What is alpha bank scm. Judicial recovery “two in one” - the hands of a robot and the brain of a lawyer. Regulation of collection agencies

Case No. 2-3758/2016

SOLUTION

In the name Russian Federation

Central District Court of the city of Tver composed of:

presiding judge Stepanova E.A.,

under secretary Kudryavtseva A.A.,

with the participation of the representative of the plaintiff Mesropyan N.A., acting on the basis of a power of attorney,

defendant Zvonkov N.I.,

having examined in the open court hearing in the city of Tver, a civil case based on the claim of PJSC Bank Trust against Zvonkov N.I. on debt collection under a loan agreement,

installed:

PJSC Bank "TRUST" filed a claim with N.I. Zvonkov in the Central District Court of the city of Tver. on collection of debt under a loan agreement, legal costs.

In support of the stated requirements, he indicated that DD.MM.YYYY OJSC NB TRUST and Zvonkov N.I. concluded agreement No. (agreement 2, payment card agreement) on the basis and terms of the application - the client’s offer, on the basis of which a loan agreement No. dated DD.MM.YYYY (agreement 1) was also concluded.

Agreements 1 and 2 were concluded in offer-acceptance form, in accordance with the provisions of Art. , And .

The loan under agreement 1 was provided on the terms and conditions contained in the loan application, the conditions for the provision and servicing of loans, and tariffs. At the same time, the application for a loan also contained the client’s offer to conclude a mixed agreement with him, containing elements of an agreement on opening a bank account, an agreement on the provision of a bank card for use in accordance with the Terms of provision and servicing of international bank cards of BANK "TRUST", tariffs according to the international bank card of BANK "TRUST", as well as other documents containing credit conditions.

In the application, the borrower agreed that the acceptance of his offer to conclude agreement 1 is the action of opening an account and a special card account for him, and the conditions, tariffs and payment schedule are an integral part of the application and agreement 1.

In the application, the borrower also expressed his agreement with the terms of the payment card, the tariffs for the payment card, undertook to comply with them and asked the bank to enter into a payment card agreement with him, within the framework of which, in accordance with the terms of the payment card, open a bank account/accounts for him and provide for use of international settlement bank card/TRAST BANK (PJSC) cards with an allowed overdraft limit (payment card).

In connection with the conclusion of Agreement 1 by the bank and the borrower, the borrower receives a payment card, with the terms of use of which he agreed in advance. Subsequently, at his own request, the borrower can activate this payment card, thereby concluding another contract-contract 2.

The bank fulfilled its obligations. At the conclusion of the agreement, the 1st defendant received payment card No. with a limit on the permitted overdraft on the following conditions: the size of the limit on the permitted overdraft - , interest on the loan - , validity period payment card– DD.MM.YYYY. Thus, the bank and the borrower, by mutual consent, entered into a mixed agreement, which was assigned No.

In accordance with clause 5.5 of the Terms and Conditions for a payment card, a loan is provided by the bank to the client to carry out transactions using SCS, the conduct of which is not limited by the conditions for the payment card, in the event of a lack or absence of own Money to SCS for transactions. Operations include non-cash payments (including payment for goods and services), receiving cash at cash dispensers and ATMs, depositing cash and crediting funds to SCS. According to clause 5.10 of the conditions for the payment card, the client is obliged to repay the debt by paying at least the minimum repayment amount during the payment period following the billing period. In case of failure to pay the minimum repayment amount in deadlines or payment of an incomplete repayment amount, the defendant is charged a fine for missing the payment of the minimum repayment amount in accordance with the tariffs.

In violation of the terms of the payment card and the provisions of the law, the defendant does not take measures and continues to evade fulfillment of accepted obligations for the planned repayment of current debt under agreement 2, and therefore, for the period from DD.MM.YYYY to DD.MM.YYYY the defendant owed the bank in the amount of, including the amount of the principal debt in the amount of, interest for using the loan in the amount of

The defendant's violation of the terms of the loan agreement is significant and entails such damage for the Bank that the bank is largely deprived of what it has the right to count on when concluding the agreement.

