar days.
Meanwhile, the Civil Code of the Russian Federation includes, in particular, the violation by the borrower of the deadline set for the return of the next installment of the loan (clause 2 of Article 811 of the Code), the failure to fulfill the obligation stipulated by the contract to ensure the return of the loan , loss (or deterioration of conditions) of securing an obligation for which the creditor is not responsible (Article 813 of the Code), violation by the borrower of the obligation to ensure that the creditor can exercise control over the intended use of the loan amount, as well as failure to comply with the condition on the intended use of the loan (paragraphs 1 and 2 of Article 814 of the Code).
If a loan agreement concluded with a borrower (individual), who is an economically weak party and needs special protection of his rights, is a standard loan agreement, the terms of which are determined by the bank in standard forms, and the borrower is deprived of the opportunity to influence its content, then the inclusion of grounds in such an agreement , which are not provided for by the norms of the Civil Code of the Russian Federation, entailing the emergence of the right of the creditor to demand early performance of obligations by the borrower, violates the rights of the consumer (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated June 19, 2012 No. 77-KG12-2).
6. If the performance of a credit obligation is secured by several methods (pledge, guarantee), then the invalidity or termination of one method of security does not in itself entail similar consequences in relation to another method of securing the obligation.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, considering the arguments of the complaint about the termination of the guarantee, indicated that the pledge and the guarantee are independent and independent of each other ways to ensure the fulfillment of the obligation. The grounds for termination of the guarantee are provided for in Article 367 of the Civil Code of the Russian Federation. The court in the case established that, according to the surety agreement, it is valid from the moment of its signing and terminates after the full fulfillment of obligations under it, including the proper fulfillment of obligations by the borrower and (or) the guarantor, and in other cases provided for by the current legislation. Such grounds for the termination of the guarantee, as a change in the pledge agreement concluded to secure the loan agreement, without the consent of the guarantor, the guarantee agreement does not name. It is not envisaged to change other, besides a surety, methods of securing the fulfillment of an obligation without the consent of the surety as a basis for terminating the surety. The pledge agreement concluded by the parties to the loan agreement also does not contain provisions obliging the pledgor and the pledgee to obtain the consent of the guarantor to change the pledge obligation (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 13, 2011 No. 39-B11-5).
By virtue of paragraph 1 of Article 329 of the Civil Code of the Russian Federation, the fulfillment of obligations may be secured by a penalty, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit and other methods provided for by law or an agreement.
In this case, the obligation can be secured in one or more ways. In relation to each other, the methods of securing obligations are not mutually conditional (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated July 26, 2011 No. 11-B11-11).
7. In the event of a change in a credit obligation that entails an increase in liability or other adverse consequences for the guarantor ensuring its performance, the guarantee shall be terminated from the moment of making changes to the main obligation, unless the consent of the guarantor in the form provided for by the suretyship agreement has been obtained for such a change.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, canceling the court rulings held in the civil case, indicated that, based on paragraph 1 of Article 367 of the Civil Code of the Russian Federation, the basis for terminating the guarantee is the entire set of conditions named in it, namely, a change in the main obligation, entailing an increase in the liability of the guarantor , and the lack of consent of the guarantor to change the conditions. In this case, in the event of a change in the main obligation, entailing an increase in liability or other adverse consequences for the guarantor, without the consent of the latter, the suretyship is terminated from the moment the changes are made to the main obligation.
If the guarantor has given his consent to be responsible for the performance of the changed main obligation to the creditor of another person, entailing an increase in his liability, then the guarantee does not terminate. At the same time, the consent of the guarantor must be expressed directly, unambiguously and in such a way that would exclude doubts about the intention of the guarantor to be responsible for the debtor in connection with the change in the secured obligation.
A change in an obligation that entails an increase in liability or other adverse consequences for the guarantor, without the consent of the latter, should be understood, among other things, when there is an increase in the amount of the interest rate under the loan agreement, to which the guarantor did not give his consent.
According to paragraph 1 of Article 431 of the Civil Code of the Russian Federation, when interpreting the terms of the contract, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of the terms of the contract in case of its ambiguity is established by comparison with other terms and the meaning of the contract as a whole.
The court established that on the basis of the surety agreements dated October 13, 2008, individuals (the defendants in the case) assumed the obligation to be responsible to the creditor for the debtor's fulfillment of obligations under the loan agreement concluded on the same day, in the amount, in the manner and on the conditions provided for them.
According to the General Terms and Conditions of Suretyship Agreements, which is their annex, any changes and additions to suretyship agreements are valid only if they are executed in writing with the proper signatures of both parties.
Thus, the guarantee agreements and their annexes establish a certain amount of liability of the guarantors in terms of paying interest under the loan agreement, namely 19.5% per annum for the entire loan term, which can be changed only if the guarantors agree in writing.
In this regard, the increase by the creditor of the interest rate under the loan agreement from 19.5% to 23.5% per annum from February 2009, which changed the obligation secured by the guarantee and entailed an increase in the liability of the guarantors, had to be agreed with the guarantors in writing and confirmed by the signatures of both sides.
Meanwhile, the court, without establishing whether there had been an agreement with the guarantors in the proper form of amendments to the loan agreement regarding the increase in the interest rate, unlawfully referred to the fact that the guarantors had been sent a corresponding notice and there were no objections from them regarding the increase in the interest rate (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 13, 2011 No. 77-B11-9).
8. The consent of the guarantor to be liable to the bank for non-fulfillment of the loan obligation by the borrower, including in the event of a change in the terms of the loan agreement, must be explicitly expressed by him in the surety agreement.
Thus, the court found that the guarantor expressed consent to any change in the loan agreement, including in the event that the bank changes the interest rate for using the loan. The will of the guarantor to be responsible for the default by the borrower of obligations both under the initial obligation and in the event of its change is defined in the suretyship agreement. This agreement indicates the consent of the guarantor with a possible change in the terms of the loan agreement in the future, taking into account the interests of the lender and the borrower without any restrictions on the loan repayment period and the amount of accrued interest. The inclusion of the said clause in the surety agreement was the guarantor's pre-given abstract consent to any change in the specified terms of the loan agreement and was due to the reasonable desire of the parties to reduce transaction costs, achieve legal certainty and balance the interests of the parties in managing the risks associated with loan default, withdrawal due to this from the lender of excessive burden and risk to obtain additional consent from the guarantor to change the terms of the loan agreement in the event of appropriate circumstances, including those preventing the timely repayment of loans by the borrower or related to a change in the refinancing rate.
