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Judicial practice on Sberbank in favor of the borrower. Sun explained to the courts how cases under loan agreements should be considered. Previously, the courts in relation to debtors took an extremely categorical position

Court decisions based on the application of the norms of Articles 819, 820, 821, 822, 823 of the Civil Code of the Russian Federation.

Art. 819 of the Civil Code of the Russian Federation. Loan agreement

Art. 820 of the Civil Code of the Russian Federation. Loan agreement form

Art. 821 of the Civil Code of the Russian Federation. Refusal to grant or receive a loan

Art. 822 of the Civil Code of the Russian Federation. Commodity credit

Art. 823 of the Civil Code of the Russian Federation. commercial loan

Arbitrage practice

Decree No. 44G-39/2019 4G-518/2019 dated April 29, 2019 in case No. 2-660/14

Kemerovo Regional Court (Kemerovo Region) - Civil

Analogies of law or analogies of law (Part 1 of Article 1, Part 3 of Article 11 of the Code of Civil Procedure of the Russian Federation). The decision of the court of first instance does not meet these requirements. According to Article 819 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), under a loan agreement, a bank or other credit organization (creditor) undertakes to provide funds (credit) to the borrower in the amount and on terms ...

Decree No. 44G-67/2019 4G-302/2019 dated April 29, 2019 in case No. 2-866/2018

Khabarovsk Regional Court (Khabarovsk Territory) - Civil and administrative

An increased interest rate on a consumer loan, depending on the method of providing a loan (in cash or non-cash form), is not provided for by law. By virtue of paragraph 1 of Article 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization undertakes to provide funds to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes ...

Decision No. 2-280/2019 2-280/2019~M-187/2019 M-187/2019 dated April 29, 2019 in case No. 2-280/2019

Alekseevsky district court (Belgorod region) - Civil and administrative

Transferred the loan amount to the borrower's account, which follows from the account statement. Thus, LLC CB "AyMoneyBank" fulfilled its obligations to the borrower, which complies with the requirements of Art. 819 of the Civil Code of the Russian Federation. The fact of violation of contractual obligations by the borrower Kovalenko C.The. is confirmed by the extract available in the case file on the actual transactions on the loan, the calculation of the debt on the overdue loan, according to ...

Decision No. 2-1123/2019 2-1123/2019~M-691/2019 M-691/2019 dated April 29, 2019 in case No. 2-1123/2019

Balakovsky district court (Saratov region) - Civil and administrative

Which are determined at the discretion of the parties, except when the content of the relevant condition is prescribed by law or other legal acts (Article 422 of the Civil Code of the Russian Federation). In accordance with Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit institution (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes ...

Decision No. 2-2417/2019 2-2417/2019~M-1347/2019 M-1347/2019 of April 29, 2019 in case No. 2-2417/2019

Balashikha city court (Moscow region) - Civil and administrative

of the Civil Code of the Russian Federation) may be collected at the request of the lender until the day when the loan amount, in accordance with the agreement, should have been returned. In accordance with Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes ...

Decision No. 2-894/2019 2-894/2019~M-755/2019 M-755/2019 dated April 29, 2019 in case No. 2-894/2019

Belorechensky District Court (Krasnodar Territory) - Civil and administrative

Was to be returned, until the day of its return to the lender, regardless of the payment of interest, provided for in paragraph 1 of Art. 809 of this Code. In accordance with Part 1 of Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes ...

Decision No. 2-307/2019 2-307/2019~M-241/2019 M-241/2019 dated April 29, 2019 in case No. 2-307/2019

Vanino District Court (Khabarovsk Territory) - Civil and administrative

Other legal acts, and in the absence of such conditions and requirements - in accordance with the customs of business transactions or other usually imposed requirements. According to Part 1 of Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, the Bank or other credit institution (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower ...

Decision No. 2-3386/2019 2-3386/2019~M-1899/2019 M-1899/2019 of April 29, 2019 in case No. 2-3386/2019

Vakhitovsky District Court of Kazan (Republic of Tatarstan) - Civil and administrative

Law, other legal acts, and in the absence of such conditions and requirements - in accordance with the customs of business transactions or other usually imposed requirements. By virtue of Article 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit institution (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes ...

Decision No. 2-2305/2019 2-2305/2019 (2-9018/2018;)~M-7849/2018 2-9018/2018 M-7849/2018 dated April 29, 2019 in case No. 2-2305/2019

Vsevolozhsk city court (Leningrad region) - Civil and administrative

Overdue interest; - 662511.77 rubles - overdue principal debt; -10362.95 rubles - a penalty. Referring to Article.Article. 309, 310, 314, 330, 331, 401, 807, 809-811, 819

1. In one of the Banks, a loan agreement was concluded with the provision of a credit card. And so the debt was formed. Time passed and the bank terminated the loan agreement (by sending a notice) - sold the debt to a collection agency. However, the bank did not take into account that the contract contains a ban on the transfer of all data to third parties. The agency filed a lawsuit, respectively, we filed a counterclaim - the court refused to satisfy the requirements of the agency, the counterclaim was satisfied, there was an appeal, in which the decision was upheld. We even received writ of execution for the recovery of the state. duties. However, now this agency continues to besiege with letters and visits home. I have a question, is it possible to sue that my personal data has been transferred to a third party and is being used illegally?

Lawyer Tyutyunnikova E. S., 252 responses, 140 reviews, online since 08/19/2019
1.1. Yes, it is possible, about the recognition of actions on the use of personal data as illegal.
For a more detailed consultation, it is necessary to study all available documents.

2. There was a court decision. Debt collectors sued me to recover the amount on my credit card. The bank's statute of limitations has long since expired. The last correspondence was with the bank already in 2014. Then a collection company appears and applies to me in the world, then in the district, and not at all in the district in which I am located, but in a completely different district and they write that they considered the case without their presence .. 3 times I went to the district court, and the court made a decision refuse. Collectors due to LED. Here the collectors write an appeal and again write to consider the case without their participation. They are in Moscow and I am in another city 1500 thousand km. from Moscow. Although there is a representative office of this bank in our city and there is a legal department.
The first meeting was over, of course I was present there, they really didn’t let me say anything. But they only postponed the meetings, citing the fact that the bank did not provide enough documents for consideration, that is, extracts. I have. There are extracts from 2014 and at the same time I wrote statements to them. That there is no way to pay the debt and I ask the bank to sue me. Since then, I have not received any papers or letters, I have not conducted conversations. But the collectors showed up and dragged me. I don't understand the position of the judges. Well, of course I can understand. But legally. No way. They did not provide they are going to ram just from the bulldozer. Sorry for being rude. Meetings tomorrow. How to behave. Tell me please.

2.1. You have the right to present your objections to the appeal based on the arguments presented in the complaint.

3. I took a credit card at the beginning of this year in the amount of 75 thousand rubles. I made the first installment and could not pay further. In October of this year, Tinkoff Bank filed a lawsuit against me. A court order came to the place of permanent registration. I myself live on temporary registration 2000 km from home. The mother took the envelope from the court and signed for receipt. I have not had the means to pay this debt for six months already, since I was injured and a spinal hernia came to light. I walk and my left leg goes numb all the time. As before, there is no way to plow at different jobs. Now the amount has become 105 thousand rubles. I have no property and no official work.
What should I do? What should be my actions inside and out? Explain everything, please! I am not going to give money at this stage, but over time I will try. I'm falling more and more into this credit hole!

Lawyer Karavaytseva E.A., 57750 responses, 27407 reviews, online since 03/01/2012
3.1. It is possible to play for time and cancel the court order.

3.2. Hello!
To cancel the court order, it is necessary to send an objection to the court within ten days, if the deadline is missed, then also a petition for the restoration of the deadline.

Law firm OOO "PRAVOPRO", 20568 responses, 12061 reviews, online since May 18, 2017
3.3. Good afternoon!
You need to cancel the court order, for this you need to write an objection to it, file it with the court that issued the court order. Moreover, you can’t pull, because then the writ of execution will be handed over to the bailiffs, and they have the right to come and describe the property at the place of your registration, your mother will have to prove that the property is her personal. They will also freeze your accounts.
You can file an objection in person, by mail, or through a representative, but this requires a power of attorney.

Code of Civil Procedure of the Russian Federation Article 129. Cancellation of a court order

Upon receipt of the debtor's objections regarding the execution of the court order within the prescribed period, the judge cancels the court order. In the ruling on the cancellation of the court order, the judge explains to the exactor that the stated requirement can be presented to them in the course of action proceedings. Copies of the court ruling on the cancellation of the court order shall be sent to the parties no later than three days after the date of its issuance.

4. Money was withdrawn from my salary card under a court order under a loan agreement that was closed a long time ago. It turned out that six months ago there was a court session between me and a collection agency, which I was not informed about. I applied to the Magistrates' Court to set aside the writ because I was not properly notified of the court's decision. The decision to cancel the court order is now with me. The question is: how to return the money illegally recovered from me in favor of collectors? Which court to apply to? I have a certificate from the bank in my hands that the bank has no claims against me, all loans are closed and the appeal of collectors to the Magistrate's Court was illegal!

Lawyer Boldyrev R. I., 3997 responses, 2251 reviews, online since 07/26/2017
4.1. Hello!
You need to send to the court that issued the order a statement of claim to reverse the court decision.

11. I took a credit card and did not pay off the debt, the bank sued, the court issued a decision, but after the statute of limitations expired, the enforcement proceedings were closed, now collectors are calling and they say that I should pay them, what should I do?

Lawyer Aisin R. A., 134 responses, 98 reviews, online since 23.09.2019
11.1. Enforcement proceedings may be resumed at the request of the claimant. Also, collectors could buy your debt, so they demand to pay the debt.

12. RS filed a lawsuit against me after canceling a court order last year to recover a credit card debt that was statute of limitations in 2017 (the last payment was in 2014). In 2018, I canceled the court order. After the cancellation of this order, the bank makes a corrective entry to my personal account, in the lawsuit they write that it was my replenishment to the account, which they write off to pay off the debt. (I found out about the corrective wiring by calling the bank on the hotline). What should I do now? How to apply the statute of limitations, how to get a decision in my direction?

12.1. Hello.
You need to check out the claim.

Lawyer Kudrin O. E., 15129 responses, 8098 reviews, online since 03/20/2015
12.2. Good afternoon.
You need to write your objection to the statement of claim. Almost always, an MFI or a bank submits an overestimated debt calculation to the court. The judge will not check it, the judge does not need it! You must submit your counter-debt to the court. As a rule, you can significantly reduce the amount. In addition, you need to calculate, perhaps some periods fell under the statute of limitations.

12.3. Hello Evgenia! The limitation period for a credit card begins to run from the moment the final claim (final invoice) is presented to you.
I also draw your attention to the fact that paragraph 23 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 No. 43 Moscow “On Certain Issues Related to the Application of the Rules of the Civil Code of the Russian Federation on Limitation of Actions” (hereinafter referred to as the Resolution) provides that the limitation period cannot be interrupted by the debtor's inaction (Article 203 of the Civil Code of the Russian Federation). The fact that the debtor did not dispute the payment document for direct debiting of funds, the possibility of challenging which is allowed by law or the contract, does not indicate recognition of the debt.
Paragraph 20 of the Resolution states that the running of the limitation period is interrupted by the obligated person performing actions indicating recognition of the debt (Article 203 of the Civil Code of the Russian Federation).
Actions that testify to the recognition of a debt in order to interrupt the running of the limitation period, in particular, may include: recognition of a claim; amendment of the contract by an authorized person, from which it follows that the debtor recognizes the existence of a debt, as well as the debtor's request for such a change in the contract (for example, a deferral or installment payment); an act of reconciliation of mutual settlements, signed by an authorized person.

Moreover, the recognition of a part of the debt, including by paying a part of it, does not indicate the recognition of the debt as a whole, unless otherwise agreed by the debtor.
Paragraph 21 of the Resolution provides that the interruption of the limitation period in connection with the commission of actions indicating the recognition of a debt can take place only within the limitation period, and not after its expiration.
At the same time, after the expiration of the limitation period, the limitation period begins anew if the debtor or other obligated person recognizes his debt in writing (paragraph 2 of Article 206 of the Civil Code of the Russian Federation).

The second and third articles dealt with disputes with VTB and Vostochny Bank. In the near future I will publish the case on Sberbank.

"How to win a lawsuit against a bank on a loan - a case for 5.6 million rubles."

"How to cancel a court decision in a case on debt collection under a loan agreement"

Also, please specify the date of issuing the final claim (final invoice) to you.
For a more detailed consultation, please review the application.

27. Tinkoff Bank sold the loan to Phoenix collectors. He sued. meeting on September 17th. Initially, they gave a loan of 4 thousand, then they increased the credit limit on the card to 12 thousand, then to 24, then 44, then 66. I paid for two years, then I couldn’t. As a result, collectors demand a debt of 106 thousand. How to reduce interest in court? What arguments should be in the application? Thank you.

Lawyer Zlotnikova L. G., 13378 responses, 7476 reviews, online since 04/08/2017
27.1. Hello.
If the court order, then no arguments, cancel it later by filing objections within 10 days of receipt.
If this is an ordinary statement of claim, then look at the statute of limitations, point out the disproportionate penalty and your difficult financial situation.