In connection with the above, the plaintiff filed the said claim against the defendant, and asks the court to recover from the defendant in its favor the debt under loan agreement No. in the amount of, the cost of paying the state duty in the amount of

At the court hearing, the plaintiff’s representative Mesropyan N.A., acting on the basis of a power of attorney, supported the plaintiff’s claims in full on the arguments and grounds set out in the statement of claim. He objected to the defendant’s motion to terminate the proceedings on the grounds and grounds set out in the written objections to the motion. He also explained that in the application, the borrower expressed his agreement with the Conditions for the payment card, the tariffs for the payment card, undertook to comply with them and asked the bank to enter into an agreement with him on the payment card, within the framework of which, in accordance with the Conditions for the payment card, open a bank account for him and provide for use an international bank card with an allowed overdraft limit. According to clause 2.1 of the Payment Card Terms, the bank enters into an agreement with the client by accepting the client’s offer contained in the application, by opening a SCS. At the same time, the bank accepts the client’s offer to provide a card by issuing a card. The date of conclusion of the agreement is the date of activation of the card by the client. The card is handed over to the client unactivated or can be activated by the bank automatically at the request of the client immediately upon issuance. The bank and the borrower, by mutual agreement, entered into an agreement, which was assigned No. At the same time, the defendant did not provide evidence indicating that the defendant handed over the payment card to the bank, and the bank does not confirm this information.

At the court hearing, the defendant Zvonkov N.I., objected to the satisfaction of the claims made by the plaintiff, asked the court to terminate the proceedings in the case, since there was a court decision that had entered into legal force and was adopted on a dispute between the same parties, on the same subject and on the same grounds , asked the court to apply the consequences of missing the statute of limitations on late payments. At the same time, he explained that when concluding credit agreements, he received 2 bank cards, but after repaying the debt on loan No. 1, he returned the cards to the bank, and does not remember whether he used a payment card or not.

Having heard the representative of the plaintiff Mesropyan N.A., acting on the basis of a power of attorney, the defendant Zvonkov N.I., and having examined the case materials, the court comes to the following.

According to the latter, the performance by the person who received the offer, within the period established for its acceptance, of actions to fulfill the terms of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) is considered acceptance, unless otherwise provided for by law, other legal acts or not specified in the offer.

The fact of the conclusion of loan agreement No. between the plaintiff and the defendant is evidenced by the statement of N.I. Zvonkov. on the provision of a loan for urgent needs from DD.MM.YYYY, questionnaire of Zvonkov N.I. to the application for a loan for urgent needs, as well as the bank’s actions to open account No.

As follows from the account statement No., agreement number No., contract start date DD.MM.YYYY, card number No., card activation date DD.MM.YYYY, credit limit on the card

According to the defendant’s application for a loan from DD.MM.YYYY, Zvonkov N.I. understands and agrees that the lender has the right to repeatedly make offers to establish and subsequently change the credit limit on a payment card by sending the borrower a corresponding notice, the acceptance of which will be the actions of the borrower to activate and use the payment card / the borrower expresses consent to the lender with the amount credit limit on a payment card / expressing consent to the lender to activate the payment card, if the payment card was received by the borrower simultaneously with the conclusion of the agreement.

As follows from the statement, Zvonkov N.I. agreed that before activating the payment card, the borrower undertakes to familiarize himself with the information about the full cost of the loan on the payment card provided by the lender in accordance with clause 2.2 of the application, and only if he agrees with the full cost of the loan on the payment card, take actions to activate the payment card/ express to the creditor your consent to activate the payment card, take steps to activate the payment card/ express to the creditor your consent to activate the payment card

By his signature on the application, the defendant confirms the fact of receipt of one copy of the application, payment schedule, tariffs, card tariffs, payment card tariffs, payment card conditions, memo of the insured person, which contains the conditions of the collective insurance program for loans for emergency needs and/or collective insurance programs for cardholders, as well as the fact of receipt of payment card No. and consent to its activation.

Reasons to doubt the validity of the parties’ will at the conclusion of this agreement the court does not have one.

From the defendant's account statement it follows that the defendant used funds within the credit limit established by the plaintiff, and improperly fulfilled his obligations under the agreement concluded with the plaintiff, which led to the formation of debt. No evidence of the return of payment card No. to the creditor was presented to the court.

At the same time, the court does not see any grounds for terminating the proceedings under paragraph. 3 tbsp. , since, as follows from the operative part of the decision of the magistrate of court district No. 4 of the Proletarsky district of Tver dated DD.MM.YYYY, the National Bank TRUST (OJSC) addressed Zvonkov N.Yu. with demands for collection of debt under loan agreement No. dated DD.MM.YYYY, while in the framework of the civil case under consideration, the subject of the claim is the debt under loan agreement No. In connection with the above, the grounds and subject matter of the claim previously filed by PJSC NB TRUST are different from those being considered within the framework of this civil case.