Under such circumstances, by virtue of paragraph 2 of Article 363 of the Civil Code of the Russian Federation, the parties to the loan agreement did not need to agree with the guarantor on changing the terms of the loan agreement in each specific case (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated February 22, 2011 No. 11-B10- sixteen).
9. The death of the guarantor does not apply to those circumstances with which the law connects the possibility of termination of the guaranty.
In connection with the issues arising in judicial practice about the possibility of succession in the event of the death of a debtor or guarantor under a loan agreement, one should proceed from the explanations given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 "On judicial practice in cases of inheritance" in the third section "Responsibility of heirs for the debts of the testator" (including paragraphs 5, 49, 59-62).
The guarantor of the testator becomes the guarantor of the heir only if the guarantor has agreed to be liable for the failure of the heirs to fulfill their obligations. At the same time, proceeding from paragraph 1 of Article 367 and paragraph 1 of Article 416 of the Civil Code of the Russian Federation, the guarantee terminates in the part in which the obligation secured by it terminates, and the guarantor is liable for the debts of the testator to the creditor within the value of the inheritance property.
The heirs of the guarantor shall be liable within the limits of the value of the estate for those obligations of the guarantor that existed at the time of the opening of the inheritance.
Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, canceling the court ruling to terminate the proceedings in part of the bank’s claims against the guarantor for the recovery of debt under a loan agreement in connection with the death of the defendant, indicated the following.
Proceedings in a case in the event of the death of a citizen who was one of the parties to the case are subject to termination only if the disputed legal relationship does not allow succession (Article 220 of the Code of Civil Procedure of the Russian Federation). Meanwhile, in the event of the death of the guarantor, the disputed legal relationship admits succession.
According to articles 361 and 363 of the Civil Code of the Russian Federation, under a surety agreement, the guarantor is obliged to the creditor of another person to be responsible for the fulfillment by the latter of his obligations in full or in part. If the debtor fails to perform or improperly performs the obligation secured by the surety, the surety and the debtor shall be liable to the creditor jointly and severally, unless the law or the surety agreement provides for subsidiary liability of the surety.
The grounds for termination of the guarantee are established by Article 367 of the Civil Code of the Russian Federation. It follows from the content of this provision that the death of the guarantor is not one of the circumstances with which the provisions of this article link the possibility of termination of the guarantee.
By virtue of Article 1112 of the Civil Code of the Russian Federation, the composition of the inheritance includes things belonging to the testator on the day the inheritance was opened, other property, including property rights and obligations. The inheritance does not include rights and obligations that are inextricably linked with the personality of the testator, in particular the right to alimony, the right to compensation for harm caused to the life or health of a citizen, as well as rights and obligations, the transfer of which in the order of inheritance is not allowed by this Code or other laws. .
At the same time, in accordance with Article 1175 of the Civil Code of the Russian Federation, the heirs who accepted the inheritance are jointly and severally liable for the debts of the testator (Article 323). Each of the heirs is liable for the debts of the testator within the value of the inherited property that has passed to him. The creditors of the testator have the right to present their claims to the heirs who have accepted the inheritance within the limitation period established for the relevant claims. Prior to acceptance of the inheritance, creditors' claims may be brought against the executor of the will or against the estate.
Thus, in the event of the death of the guarantor, his heirs, subject to their acceptance of the inheritance, are jointly and severally liable to the creditor of another person for the fulfillment by the latter of his obligations in full or in part, but each of such heirs is liable within the value of the inherited property transferred to him (determination of the Judicial Collegium for Civil cases of the Supreme Court of the Russian Federation dated February 21, 2012 No. 44-B11-11).
10. When a loan obligation secured by a pledge is changed, the pledge secures the debtor's obligation in the amount in which it would exist without such a change, unless the parties to the pledge agreement have agreed that in case of an increase in the amount of claims under the underlying obligation by the amount agreed by the pledgor and by the pledgee, the pledge secures the obligation of the debtor in an increased amount within the agreed limits.
The grounds for terminating the pledge are provided for in paragraph 1 of Article 352 of the Civil Code of the Russian Federation. According to the specified norm, the pledge is terminated: with the termination of the obligation secured by the pledge; at the request of the pledgor if there are grounds provided for in paragraph 3 of Article 343 of the Civil Code of the Russian Federation; in the event of the destruction of the pledged thing or the termination of the pledged right, if the pledgor did not use the right provided for by paragraph 2 of Article 345 of the Civil Code of the Russian Federation; in the event of the sale (sale) of the pledged property in order to satisfy the requirements of the pledgee in the manner prescribed by law, as well as in the event that its sale turned out to be impossible.
As established in paragraph 1 of Article 50 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)”, in the event of a discrepancy between the terms of the mortgage agreement and the terms of the obligation secured by the mortgage in relation to claims that can be satisfied by foreclosing on mortgaged property, preference is given to the terms of the mortgage agreement.
Therefore, a change in the size or term of performance of an obligation secured by a pledge (for example, due to a change in the interest rate on a loan or a change in the repayment period of a loan) compared to how such a condition is defined in the pledge agreement, is not in itself a basis for terminating the pledge (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 19, 2011 No. 46-B10-27).
11. The application by the court of Article 333 of the Civil Code of the Russian Federation in cases arising from credit legal relations is possible in exceptional cases and at the request of the defendant with the obligatory indication of the motives on which the court believes that a reduction in the amount of the penalty is permissible.