Lawyer Soldat S. V., 3997 responses, 2687 reviews, online since 01/22/2018
27.2. Hello, Elena! I am sure that you will find my article "Phoenix Collection Agency Failed to Collect the Debt under the Loan Agreement" useful

I also draw your attention to the fact that credit funds are provided in the absence or insufficiency of own funds when the client makes transactions using a bank card within the limit provided for in the agreement.

This implies an obvious conclusion that the client's transactions using a particular bank card is not proof of the receipt and use of credit funds, since transactions can also be performed at the expense of the client's own funds.

In general, you understand me)

Lawyer Voronchikhin D. A., 7230 responses, 4632 reviews, online since 11/14/2018
27.3. You need to look at the statement of claim, bank calculations and come up with something, each case is individual, depends on your specific circumstances, there is no universal remedy, you need to read everything and think about how you can reduce debt to the maximum in your case.

28. Otp bank mailed a credit card without my consent. As well as an agreement for issuing this card and an activation method. The envelope was found lying around in the entrance. Can I sue this bank?

Lawyer Plyasunov K.A., 145007 responses, 35783 reviews, online since 26.02.2013
28.1. Hello.
Yes, according to Article 46 of the Constitution of the Russian Federation.

29. I have a credit card debt, the bank has filed a lawsuit. After there was a penalty for enforcement proceedings, after a while the penalty was closed, while there was no payment. Now I received a message about the re-arrest of accounts, but the address where you can contact is the prosecutor's office, and not the bailiff department. What does this mean? The amount is small, but I can not pay right away.

Lawyer Ternovykh I.A., 22807 responses, 6377 reviews, online since 06/23/2014
29.1. For a correct answer to this question, it is necessary to clarify a number of circumstances. Contact a lawyer individually.

30. Please help with advice, I got into an unpleasant situation with the Vostochny bank.

Another call with a bank offer for a cash loan. The question was relevant to me, because I wanted to block the credit card of another bank.
There were 2 options, up to 300,000 you can fill out an online application and bring a mobile agent, higher, through the branch. I decided to try online, so as not to go in vain. Approval came, conditions from 14%, when asked how to find out for sure, they said this after uploading documents through a mobile agent. It's not a credit card, it's cash.

A mobile agent arrived, photographed the document, gave a paper to sign. I, since I myself worked for many years in a bank, of course, say that how can I sign without knowing the conditions. To which they tell me that the principle of work is that now I sign a document stating that he gave me the card, and I can find out the activation of the card and individual conditions within an hour, after uploading the information, in the contact center. After rereading the paper, I was convinced that there was only information that the card was handed over to me. You can activate it and get the conditions only through the contact center.

I call in an hour, I ask the conditions, while I do not activate anything and I do not give consent to this! They tell me that they approved at 24%, I ask again if this is a cash loan, if there will be any charges for debiting. They tell me that this is the most common loan, it’s just that you cannot transfer the amount in cash through a mobile agent, therefore, through a card.

Well, I asked, but the percentage remains the same when withdrawing, to which the girl hesitated and said that they would change a little. When I asked a little how much, 54% answered me! I was shocked! I asked why they don’t talk about it right away and the mobile agent doesn’t inform, to which I was told that the conditions are loaded after I receive the card.

Of course, I said that I did not need it and how to refuse it. At the same time, there was no activation and the code was never sent. The girl said that she blocked it additionally, but if you wish, you can still drive to the branch and close the account, because it is automatically loaded.

But 1.5 months have passed and today I receive a message from the bank demanding to pay off the debt of 14012 rubles.

I call the collection department, to which they tell me that they refused or not, you are obliged to pay for the insurance. When asked to register a complaint, since I did not sign either a loan agreement or an insurance agreement, they told me that we told you to pay the debt and we can’t help you with anything else. If you don’t pay, then you yourself are a bank employee and you know what awaits you then.

There is one moment, the mobile agent had a tablet, where you need to put a signature on a blank screen, for future identification in the bank. Now I think that it was categorically impossible to do this ... But I didn’t even think that a well-known bank would spin such scams.

Please advise me what to do. Go to court? To the insurance? I don’t even understand what they insured if there was no activation ..

Lawyer Stepanov V.I., 36189 responses, 15922 reviews, online since 10/15/2011
30.1. Just ignore. You did not sign any contract, which means that you did not have any mutual obligations. Actions aimed at accepting the offer (acceptance) were also not performed.
The bank may submit all its claims to the court.

Sincerely, a lawyer in Moscow - Stepanov Vadim Igorevich.

Lawyer Maksimova A. M., 667 responses, 329 reviews, online since 07/11/2019
30.2. Write a letter to the bank asking for clarification.

Lawyer Kriukhin N.V., 157614 responses, 69086 reviews, online since 07/14/2011
30.3. Hello.
Your only option is to do nothing and send the bank to court with all claims.
And do not forget, if you have any problems at work, record all conversations.
What is bank secrecy - you should know as well as we do.

Lawyer Sokolov D.G., 142224 responses, 33009 reviews, online since 11/23/2008
30.4. Julia, since you did not receive the money, you can go to court with a claim to recognize the loan agreement as not concluded. Similarly, since the application for insurance was not signed, the insurance was declared invalid (non-compliance with the written form of the contract).
Contact one of the lawyers who answered you for help with this.

Beware of intrusive calls from unidentified individuals with insistent invitations to supposedly "free legal advice." There is nothing free there, except for voicing inflated prices, and, most likely, you will not see lawyers at these "consultations" either :)

SUMMARY OF JUDICIAL PRACTICE ON CREDIT LEGAL RELATIONSHIPS AND SECURITY OF CREDIT RELATIONSHIPS: GUARANTEE AND PLEDGE AGREEMENTS

The generalization was carried out on cases that were considered by the courts of the Nizhny Novgorod region in 2009.

To summarize judicial practice, a total of 1,665 decisions were received, of which 1,426 were decisions of district courts, decisions of justices of the peace239.

Credit agreement. The difference between a loan agreement and a loan agreement, types of loan agreements.

A loan agreement is an obligation of a bank or other credit institution (creditor) to provide funds (loan) to a borrower in the amount and on the terms stipulated by the agreement, as well as the borrower's obligation to return the received amount of money and pay interest on it.

Loan agreement - the transfer by one party (the lender) to the ownership of the other party (the borrower) of money or other things defined by generic characteristics, as well as the obligation of the borrower to return to the lender the amount of money (loan amount) or an equal amount of other things received by him of the same kind and quality.

Comparative characteristics of a loan agreement and a credit agreement.

Base	Loan agreement	Loan agreement
	lender - any natural or legal person	creditor - a bank or a deposit-credit non-bank credit organization
subject of the contract	cash, other property defined by generic characteristics	cash
moment of the transaction	real contract	consensual agreement
payment	reimbursable / gratuitous	paid contract
the rights and obligations of the parties	unilaterally binding contract	bilaterally binding treaty

One of the types of credit agreements is a line of credit.

Credit line- a loan agreement, according to which the credit institution undertakes to issue loans to the borrower (opens a credit line) within the limit established in this agreement.

When establishing renewable credit line, the borrower has the right to receive a loan within the established limit. At non-renewable credit line, the borrower has the right to receive a loan only within the balance of the unused limit.

Loan agreement form. Termination of the loan agreement.

The loan agreement must be concluded in writing. Failure to comply with the written form entails the invalidity of the loan agreement. Such an agreement is considered void (Article 820 of the Civil Code of the Russian Federation).

Credit is provided to legal entities only in a non-cash manner by crediting funds to the current or correspondent account of the borrower, and to individuals - non-cash by crediting funds to the borrower's bank account or in cash through the bank's cash desk.

In case of violation of the terms of the loan agreement by the borrower, his requirements for termination of the loan agreement on the grounds established by Article 450 of the Civil Code of the Russian Federation are not subject to satisfaction.

Mistake: By the decision of the K-th city court of the Nizhny Novgorod region terminated the loan agreement concluded between AC SB RF and S.N.V. 25.09.2006

In solidarity with S.N.V., S.E.A., B.Yu.E. in favor of the Joint Stock Company of the Security Council of the Russian Federation, a total of 1,956,866.05 rubles was collected as compensation for the debt under the loan agreement.

The claim for termination of the loan agreement was satisfied by the court on the basis of paragraph 2 of Article 450 of the Civil Code of the Russian Federation on the following grounds.

S.N.V. 04/13/2009 sent to the address of the V-th OSB No. 4379 of the Savings Bank of the Russian Federation a request to terminate the loan agreement, thereby fulfilling the conditions on the pre-trial procedure for resolving the dispute.

The Court considers that the creditor's demand for the early recovery of the entire amount, including the not overdue, that is, the payment deadline for which has not come, will deprive the borrower of the opportunity to use the funds received under the loan agreement during the period for which he concluded the agreement from 25.09.2007 In this case, the loan agreement between the parties No. 8917 dated 25.09.2006. takes on a formal character.

The recovery of the entire amount received under the loan agreement ahead of schedule should entail the mutual termination of obligations between the lender and the borrower, since otherwise it will entail a detrimental state for the borrower S.N.V., that is, causing damage that she did not expect at the conclusion loan agreement, expressed in the participation of C.H.In. against one's will, a party to a contract that cannot be used. And this provision S.N.V. will be contrary to the requirements of Article 9 of the Civil Code of the Russian Federation, in terms of exercising their civil rights at their choice.

Determination of the Judicial Collegium for Civil Cases of the Nizhny Novgorod Regional Court the above decision regarding the termination of the loan agreement is canceled, in this part of the claim C.N.The. denied for the following reasons.

From the interpretation of paragraph 2 of Article 450 of the Civil Code of the Russian Federation, it follows that the requirement to terminate the contract can only be made by the party that fulfilled its obligations under the contract in good faith, and there is a violation of the contract by the other party.

In accordance with paragraph 5.12 of the loan agreement, the obligations of the borrower are considered to be properly and fully fulfilled after the return to the lender of the entire loan amount, payment of interest for using the loan, penalties in accordance with the terms of this agreement, determined on the date of repayment of the loan, and reimbursement of expenses associated with debt collection .

Meanwhile, the violation of the terms of the agreement took place not on the part of the bank, but on the part of the borrower, early recovery of the debt is a condition of the agreement and cannot be considered as its violation. The payment of interest and penalties from the date of actual repayment of the debt is provided for by the contract and the provisions of Articles 809,811 of the Civil Code of the Russian Federation, in connection with which C.N.V. could not have been unaware of the consequences of improper performance of the contract; accordingly, she could and should have counted, when concluding the contract, that she could incur losses related to her improper performance of the contract.

Collection of the amount of debt under a loan agreement in foreign currency is contrary to the requirements of Article 75 of the Constitution of the Russian Federation, Article 317 of the Civil Code of the Russian Federation.

Mistake: with Z.E.V. in favor of CJSC Raiffeisenbank, the debt was collected under the loan agreement dated 15.05.2008. in the amount of $268,411.91.

The court proceeded from the fact that, under the loan agreement, the funds were provided to the borrower in foreign currency - US dollars.

Mistake: with S.D.V. in favor of OAO Gazprombank represented by the Nizhny Novgorod branch, the amount of the debt under the loan agreement in the amount of 13,985 US dollars was collected.

With S.D.V. in favor of OAO Gazprombank represented by the Nizhny Novgorod branch, interest was collected for the use of a loan in the amount of 10.9% in the amount of USD 689.10, accrued up to 14.09.2009.

With S.D.V. in favor of OJSC Gazprombank represented by the Nizhny Novgorod branch, a penalty was collected in the form of a penalty for late repayment of a loan in the amount of 0.2% of the amount of the overdue payment for each day of delay from 09.05.2009. to 14.09.2009 in the amount of 344 US dollars, starting from 15.09.2009. to the day of the court session 382 US dollars.

With S.D.V. in favor of Gazprombank represented by the Nizhny Novgorod branch, a penalty was collected in the form of a penalty for late payment of interest accrued on a loan in the amount of 0.2% of the amount of the overdue payment for each calendar day of delay for the period from 09.05.2009. to 14.09. in the amount of 82.05 US dollars, and starting from 15.09.2009. to the day of the hearing on November 23, 2009. $44.17.

An example of a correct dispute resolution if the obligation is expressed in currency:

By the decision of the N-th district court of Nizhny Novgorod recovered jointly with G.P.V. and G.T.W. in favor of OJSC "Baltic Bank" debt under the loan agreement dated 25.07.2006. an amount equivalent to 43,210.24 EURO, which is 1,936,906 rubles 44 kopecks at the exchange rate of the Central Bank of the Russian Federation on the day of the court's decision.

The decision of the court is motivated by the following.

According to Article 75 of the Constitution of the Russian Federation and Article 27 of the Law of the Russian Federation on the Central Bank of Russia, the official monetary unit (currency of the Russian Federation) is the ruble. The official ratio between the ruble and foreign currency is established by the Central Bank of Russia.

As of 04/01/2009 The Central Bank of Russia has set the following exchange rate: 1 EURO is equal to 44.89 rubles.

In accordance with Article 317 of the Civil Code of the Russian Federation, monetary obligations must be expressed in rubles.

A monetary obligation may provide that it is payable in rubles in an amount equivalent to an amount in a foreign currency or in conventional monetary units.

Information about the total cost of the loan.