Based on the foregoing, the court comes to the conclusion that the statute of limitations on the plaintiff’s demands for the collection of interest for using the loan, a fine for missing minimum payments that arose before DD.MM.YYYY in the amount, has expired. The amount of debt under the loan agreement as of DD.MM.YYYY will be

By virtue of Part 1 of Art. court costs consist of state fees and costs associated with the consideration of the case.

According to Part. 1.2 tbsp. the party in whose favor the court decision was made, the court awards to the other party all legal costs incurred in the case. If the claim is partially satisfied, the legal costs specified in this article are awarded to the plaintiff in proportion to the amount of the claims satisfied by the court, and to the defendant in proportion to the part of the claims that were denied to the plaintiff.

The plaintiff paid the state duty in the amount, which is confirmed by payment orders from DD.MM.YYYY No., from DD.MM.YYYY No. In connection with the above, the costs of payment of state duty in the amount of

Based on the above, guided by articles, - the Code of Civil Procedure of the Russian Federation, the court

decided:

Claims of PJSC Bank "Trust" against Zvonkov N.I. to partially satisfy the debt collection under the loan agreement.

Collect from Zvonkov N.I. in favor of PJSC Bank "Trust" debt under loan agreement No. in the amount, as well as a state fee in the amount

The decision can be appealed by the parties to the Tver Regional Court through the Central District Court of the city of Tver within a month from the date of its production in final form.

Judge signature E.A. Stepanova

Court:

Central District Court of Tver (Tver Region)

Plaintiffs:

Public Joint-Stock Company National Bank "Trust"

Defendants:

Zvonkov N.I.

Judges of the case:

Stepanova Ekaterina Aleksandrovna (judge)

Judicial practice on:

Recognition of the contract as not concluded

Judicial practice on the application of Art. 432 Civil Code of the Russian Federation

For loans, for loan agreements, banks, banking agreement

Judicial practice on the application of Art. 819, 820, 821, 822, 823 Civil Code of the Russian Federation

Limitation period, by statute of limitations

Judicial practice on the application of Art. 200, 202, 204, 205 Civil Code of the Russian Federation

Banks are increasingly faced with situations where people, for one reason or another, cannot repay their loans on time. And Trust Bank is no exception. First, let's remember what cards the bank provides:

1. Debit card – a card on which you can store your own savings. Those who have such a card pay a certain amount monthly for card maintenance.
2. For payments (usually social or pension), the same functions have been created as for a debit card, only the service is based on benefits.
3. A credit card is a card that has a certain credit limit; this loan is short-term. If personal funds are stored on the card, then no interest is charged for their use.

What is a bank loan anyway?

This is an agreement between two parties - between the client and the bank, which is supported by voluntary legal relations. When an agreement is concluded, both parties are obliged to comply with all the rules and regulations stated in it. The basic rule is that the bank agrees to provide a loan to the client, and the client, in turn, undertakes to repay the loan funds to the bank on time with an interest payment for the use of bank money.

What happens after the bank and the client have entered into this agreement?

Everything seems to be clear and understandable, no additional questions arise. But life is unpredictable. In the event that force majeure occurs and the borrower can no longer fully repay the loan money, the question arises: how can you not pay the loan to Trust Bank? And if you do this, then what will happen? It is difficult to find a definite answer. Let's figure it out in order.

What is the situation at Trust Bank today?

On this moment the bank provides for use only debit cards, and in Ukraine – all three species. The repayment period for the loan varies from 30 to 55 days, depending on the conditions of the card you use. If you did not have time to pay during this period, then a refund bank money occurs partially together with interest for their use.

If the client violates the loan repayment period, he is charged a fine. When he pays it off, only interest is charged, the loan balance remains the same. If the loan money is not repaid for a long time, the bank blocks the available use of bank money. If this continues for some time, the bank takes the case to court or seeks the services of a collection company.

At the same time, everyone knows that four years ago problems arose in the Trust, due to which the bank reduced the number of banking products it provided. But after some time, the situation at the bank recovered, and clients can continue to repay their loans. If, after urgent calls from the operator, the client does not return the bank money, then the Trust turns to collectors.