Judicial practice shows that when making decisions to satisfy the requirements of banks to recover credit debt from borrowers in the event that the defendant claims the application of Article 333 of the Civil Code of the Russian Federation, the courts proceed from paragraph 34 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 "On consideration by the courts of civil cases on disputes on the protection of consumer rights”, and also take into account the clarifications of the joint decisions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation, including:
In Resolution No. 6/8 of July 1, 1996 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation”, which stipulates that when deciding on the reduction of the penalty (Article 333 of the Code), it must be borne in mind that the amount of the penalty may be reduced by the court only if the penalty payable is clearly disproportionate to the consequences of the breach of obligation. When assessing such consequences, the court may take into account, among other things, circumstances that are not directly related to the consequences of a breach of an obligation (the price of goods, works, services; the amount of the contract, etc.) (paragraph 42);
Decree No. 13/14 of October 8, 1998 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds” (as amended on December 4, 2000), providing that, if determined in accordance with Article 395 of the Civil Code RF the amount (rate) of interest paid in case of non-fulfillment or delay in fulfilling a monetary obligation is clearly disproportionate to the consequences of delay in fulfilling a monetary obligation, then the court, taking into account the compensatory nature of interest, in relation to Article 333 of the Code, has the right to reduce the rate of interest charged in connection with the delay in fulfilling a monetary obligation . When deciding on the possibility of reducing the applied interest rate, the court should take into account the change in the refinancing rate of the Central Bank of the Russian Federation during the delay period, as well as other circumstances affecting the amount of interest rates (paragraph 7);
In judgments of the European Court of Human Rights, in particular in the judgment of 13 May 2008 in the case of Galich v. Russian Federation.
By virtue of the disposition of Article 333 of the Civil Code of the Russian Federation, only the obvious disproportion of the penalty to the consequences of a breach of obligations can serve as the basis for its application. When evaluating the degree of proportionality of the penalty in resolving disputes, the courts correctly proceed from the actual (and not possible) amount of damage caused as a result of the defendant's (debtor's) violation of the obligations assumed, taking into account that the loan amount is not the only criterion for determining the amount claimed by the plaintiff (bank) penalties.
On the basis of Part 1 of Article 56 of the Code of Civil Procedure of the Russian Federation, the burden of proving the disproportion of the forfeit payable to the consequences of the breach of obligation lies with the defendant, who has declared that it has been reduced. Upon a demand for the payment of a penalty, the creditor is not obliged to prove the infliction of losses to him (paragraph 1 of Article 330 of the Civil Code of the Russian Federation).
The study of judicial practice has shown that, when deciding on the reduction of the amount of the penalty to be collected, the courts take into account the specific circumstances of the case, taking into account, among other things: the ratio of the amounts of the penalty and the principal debt; duration of default; the ratio of the interest rate to the size of the refinancing rate; bad faith actions of the creditor to take measures to collect the debt; property status of the debtor.
When assessing the degree of proportionality of the penalty to the consequences of a breach of a loan obligation, the courts proceed from the fact that the refinancing rate, being the unified discount rate of the Central Bank of the Russian Federation, essentially represents the smallest amount of property liability for non-performance or improper performance of a monetary obligation. In this regard, the reduction of the penalty below the refinancing rate, as a general rule, cannot be clearly disproportionate to the consequences of delay in payment of funds.
So, when considering the application of the defendant (debtor) on the application of Article 333 of the Civil Code of the Russian Federation and the reduction of the penalty payable for violation of the terms of repayment of the loan, based on an analysis of all the circumstances of the case and an assessment of the proportionality of the amounts claimed, from the possible financial consequences for each of the parties, the court came to the conclusion that the amount of the penalty established in the loan agreement - 0.9% per day at the current refinancing rate of the Central Bank of the Russian Federation of 8% per annum exceeds the weighted average rates of interest and penalties for commercial loans and civil obligations. The amount of the penalty claimed by the plaintiff due to the establishment of a high percentage in the contract is clearly overstated and disproportionate to the consequences of the breach of obligations (based on the case law of the Supreme Court of the Republic of Karelia).
A reduction in the amount of the penalty should not lead to unreasonable release of the debtor from liability for the delay in fulfilling the requirements under the loan agreement.
Thus, in the case of a bank claim for the recovery of credit debt from a citizen, despite the petition filed by the defendant to apply the provisions of Article 333 of the Civil Code of the Russian Federation when determining the amount of the penalty, the court did not find grounds for reducing the amount of the penalty declared by the bank. The court did not establish the presence of signs of disproportion between the penalty collected and the consequences of the breach of obligation (36,737 rubles + 8,020.33 rubles = 44,757.33 rubles) with the calculated penalty in the total amount of 6,770.02 rubles. (4479.06 rubles (penalty on the overdue principal debt) + 2290.96 rubles (penalty on the overdue payment for the use of the loan). In this case, the court took into account the gross violation of the terms of the loan agreement by the defendant, who made the only payment at the conclusion of the agreement and later on, he evaded fulfilling his obligations (based on the case law of the Supreme Court of the Komi Republic).
The court has the right, at the request of the defendant, to reduce the amount of the penalty to be collected from the borrower in favor of the bank if the bank fails to take timely measures to collect the credit debt.
In particular, when considering the case of the bank’s claim against the borrower and guarantors for the recovery of debt under the loan agreement, the court concluded that the bank did not take reasonable measures to reduce the losses caused by the improper performance of obligations by the debtor, and also contributed to an increase in the amount of debt by its careless actions, since the loan granted in September 2007 was already late in October 2007, in March 2008 the bank sent a notice to the borrower about the need to repay the debt, but until August 2010, no measures were taken to enforce the debt collection in court. In connection with the inaction of the plaintiff in accordance with Articles 333 and 404 of the Civil Code of the Russian Federation, at the request of the defendant, the court reduced the amount of the penalty (based on the judicial practice of the Supreme Court of the Komi Republic).
Since the court is not limited to a certain circle of circumstances that it takes into account when assessing the consequences of a breach of an obligation, when deciding whether to reduce the amount of the penalty, due to its obvious disproportion to the consequences of a breach of an obligation, the courts may take into account circumstances that are not directly related to the consequences of a breach of a loan obligation. .
For example, the district court, recovering in favor of a bank from a citizen a debt under a loan agreement, reduced the amount of the penalty claimed for collection, taking into account, among other things, the presence of a non-working spouse and a minor child as a dependent of the defendant (based on the case law of the Samara Regional Court).
At the same time, in judicial practice there have also been cases of unreasonable application of Article 333 of the Civil Code of the Russian Federation to the calculation of interest for using a loan.