One of the obligations of credit institutions before concluding a loan agreement with an individual borrower and before changing the terms of the loan agreement with him, entailing a change in the total cost of the loan, is to provide this person with information about the total cost of the loan, as well as the list and amounts of payments of the borrower - an individual, associated with non-compliance with the terms of the loan agreement. This information must be included in the loan agreement.

The calculation of the full cost of the loan should include payments by the borrower - an individual under the loan, related to the conclusion and execution of the loan agreement, including payments by the specified borrower in favor of third parties if the obligation of this borrower for such payments follows from the terms of the loan agreement, in which such third parties are identified. The calculation of the full cost of the loan does not include payments by the borrower - an individual on the loan, related to non-compliance with the terms of the loan agreement.

If there are different options within the framework of the loan agreement, involving different payments, the credit institution is obliged to bring to the borrower - an individual information and the full cost of the loan, determined based on the maximum possible loan amount and loan term.

Account management fee.

The inclusion in a loan agreement with an individual of a clause on a commission for servicing (maintenance) of a loan account does not comply with the law.

By virtue of paragraph 1 of Article 16 of the Law of the Russian Federation "On the Protection of Consumer Rights", the terms of the contract that infringe 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 are recognized as invalid.

According to Article 9 of the Federal Law No. 15-FZ of 01/26/1996. "On the Enactment of Part Two of the Civil Code of the Russian Federation", clause 1, article 1 of the Law of the Russian Federation "On Protection of Consumer Rights", relations with the participation of consumers are regulated by the Civil Code of the Russian Federation, the Law on the Protection of Consumer Rights, other federal laws and adopted in accordance with them other normative legal acts of the Russian Federation.

In accordance with paragraph 1 of Article 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit institution undertakes to provide funds (credit) to the borrower in the amount and on the terms provided for in the agreement, the borrower undertakes to return the amount of money received and pay interest on it.

From the Regulation "On the rules of accounting in credit institutions located on the territory of the Russian Federation", approved by the Bank of Russia on March 26, 2007. 302-P it follows that the condition for granting and repaying a loan (the bank's creditor's obligation) is the opening and maintenance of a loan account by the bank.

Loan accounts are not bank accounts and are used to reflect in the balance sheet of the bank of formation and repayment of loan debt, that is, operations to provide borrowers and return funds (credits) to them in accordance with the concluded loan agreements.

Thus, the bank's actions to open and maintain a loan account cannot be qualified as an independent banking service.

The establishment of a commission for the introduction and maintenance of a loan account is not provided for by the norms of the Civil Code of the Russian Federation, the Law on the Protection of Consumer Rights, other federal laws and other regulatory legal acts of the Russian Federation.

Normative legal acts of the Bank of Russia may not contradict the requirements of the Civil Code of the Russian Federation.

Link of banks to the letter of the Central Bank of Russia dated 01.06.2007. No. 78-T "On the application of paragraph 5.1 of the Regulations of the Bank of Russia dated 03.26.2004. No. 254-P”, according to which the collection of fees for opening, maintaining loan accounts is included in the calculation of the effective interest rate for servicing the court, is unfounded.

The letter on the application of Clause 5.1 of the Regulations of the Bank of Russia does not apply to regulatory legal acts of the Russian Federation.

Consequently, the bank's actions to collect fees for opening and maintaining a loan account in relation to paragraph 1 of Article 16 of the Law of the Russian Federation "On Protection of Consumer Rights" infringe on the rights of consumers established by law.

Under such circumstances, the terms of the loan agreement, which establish a fee for opening and maintaining a loan account, are invalid, since they contradict the requirements of civil law.

According to Article 168 of the Civil Code of the Russian Federation, a transaction that does not comply with the requirements of the law or other legal acts is void. By virtue of Article 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment it was made.

Since the transaction is invalid on the grounds established by the Civil Code of the Russian Federation by virtue of its recognition as such by a court (voidable transaction) or regardless of such recognition (void transaction), any interested person may file a claim for the application of the consequences of the invalidity of a void transaction. The court has the right to apply such consequences on its own initiative. It should be remembered that these provisions apply only to individuals. As regards the relationship between the bank and legal entities, the legal regime established by the Consumer Rights Protection Law is not applicable. Business entities have the right to independently determine payments associated with a loan agreement, by virtue of the principle of freedom of contract and bearing the risk of entrepreneurial activity, including in terms of establishing commission payments for maintaining a loan account.

The court has the right, on its own initiative, in the absence of a counterclaim or objections from the borrower, to recognize this condition of the loan agreement as null and void and refuse to satisfy the bank's stated claims for the collection of debt under the loan agreement in this part, since such terms of the agreement are contrary to federal law and are void. (see also the decision of the Presidium of the Supreme Arbitration Court No. 8274/09 dated November 17, 2009).

Interest on a loan agreement.

Accrual and payment of interest is made in the manner prescribed by the loan agreement. Interest rates on loans are set by the credit institution by agreement with customers, unless otherwise provided by federal law. In addition, a credit institution does not have the right to unilaterally change interest rates on loans and the terms of these agreements with clients, except as otherwise provided by federal law or an agreement with a client.

If the loan agreement contains a condition on an increase in the interest rate due to an increase in the refinancing rate of the Central Bank of the Russian Federation, then the increase in the interest rate on the loan should be proportional to the increase in the refinancing rate.

In the absence of a condition on the amount of interest in the loan agreement, their amount is determined by the existing place of residence of the lender, and if the lender is a legal entity - at the place of its location, the bank interest rate (refinancing rate) on the day the borrower pays the amount of the debt or its corresponding part.

The inclusion in a loan agreement concluded with a citizen who does not have the status of an individual entrepreneur, a condition on the possibility of a unilateral change by the bank of interest rates, is illegal for the following reasons.

In accordance with Article 9 of the Federal Law of 26.01.1996. 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 having the intention 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 "On Protection of Consumer Rights" and other legal acts issued in accordance with it.

According to Part 1 of Article 16 of the Law of the Russian Federation "On Protection of Consumer Rights", the terms of the contract that infringe on the rights of consumers in comparison with the rules established by laws or other legal acts of the Russian Federation are recognized as invalid.

By virtue of Article 29 of the Federal Law “On Banks and Banking Activities”, a credit institution does not have the right to unilaterally change interest rates on loans, deposits (deposits), commission fees and the validity period of these agreements with customers, except as otherwise provided by federal law or agreement with the client.

At the same time, in accordance with 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.

Consequently, the provisions of the Civil Code of the Russian Federation, providing for the possibility of a credit institution changing the terms of an agreement concluded between it and a citizen unilaterally only in cases provided for by law, provide for a greater amount of guarantees for a citizen in comparison with the norms of the Federal Law “On Banks and Banking Activity”.

Federal Law of February 15, 2010 No. No. 11-FZ, amendments were made to Article 29 of the Federal Law “On Banks and Banking Activities” (the law was published on February 17, 2010, entered into force on March 17, 2010).

In accordance with Article 29 of the Federal Law “On Banks and Banking Activity” (as amended by Federal Law No. 11-FZ of February 15, 2010):

1. Interest rates on loans and (or) the procedure for determining them, including determining the amount of the interest rate on a loan depending on changes in the conditions provided for in the loan agreement, interest rates on deposits (deposits) and commission on operations are established by the credit institution according to agreement with clients, unless otherwise provided by federal law.

2. A credit institution does not have the right to unilaterally change interest rates on loans and (or) the procedure from the definition, interest rates on deposits (deposits), commission fees and the terms of these agreements with clients - individual entrepreneurs and legal entities, except for cases provided by federal law or an agreement with a client.

3. Under a loan agreement concluded with a citizen borrower, a credit institution cannot unilaterally shorten the term of this agreement, increase the amount of interest and (or) change the procedure for determining it, increase or establish a commission on operations, except for the cases provided for federal law.

These norms apply to legal relations arising from contracts concluded after the date of entry into force of the law.

Early repayment and repayment of the loan, early recovery of the entire loan amount.

The consent of the lender to the early repayment of the loan can be expressed both initially in the loan agreement, and subsequently by drawing up an additional agreement to the loan agreement or by performing conclusive actions - accepting funds from the borrower as early repayment of the loan.

The Civil Code (Articles 811,827) provides two grounds for the bank to have the right to demand early repayment of the loan:

If the borrower uses the borrowed funds for other purposes (in case of a targeted loan) or prevents the lender from exercising control over the intended use of the loan;

If the borrower, when repaying the loan in parts, violated the deadlines for repaying any part of the funds.

This list is not exhaustive, the loan agreement may provide for other circumstances in accordance with which the lender has the right to demand early repayment of the loan amount (for example, loss of collateral, deterioration of the pledged property, etc.).

The presence of debt on interest in the absence of debt on the amount of the principal debt entitles the bank to demand early repayment of the entire remaining loan amount, since the loan agreement is a reimbursable loan agreement. For the use of borrowed funds, the debtor is obliged to pay interest to the creditor. At the same time, the loan amount itself and interest for the use of borrowed funds (payment for using the loan) constitute the loan amount, which the debtor is obliged to repay to the creditor during the term of the loan agreement. Therefore, the timely fulfillment by the debtor of only the obligation to repay the loan amount in installments without paying interest, established by the loan agreement, gives the bank the right to demand early repayment of the entire amount of the remaining loan amount, together with interest (clause 2, article 811 of the Civil Code of the Russian Federation)

Error example:

By the decision of the C-th District Court of the city of Nizhny Novgorod, OAO AK SB RF in a claim for recovery from E.S.The. debt under the loan agreement in the amount of 208,495.70 rubles, the foreclosure on the pledged property - a car - was denied.

With E.S.V. in favor of OAO AK SB RF, a debt under a loan agreement of 16,310.25 rubles was collected. (interest, penalties) and the return of the state duty.

When resolving the dispute, the court found that E.C.The. there is a debt to the Bank only for the payment of interest, and, accordingly, penalties for late payment of interest under the loan agreement. The principal amount of the loan is paid to E.C.V. ahead of the payment schedule.

The provisions of part 2 of article 811 of the Civil Code of the Russian Federation give the lender the right to demand early repayment of the entire remaining loan amount in the only case: the borrower's violation of the deadline set for the return of the next part of the loan.

In the case under consideration, the defendant did not violate the deadline set for the return of the next loan amount, he did not have an overdue debt on the principal debt, therefore the plaintiff is not entitled to demand early repayment of the entire remaining loan amount, the repayment period of which is set to 06.06.2012.

Responsibility in case of untimely repayment of the amount of debt under the loan agreement. Interest accrual.

As a general rule, if the borrower does not repay the loan amount on time, interest is payable on this amount in the amount of the bank interest rate existing at the place of residence of the creditor, and if the creditor is a legal entity, at the place of its location, the discount rate of bank interest on the day of execution of the monetary obligation or its relevant part, from the day when it should have been returned until the day it was returned to the lender.

When recovering a debt in court, the court may satisfy the creditor's claim, based on the discount rate of bank interest on the day the claim is filed or on the day the decision is made.

This interest is charged regardless of the payment of interest under the loan agreement, unless otherwise provided by law or the loan agreement.

When recovering the amount of debt in court, interest on the loan is payable until the day of the actual execution of the court decision. The decision must specify the mechanism for calculating interest.

In cases where the loan agreement establishes an increase in the amount of interest due to late payment of the debt, the rate by which the fee for using the loan is increased should be considered a different amount of interest established by the loan agreement in accordance with paragraph 1 of Article 395 of the Civil Code of the Russian Federation (Clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation No. 13/14 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”).

Interest collected in connection with the delay in repayment of the loan amount is accrued on this amount without taking into account interest accrued on the day of repayment for the use of borrowed funds, unless there is a direct clause in the rules binding on the parties or in the agreement on a different procedure for calculating interest.

If there are conditions in the loan agreement on the accrual of increased interest in case of delay in repaying the debt, as well as a penalty for the same violation (with the exception of a penalty), the creditor has the right to demand the application of one of the measures of responsibility, without proving the fact and amount of losses incurred by him in the event of non-fulfillment of monetary obligations.

Examples.

Mistake: . with M.S.A. in favor of OAO Gazprombank, the balance under the loan agreement in the amount of 1,096,963 rubles was recovered. 37 kopecks, basic interest - 87,964 rubles. 59 kopecks, a penalty due to a violation of the deadline for paying a loan in the amount of 32,720 rubles. 51 kop., a penalty in connection with the violation of the deadline for paying interest on the loan in the amount of 17043 RUB. 99 kopecks, state duty in the amount of 10134 rubles. 26 kopecks, and only 124826 rubles. 72 kop.

The claim for the recovery of interest until the day of the actual execution of the court decision was denied.

Motivating the dismissal of the claim, the court pointed out that after the termination of obligations under the loan agreement, which in this case coincides with the issuance of a court decision on the recovery of the remaining loan amount together with the interest due, the obligation to pay interest (12% per annum for the use of the loan) under the defendant's loan agreement is terminated, in connection with which the court dismisses the plaintiff's claim regarding the recovery of interest under the loan agreement until the day the court decision is actually executed. Evidence that the defendant has to pay after the termination of obligations under the loan such interest by the plaintiff is not presented to the court, the amount of the required amount is not stated.

Reversing the decision court of first instance in the said part, judicial board in the cassation ruling, indicated the following.