Collectors proceed as follows: they claim that after the “fall” of the bank they bought your debt from it, so now you need to pay them back. Be careful, it's illegal! The client is obliged to repay the debt to the person from whom he took it. Don't be fooled by clever tricks. In addition, it would not hurt to warn your relatives and loved ones about competent behavior in such situations.

What actually happens

Of course, you need to pay off the loan if you have the opportunity. But in reality, the bank sues the client in order to oblige him to pay only for a large loan. Since most loans are small and average size amounts, then in fact such situations happen very rarely.

If the return of bank money does not arrive for some reason, then get ready for the fact that there will be strong psychological pressure not only on you, but also on your relatives. If in order to pay off the loan you give your last penny and expect the bank to meet you halfway, then this is not so. Although the situation may be different. What is meant?

The court is not always completely on the bank’s side, so let’s look at the most common cases of how cases unfold in the courts:

1. An agreement with the bank within the courthouse.
2. Help from a lawyer.
3. Independent struggle.

Case 1. You can reach an agreement with the bank. Very often things unfold like this.

The client took out a loan from the bank for 10,000 rubles, for some reason did not pay it off for a long time, during which time interest and fines in the amount of 50,000 rubles accrued. Then the bank sues. The client and the bank's representative are invited to the court. The case lasts more than one day. The bank also does not want to spend a lot of time on just one client. Therefore, the agreement may look like this: the bank sets the condition that if you pay 10,000 rubles. during three months in equal parts, then the rest of the loan amount is forgiven.

Case 2. Seek help from a good lawyer. It often happens that the bank overestimates interest rate and charges much more than what was specified in the agreement, especially with regard to credit limits. You can appeal in court if the borrower has incapacitated parents, minor children, or persons under guardianship.

In court, no one will recalculate amounts, so the only salvation for illegally accruing fines is for the client to independently calculate all fines and interest. It often turns out that the bank overestimates the amount. However, the client should not forget that the services of a lawyer in such cases are not cheap, so it makes sense to contact them only if the amount of debt is large.

Situation 3. Fight on your own. The client can request from the bank a statement of account movements. And if the amount of fines is higher than half of the loan, then these actions are illegal. In addition, if the bank demands much more money than the losses it incurred due to the untimely repayment of the loan, then these figures can be appealed and reduced. There are cases when the court is ready to reduce the amount of debt by half if the client’s income is too small to pay the full amount.

Thus, if you decide to contact the bank for credit money, then be prepared for the fact that the overpayment will be considerable. And if you are not sure of the stability of your earnings, then it is better not to contact banks. In any case, everything must be done according to the law.

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A court case regarding a loan with a bank awaits everyone who systematically and for a long time evades payment under the loan agreement. Loan programs greatly simplify the lives of citizens by providing the opportunity to purchase housing or pay for education. However, not always everything goes well in the loan repayment process. As a result, debt may arise and fines may be applied by the creditor. An extreme case is when a bank sues to collect a debt. How to win a lawsuit with banks over a loan? We’ll talk about this in detail later, and we’ll also look at it in detail. judicial practice in courts with banks.

First steps in litigation

Important! Please keep in mind that:

• Each case is unique and individual.
• A thorough study of the issue does not always guarantee a positive outcome. It depends on many factors.

To get the most detailed advice on your issue, you just need to choose any of the options offered:

For a creditor, going to court is a last resort measure, used when other options for resolving the dispute have failed. Negative side for the bank - additional costs for conducting litigation, preparing claim documents, and attending meetings with a representative. If the plaintiff loses, he will not be able to recover the costs of filing a claim, and with a significant amount of claims, the cost of the claim is quite high.

Considering that plaintiffs are often interested in winning a lawsuit with banks over a loan, rather than delaying the process, the defendant can count on a reduction in demands and the possibility of receiving an installment plan or writing off part of the debt. However, you should not immediately agree with everything the bank offers after receiving a subpoena.

Agenda

It is necessary to study the received document (summons) to determine its validity. The practice is that the creditor often sends a similar form to the debtor in order to speed up the repayment of the debt. This court summons for a loan with a bank must be:

• done “by hand” on a special form f. 31;
• have a court stamp;
• impression paste color – blue;
• have a number and date of compilation;
• contain information about the date, place and time of the meeting;
• signed by the court clerk;
• addressed to a specific person (full name indicated).