Thus, the Judicial Collegium of the Regional Court changed the court’s decision in terms of reducing the amount of interest due for using the loan due to their disproportion to the consequences of the breach of obligation, pointing to the court’s incorrect application of substantive law, since the court of first instance did not take into account that Article 333 of the Civil Code of the Russian Federation shall not be applied to the legal relations of the parties on the accrual of interest for the use of credit. Taking into account the fact that the basis for the emergence of the obligation to pay interest for the use of a loan is the conditions for the provision of a loan agreed by the parties in the agreement, interest for the use of a loan cannot be considered as a measure of liability for breach of obligation.
Interest paid by the borrower on the loan amount in the amount and in the manner specified in the agreement is a payment for the use of funds and is payable by the debtor according to the rules on the principal monetary debt (paragraph 15 of the decision of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 13 / 14 dated October 8, 1998 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's money").
Since the norms of Article 333 of the Civil Code of the Russian Federation are not applicable to the legal relations of the parties on the calculation of interest for the use of a loan, the court of first instance had no legal grounds for reducing the amount of overdue interest (based on the case law of the Leningrad Regional Court).
12. When resolving by the court claims for foreclosure on immovable property pledged to secure the repayment of a debt under a credit obligation, a legally significant circumstance that is included in the subject of proof and is subject to examination by the court is the clarification of the question of the materiality of the violation committed by the debtor of the obligation secured by the pledge, as well as establishing legal grounds for foreclosing the pledged property.
So, canceling the court rulings held in the case of the bank's claim against the borrower for the recovery of debt under a loan agreement, an insurance premium and foreclosure on the mortgaged property - an apartment, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation proceeded from the following.
The court in the case established that a loan agreement was concluded between the bank and the borrower, according to which the plaintiff provided the defendant with a loan on terms of urgency, repayment and payment (13.5% per annum). The loan was granted by transferring funds to the borrower's account. In order to ensure the fulfillment by the borrower of obligations under this agreement, a mortgage agreement was concluded between the bank and the borrower, according to which the borrower pledged real estate (apartment). The mortgage agreement was registered by the Federal Registration Service. The rights of the bank as a mortgagee under the mortgage agreement are certified by a mortgage. In addition, in fulfillment of the obligations stipulated by the loan agreement, a comprehensive mortgage insurance agreement was concluded between the borrower and the insurance company, under the terms of which the borrower is obliged to pay the insurance premium to the insurer. Since the loan obligations assumed by the borrower to make monthly payments were not fulfilled, a debt was formed under the loan agreement, which at the time the court considered the case, the defendant had not been repaid.
Resolving the dispute and satisfying the stated claims, the court of first instance, with which the higher court agreed, proceeded from the conclusion that the debtor did not properly fulfill the obligations assumed under the loan agreement, as well as from the refusal of the debtor as the pledgor to voluntarily transfer the pledged property to the pledgee ( bank) for its extrajudicial sale at auction. At the same time, when foreclosing the apartment to satisfy the bank's claims at the expense of the value of this property, the court determined the initial selling price of the pledged property, based on its price indicated in the mortgage agreement, as of the date of signing this agreement. There were no grounds for determining a different initial sale price of the pledged property, in the opinion of the court.
Meanwhile, in accordance with paragraph 1 of Article 348 of the Civil Code of the Russian Federation, foreclosure on the pledged property to satisfy the claims of the pledgee (creditor) may be levied in case of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge due to circumstances for which he is responsible.
According to the above norm, foreclosure on the subject of pledge is possible only if there are grounds for the debtor's liability for the main obligation, that is, in this case, under a loan agreement. A similar provision is contained in paragraph 3 of Article 50 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)”, which states that for claims caused by non-fulfillment or improper fulfillment of an obligation secured by a mortgage, collection of mortgaged property is not may be turned over if, in accordance with the terms of this obligation and the federal laws and other legal acts of the Russian Federation applicable to it (paragraphs 3 and 4 of Article 3 of the Civil Code of the Russian Federation), the debtor is released from liability for such non-performance or improper performance.
Along with the general principle of levying execution on the subject of collateral enshrined in the above-mentioned paragraph of Article 348 of the Civil Code of the Russian Federation only when the debtor is liable for violation of the main obligation, paragraphs 2 and 3 of the same article contain clarifying rules that make it possible to determine the degree of violation of the main obligation necessary for filing claims mortgagee.
Since the pledge performs the function of stimulating the debtor to properly fulfill the main obligation and the purpose of the pledge agreement is not the transfer of ownership of the pledged item from the pledgor to another person (including the pledgee), foreclosure on the pledged item is not permissible in any case of the debtor's liability for violation obligations, but only in the event of a material breach.
The grounds for liability for breach of obligations are established by Article 401 of the Civil Code of the Russian Federation. A person who has not fulfilled an obligation or has performed it improperly shall be liable if there is fault (intent or negligence), except when other grounds for liability are provided for by law or an agreement (clause 1). Liability without fault comes only from persons who have not fulfilled or improperly fulfilled an obligation in the course of entrepreneurial activity (paragraph 3).
From the above legal norms it follows that in order to foreclose on the subject of pledge, a necessary condition is the liability of the debtor for the committed material breach of the underlying obligation. If the obligation is not related to the debtor's entrepreneurial activities, then the absence of the debtor's fault in breaching the obligation entails the impossibility of foreclosing the pledged property. Otherwise, it must be expressly provided by law or contract.
In this case, the court, based on the claims stated by the plaintiff, when determining the circumstances relevant for its correct resolution, did not take into account the above rules of law applicable to the relations of the parties, and, accordingly, the subject of proof did not include clarification of the question of the materiality of the violation committed by the debtor secured by a pledge of the main obligation (loan agreement), as well as establishing the grounds for foreclosure on the pledged property, which is associated with determining the presence or absence of the defendant's fault in violating the loan agreement.
It is from the clarification of these circumstances that the correct resolution of the bank's claim against the debtor for the recovery of credit debt and foreclosure of the pledged property depends.