Clause 2.3.1 of the loan agreement dated 11.02.2008. provided that the defendant undertook to pay the plaintiff interest on the loan at the rate of 12% per annum.

By virtue of Article 809, Clause 2 of the Civil Code of the Russian Federation, unless otherwise agreed, interest (on the loan amount) is paid monthly until the day the loan amount is repaid.

In accordance with paragraph 3 of Article 810 of the Civil Code of the Russian Federation, unless otherwise provided by the loan agreement, the amount is considered returned at the time of its transfer to the lender or the transfer of funds to his bank account.

Within the meaning of the above rules of law, when a court decides to recover the principal and interest under a loan agreement, the specified agreement will be considered terminated (rather, the obligations will be considered terminated, and not the agreement) at the time the defendant returns the money to the plaintiff. In case of non-execution of the court decision, the loan agreement cannot be considered fulfilled, and the obligation is terminated, therefore, interest is charged on the loan amount until the day the court decision is actually executed (Article 809, Clause 1 of the Civil Code of the Russian Federation).

The Court of Cassation issued a new decision, which with M.C.A. in favor of JSC "Gazprombank" interest was collected for the use of the loan, starting from 02.10.2009. until the date of actual fulfillment of obligations to repay the amount of the principal debt under loan agreement No. 197-2008 dated 11.02.2008. at the rate of 12% per annum on the principal amount.

The application of liability (collection of a penalty, "increased" interest, etc.) for improper fulfillment of the terms of the loan agreement for the future, from the moment the decision is made, does not comply with the law.

Mistake: By the decision of the L-th district court of Nizhny Novgorod with S.G.N., F.A.D. in favor of OAO AK SB RF collected under a loan agreement dated 21.02.2008: the balance of the principal debt in the amount of 315,929 rubles. 16 kopecks, interest for using the loan in the amount of 19360.90 rubles, a penalty for late repayment of the loan and interest in the amount of 6657.11 rubles, the state duty paid when filing claims in the amount of 7019 rubles. 47 kopecks, interest on the use of other people's funds due to their unlawful retention and evasion of return, other delay in their payment with the balance of the principal debt in the amount of 315,929 rubles. 16 kop. and interest on the loan in the amount of 19 360 RUB. 90 kop. at a double interest rate under the loan agreement, which is 34% per annum until the actual repayment of the debt.

When establishing a double interest rate on the loan agreement, the district court proceeded from the following.

In accordance with paragraph 3 of Article 395 of the Civil Code of the Russian Federation, interest for the use of other people's funds is charged on the day the amount of these funds is paid to the creditor, unless a shorter period is established for the calculation of interest by law, other legal acts or an agreement.

The parties to the loan agreement, clause 4.4, provide for a different amount of interest for the use of other people's funds in the event of an overdue debt. According to paragraph 7.1 of the loan agreement, this agreement is valid until the parties fully fulfill their obligations under the agreement.

In accordance with Article 395 of the Civil Code of the Russian Federation and clause 4.4 of the loan agreement, suretyship agreements, as well as the provisions of Article 363 of the Civil Code of the Russian Federation, interest on the use of other people's funds due to their unlawful retention and evasion of return, other delay in their payment from the balance of the principal debt on the loan in the amount of 315929 RUB.16 kopecks. and interest on the loan in the amount of 19360.90 RUB. from 18.11.2009 at a double interest rate under the loan agreement, amounting to 34% per annum until the actual repayment of the debt.

Within the meaning of Article 395 of the Civil Code of the Russian Federation, the collection of interest for the use of other people's funds under a loan agreement from the date of the court decision until the actual repayment of the debt is not a repeated measure of civil liability for the same violation, since a penalty in the amount of 6657 rubles. 11 kop. collected by the court for the period from February 10, 2009. to September 20, 2009.

The definition of the Judicial Board the above decision regarding the collection of interest for the use of the loan in the amount of 19360 RUB. 90 kop. since November 18, 2009 at a double interest rate under the loan agreement, amounting to 34% per annum until the actual repayment of the debt was canceled for the following reasons.

Clause 4.4 of the loan agreement provides that in case of late payment of the loan repayment and (or) payment of interest for using the loan, the borrower pays the lender a penalty in the amount of two times the interest rate under the agreement, effective on the date of occurrence of the overdue debt under the agreement (taking into account possible changes in the interest rate for the use of a loan, from the amount of the overdue payment for the period of delay from the date following the date of the fulfillment of the obligation established by the agreement to the date of repayment of the overdue debt (inclusive).

Collecting interest for late payment from 18.11.2009. on the day of the actual repayment of the debt, the court did not take into account that the claims are aimed at protecting the allegedly violated right in the future, since the defendants have a delay in payment from 18.11.2009. at the time of the court decision (November 17, 2009) was not established.

Moreover, the court did not establish the fact that the defendants violated the plaintiff's rights in the future, the day of the actual repayment of the debt was not known, the amount to be recovered in connection with the delay in payment from November 18, 2009 was not determined, and therefore, violations of the plaintiff's rights in the future are presumable nature and cannot currently serve as a basis for satisfaction of the claim in this part.

Contract jurisdiction.

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 the Code of Civil Procedure of the Russian Federation cannot be changed by agreement of the parties.

It follows from this legal 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 (the principle of dispositivity). The Code of Civil Procedure of the Russian Federation does not contain other restrictions. An agreement on jurisdiction may be included in a civil law contract, including an accession contract.

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 agreement on changing the territorial jurisdiction was concluded between the parties before filing a statement of claim with the court, in accordance with the procedure established by law, was not disputed by anyone and was not recognized as invalid (definitions of the Supreme Court of the Russian Federation: No. dated January 27, 2009, No. 51-B-09-11 dated September 22, 2009).

The rules of exclusive jurisdiction (Article 30 of the Code of Civil Procedure of the Russian Federation) do not apply to claims for foreclosure on pledged real estate. In this case, there is no dispute about the rights to the real estate object, but there is a dispute related to improper performance of the terms of the contract.

State duty when determining the price of the claim.

In accordance with clause 1, part 1, article 91 of the Code of Civil Procedure of the Russian Federation, in claims for the recovery of funds, the price of the claim is determined from the sum of money to be recovered.

A claim for the recovery of debt under a loan agreement in connection with the borrower's failure to fulfill its obligations is a claim for the recovery of the amount of money specified in the obligation with the accrual of interest in the amount established by the obligation, as well as penalties (fines, penalties).

The amount indicated in the statement of claim is the total debt of the defendants, the amounts of which it is composed are interconnected, arise from one loan agreement, are interdependent and cannot exist independently (definition of the Supreme Court of the Russian Federation No. 15-B08-9 of March 24, 2009).

GUARANTEE.

A surety agreement obliges the surety to the creditor of another person to be responsible for the fulfillment by the latter of his obligations in full or in part. A suretyship agreement can be concluded both in respect of a current obligation and an obligation that will arise in the future (Article 361 of the Civil Code of the Russian Federation).

The parties to a suretyship agreement are the surety and the creditor of the person for whose obligations the surety is responsible.

The surety agreement must be concluded in a simple written form. Failure to comply with the written form entails the invalidity of the surety agreement (Article 362 of the Civil Code of the Russian Federation).

In this case, the evidence of compliance with the simple written form of the transaction may be a note on the acceptance of the guarantee made by the creditor on a written document drawn up by the debtor and the guarantor.

The suretyship agreement can be concluded either by drawing up a separate document signed by both parties, or the provisions of the suretyship agreement are included in the agreement, for the fulfillment of obligations under which the debtor is responsible.

It is possible to conclude tripartite agreements between the creditor, borrowers (debtor) and the guarantor containing the relevant provisions of the loan agreement and the surety agreement.

Letters of guarantee for the fulfillment of obligations are not a guarantee agreement, since these letters are issued directly by the debtor himself, and not by the guarantor.

In the case when a letter of guarantee is issued by a guarantor, this letter without fail requires an appropriate acceptance by the creditor for the secured obligation, since the surety agreement, by definition, is a bilateral transaction.

The essential terms of a suretyship agreement include:

1) an indication of the obligation of the guarantor to be responsible for non-performance or improper performance by the debtor of his obligations;

2) an indication of the main obligation in connection with which the guarantee was issued;

3) indication of the debtor. In addition, the contract may establish the obligation of the guarantor to be responsible for any new debtor in the event of a transfer of debt under a secured obligation.

The absence of the consent of the spouse of the guarantor to conclude a surety agreement does not entail the invalidity of this agreement, since in this case there is no disposal of the common property of the spouses.

An example of correct dispute resolution.

By the decision of the K-th District Court of the Nizhny Novgorod Region with D.V.N., D.V.V., D.O.V., Kh.A.Kh. jointly and severally in favor of JSC "Russian Agricultural Bank" pledged under a loan agreement in the total amount of 474,070.81 rubles. 81 kop.

In the suit H.A.H. the invalidation of the guarantee agreement was refused on the following grounds.

As established by the court, Kh.A.Kh. was the guarantor of D.V.N. in accordance with the contract of guarantee.

Challenging this agreement H.A.H. pointed to the lack of consent of his wife to the conclusion of the contract of guarantee, which he actually disposed of the jointly acquired property of the spouses.

These arguments were rightly rejected by the court.

According to part 1 of article 34 of the RF IC, the common property of the spouses (joint property) is the property acquired by the spouses during marriage.

By virtue of part 2 of article 35 of the RF IC, a transaction made by one of the spouses on the disposal of the common property of the spouses may be declared invalid by the court due to the lack of consent of the other spouse only at his request and only in cases where it is proved that the other party about the transaction knew or obviously should know about the disagreement of the spouse to the commission of this transaction.

According to paragraph 1 of Article 361 of the Civil Code of the Russian Federation, under a surety agreement, the guarantor is obliged to the creditors of another person to be responsible for the fulfillment by the latter of his obligations in full or in part.

On the basis of part 1 of article 45 of the RF IC and part 3 of article 256 of the Civil Code of the Russian Federation, for the obligations of one of the spouses, recovery can only be levied on the property of this spouse, and if this property is insufficient, on the share due to him in the common property of the spouses.

By concluding a surety agreement H.A.H. did not violate the requirements of Article 35 of the RF IC.

Article 35 of the IC of the Russian Federation regulates relations related to the possession, use and disposal of the common property of the spouses.

The surety agreement does not contain the obligations of the surety to own, use and dispose of the common property of the spouses.

A suretyship agreement is not a transaction for the disposal of the common property of the spouses, since its subject matter is security under a loan agreement. The surety contract does not violate the rights of the guarantor's wife in relation to the common property of the spouses, since, according to the obligations of the guarantor spouse, execution can be levied only on the property of this spouse, and if this property is insufficient, on the share due to him in the common property of the spouses.

The consent or lack of consent of the spouse when the second spouse concludes the contract of guarantee is not an essential condition of the contract of guarantee.

Thus, on the grounds of Article 35 of the RF IC, the surety agreement cannot be invalidated.

As a general rule, in the event of non-performance or improper performance by the debtor of an obligation secured by a surety, the surety and the debtor shall be jointly and severally liable to the creditor.

At the same time, a guarantor's subsidiary liability may be provided for by a law or a surety agreement. Several guarantors who have given surety for the performance of an obligation by the debtor are also jointly and severally liable, provided that otherwise is not stipulated in the surety agreement.

The guarantor is liable to the creditor to the same extent as the debtor, including the payment of interest, reimbursement of legal costs for collecting the debt and other losses of the creditor caused by the debtor's failure to perform or improper performance of the obligation, unless otherwise provided by the surety agreement.

If the guarantee agreement provides for the guarantor's liability for repayment of the debt and payment of interest, such a provision is a condition for limiting the guarantor's liability only to these amounts.

The establishment in the suretyship agreement of the guarantor's independent liability for failure to fulfill obligations under this agreement does not in itself entail the nullity of this transaction and the termination of the suretyship, since clause 1 of Article 367 of the Civil Code of the Russian Federation allows the establishment in the suretyship agreement of a different amount of liability of the guarantor. The norm is dispositive. (However, the liability of the guarantor cannot exceed the liability of the principal debtor ).

If the debtor is declared bankrupt, then the guarantors cannot be obliged to pay interest, fines and other payments in an amount greater than that of the debtor.

By the decision of the C-th District Court of Nizhny Novgorod in satisfaction of the claims of OJSC “Bank UralSib” for recovery from B.A.P. and LLC "Prodsnab-NN" interest for the use of credit funds in the amount established by the loan agreement with LLC "Russian Traditions" dated 05.03.2008. on the provision of a credit line - 14% per annum for the amount of the principal debt - 2,700,000 rubles. from 18.02.2009 until the date of fulfillment of obligations to return the amount of the principal debt, it was refused in accordance with Part 2 of Article 363 of the Civil Code of the Russian Federation on the following grounds.

According to clause 1.4 of the guarantee agreements concluded with B.A.P., Probsnab-NN LLC, the guarantor is liable to the bank to the same extent as the borrower, including the amount of funds provided to the borrower under the loan agreement, interest for using them, commissions, possible forfeits (fines, penalties), increased interest, reimbursement of legal costs for debt collection and other losses of the bank caused by non-fulfillment or improper fulfillment of obligations by the borrower.

The borrower under the loan agreement LLC "Russian Traditions" by the decision of the Arbitration Court of the Nizhny Novgorod Region of 27.01.2009. declared insolvent (bankrupt).