Additionally, you can check whether the bank actually filed a statement of claim with the court and whether you will participate in the process on the website of the specific court indicated in the subpoena. The search can be carried out using the details of the subpoena: number, date and full name of the judge.

Do you need a representative?

If the creditor decided to forcibly collect the debt and the bank nevertheless filed a lawsuit against the borrower, then the primary question will be whether it is advisable to seek help from a lawyer. Involving a representative – a lawyer – to participate in the process has pros and cons. The main disadvantage is paying for a lawyer. Still qualified legal assistance It's not cheap in Russia. However, saving on the services of a representative often leads to losing the process. Civil litigation is difficult for the average person to master on his own.

The advantages of working as a representative include:

• reduction of claims in most cases - minimization of final costs;
• taking advantage of winning opportunities;
• drafting and filing motions that positively influence the process for the defendant;
• reaching an agreement with the creditor - obtaining installment plans;
• full protection of the interests of the defendant in court;
• a comprehensive examination of the root of the issue, and not superficially.

Studying judicial practice, it is worth noting that winning a lawsuit against a bank on credit business It is very, very difficult if a professional lawyer is not involved in the defense. Cost savings when paying for representation services are reasonable only if the amount of the claim is less than the lawyer's invoice for the work.

Stages and essence of the trial

Civil proceedings are regulated by Russian civil procedural legislation - mainly by the rules of the Code of Civil Procedure. The basis of judicial proceedings in civil matters is the principle of adversarial parties. This means that the law establishes the obligation of each participant to motivate and justify their position by presenting evidence. Unlike criminal proceedings, there is no principle of the defendant being innocent until proven otherwise.

Process stages

The stages of court proceedings regarding a loan with a bank are relatively separate; depending on the situation, deviations from the standard scheme are possible.

1. The first stage is the preparation and collection of materials necessary for submission. statement of claim documents. Until the plaintiff goes to court - submits a statement of claim - there is no official legal proceedings. Next, the documents are submitted to the court. (details about that here).
2. After receiving the claim documents, the court analyzes the completeness of the submitted papers and the validity of the stated claims. Based on the results of consideration, the claim may be accepted, rejected or left without progress. It is also possible to return the claim. If the application is accepted, a date for the first hearing is set.
3. If a creditor simultaneously files a claim and a request for security, the court may consider a request for seizure or other restriction in order to preserve the property until the completion of the proceedings. This rule is possible at any stage of the process.
4. The first meeting is preliminary. Despite this, the call is made according to all standards - a summons. During the preliminary hearing, the position of the plaintiff and the defendant is clarified, and the feasibility of conducting a full-fledged trial is analyzed. If the defendant agrees with the claim at the preliminary hearing stage, then the process may end.
5. If the preliminary trial stage is successfully completed, the court sets a date for the start of the main trial. The parties and other participants in the process are notified about this.
6. The main trial may consist of several hearings. There are no clear restrictions, but any grant of adjournment or postponement of the consideration of the case must be motivated.
7. During the main hearings, the judge first ascertains the presence of the parties in the room, and then proceeds to consider the case on its merits. At this stage, petitions are submitted, proposals are made, and the opinions of the parties are heard. Schematically, it looks like this: the plaintiff is given the floor to read out his claims, then time is given to the defendant, who reads out his objections. Then the parties are given the right to ask each other questions. The judge has the right to participate in the process and ask additional questions.
8. After the hearing of the case on its merits, the materials of the case are announced. In practice, this involves listing all materials in the case to the judge.
9. After the materials have been read out, the party is given the right to make a closing speech.
10. The final stage of the main hearing is the judge's decision. To do this, he retires to the meeting room.
11. The operative part of the decision is announced immediately after it is made to the parties in the courtroom. A full-fledged court decision containing a motivational part is prepared later. You can obtain a stamped decision from the court office.

After the decision is made, the civil process enters the waiting stage. The parties have a period of 10 days to file an appeal. If there is no appeal within 10 days, the court decision enters into force. full force. Upon request of the plaintiff, it is issued performance list, directed bailiffs to exercise the right to collect debt. The trial is considered completed.

Protection tools: what to do?