When considering this case, the Judicial Collegium also recognized as unlawful the court’s conclusion on determining the initial sale price of the pledged property, while indicating that in the event of a dispute, the initial sale price of the pledged property for the purpose of its sale is established by the court, regardless of the agreement of the parties to the mortgage agreement regarding the value of the pledged property.
Thus, when foreclosing an apartment to satisfy the bank's claims at the expense of its value and determining the initial sale price of the collateral, the court proceeded from the value of the pledged property agreed upon by the parties when concluding the mortgage agreement.
Realization (sale) of pledged immovable property, which is foreclosed in accordance with Article 349 of the Civil Code of the Russian Federation, is carried out in the manner established by the law on mortgage, unless otherwise provided by law (paragraph 1 of Article 350 of the Code).
Property pledged under a mortgage agreement, which, by a court decision, is foreclosed in accordance with the Federal Law “On Mortgage (Pledge of Real Estate)”, is sold by sale at a public auction, except for the cases provided for by the said Federal Law.
Issues resolved by the court when considering a case on foreclosure on mortgaged property are determined by Article 54 of the said Federal Law. In particular, within the meaning of subparagraph 4 of paragraph 2 of this article, when deciding on foreclosure on property pledged under a mortgage agreement, the court must determine and indicate in it the initial sale price of the pledged property upon its sale. The initial sale price of property at public auction is determined on the basis of an agreement between the pledgor and the pledgee, and in the event of a dispute - by the court itself.
At the same time, the initial selling price of the apartment, established by the court, was determined on the basis of its value indicated in the mortgage agreement concluded between the debtor and the bank, which does not correspond to its actual price (market value) at the time the court foreclosed on it. Subsequently, this circumstance may lead to a violation of the rights of the debtor in the course of enforcement proceedings. When foreclosing the subject of collateral and determining the initial sale price of the pledged property, based on the price agreed by the parties in the apartment mortgage agreement, the court did not take into account a significant period of time from the moment the mortgage agreement was concluded (2007) until the moment it was foreclosed (2011 year), as well as the provisions of subparagraph 4 of paragraph 2 of Article 54 of the Federal Law “On Mortgage (Pledge of Real Estate)” (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 24, 2011 No. 5-В11-31).
13. The application of the interested party (pledger, pledgee) to change the initial sale price originally established by the court in the decision of the property pledged to secure the fulfillment of the credit obligation, sold in the course of enforcement proceedings in the event that the auction for the sale of this property is recognized as failed, is subject to consideration by the court based on the analogy of the procedural of the law (Part 4 of Article 1 of the Code of Civil Procedure of the Russian Federation) in the manner prescribed by Article 434 of the Code of Civil Procedure of the Russian Federation.
A change in the procedure for the execution of a court decision by establishing a different initial sale price of the property sold at auction by the court does not mean a change in the earlier decision of the court on the merits of the claim filed by the creditor for foreclosure on the debtor's property pledged to secure the fulfillment of the credit obligation.
So, for example, the bank applied to the court with an application to change the method and procedure for the execution of a court decision on foreclosure in fulfillment of obligations under a loan agreement for a non-residential building and land plot with the determination of the sale price of collateral property by establishing a different initial sale price of the pledged property. At the same time, the applicant pointed out that during the time that had elapsed since the auction was declared invalid due to the lack of applications for participation in the tender, the market value of the named property had significantly decreased. The court refused to satisfy this application on the grounds that the establishment of a different sale price of the pledged item in the execution of the court decision on foreclosure on it would change the content of the court decision that entered into legal force, which established the initial sale price of the pledged property.
Revoking the decision of the court of first instance to refuse to satisfy the bank's application, the panel of judges indicated the following.
The procedure for the sale of pledged real estate, which is foreclosed on by a court decision, is determined by the Federal Law "On Mortgage (Pledge of Real Estate)" in Articles 56 and 58. market value at the time of sale. By virtue of the above articles, after the announcement of a public auction for the sale of immovable property as failed, the pledgor or pledgee has the right, before the repeated public auction, to apply to the court, by the decision of which the execution of the pledged property was levied and the initial sale price was established, with an application to change the initial sale price of the pledged property if its implementation. At the same time, the applicant must prove that the market price of the pledged item has significantly decreased after the court decision on foreclosing it came into force. Such an application is subject to consideration at the stage of execution of the court decision in the manner prescribed by Article 203 of the Code of Civil Procedure of the Russian Federation (based on the case law of the Krasnoyarsk Regional Court).
In another case, justifying the decision to change the previously established initial sale price of the pledged property, the court indicated the following.
The legal norms regulating the procedure for the sale of pledged property, which is foreclosed on by a court decision, are based, among other things, on the fact that the initial sale price of the pledged property established by a court decision, which differs significantly from its market value at the time of sale, may subsequently lead to a violation of the rights creditor or debtor in the course of enforcement proceedings.
Therefore, if, at the initiative of the interested party, evidence is presented indicating that the market value of the property that is the subject of pledge differs significantly from its assessment made by the parties in the pledge agreement, as well as in the court decision, the court, in accordance with Article 203 of the Code of Civil Procedure of the Russian Federation has the right to resolve the issue of changing the initial sale price of such property in accordance with the evidence presented, regardless of its assessment by the parties in the pledge agreement, which does not indicate a reassessment of the circumstances of the value of the property established by the court decision (based on the case law of the Leningrad Regional Court).
14. In order to avoid errors in the consideration of civil cases arising between banks, other credit institutions and individuals in disputes about the fulfillment of credit obligations, to recommend to the chairmen of the supreme courts of the republics, regional, regional courts, the Moscow and St. Petersburg city courts, the court of the autonomous region and courts of autonomous districts to acquaint judges with this Review in order to take into account the legal positions contained in it in law enforcement activities.
Document overview
The practice in cases related to the fulfillment of obligations under loans is analyzed.
The question of the jurisdiction of disputes in this area is analyzed.
It is noted that disputes arising from credit relations with the participation of individuals are under the jurisdiction of courts of general jurisdiction. This rule applies even if the contract states otherwise.
The same rule applies in the case when the creditor sues the citizen who is the guarantor of the legal entity, even if the latter has been subject to a monitoring procedure.
It also touches upon an issue that for a long time caused an ambiguous resolution in practice.