In accordance with paragraph 1 of Article 126 of the Federal Law “On Insolvency (Bankruptcy)”, the accrual of interest, penalties (fines, penalties) and other sanctions for non-fulfillment or improper fulfillment of monetary obligations and mandatory payments, with the exception of current payments, as well as interest, is terminated from the date of the adoption by the arbitration court of the decision to declare the debtor bankrupt and to open bankruptcy proceedings.

The creditor has the right to file a claim against the guarantor if the court decision on the recovery of the relevant amounts from the debtor is not executed.

If the creditor presents claims against the guarantor, the latter has the right to put forward objections against the creditor's claim that the debtor could submit, unless otherwise follows from the surety agreement. The guarantor does not lose this right even if the debtor has refused them or acknowledged his debt.

When the guarantor fulfills his obligation under the surety agreement, the rights of the creditor under the main obligation and the rights belonging to the creditor as a pledgee (if a pledge of any property was also provided to secure the main obligation) pass to him, but only to the extent that the guarantor satisfied the requirement creditor.

The guarantor is also entitled to demand from the debtor the payment of interest on the amount paid to the creditor and compensation for other losses incurred in connection with the debtor's liability. At the same time, the principal debtor is not entitled to raise against the recourse claim of the guarantor the objections that he had against the creditor, if the debtor did not inform the guarantor about the performance of the obligation.

At the time of performance by the guarantor of obligations, the creditor is obliged to hand over to the guarantor the documents certifying the claim against the debtor and to transfer the rights securing this claim.

In order to exclude the unjust enrichment of the creditor, the debtor who has fulfilled the obligation secured by the surety must immediately notify the surety of this. If the debtor fails to fulfill this obligation, the guarantor who has fulfilled his obligation, at his own discretion, has the right to recover from the creditor what he received unjustifiably or to present a recourse claim against the debtor. If the debtor has satisfied the recourse claim of the guarantor, the debtor shall have the right to recover from the creditor only what was received unjustifiably.

Termination of guarantee.

In addition to the general grounds for termination of an obligation, several special grounds for terminating the contract of guarantee.

1. A suretyship terminates with the termination of the obligation secured by it.

2. A suretyship is terminated in the event of a change in the obligation secured by the suretyship, entailing an increase in liability or other adverse consequences for the surety, without the consent of the latter;

3. Transfer of debt under a secured obligation, provided that the guarantor has not agreed to be responsible for the new debtor;

4. The suretyship is terminated if the creditor refuses to accept the proper performance offered by the debtor or surety. Such refusal of the creditor must be documented;

5. The guarantee shall terminate upon the expiration of the period specified in the guarantee agreement for which it was given. If such a period is not established, it shall be terminated if the creditor does not file a claim (rather than a pre-trial claim) against the guarantor within a year from the date of the due date for the fulfillment of the obligation secured by the surety.

Reference in the surety agreement to validity of the contract until the actual performance of the secured obligation entails the application of the general provisions on the validity period, namely the provisions, if the suretyship agreement does not specify the duration of the suretyship.

In the event that the deadline for the fulfillment of the main obligation is not indicated and cannot be determined or determined by the moment of demand, surety terminates if the creditor does not file a claim against the guarantor within two years from the date of conclusion of the surety agreement.

Legal situations related to disputes on the termination of the guarantee.

1. Absence of the subject of pledge, termination of the pledge agreement, misuse of the loan, termination by the bank of the guarantee agreement with one of the guarantors, or the death of one of the guarantors does not entail the termination of the guarantee agreements with other guarantors.

An example of a correct dispute resolution: By the decision of the C-th district court of Nizhny Novgorod. in the suit of E.S.G. to JSC SB RF on the termination of the suretyship agreement was refused on the following grounds.

The court found that E.C.G. was the guarantor of E.A.S. under a loan agreement for the purchase of a car.

Between E.A.S. and OAO AK SB RF signed a car pledge agreement.

Declaring the requirements for the termination of the suretyship agreement, E.S.G. pointed to 2 reasons:

- she vouched for a car loan granted for the purchase of a car, but it was not purchased;

- when entering into a guarantee agreement, she proceeded from the security of the loan also with a pledge of the purchased car, and due to its absence, the terms of the obligation have changed significantly and she is not able to repay the resulting debt.

Denying E.S.G. In the lawsuit, the court said:

The funds for the purchase of a car were provided to the borrower, he disposed of them at his own discretion, instructing him to transfer them by bank transfer from his deposit to the account of the trading organization. Not purchasing a car does not refer to the terms of the loan obligation, but indicates its non-fulfillment by the borrower. This circumstance has nothing to do with the plaintiff and cannot influence the provision of the obligation with a surety.

The lack of collateral for the loan is not a change in the secured obligation itself. On the contrary, the absence of one of the ways to secure the main obligation does not terminate or exclude another type of security.

Otherwise, any loss of the subject of pledge would entail the termination of the guarantee, which contradicts the purpose of the guarantee as an additional (accessory) one that secures the main obligation (credit) in case the borrower fails to fulfill the latter.

In addition, under the terms of the guarantee agreement, the defendant vouched for the borrower's performance of the loan agreement in full, and not in the part not covered by the collateral. Moreover, the pledgee (bank) has the right, at its discretion, to choose the means of satisfying its claims against the borrower under the loan agreement: to demand the amount of the debt from the guarantor or to resolve the issue of foreclosure on the pledged property.

If the claim against the guarantor was filed during his lifetime (the claim was filed by the bank during the life of the guarantor), but subsequently the guarantor died, then the responsibility for his obligations will be borne by the guarantor's heirs within the value of the inheritance property.

2. Termination of a loan agreement in court on the basis of a material breach by the debtor of the terms of the agreement does not deprive the creditor of recovering damages from the guarantor on the basis of paragraph 5 of Article 453 of the Civil Code of the Russian Federation.

Legal grounds: In accordance with paragraph 1 of article 367 of the Civil Code of the Russian Federation, the suretyship is terminated with the termination of the obligation secured by it, as well as in the event of a change in this obligation, entailing an increase in liability or other adverse consequences for the guarantor, without the consent of the latter.

Upon termination of the contract, the obligations of the parties cease (clause 2, article 453 of the Civil Code of the Russian Federation).

At the same time, according to paragraph 1 of Article 363 of the Civil Code of the Russian Federation, in case of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the guarantee, the guarantor and the debtor shall be jointly and severally liable to the creditor, unless the law or the guarantee agreement provides for subsidiary liability of the guarantor.

The guarantor is liable to the creditor to the same extent as the debtor, including the payment of interest, reimbursement of legal costs for the collection of debt and other losses of the creditor caused by non-performance or improper performance of the obligation by the debtor, unless otherwise provided by the surety agreement (clause 2 of article 363 of the Civil Code RF).

The debtor is obliged to compensate the creditor for losses caused by non-fulfillment or improper fulfillment of the obligation (clause 1 of article 393 of the Civil Code of the Russian Federation), including in the event of termination of the contract on this basis (clause 5 of article 453 of the Civil Code of the Russian Federation).

Thus, the termination of the loan agreement does not prevent the exercise of the creditor's right to recover losses from the guarantor caused by non-performance or improper performance of obligations, if the corresponding condition is contained in the surety agreement (review of the judicial practice of the Supreme Court of the Russian Federation for the 3rd quarter of 2006)

An example of a correct dispute resolution: By the decision of the L-th district court of the Nizhny Novgorod region collected from P.N.V., P.V.P., P.V.V., P.E.S. and Fantasia LLC, jointly and severally in favor of Ellips-Bank OJSC, the debt under the loan agreement in the total amount of 5,451,133 rubles. 71 kop.

Foreclosed on the mortgaged property by sale at public auction. The initial selling price of the property was set at 8,700,000 rubles.

Counterclaims P.N.V., P.V.P., P.V.V., P.E.S. and Fantasia LLC to Ellips-Bank OJSC on early termination of the loan agreement and recognition of the terminated guarantee agreements were partially satisfied.

Terminated from 04/23/2009. loan agreement between OJSC Ellips-Bank and P.N.V.

The claims for recognition of the terminated suretyship agreements were denied.

Rejecting the claim for termination of the guarantee, the court, with reference to paragraph 1 of Article 363 of the Civil Code of the Russian Federation, indicated that the termination of the loan agreement does not prevent the creditor from exercising the right to recover losses from the guarantor caused by non-performance or improper performance of obligations.

3. The death of the debtor under the main obligation in the presence of an assignee who has accepted the inheritance does not terminate the suretyship, if the surety has agreed to be responsible for the new debtor.

Legal grounds: In accordance with paragraph 2 of article 367 of the Civil Code of the Russian Federation, the suretyship is terminated with the transfer to another person of the debt under the obligation secured by the suretyship, if the surety has not given the creditor consent to be responsible for the new debtor.

Therefore, in the event of the death of the debtor under the main obligation secured by the surety agreement, if there is an assignee who has accepted the inheritance, the surety’s consent is required to be responsible for the new debtor, unless the surety agreement contains as a condition the surety’s consent to be responsible for the performance of the obligation to any new debtor in the event of transfer of debt on the secured obligation.

Consequently, in the absence of the consent of the guarantor to be responsible for the successor of the debtor in the event of non-fulfillment or improper fulfillment by him of the main obligation, imposing such an obligation on him is unlawful.

4. In the event of the death of the debtor and in the presence of heirs and hereditary property, the recovery of credit debt is possible from the guarantor within the value of the hereditary property.

Legal basis: According to Article 1112 of the Civil Code of the Russian Federation, the inheritance includes things belonging to the testator on the day the inheritance was opened, other property, including property rights and obligations.

Article 1175 of the Civil Code of the Russian Federation establishes that the heirs who have accepted the inheritance are liable for the debts of the testator within the value of the inherited property that has passed to them. The creditors of the testator have the right to present their claims to the heirs who have accepted the inheritance. Prior to acceptance of the inheritance, creditors' claims may be filed against the estate.

Thus, the heir of the debtor, subject to the acceptance of the inheritance, becomes a debtor to the creditor within the value of the inherited property transferred to him.

If the guarantee agreement contains a condition on the consent of the guarantor to be responsible for any other new debtor, the guarantor becomes responsible for the performance of the obligation by the heir (clause 2 of article 367 of the Civil Code of the Russian Federation).

The obligation is terminated by the impossibility of performance if it is caused by a circumstance for which none of the parties is responsible (clause 1 of article 416 of the Civil Code of the Russian Federation).

Since, by law, the heir is liable for the debts of the testator within the value of the inherited property transferred to him (Article 1175 of the Civil Code of the Russian Federation), then in the absence or insufficiency of the inherited property, the loan obligation is terminated by the impossibility of fulfillment, respectively, in full or in the missing part of the inherited property (clause 1 of Art. .416 of the Civil Code of the Russian Federation).

Based on the above norms, as well as clause 1 of Article 367 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 must be liable to the creditor within the value of the inherited property.

Thus, in the event of the death of the debtor and in the presence of heirs and hereditary property, the collection of credit debt is possible from the guarantor within the value of the hereditary property (review of the judicial practice of the Supreme Court of the Russian Federation for the 1st quarter of 2008).

It should be noted that the circumstances related to the establishment of the deceased borrower's inheritance property and heirs, as well as the acceptance by the heirs of the inheritance, are circumstances that are essential for the correct resolution of the dispute (determination of the Supreme Court of the Russian Federation of 13.01. No. 5-В09-7, definition No. 73-В09-2 of 06/02/2009).

If the heirs do not accept the inheritance by any of the methods established by law (applying to a notary, actually accepting the inheritance within 6 months from the date of opening the inheritance), then the body exercising powers in relation to escheated property will be the proper defendant.

5. Non-fulfillment by the debtor of the obligation to pay the loan and its bankruptcy does not terminate the guarantee.

Legal grounds: In accordance with Article 363 of the Civil Code of the Russian Federation, the guarantor is liable to the creditor to the same extent as the debtor.

In case of a joint obligation of debtors, the creditor has the right to demand performance both from all debtors jointly, and from any of them separately, both in full and in part of the debt. Solidary debtors remain obligated until the obligation is fully performed.

At the same time, the law does not make the creditor's right to demand the performance of an obligation only from the guarantor dependent on the ability of the debtor to fulfill the obligation himself.

The presentation by the creditor of the demand for early repayment of the loan does not in itself terminate the obligation and, accordingly, the guarantee by which this obligation is secured.

The conclusion of the court on the impossibility of satisfying the claim for the joint and several recovery of debt under the loan agreement only from the guarantors does not comply with the provisions of Articles 323, 363 and 367 of the Civil Code of the Russian Federation, which provide for joint and several liability.

The norms of substantive law do not make the possibility of concluding a guarantee agreement, as well as the obligation of the guarantor to bear joint and several liability with the debtor as a result of the debtor's failure to fulfill the obligations secured by the guarantee, dependent on the solvency of the guarantor or the availability of property sufficient to fulfill such an obligation (determination of the Supreme Court of the Russian Federation of February 17, 2009 No. No. 24-B09-1).

6. The adoption by the arbitration court of a decision on declaring the debtor bankrupt does not entail the termination of the guarantee.