When a citizen receives a summons to appear in court regarding a loan from a bank, many make a mistake and ignore the summons, hoping for a miracle. On the contrary, if the case has gone to court, then it is better not to waste time, but to immediately begin analyzing the case and developing a defense strategy. Even before the first hearing, it is advisable to study the case materials in order to fully prepare. According to the law, a citizen has the right to familiarize himself with the case materials without restrictions, but the file cannot be taken outside the court. Since the case may contain many documents, calculations and forms, which will not be easy to analyze at once, it is better to photograph all the sheets of the case. Under no circumstances should any papers be removed from the file!

First of all, pay attention to meeting deadlines. It is extremely rare for banks to violate limitation periods, but there are precedents. The court accepts the case for consideration without examining the fact of compliance with the statute of limitations. Upon filing the defendant's request to apply the statute of limitations, the proceedings are terminated and the plaintiff is rejected.

When studying the statement of claim, it is important to pay attention to the calculations that substantiate the borrower’s claims. In practice, banks often inflate claims, charging very large penalties. With the good work of a credit lawyer, these requirements can be significantly reduced.

Having studied the materials and contents of the claim, it is necessary to prepare an objection to the statement of claim if you intend to protest the claim. Objections should reflect objective facts, points with which you disagree. If you want to file a petition to reduce the amount collected, you need to operate with facts, and not with an emotional component. Psychological and emotional condition debtor, tears and hysterics in the courtroom, etc. Only the “naked” facts are important.

Judicial practice in courts with banks

Judicial practice with banks regarding credit disputes is quite clear. In the vast majority of cases, the creditor - the plaintiff - wins the case. The reason is simple - the borrower violates the terms of the loan agreement and does not repay the debt. Next, we have prepared several case studies on court cases with banks regarding loans.

For consumer and other types of loans

As a result, the creditor’s rights are violated, and the court objectively restores them by forcibly collecting the debt. An example of a winning process for a creditor could be case No. A70-12133/2016 Arbitration Court of the Tyumen Region. The defendant did not want to challenge the plaintiff’s demands, did not make any motions, and the court made a decision to fully satisfy the plaintiff’s demands. As a result, more than 1 million rubles will be recovered from the defendant.

Formal wins for borrowers include court decisions, where the final amount to be recovered was significantly reduced in comparison with that stated in the claim. The reasons that influenced the outcome of the case are different. Basically, defendants and their representatives operate:

• recalculation of the amount, taking into account previously paid funds towards the principal debt;
• termination of the insurance agreement;
• application of Art. 333 Code of Civil Procedure of the Russian Federation.

There are cases of actual victories of defendants in practice. Most of these victories are the fault of plaintiffs who do not comply with procedural rules or requirements for the content of loan agreements. A common reason for a creditor’s loss is missing the statute of limitations due to incorrect calculation of deadlines. It is legally established that limitation of actions– 3 years from the moment the plaintiff learned of the violation of his rights. Some banks start counting not from the moment the delay begins, but from the date of expiration of the loan agreement. In practice, courts take into account the expiration date of the loan agreement in matters of consumer or mortgage agreements. In credit card debt collection proceedings, judges look to the date the delinquency first occurred.

An example when documents prevail over words and emotions in court is case No. 2-61/2016 of the Chulym District Court Novosibirsk region. The defendant substantiates her position with emotions - trust in the lender, because of which she checked the terms of the loan agreement. Also, the defendant’s objections are based on the bank’s obligation to perform actions assumed by the defendant, but which are not the responsibility of the creditor. For example, additionally notify about debiting funds via mobile app to a mobile phone number not specified in the contract.

For a mortgage loan

Litigation with a bank mortgage loan also deserves a separate topic for discussion. Mortgage is an expensive banking product. The cost of suing to collect a mortgage debt is significant, so lenders sue as a last resort. If the debtor is unable to repay the debt to the bank, then it will not be possible to save the apartment. The sale of collateral real estate will be carried out at auction regardless of marital status the borrower, whether he has children or the number of persons registered in the apartment. Self-management trial mortgage is very undesirable! There are a lot of pitfalls that negatively affect debtors.

In an effort to reduce the amount of the fee when filing a claim, the creditor does not conduct an objective assessment of the property, declaring the contract value, even if the market price of the apartment has increased significantly over the years. As a result, the borrower may not only lose their home, but also have to repay the debt to the bank.

There are no real opportunities to save your home during a mortgage dispute, except in cases where the creditor has violated the law and his demands will not be satisfied at all. However, there are exceptions to the rule, for example, case No. 33-4010/2016 of Sverdlovsky regional court Yekaterinburg, where the defendants managed to keep the apartment.