We are talking about the application of the rules of territorial jurisdiction of this kind of category of cases, when there is an agreement on it between a citizen and a bank.
An individual can challenge such a condition if it was included in the standard form of the contract.
Such a condition may be included in the accession agreement. The rights of the consumer in this case are not violated only if the citizen could conclude an agreement without this clause.
If the condition of cognizance has not been challenged, it is also valid on the day the case is considered by the court.
There is no single approach to resolving the issue of territorial jurisdiction when foreclosure is levied on real estate pledged under a loan, as well as when debt is assigned to third parties.
Regarding the collection of additional payments by banks from citizens, the following is indicated.
In each case, it is necessary to establish what exactly the bank takes money for, i.e. for an independent financial service or for standard actions, without which it is impossible to conclude and execute an agreement. Only the second case is illegal.
The bank has no right to force the borrower to insure its liability. Such a step on the part of a citizen should only be voluntary.
The same applies to life and health insurance of the borrower. At the same time, banks are not entitled to impose a specific insurance company.
All grounds for early termination of the loan agreement are in the law.
Accordingly, banks are not entitled to establish other grounds in the contract (for example, dismissal from work, moving to another area).
If one of the methods of securing a loan (collateral, guarantee, etc.) turned out to be invalid or terminated, this does not mean that others do not work either.
Other issues were also discussed (on the termination of the guarantee, on the reduction of the penalty by the court, etc.).
The issue of debt collection on loans to individuals - securing statements of claim - does not lose its relevance. We propose to consider the possibility of securing court orders by analyzing conflict of law issues and analogy with securing claims.The problems of debt collection on loans to individuals are becoming increasingly important. In recent years, the number of loans issued has sharply increased, and as a result, the question arises of the need to return them, including through judicial proceedings.
Judicial debt collection for a credit institution is relevant primarily from the standpoint of its actual execution. However, the practice of Russian legal proceedings at the present time is such that a real recovery without preliminary securing the claims of the claimant is practically impossible.
In accordance with Art. 139 of the Code of Civil Procedure of the Russian Federation, at the request of the persons participating in the case, the judge may take measures to secure the claim. Securing a claim is allowed in any state of the case, if the failure to take measures to secure the claim may make it difficult or impossible to enforce the court decision.
According to paragraphs 1 and 2 of part 1 of Art. 140 of the Code of Civil Procedure of the Russian Federation, an interim measure may be the seizure of property belonging to the defendant and located with him or other persons, as well as a ban on the performance of certain actions by the defendant.
But even when securing claims by seizing the debtor's property, there are many practical problems.
Attachment of property of debtors
The most common and widely applicable method of securing claims is the seizure of debtors' property. As practice shows, applications for securing a claim are filed and satisfied for the most part in the event that the applicant (or the plaintiff, recoverer) is aware of the presence of the corresponding property in the debtor. Moreover, the courts satisfy applications for securing claims, when the applicant (plaintiff, recoverer) can confirm the fact that the debtor has the relevant property.However, in practice, a credit institution does not have such an opportunity. In this regard, the courts refuse to seize the credit institution's property due to the lack of documents confirming that the debtor has the relevant property. There are several ways to remedy this situation.
One of these methods is to obtain from the borrower, when concluding a loan agreement, information on the availability of relevant property, documented, including notarized copies of certificates of ownership of real estate, vehicles, etc. This method is quite laborious and time consuming. Moreover, the collection of such information can lead to an outflow of borrowers from the credit institution.
Filing for an arrest
When collecting a debt on a loan from individuals, the credit institution submits an application for seizure of property located at the place of residence of the defendant. The credit institution assumes that at the place of residence (actual registration) of the borrower there are household items, household appliances and other property that can be seized to ensure the fulfillment of the borrower's obligations. This position is confirmed in the jurisprudence.Thus, paragraph 16 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 12, 2006 No. 55 “On the application of interim measures by arbitration courts” states the following: “The court has the right to take interim measures in the form of arrest of the defendant’s property, establishing the total amount of the value of the property subject to arrest, while the specific composition of the property subject to arrest may be determined by the bailiff in accordance with the requirements of the Federal Law “On Enforcement Proceedings in the Russian Federation”.
Thus, it is quite legitimate to make demands for seizure of property without individualizing this property. Moreover, developing the idea set forth in the above Resolution of the Supreme Arbitration Court of the Russian Federation, it is possible, in our opinion, to ask the court to seize the defendant’s property, “whatever it is expressed and wherever it is, with the exception of property that is not may be seized by law.
However, this position is not shared by all courts and judges. The main reason why the courts do not satisfy such applications for interim measures is the risk of infringing the interests of the defendant and third parties. Let's consider a practical situation on this issue.
By a court ruling, debtor B.'s property, which is located at his place of residence, was seized. The bailiff seized the property. The defendant's father filed an application with the court for the exclusion of property from the inventory, where the defendant was both a bailiff and a credit institution. The court satisfied the requirements to exclude the property from the inventory1.
In this article, we will not dwell on the controversial issue, which concerns the involvement of a credit institution in such a case as a defendant and the imposition on it of the costs of paying the state fee. We only want to note that in order to exclude the presentation of applications for the exclusion of property from the inventory, many judges do not satisfy the requirements of the credit institution to seize the place of residence of the defendants.
Seizure of vehicles owned by debtors
When resolving the issue of securing a claim, credit organizations seek to seize liquid property. At the same time, vehicles owned by borrowers are, of course, such liquid property. Consider the problem associated with the seizure of this property.Judicial practice on this issue is far from unambiguous. So, some courts refuse to seize if the credit institution does not confirm the fact that the vehicle belongs to the defendant. Other courts independently, at the request of the plaintiff, make a corresponding request to the traffic police.
As the practice of credit organizations in the Central Black Earth region shows, the traffic police in most cases refuse to provide official information confirming the fact that the property belongs to the debtor, which is due to technical reasons.