Legal grounds: The grounds for termination of the guarantee are provided for in Article 367 of the Civil Code of the Russian Federation, in accordance with paragraph 1 of Article 367 of the Civil Code of the Russian Federation, the guarantee is terminated with the termination of the obligation secured by it from the moment such obligation is terminated.

In accordance with Part 8 of Article 63 of the Civil Code of the Russian Federation, the liquidation of a legal entity is considered completed, and the legal entity ceases to exist after changes are made to the Unified State Register of Legal Entities.

The consequences of opening bankruptcy proceedings, specified in Article 126 of the Federal Law “On Insolvency (Bankruptcy)”, do not contain grounds for excluding a legal entity from the register of legal entities.

When deciding on the qualification of claims arising from suretyship agreements as current payments, one should proceed from the fact that the obligation of the guarantor to answer to the creditor of another person for the fulfillment by the latter of his obligation arises from the moment the suretyship agreement is concluded, and not from the date the guarantor fulfills the obligation to the creditor, therefore guarantors, in the event of fulfillment of an obligation, have the right to be included in the register of creditors' claims.

7. If the main debtor is declared bankrupt, the enforcement proceedings against the guarantor are not subject to termination.

According to Part 1 of Article 439 of the Code of Civil Procedure of the Russian Federation, enforcement proceedings are terminated by the court in cases provided for by the Federal Law “On Enforcement Proceedings”.

The list of such cases is given in Part 1 of Article 43 of the Federal Law “On Enforcement Proceedings”.

Part 2 of Article 43 of this Federal Law establishes a list of grounds for terminating enforcement proceedings by a bailiff.

Meanwhile, the liquidation of a legal entity is not provided for in Parts 1 and 2 of Article 43 of the Federal Law “On Enforcement Proceedings” as a basis for terminating enforcement proceedings against the debtor. There is no such basis in other federal laws.

In accordance with Article 49 of the Federal Law “On Enforcement Proceedings”, the parties in enforcement proceedings are the recoverer and the debtor.

In a disputable situation, the Bank was the debtor, the guarantor, LLC, which is bankrupt (the debtor under the loan agreement), is neither the collector nor the debtor under the writ of execution issued by the court, in connection with which its liquidation has no legal significance for resolving the issue of termination of the enforcement proceedings against the guarantor.

The application of the provisions of Articles 367 and 419 of the Civil Code of the Russian Federation on the termination of the guarantee and obligation by the liquidation of a legal entity to the relations of the parties on the termination of enforcement proceedings is unreasonable. When considering an application for termination of enforcement proceedings, the court only resolves the issue of the presence or absence of grounds provided for by law for termination of enforcement proceedings initiated on the basis of a writ of execution issued by a court decision that has entered into legal force. At the same time, the court is not entitled to assess the legal relations that have arisen between the plaintiff and the defendant in a dispute in which there is a court decision that has entered into legal force and a writ of execution has been issued (determination of the Supreme Court of the Russian Federation of April 14, 2009).

8. If a loan agreement is concluded between a bank and a legal entity, and the director of this legal entity acts as a guarantor, then this dispute is subordinate to a court of general jurisdiction, and not to an arbitration court.

Legal grounds: Courts consider and resolve cases provided for by the first and second parts of Article 22 of the Code of Civil Procedure of the Russian Federation, with the exception of economic disputes and other cases referred by federal constitutional law and federal law to the jurisdiction of arbitration courts.

By virtue of parts 1 and 2 of article 27 of the Arbitration Procedure Code of the Russian Federation, the arbitration court has jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities. Arbitration courts resolve economic disputes and consider other cases involving organizations that are legal entities, citizens engaged in entrepreneurial activities without forming a legal entity and having the status of an individual entrepreneur acquired in the manner prescribed by law, and in cases provided for by this Code and other federal laws, with the participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, state bodies, local self-government bodies, other bodies, officials, entities that do not have the status of a legal entity, and citizens who do not have the status of an individual entrepreneur.

The dispute on debt collection from individuals, by virtue of Article 22 of the Code of Civil Procedure of the Russian Federation, is under the jurisdiction of a court of general jurisdiction. At the same time, the purpose for which loan and surety agreements were concluded by individuals, as well as the possibility to later transfer the debt to a commercial organization, spending the funds received under the agreement, do not matter for resolving the issue of jurisdiction of the dispute, given the subject composition of the legal relationship that has arisen. The dispute that arose under loan and guarantee agreements concluded with individuals is not referred by federal laws to the jurisdiction of the arbitration court (determination of the Supreme Court of the Russian Federation No. 89-В09-1 of 06/02/2009).

Guarantee periods.

If the guarantee agreement does not specify the period for which the guarantee is given, or the following wording is stated: “the guarantor agrees to be responsible for the fulfillment by the borrower of his obligations in full, including the loan repayment period” (which is equivalent to the fact that the period is not set), then according to paragraph .4 Article 367 of the Civil Code of the Russian Federation, in the event that the contract does not specify the period for which the guarantee is given, it is terminated if the creditor does not bring a claim against the guarantor within a year from the date of the due date for the fulfillment of the obligation secured by the guarantee.

If the terms of the loan agreement provide for the repayment of the loan in equal monthly installments, then the right to claim against the guarantors in case of default by the borrower of obligations to repay the first part of the loan arose on the day following the day of payment of this part of the loan. If the claim is filed after a year, then for this part of the obligation (for the year) it is considered terminated. With regard to the other part of the obligation, the guarantee does not terminate (determination No. 46-В09-6 of 10.03.2009).

If the terms of the surety agreement do not specify the term of the surety, but only indicate that the guarantor is familiar with the terms of the loan agreement, including its validity period, this only indicates that the guarantor is familiar with the terms of the loan agreement, but does not mean that that such a link is a condition on the term of the surety agreement.

In this case, one should proceed from the provision of clause 4 of article 367 of the Civil Code of the Russian Federation (determination of the Supreme Court of the Russian Federation of April 28, 2009 No. 46-V09-8).

PLEDGE.

Pledge - a method of securing the fulfillment of obligations arising on the basis of a law or an agreement, according to which the creditor under the obligation secured by the pledge (pledgee) has the right, in case the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger) , including by obtaining the pledged property into the ownership of the pledgee.

Pledge legal relations are regulated by the following legal acts: the Civil Code of the Russian Federation, the Law of the Russian Federation of 29.05.1992. No. 2872-1 "On Pledge", which is valid in the part that does not contradict the Civil Code of the Russian Federation and the Federal Law of 16.07.1998. No. 102-FZ "On Mortgage (Pledge of Real Estate)".

As a general rule, the pledge secures the claim to the extent that it has by the time of satisfaction, in particular, interest, penalty, compensation for losses caused by delay in performance, as well as compensation for the necessary expenses of the pledgee for the maintenance of the pledged thing and the costs of recovery.

The parties to the pledge relationship are the pledgor and the pledgee. Both the debtor and a third person can act as a pledgor, while this person must have the right of ownership or the right of economic management of the pledged property or the right of operational management. When pledging immovable property obtained under the right of economic management, the pledgor is obliged to obtain the consent of the owner of the property.

Only the creditor under the main obligation secured by the pledge can act as a pledgee.

The subject of a pledge can be any property, including things and property rights (claims), with the exception of property withdrawn from circulation, claims inextricably linked with the personality of the creditor (alimony, compensation for harm to health), and other rights, the assignment of which to another person is prohibited by law.

The right of pledge extends both to the thing that is the subject of pledge, and to all its accessories, unless the parties have provided otherwise in the pledge agreement. However, the right of pledge extends to the fruits, products and income obtained as a result of the use of the pledged property only if it is provided for by the pledge agreement.

Types of pledge: pledge of property (without transferring it to the pledgee) and pledge (assuming the actual transfer of the subject of pledge to the pledgee); initial and subsequent pledge. A subsequent pledge arises from the moment when the pledged property becomes the subject of another pledge to secure other claims.

At the same time, the claims of the subsequent pledgee are satisfied from the value of this property after the claims of the previous pledgees are satisfied.

When levying execution on the pledged property under claims secured by a subsequent pledge, early performance of the obligation secured by the pledge may be demanded at the same time and execution may be levied on this property also under the claims secured by the previous pledge and the deadline for presenting for collection of which has not yet come. If the pledgee under the previous pledge agreement did not use this right, the property that is foreclosed on the claims secured by the subsequent pledge passes to its acquirer as encumbered with the previous pledge (clause 4 of article 342 of the Civil Code of the Russian Federation).

A subsequent pledge is possible only if it is not prohibited by previous pledge agreements. The pledgor is obliged to inform the pledgee about the existing pledges of this property, otherwise the pledgor shall be liable for losses caused to the pledgees by failure to fulfill this obligation.

A pledge agreement may be concluded both in respect of an existing thing, and in respect of things and rights acquired by the pledgor in the future. In the latter case, the parties should detail the future subject of pledge as much as possible.

The pledge agreement must be concluded in writing. An agreement on the pledge of movable property or rights to property to secure obligations under the agreement, which must be notarized, is subject to notarization. Thus, a pledge agreement for a share or part of a share in the authorized capital of a limited liability company is subject to notarization. Failure to comply with the notarial form of the specified transaction entails its invalidity.

An agreement on pledge of real estate is subject to state registration with the Office of the Federal Service for State Registration, Cadastre and Cartography of the Federal Service for State Registration, Cadastre and Cartography (Rosreestr). Failure to comply with this procedure entails the invalidity of the pledge agreement.

The essential terms of the pledge agreement are:

- subject of pledge;

- the nature, amount and term of fulfillment of the obligation secured by the pledge;

- indication of the holder of the subject of pledge;

The absence of any of the above conditions entails the recognition of the pledge agreement as not concluded.

As a general rule, the right of pledge arises from the moment the pledge agreement is concluded, and the moment the rights of pledge arise in the case of a pledge is the moment the subject of pledge (property) is transferred to the pledgee. With regard to book-entry securities, the right of pledge arises from the moment the relevant entry is made on the depo account (personal account of the mortgagor) of the pledgee (in the event of a pledge).

The insufficiency of the property (subject of pledge) to satisfy the claims of the pledgee does not deprive the latter of the right to demand satisfaction of outstanding claims at the expense of other property of the debtor, however, the pledgee will not have any preemptive rights in relation to this property.

The pledgor, as well as the pledgee (only in case of pledge) has the right to claim the pledged property from someone else's illegal possession, and also has the right to demand from other persons, including the pledger, the elimination of any violations of his right to use the subject of pledge. This right also applies to cases of protection of the rights of the pledgee from the owner during the period of validity of the pledge agreement.

The right to demand early performance of an obligation secured by a pledge belongs only to the pledgee. At the same time, it is necessary to distinguish between the grounds for demanding early performance of an obligation and the grounds for demanding early performance of an obligation, in case of non-fulfillment of which the pledgee has the right to foreclose on the subject of pledge.

The first group (grounds for demanding early performance of an obligation) includes the following grounds:

If the subject of pledge has left the possession of the pledgor not in accordance with the terms of the pledge agreement;

If the pledgor has violated the rules on the replacement of the subject of pledge;

If the subject of pledge is lost due to circumstances for which the pledgee is not responsible, and at the same time the pledgor did not use the right to replace the subject of pledge.

The second group (grounds for demanding early performance of an obligation, in case of non-fulfillment of which the pledgee has the right to foreclose on the subject of pledge) includes the following grounds:

Violation by the pledgor of the rules on a subsequent pledge, including the encumbrance of the pledged property with one or more pledges contrary to the prohibition contained in the initial pledge agreement;

Failure by the mortgagor to fulfill the obligations of insurance and safety of the pledged property (in case of a pledge with the abandonment of the pledged property with the mortgagor);

Violation by the pledgor of the rules on the use and disposal of the subject of pledge.

The pledgee has the right to assign rights under the pledge agreement, subject to the simultaneous assignment of rights under the underlying obligation secured by the pledge. However, with the transfer to another person of the debt under an obligation secured by a pledge, the pledge is terminated if the pledgor has not given the creditor the consent to be responsible for the new debtor.

The pledgor has the right to replace the subject of pledge only with the consent of the pledgee, unless otherwise provided by the pledge agreement. However, according to the general rule, the consent of the pledgee to replace or restore the subject of pledge is not required if the subject of pledge is lost or damaged, or the right of ownership to it or the right of economic management is terminated on legal grounds.

In accordance with paragraph 2 of article 346 of the Civil Code of the Russian Federation, the pledgor has the right to bequeath the pledged property without any restrictions. Any agreement limiting this right is void.

As a general rule, the pledgor bears the risk of accidental loss or accidental damage to the pledged property, unless otherwise provided by the pledge agreement (clause 1, article 344 of the Civil Code of the Russian Federation). The pledgee is responsible for the total or partial loss or damage of the subject of pledge transferred to him, unless he proves that this was caused by force majeure circumstances. Otherwise, the pledgee is obliged to compensate for the loss of the subject of pledge in the amount of its actual value, and pay for its damage not less than the value by which this value has decreased, regardless of the amount at which the subject of pledge was valued when transferring it to the pledgee. Moreover, if as a result of damage to the subject of pledge it has changed so much that it cannot be used for its intended purpose, the pledgor has the right to refuse it and demand compensation for its loss.

The agreement may provide for the obligation of the pledgee to compensate the pledger for other losses caused by the loss or damage to the subject of pledge.