The main work of the defense in such cases is to reduce claims and maximize the cost of the housing being sold. In this case, the defendant will receive greatest number money after repaying the debt. Also, if circumstances exist, it is possible to terminate the mortgage agreement on terms favorable to the borrower. For example, as in case No. 2-1924/2010 of the Central District Court of Krasnoyarsk.

SKY DISTRICT COURT OF YAROSLAVL

PLAINTIFF: my_trust
1500XX, Yaroslavl, ...

RESPONDENT: OJSC National Bank "TRUST"
branch in Yaroslavl
150000, Yaroslavl, Svobody, 3

THIRD PARTY: Sequoia Credit Consolidation CJSC
127473, Moscow, st. Krasnoproletarskaya, 16, building 2

In accordance with clause 2 of article 333.36 of the Tax Code of the Russian Federation and clause 3 of art. 17
Law “On Protection of Consumer Rights”
the plaintiff is exempt from paying state duty

STATEMENT OF CLAIM

On June 21, 2007, I, my_trust, entered into an agreement with OJSC National Bank "TRUST" (hereinafter - the Bank) for the provision of a credit limit and the issuance of a credit bank card (hereinafter - the Agreement).
On the same day, a bank account No. 408178109080XXXXXXXX was opened for me and a credit card No. XXXX XXXX XXXX XXXX was issued.
After some time, I lost this credit bank card, in connection with which I contacted the Yaroslavl branch of the Bank to block the lost credit bank card and replace it with a new one, in accordance with the Terms of provision and service Credit Cards National Bank "TRUST" (OJSC) (clause 6.1.13).
New map I could not receive it, because it was not available at the branch of OJSC NB TRUST in Yaroslavl, the Bank employees did not inform me when it would be produced and when exactly I would be able to receive it.
After repeated visits to the Bank branch, Bank employees assured me that when a credit card in my name arrives at the branch, I will be notified, all my contact information is available at the Bank (registration address and actual place of residence, mobile and work phone number).
However, for unknown reasons, I was not given a bank card; I did not receive any information from the Bank, although to date all my contact information has remained the same.
That is, from the moment I lost the card, I did not (could not carry out) debit transactions on the account using this card.
In April 2010, I received a claim from OJSC NB TRUST, from which it followed that the Bank had charged fines to the bank account opened for me under the Agreement in accordance with the tariffs for total amount 1100.00 rubles.
According to the “Client” Tariff Plan, which is an integral part of the Agreement, the fee for maintaining an account when providing a card reissued at the client’s initiative during the validity period of the card is 300.00 rubles.
Since I contacted the Bank with a request to replace the lost credit card with a new one, and thus accepted the obligation to pay for the Bank’s services for re-issuing a bank credit card in the amount of 300.00 rubles, then on June 3, 2010 I paid the specified amount, which is confirmed cash receipt order No. 0605. I fulfilled my obligation to pay for the reissue of a credit bank card as soon as I became aware of this fact.
I did not receive a reissued credit bank card, because after the aggressive and illegal actions of OJSC NB Trust, I do not want to have a contractual relationship with it.
I consider the actions of OJSC National Bank "TRUST" to charge fines for missing minimum payments in the amount of 300.00 rubles and 500.00 rubles illegal, violating my rights and interests.
In accordance with the Conditions for the provision and servicing of Credit Cards of National Bank "TRUST" (OJSC) and the "Client" tariff plan, penalties are provided only for missing the payment of the minimum installment, which is paid to repay the loan - missing the payment of the minimum installment for the second time in a row is 300 rubles and for the third time in a row - 500 rubles.
In accordance with Art. 330 Civil Code In the Russian Federation, a penalty (fine, penalty) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment.
Consequently, a fine is a way of securing obligations, which is a form of property liability for their violation, and in order to collect a fine, there must be a fact of non-fulfillment or improper fulfillment of an obligation by the debtor.
However, the Bank itself did not fulfill the conditions for timely provision of a bank credit card for my use, i.e. I was physically unable to carry out debit transactions on the account - use credit funds, in connection with which I did not have (there is no) obligation to pay the minimum payments on the card in accordance with the provided tariffs.
That is, the Bank unreasonably and illegally demands payment of a fine in the amount of 800.00 rubles (300.00 rubles + 500.00 rubles = 800 rubles).
I stated my position in writing in a statement to the Bank dated 04/09/2010, but the Bank did not stop taking actions to collect penalties from me.
Currently, collection of funds is carried out by the collection agency Sequoia Credit Consolidation CJSC, which requires me to pay a sum of money in the amount of 1100.00 rubles, i.e. even without taking into account the 300.00 rubles I paid to the Bank to reissue the card.
I do not know on what basis it operates: whether the right to demand payment of the debt was transferred by the Bank to the agency and it is a new creditor, or whether the agency acts on behalf of the Bank (creditor).
Thus, the Bank’s actions to unjustifiably collect debt from me are unlawful and violate my rights and legitimate interests.