It is noteworthy that in their refusals the traffic police refer to clause 56 of the Order of the Ministry of Internal Affairs of Russia dated January 27, 20032, which states that information on the availability of vehicles from citizens is issued on the basis of a written request only to the state bodies specified in this clause of the Order, including credit organization does not apply. However, the named by-law norm contradicts the legislation (clause 4 of article 29 of the Constitution of the Russian Federation; clause 2 of article 3 and clause 5 of article 8 of the Federal Law of July 27, 2006 No. 149-ФЗ “On Information, Information Technologies and Information Protection” ).
In addition to the specified Order, the powers of the UGIBDD of the Main Internal Affairs Directorate for registering motor vehicles are established:
Federal Law No. 196-FZ of December 10, 1995 “On Road Safety” (clause 3, article 15);
Decree of the President of the Russian Federation of June 15, 1998 No. 711 “On additional measures to ensure road safety” (subparagraph “c”, paragraph 11);
Decree of the Government of the Russian Federation of August 12, 1994 No. 938 “On the state registration of motor vehicles and other types of self-propelled equipment on the territory of the Russian Federation” (clause 2).
None of these acts contains rules on restricting access to information about registered vehicles.
Thus, the refusal of the UGIBDD to provide information about registered vehicles is illegal, since it does not comply with paragraph 4 of Art. 29 of the Constitution of the Russian Federation, paragraph 2 of Art. 3 and paragraph 3 of Art. 8 of the Federal Law "On Information, Information Technologies and Information Protection".
Regional judicial practice on securing claims
In some regions, the following opinion of judges on securing claims has developed: if the property of one of the defendants (the borrower himself) is seized, then it is inappropriate to secure the claim also by seizing the property of other defendants (guarantors). Moreover, it is believed that by imposing a lien on the property of guarantors to secure a claim, they thereby limit their rights.Thus, the Bank filed a claim for the recovery of debt under a loan agreement with S. (borrower), C. and T. (guarantors). In order to secure the claim, the Bank filed a petition to seize the property of S., Ts., T., located at their place of residence, as well as the VAZ 2106 car registered on Ts., and the bank accounts, as well as the GAZ car 31029, registered to T.
Having studied the plaintiff's statement, the court considered it to be satisfied only in part, referring to the fact that measures to secure the claim must be directly related to the subject of the dispute, proportionate to the stated requirements, for which they are taken, necessary and sufficient for the execution of the judicial act.
As a result, the court seized only S.'s property located at the place of his registration. At the same time, the court recognized that the measure to secure the claim - the seizure of the property of S., who is a party to the loan agreement, is commensurate with the requirement stated by the plaintiff. In this case, the court considered it unnecessary to seize the property of the guarantors, since the property of the borrower has already been seized.
As can be seen from this case and other similar cases, of which there are many, the court primarily proceeds from the need to satisfy the claims of the claimant at the expense of the property of the borrower, and only in the absence of such property to collect the debt from the guarantors.
This position also affects the possibility of securing claims at the expense of the property of guarantors. At the same time, such a position does not find support in the current legislation and infringes on the interests of the claimant.
Seizure of funds on deposit
Of particular interest is the problem of the arrest of funds on deposit. The problem of writing off funds from the debtor's deposit in the event of a delay in the loan agreement has a certain theoretical and at the same time practical interest. The theoretical interest is determined by the solution of the question of whether a credit institution has the right to write off the funds on the debtor's deposit if the depositor is also a debtor of the same credit institution under a loan agreement.In this issue, the norm of the Civil Code of the Russian Federation and local acts of credit institutions, which provide for the procedure for direct debiting of funds from a deposit, are in conflict.
So, according to Art. 410 of the Civil Code of the Russian Federation, the obligation is terminated in whole or in part by offsetting a counterclaim of a homogeneous nature, the term of which has come or the term of which is not indicated or is determined by the moment of demand. For set-off, a statement by one party is sufficient. From the standpoint of this article, a credit institution has the right, upon application, unilaterally, even in the absence of the consent of the depositor, to set off his funds to pay off the debt under the loan agreement.
However, the specifics of banking activity implies a clear regulation at the level of local acts of the procedure for the work of a credit institution (in instructions, regulations, etc.). Given this circumstance, in the absence of an appropriate regulation on the procedure for debiting funds from a deposit by a bank in order to repay debt on a loan, a credit institution cannot apply the specified norm of the Civil Code of the Russian Federation. In this regard, credit institutions are forced, when applying to the court, to file petitions for securing claims / court orders to seize the borrowers' funds on their deposits.
In this case, the following problem arises: does the credit institution have the right to inform the court (indicate in the application for security) account numbers and cash balances on them.
In accordance with the Law "On Banks and Banking Activities", a credit institution guarantees the secrecy of the deposits of its customers. At the same time, in accordance with paragraph 4 of Art. 25 of this Law, certificates on deposits of individuals are issued by a credit institution, including courts. At the same time, as practice shows, the courts independently make inquiries about the availability of deposits and the balance of funds on them.
For the disclosure of banking secrecy, credit institutions, as well as their officials and their employees, are liable, including compensation for damage, in accordance with the procedure established by federal law.
Based on the foregoing, the question arises as to whether the indication in the application for seizing the deposit of the borrower and his guarantors of the account numbers and cash balances on them is a disclosure of banking secrecy.
In our opinion, only partially. On the one hand, given that paragraph 4 of Art. 25 of the Law "On Banks and Banking" allows you to provide such information to the courts, then an indication of the account number will not be a violation of bank secrecy. At the same time, it is not always advisable to indicate the balance of funds on the account, as it may change.
In this case, when submitting an application for securing claims/court orders to the court, it is advisable for a credit institution to report the seizure of the funds on deposit, within the limits of the applicant's requirements.
Enforcement of court orders
The enforcement of court orders deserves special attention. This practice is in its infancy and therefore requires further development.The situation of the need to secure claims is similar to the situation of securing a claim. In accordance with Art. 126 Code of Civil Procedure of the Russian Federation, a court order is issued within 5 days from the date of receipt of the application to the court. Then the court sends a copy of the court order to the debtor, who has the right to submit objections regarding its execution within 10 days (Article 128 of the Code of Civil Procedure of the Russian Federation). If the debtor does not appear at the post office for a court order, then, according to the current postal rules, the postal item is stored at the post office for 1 month and then returned to the sender.