If, with the consent of the pledgee, a share of property in kind was divided, as a result of which a separate property arose in the form of a separate premises, and the subject of pledge was an ideal share in the ownership of the property, foreclosure under a pledge agreement is impossible, since by virtue of subparagraph 3 of paragraph 1 Article 352 of the Civil Code of the Russian Federation, the pledge is terminated in the event of the destruction of the pledged thing or the termination of the pledged right.

Considering that when part of the pledged share is allocated in kind, the share itself as an object of civil rights ceases to exist (legal destruction of the subject of pledge occurs), and the pledge of the premises allocated in kind does not arise, foreclosure on the pledged property under such circumstances is unlawful.

Claim for collateral to satisfy the claims of the pledgee, it may be applied in case of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the pledge due to the circumstances for which he is responsible, except in cases where the violation of the obligation secured by the pledge is extremely insignificant and the amount of the pledgee's claims as a result of this is clearly disproportionate to the value of the pledged property.

Error Example in proportion to the value of the pledged property and the amount recovered : By the decision of the D-th city court of the Nizhny Novgorod region with D.O.A. and D.I.A. in favor of OAO CB Oksky, the amount of debt under the loan agreement of 2,752,004 rubles was recovered.

Execution was made on the pledged property - an apartment on the basis of a pledge (mortgage) agreement dated 01.06.2007. in the amount of 2450000 rubles.

With regard to foreclosure on the vehicle (truck truck tractor Mercedes-Benz) was denied due to the disproportionate value of the entire pledged property to the amount of the claim.

The decision of the Judicial Board the above decision regarding the rejection of the claim for foreclosure on the car was canceled, in this part a new decision was made, foreclosure was levied on the car, the initial sale price of the vehicle was set at 500,000 rubles. for the following reasons.

In deciding to foreclose only on the apartment, the court of first instance proceeded from the fact that the cost of the apartment is commensurate with the amount of the claim.

According to the decision, the plaintiff's claims regarding the collection of debt under the loan agreement were satisfied in the amount of 2,752,004 rubles. 84 kop. The cost of the apartment, which is foreclosed is 2,450,000 rubles. With such data, the conclusions of the court of first instance on the proportionality of the cost of the apartment to the amount of satisfied claims cannot be considered justified.

It is legally established that, unless proven otherwise, it is assumed that the violation of the obligation secured by the pledge is extremely insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property, if the following conditions are simultaneously met:

- the amount of the unfulfilled obligation is less than 5% of the value of the subject of pledge under the pledge agreement;

- the period of delay in fulfilling an obligation secured by a pledge is less than three months (clause 2, article 348 of the Civil Code of the Russian Federation).

A different procedure is established to secure an obligation fulfilled by periodic payments, for example, payments by an individual under a loan agreement. So, unless otherwise provided by the pledge agreement, foreclosure on property pledged to secure an obligation fulfilled by periodic payments is allowed in case of systematic violation of the terms for making them.

A systematic breach of a secured obligation is a breach of payment terms more than three times within 12 months, even if each delay is insignificant.

Foreclosure on the subject of pledge (movable or immovable property) is levied only in court if:

- for the conclusion of an agreement on the pledge of property of an individual, the consent or permission of another person or body was required;

- the subject of pledge is property of significant historical, artistic or other cultural value for society;

- the pledgor is absent and it is impossible to establish his location;

- the subject of pledge are residential premises owned by individuals;

- the pledge agreement or other agreement between the pledgor and the pledgee does not establish the procedure for foreclosure on the pledged movable property, or it is impossible to foreclose in the manner established by the parties;

- other cases are established by law (clause 6 of article 349 of the Civil Code RF).

Agreement on extrajudicial foreclosure of pledged property may be entered into at any time. An agreement on extrajudicial foreclosure of pledged property may be part of a pledge agreement. This agreement may be declared invalid by the court at the suit of a person whose rights are violated by such an agreement.

A notarized consent of the pledgee to an extrajudicial procedure for foreclosing the pledged property is required when pledging real estate (mortgage). When pledging movable property, the notarized consent of the pledgee to an out-of-court procedure is required only if the pledger is an individual.

However, the existence of an agreement on extrajudicial foreclosure of the pledged property does not deprive the creditor of the right, in the event of a dispute, to demand foreclosure of the pledged property in court. Otherwise, the right of the creditor to judicial protection is violated (Article 46 of the Constitution of the Russian Federation, Articles 2 and 3 of the Code of Civil Procedure of the Russian Federation).

Mistake: By the decision of the U-th district court of the Nizhny Novgorod region with Y.V.I. in favor of Rusfinance Bank LLC, the debt under the loan agreement and the costs of paying the state duty were collected in the total amount of 179,581 rubles. 03 kop.

The claims for foreclosure on a GAZ 3110 car were left unsatisfied for the following reasons.

According to paragraphs 15-20 of the pledge agreement, the collection of property to satisfy the requirements of the Pledgee may be levied in case of non-fulfillment or improper fulfillment by the pledgor of obligations under the loan agreement. By virtue of clause 16 of the said agreement, foreclosure on the property transferred to the pledgee is carried out out of court.

At the hearing found, that Ya.The.AND. owns the pledged property - a GAZ 3110 car. It follows from his explanation that the car is currently a source of livelihood. Under such circumstances, the court considers that the plaintiff's claims to foreclose on the car cannot be satisfied. Moreover, the procedure for the execution of the pledge agreement is determined by clauses 15-20 of the agreement and it does not lose its relevance. Ya.V.I.'s car arrested.

The initial sale price of the pledged property, from which the auction begins, is determined by a court decision in the event of foreclosure on the property in a judicial proceeding, or by agreement between the pledgee and the pledgor in other cases.

The pledged property is sold to the person who offered the highest price at the auction.

When an auction is declared invalid, the pledgee, by agreement with the pledgor, has the right to acquire the pledged property and set off his claims secured by the pledge against the purchase price. The rules on the contract of sale shall apply to such an agreement.

When a repeated auction is declared invalid, the pledgee shall have the right to retain the subject of pledge with its valuation in the amount not more than 10% lower than the initial sale price at the repeated auction.

If the pledgee does not use the right to retain the subject of pledge within a month from the date of the announcement of repeated auctions as failed, the pledge agreement shall be terminated.

If the amount received from the sale of the pledged property exceeds the amount of the pledgee's claim secured by the pledge, the difference shall be returned to the pledgor.

The debtor and the pledgor, being a third party, have the right at any time before the sale of the subject of pledge to stop levying a penalty on it and its implementation, having fulfilled the obligation secured by the pledge or that part of it, the fulfillment of which is overdue (clause 7 of article 350 of the Civil Code of the Russian Federation).

The right of succession, indicating the presence of elements of a proprietary legal nature in pledge legal relations, is expressed in the fact that in the event of the transfer of ownership of the pledged property or the right of economic management or the right of operational management of it from the pledgor to another person as a result of a paid or gratuitous alienation of this property (with the exception of cases of sale of this property in order to satisfy the requirements of the pledgee) or in the manner of universal succession, the right of pledge remains in force (clause 1 of article 353 of the Civil Code of the Russian Federation). If there are several successors, each of them bears the obligations in proportion to the part of the specified property that has passed to him or in the case of the indivisibility of the subject of pledge - the successors are solidary pledgors.

Mistake: By the decision of the V-th district court of the Nizhny Novgorod region with G.D.O. in favor of OAO AK SB RF, the debt under the loan agreement was collected, the loan balance, interest, pensions, in total 212,106 rubles. 82 kop.

In terms of foreclosure on the pledged property - a / m VAZ-21124, owned by S.L.K. denied for the following reasons.

The court found that in securing the return of borrowed funds G.Oh.D. signed a car loan agreement.

YEAR. died. The heir to his property, who accepted the inheritance, including the disputed car, is his son, G.D.O., who rented the car subject to alienation.

08.01.2009 the car was sold to G.D.O.- S. L.K.

In accordance with clause 6 of the sales contract, the car has not been sold to anyone, is not in dispute and is not under arrest, is free from the rights of third parties.

Based on the provisions of Articles 10.302 of the Civil Code of the Russian Federation, the district court indicated that S.L.K., when purchasing the car, did not know and could not know that D.S.A. (acting by proxy on behalf of G. D.O.) did not have the right to alienate the car, which is why the court has no reason to recognize S.L.K. dishonest purchaser. In addition, the car was purchased for trips to the hospital in Nizhny Novgorod, since the granddaughter of S.L.K. is disabled. The plaintiff - OAO AK SB RF did not provide the court with evidence refuting the arguments of a third party S.L.K. about her good faith in acquiring the disputed car.

Reversing said decision judicial board in determination referring to paragraph 1 of Article 353 of the Civil Code of the Russian Federation, she indicated that the reference of the court of first instance to the provision of Article 302 of the Civil Code of the Russian Federation cannot be recognized as justified, since the norms of Article 302 of the Civil Code of the Russian Federation are applied when considering claims for the recovery of property. In the present dispute, however, a requirement is made to foreclose on the subject of pledge, therefore the relations of the parties are subject to regulation by the norms of paragraph 3 of Chapter 23 of the Civil Code of the Russian Federation.

In addition, in accordance with Article 460 of the Civil Code of the Russian Federation, the seller is obliged to transfer the goods to the buyer free from any rights of third parties, unless the buyer agreed to accept the goods encumbered with the rights of third parties.

By virtue of clause 3, clause 2, article 351 of the Civil Code of the Russian Federation, the pledgee has the right to foreclose on the subject of pledge in the event that the pledgor violates the rules on the disposal of the pledged property.

Such a basis as the acquisition of pledged property by a person who did not know about its encumbrance with a pledge is not indicated in Article 352 of the Civil Code of the Russian Federation, which regulates the grounds for termination of a pledge.

At the same time, there are no exceptions that allow the person who acquired the pledged property to be released from the obligations of the pledgor transferred to him on the basis that, when concluding the contract of sale, he did not know about the encumbrances imposed on him, is not provided.

In order to protect the rights of the creditor in the event of seizure of the subject of pledge for state or municipal needs, requisition or nationalization, the pledgor is provided with other property or appropriate compensation, the right of pledge extends to the property provided in exchange, or, accordingly, the pledgee acquires the right of preferential satisfaction of his claim from the amount of compensation due to the pledgor. At the same time, the pledgee is also entitled to demand early performance of the obligation secured by the pledge (Article 354 of the Civil Code of the Russian Federation).

In cases where the subject of pledge is seized on the grounds that in reality the owner of this property is another person, or in the form of a sanction for committing a crime or other offense, the pledge in respect of this property is terminated, and the pledgee has the right to demand early performance of the obligation secured by the pledge.

In the event that the pledgor fails to fulfill the agreement on extrajudicial foreclosure of the pledged property, extrajudicial foreclosure of the pledged property is allowed, unless otherwise provided by law, on the basis of a notary's executive inscription in the manner established by the legislation on enforcement proceedings.

Postponement of foreclosure on pledged movable property in court.

A deferment may be granted for valid reasons for up to one year.

However, the postponement does not affect the rights and obligations of the parties under the secured obligation and does not release the debtor from compensation for the creditor's losses and penalties that have increased during the delay. When determining the deferral period, it should be taken into account that the amount of the pledgee's claims to be satisfied from the value of the pledged movable property at the time of the expiration of the deferral period must not exceed the value of the pledged movable property according to the assessment specified in the pledge agreement.

The prohibition on granting a deferral occurs when the deferral may entail a significant increase in the risk of loss or destruction, the risk of a significant reduction in the price of the pledged item compared to the initial sale price of the pledged item, or a significant deterioration in the financial position of the pledgee. In this regard, it is up to the discretion of the court to assess the risk of loss or destruction, a decrease in the price of the pledged movable property.

Initial sale price of pledged movable property, when foreclosing in court or out of court, is determined accordingly by a court decision or in accordance with a pledge agreement (agreement on foreclosure of pledged movable property out of court), including by indicating the initial sale price (realization price under a commission agreement ) or the procedure for its determination in the above contract or agreement.

When levying execution on the pledged property, the court is obliged to determine the initial sale value of the property, even if the relevant requirements have not been filed by the credit institution. In this case, going beyond the limits of claims is permissible (clause 3, article 196 of the Code of Civil Procedure of the Russian Federation), since this is directly provided for by law - clause 3 of article 350 of the Civil Code of the Russian Federation.

In accordance with clause 4, part 2, article 54 of the Federal Law “On Mortgage (Pledge of Real Estate)”, when deciding to foreclose property pledged under a mortgage agreement, the court must determine and indicate in it the initial selling price of the pledged property when it implementation. 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.

Error examples:

1. Foreclosure on the pledged property without determining the initial sale value.

In absentia decision of the K-th district court of Nizhny Novgorod with L.E.V. in favor of Rusfinance Bank LLC, the amount of the debt under the loan agreement was recovered, the cost of paying the state duty, in total in the amount of 220,751 rubles. 90 kop.

Execution was levied on a VAZ-21112 car, engine…., body….., identification number……, year of manufacture………., color…………

When foreclosing in the reasoning part, the court referred to the provisions of part 1 of article 348 of the Civil Code of the Russian Federation, but did not determine the initial sale price of the specified car.