According to Art. 15 of the Law of the Russian Federation "On the Protection of Consumer Rights" and Art. 151 of the Civil Code of the Russian Federation, moral damage caused to the consumer as a result of violation by the manufacturer (seller, performer, etc.) of consumer rights, provided for by the laws and legal acts of the Russian Federation regulating relations in the field of consumer rights protection, is subject to compensation by the causer of harm if he is at fault.
As a result of the unlawful actions of OJSC National Bank TRUST, I suffered significant moral damage associated with the unlawful accrual of fines and the defendant’s evasion of responsibility, i.e. by infringing on my rights, the defendant caused me moral suffering, since I repeatedly had to postpone personal affairs, come to the Bank and prove my rights, conduct telephone conversations, seek advice, etc.
In addition, in connection with attempts to unjustifiably collect the above amount from me, I experience constant inconvenience and fear, since Sequoia Credit Consolidation CJSC (on behalf of the Bank) possible ways tries to collect this amount (multiple phone calls in the morning and evening), agency employees put pressure on me, point out Negative consequences non-repayment of this amount up to the deprivation of all property and property of relatives, criminal liability, etc.
Moreover, the Bank intends to post information about me as an unscrupulous borrower in the bureau credit histories, which will cause problems for me in relations with other credit organizations for issuing a loan, since I am a regular client of such organizations.
Based on considerations of reasonableness and fairness, I estimate the moral damage caused to me in the amount of 60,000 rubles.

According to clauses 1, 2 of Art. 98 of the Code of Civil Procedure of the Russian Federation, the court awards the party in whose favor the court decision is made to reimburse the other party for all legal expenses incurred in the case.
Thus, legal costs are subject to recovery from the defendant, consisting of expenses for legal services for consultation and drawing up a statement of claim for the protection of consumer rights in the amount of 1,660 rubles (190 rubles + 1,470 rubles).

In accordance with the provisions of the Law of the Russian Federation “On the Protection of Consumer Rights,” claims for the protection of consumer rights can be filed in court at the plaintiff’s place of residence (clause 2 of Article 17 of the Law) without paying a state fee (clause 3 of Article 17 of the Law).

Based on the above, guided by Art. Art. 151, 330 Civil Code of the Russian Federation, Art. 15, 17 of the Law of the Russian Federation “On the Protection of Consumer Rights”, Art. Art. 131, 132 Code of Civil Procedure of the Russian Federation

ASK:

1. Recognize the actions of National Bank TRUST OJSC to accrue fines against my_trust in the amount of 300.00 rubles and 500.00 rubles as illegal.
2. To recover from OJSC National Bank "TRUST" in favor of my_trust a sum of money in compensation for moral damage in the amount of 60,000 rubles.
3. To recover from OJSC National Bank "TRUST" in favor of my_trust the costs of legal services for consultation and drawing up this statement of claim in the amount of 1,660 rubles.

Application:
1. A copy of the statement of claim.
2. Terms of provision and servicing of Credit Cards of National Bank "TRUST" (OJSC).
3. Copy of terms and conditions Tariff plan"Client"
4. A copy of the application for a card dated June 21, 2007.
5. A copy of the receipt for receiving card No. XXXX XXXX XXXX XXXX dated June 21, 2007.
6. Copy of cash receipt order No. XXXX dated 06/03/2010.
7. Copy of the application (claim) dated 04/07/2010.
8. Copy of the Bank’s response to the application (claim) dated May 20, 2010.
9. Copies of the agreement for the provision of legal services for drawing up a statement of claim for the protection of consumer rights and the acceptance certificate.
10. A copy of the receipt for payment of legal services for consultation.
11. A copy of the receipt for payment of legal services for drawing up a statement of claim.