This is a sufficient period for the debtor to sell or otherwise conceal his property. In addition, this period does not include other circumstances that lengthen the order procedure (vacation, illness of the judge, etc.).
Due to the fact that the purpose of applying interim measures in action proceedings is the execution of a court decision in full (Article 139 of the Code of Civil Procedure of the Russian Federation), the total period of writ proceedings established by law may be the same 2 months that are provided for consideration of a claim by a court.
Disadvantages of securing claims for the recovery of debts on loans to individuals
The provision of statements of claim and court orders also has a downside, which is often not taken into account by law enforcers. Let us consider such an example, when in the course of consideration of a case on the recovery of debt on a loan from an individual, a debtor's deposit was seized.In accordance with Art. 144 of the Code of Civil Procedure of the Russian Federation, the securing of a claim may be canceled by the same judge or court at the request of the defendant or at the initiative of the judge or court. If the claim is satisfied, the measures taken to ensure it remain in effect until the execution of the court decision. After a decision is made to collect debt on a loan, a credit institution can write off funds only if the arrest is removed from the account. The issue of canceling the securing of the claim shall be resolved at the court session.
Thus, after a court decision has been issued, in order to write off funds from the deposit, the credit institution is forced to spend time applying to the court to remove the arrest from the account. At the same time, in order for the funds not to be debited from the account by the depositor during the period from the removal of the arrest from the account until the credit institution writes off the money to pay off the debt on the loan, the bank must go to court to seize the account in the manner of enforcement proceedings.
Agree, such a cumbersome scheme is very inconvenient in practice. Moreover, the delay in the actual execution of the decision leads to an increase in the amount of the penalty and interest on the loan, which the debtor is obliged to return to the credit institution.
The considered legislative conflict also takes place in the case when, during the consideration of the case, the property of the debtor was seized, which the bailiff must sell. In this case, the bailiffs raise the issue of the exactor initiating the removal of the property from the arrest imposed by the court.
In our opinion, paragraph 3 of Art. 144 Code of Civil Procedure of the Russian Federation requires clarification and amendments and additions. It is advisable to provide that the measures to secure the claim remain in effect, however, after the entry into force of the court decision, they do not prevent its actual execution by the claimant.
Recovery of debt on loans in the event of the death of the borrower
An analysis of judicial practice shows that there are certain features of debt collection on loans to individuals in the event of the death of the borrower.The absence in the guarantee agreement of an indication that it remains in force even in the event of the death of the borrower may result in the termination of the guarantee. Note that the guarantee agreements concluded by Sberbank of Russia contain a necessary condition.
When collecting debt on loans from deceased borrowers, the following aspects should be taken into account.
1. Before the heirs enter into the right to inherit property within 6 months from the date of the death of the borrower, a statement of claim may be filed in accordance with paragraph 3 of Art. 1175 ch. 64 of the Civil Code of the Russian Federation. According to this rule, “the creditors of the testator have the right to present their claims to the heirs who have accepted the inheritance within the limitation periods established for the relevant claims. Prior to the acceptance of the inheritance, creditors' claims may be brought against the executor of the will or against the estate. In the latter case, the court suspends the consideration of the case until the inheritance is accepted by the heirs or the escheated property is transferred by way of inheritance to the state.
2. The legal department made a request to the notary chamber of the Voronezh region about whether information about the opening of an inheritance, about the circle of heirs called to inherit or who accepted the inheritance, belong to the notarial secret, and also whether notaries are required to respond to requests for opening an inheritance in relation to debtors of the Central Black Earth Bank of the Savings Bank of Russia. We received the following response. According to the Voronezh Chamber of Notaries, Art. 63 of the Fundamentals of Legislation on Notaries4, according to which creditors' claims are accepted by notaries, contradicts part 3 of the Civil Code of the Russian Federation.
In this regard, as we were told, measures to search for debtors should be taken by the creditor, and not by the notary, and the norms of Art. 61 of the Fundamentals of Legislation on Notaries on the possibility of public notification by a notary of an opened inheritance are irrelevant.
At the same time, the notary chamber of the Voronezh region agreed that the lack of information about the heirs of the debtors makes it impossible for the bank to apply to the court for debt collection. Despite the absence in the legislation of the obligation of a notary to provide information at the request of banks, the notary chamber believes that in this case one should proceed from the principle of reasonableness and fairness.
Indeed, the bank can obtain reliable information about the heirs who have accepted the inheritance only from a notary who is in charge of the inheritance case. At the same time, the notarial chamber considers it possible, at the request of the bank, to provide the amount of information that is necessary and sufficient to apply to the court with a claim for debt collection. However, a notary may provide information about the full circle of heirs who accepted the inheritance only after the expiration of the specified period.
Thus, in the event of the expiration of a six-month period from the date of the death of the borrower, having received the relevant information from the notary, the bank may apply to the court to the heirs of the borrower.
3. As an analysis of the reports and practice of the work of the units of the Security Council of the Russian Federation on the collection of debts on loans to individuals shows, in some cases the bank files claims against deceased borrowers, since it cannot officially obtain documents confirming the fact of their death5.
During the consideration of the debt collection case, the fact of the death of the borrower is clarified, the court requests the relevant official information about the death of the borrower, as well as about the circle of his heirs, and in the course of court proceedings, the defendant is replaced with the proper one.
1 Decision of the Federal Court of the Leninsky District of Voronezh dated July 16, 2007. A similar decision of 11.09.2007 was issued by the justice of the peace of the Kominternovsky district of the city of Voronezh. An interesting fact is that in practice there are cases of consideration of these cases by both world courts and federal courts, which, in our opinion, contradicts Ch. 3 Code of Civil Procedure of the Russian Federation.
2 Order of the Ministry of Internal Affairs of Russia dated 27.01.2003 No. 59 “On the procedure for registering vehicles” (registered in the Ministry of Justice of Russia on 07.03.2003 No. 4251).
3 Archive of the Federal Court of the Leninsky District of Voronezh for 2007.
4 Fundamentals of the legislation of the Russian Federation on notaries dated February 11, 1993 No. 4462-I.
5 In accordance with the provisions of Federal Law No. 143-FZ dated November 15, 1997 “On acts of civil status”.
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