By the decision of the K-th district court of Nizhny Novgorod with H.M.I. in favor of Rusfinance Bank LLC, the amount of the debt under the loan agreement, urgent interest, the debt to pay the commission, the debt to repay the loan, the debt for unpaid interest, increased interest for the late repayment of the debt, and a total of 188438 rubles. 10 kop.

Execution was made on the pledged property – a GAZ-31105 car, manufactured in 2006, identification number………., engine number…………, colors…., owned by Kh.M.I.

When foreclosing in the reasoning part, the court referred to Article 348 of the Civil Code of the Russian Federation, however, the initial selling price was not determined.

2. Foreclosure on the pledged property indicating the collateral value:

By the decision of the L-th district court of Nizhny Novgorod. with S.A.E. and K.W.A. jointly and severally in favor of Microfinance Center LLC, a debt was collected under a loan agreement of 53,796 rubles, interest - 47,341 rubles, penalties in the amount of 12,257 rubles.

Foreclosed on the property of S.A.E. under a pledge agreement: an Opel Vectra car - a security deposit of 40,000 rubles, a Samsung refrigerator, a Samsung TV, a Samsung DVD, upholstered furniture, a computer, a bedroom set, a washing machine, a car radio, a Nokia cell phone, a total security deposit of 76,000 rubles.

Foreclosed on the property of K.V.A.: Samsung refrigerator, Ericsson TV, Panasonic home cinema, ACER laptop, Samsung washing machine, computer, printer, office furniture, in total for a security deposit of 41,000 rubles.

3. Foreclosure on the pledged property indicating the estimated value.

By the decision of the justice of the peace court district C-th district of Nizhny Novgorod recovered from P.T.Yew. and K.S.L. in favor of OOO «Microfinance Center» the amount of debt under the loan agreement in the amount of 56503 RUB. in solidarity.

Foreclosure was made on the property of P.T.Yu., which was pledged by Microfinance Center LLC: a microwave oven (estimated value 500 rubles), a kitchen table (estimated value 700 rubles), a TV set (estimated value 500 rubles), etc. .d., with a total estimated value of 79,600 rubles, in the amount of the claims of 56,503 rubles declared by Microfinance Center LLC. and the return of the state fee in the amount of 1730 RUB. 06 kop.

4. Foreclosure on the pledged property within the amount recovered.

By absentee decision of the B-th city court of the Nizhny Novgorod region. with N.A.N. in favor of Rusfinance Bank LLC, a debt was collected under a loan agreement in the amount of 391,774 rubles. 77 kopecks, as well as the return of the state duty of 5708 rubles. 75 kopecks.

The court decided to foreclose on the pledged property under the pledge agreement dated March 21, 2008. – car…, within the amount recovered by the court 392774 RUB. 77 kop.

Examples of correct resolution of disputes related to foreclosure on pledged property:

By the decision of the C-th District Court of Nizhny Novgorod with N.A.V., N.N.V. jointly and severally in favor of Alfa-Bank OJSC, a debt was collected under a loan agreement in the amount of 2,165,962 rubles. 85 kopecks, a refund of state duty in the amount of 20,000 rubles, and a total of 2,185,962 rubles. 85 kop.

Foreclosure was made in favor of Alfa-Bank OJSC in repayment of the amount of debt N.A.V., N.N.V. under a loan agreement dated June 27, 2008. for the pledged property - an apartment………….., with the announcement of the initial selling price at public auction in the amount of 2,990,000 rubles.

The court ruled to postpone the sale of the pledged property - an apartment for a period until June 02, 2010.

Resolving the dispute, the court found that the defendants' debt under the loan agreement amounted to 2,165,962 rubles. 85 kopecks, of which 2075691 rubles. 46 kop. - the main debt, 85229 rubles. 16 kop. - interest, 3992 rubles. 23 kop. - penalty for late repayment of overdue principal and interest, 1050 rubles. - commission for servicing a credit account.

This amount, in accordance with paragraph 1 of Article 334, paragraph 1 of Article 349, paragraph 1 of Article 350, Article 363,809,811,819 of the Civil Code of the Russian Federation, is subject to recovery from the defendants through the sale of pledged property in accordance with the mortgage registered in UFRS for the Nizhny Novgorod region. The court considers it necessary to establish the initial sale value of the pledged property at public auction in accordance with clause 8 of the mortgage in the amount of 2,990,000 rubles.

The defendants did not present any evidence to substantiate their objections to establishing the initial sale value of the pledged property.

At the same time, an application for granting a deferment for the sale of the pledged property is subject to satisfaction on the following grounds.

In accordance with the requirements of Parts 3 and 4 of Article 54 of the Federal Law “On Mortgage (Pledge of Real Estate)”, at the request of the pledgor, the court, if there are good reasons, has the right, in the decision to foreclose on the pledged property, to postpone its implementation for up to one year in cases when:

- the mortgagor is a citizen, regardless of what property is pledged by him under a mortgage agreement, provided that the pledge is not related to the entrepreneurial activity of this citizen;

- the subject of mortgage is a land plot from the composition of agricultural land.

When determining the period for which a deferment is granted for the sale of the pledged property, the court takes into account, among other things, that the amount of the pledgee's claims to be satisfied from the value of the pledged property at the time of the expiration of the delay should not exceed the value of the pledged property according to the assessment indicated in the report of an independent appraiser or decision court at the time of the sale of such property.

The postponement of the sale of the pledged property does not affect the rights and obligations of the parties under the obligation secured by the mortgage of this property and does not release the debtor from compensation for the creditor's losses that have increased during the delay, the interest due to the creditor and the penalty.

If the debtor satisfies the creditor's claims secured by the mortgage within the time limit granted to him by the mortgage to the extent that they have by the time the claim is satisfied, the court, at the request of the pledgor, cancels the decision to foreclose.

Postponement of the sale of the pledged property is not allowed if:

- it may lead to a significant deterioration in the financial position of the pledgee;

- a case has been initiated against the pledgor or pledgee to declare him insolvent (bankrupt).

As established by the court, the family of the defendants actually live in an apartment that is the subject of a mortgage under a loan agreement.

Pledgor – N.A.V. - an individual, the court does not have objective data indicating that the pledge is related to the implementation of entrepreneurial activities by this citizen.

Based on the foregoing, given that the defendants have two minor children, that it is the middle of the educational process, the winter period of time, the court concludes that, based on the interests of minors, taking into account the interests of the creditor, it is advisable to grant the defendants a delay for the implementation pledged property for a period of 6 months from the date of the court's decision, that is, until June 02, 2010.

The court considers this period reasonable and sufficient, taking into account the established circumstances of the case. In addition, when determining the period for which a delay in the sale of the pledged property is granted, the court took into account, among other things, the fact that the amount of the pledgee's claims to be satisfied from the value of the pledged property at the time of the expiration of the delay will not exceed the value of the pledged property.

At the same time, the court considers it necessary to indicate that the postponement of the sale of the pledged property does not affect the rights and obligations of the parties under the obligation secured by the mortgage of this property, and does not release the debtor from compensating the creditor's losses that have increased during the delay, the interest due to the creditor and the penalty.

By the decision of the C-th District Court of Nizhny Novgorod foreclosed on the property belonging to R.V.A., which is in pledge - a two-story non-occupied building at the address:………… by selling at a public auction, setting the initial selling price of 9,924,000 rubles.

In order to foreclose on the subject of bail, the court stated the following.

There are no grounds for refusing to foreclose on the pledged property established by Article 54.1 of the Federal Law “On Mortgage (Pledge of Real Estate)”: the delay is more than 3 months, and the amount of debt exceeds 5% of the value of the building.

With regard to the initial sale price of the pledged property, the court proceeded from the following circumstances.

In accordance with the mortgage agreement of November 7, 2007, the disputed building was valued by the parties in the amount of 37,588,000 rubles.

At the same time, according to the Law, when deciding the issue of establishing the initial sale price of the subject of mortgage, the collateral value of the property should be guided only in the absence of objections from the parties, taking into account the possibility of changing the market value of the object after the conclusion of the contract. If at least one of the parties objects to the establishment of the initial sale price in the amount of the collateral value, this issue is subject to resolution on the basis of a full and comprehensive study of all evidence submitted by the parties of the market value of the collateral at the time the case is considered by the court.

The court repeatedly asked the parties to provide evidence of the market value of the building.

Court ruling dated August 7, 2009. at the request of the defendant and a third party, an examination of the value of the subject of mortgage was appointed, but the examination was not carried out due to non-payment. The defendant was aware of the failure to pay for the examination, but he did not take any measures to pay for the examination, he evaded the examination.

The court rejects the examination made by the plaintiff's employee in the amount of 7,315,000 rubles, since this assessment is not independent, it was made by a party interested in the case - the plaintiff's employee.

The court also cannot be guided by the assessment report drawn up by the TTP of the Nizhny Novgorod Region as of 06.07.2007. at the initiative of a third party, since over the period that has passed on the dates of the assessment, the market prices for real estate have dropped sharply, which the court recognizes as a well-known fact.

At the same time, the court has no grounds for not accepting the appraisal report compiled by registered appraisers of VolgoVyatInvest LLC as of October 23, 2009, since this report fully complies with the requirements of the Federal Law “On Appraisal Activities”, is closest to the date of the decision court, persons involved in the case, not challenged. According to this report, the market value of the disputed building as of the valuation date is RUB 9,924,000.

When selling the pledged movable property out of court, the initial sale price of the pledged movable property, from which the auction begins, is set equal to 80% of the market value of such property, determined in the appraiser's report, if the law provides for the mandatory involvement of an appraiser. A different price may be stipulated by an agreement between the parties on foreclosure on pledged movable property in an extrajudicial manner.

Thus, the involvement of an appraiser in the sale of pledged movable property in an out-of-court procedure is mandatory when selling:

Securities not traded on the organized securities market, with the exception of investment units of open and interval mutual funds, as well as cases of foreclosure on bills of exchange by direct demand for execution on bills in the manner prescribed by the Federal Law of 11.03.1997. No. 8-FZ "On a transfer and promissory note";

Property rights, with the exception of receivables not sold at auction;

Precious metals and precious stones, products from them, as well as scrap of such products;

Collectible banknotes in rubles and in foreign currency;

Items of historical or artistic value;

Things, the value of which under the pledge agreement exceeds 500,000 rubles.

Pledge of real estate (mortgage).

Essential terms of the mortgage agreement:

1. Subject of mortgage – the contract specifies the name, location and a description sufficient to identify this subject.

2. The right by virtue of which the property that is the subject of mortgage belongs to the pledgor.

3. The name of the body that carries out state registration of rights to real estate and transactions with it, which registered this right of the pledgor. In accordance with paragraph 2 of article 9 of the Law on Mortgage, if the subject of mortgage is the right of lease belonging to the pledgor, the leased property must be defined in the mortgage agreement in the same way as if it were itself the subject of mortgage, and the term of the lease must be indicated.

4. Evaluation of the subject of mortgage in monetary terms.

5. An obligation secured by a mortgage, indicating the amount, the reason for the occurrence and the deadline for fulfillment. In cases where this obligation is based on any contract, the parties to this contract, the date and place of its conclusion must be indicated. If the amount of the obligation secured by the mortgage is to be determined in the future, the mortgage agreement must indicate the procedure and other necessary conditions for its determination.

6. The terms (periodicity) of the relevant payments and their amounts for the obligation secured by the mortgage, if the latter is subject to execution in installments.

7. An indication of the execution of a mortgage bond, if the mortgagee's rights are certified by a mortgage bond, except in the case of issuing a mortgage bond by virtue of law.

The mortgage agreement is considered concluded and comes into force from the moment of its state registration.

A subsequent mortgage is a pledge, in which property pledged under a mortgage agreement to secure the fulfillment of one obligation (prior mortgage) may be pledged to secure the fulfillment of another obligation of the same or another debtor to the same or another mortgagee.

A subsequent mortgage is subject to state registration with the USRR and cannot be formalized by issuing a mortgage. When concluding an agreement on a subsequent mortgage, the mortgagor is obliged to inform each subsequent mortgagee before concluding an agreement on a subsequent mortgage with him, information about all existing mortgages of this property.

If there is a subsequent mortgage, the sequence of mortgagees is established on the basis of USRR data on the moment the mortgage originated.

Foreclosure on mortgage.

Collection according to the requirements of the mortgagee is applied to the property pledged under the mortgage agreement, by a court decision. Satisfaction of the pledgee's claims out of court is allowed on the basis of an agreement between the pledgee and the pledgor, which may be included in the mortgage agreement or concluded in the form of a separate agreement. This agreement is concluded subject to the presence of a notarized consent of the pledgor to an extrajudicial procedure for foreclosing the pledged property. Such consent may be given before the conclusion of the mortgage agreement.

At the same time, an agreement on satisfaction of the pledgee's claims under a subsequent mortgage agreement is valid if it is concluded with the participation of the pledgees under previous mortgage agreements.

If the violation of the obligation secured by the pledge committed by the debtor is extremely insignificant and the amount of the pledge holder's claims is clearly disproportionate to the value of the pledged property, it is impossible to levy execution on the pledged property in a judicial proceeding.

As a general rule, unless proven otherwise, the breach of an obligation secured by a pledge is extremely minor, and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property, provided that the following conditions are met:

- the amount of the unfulfilled obligation is less than 5% of the value of the subject of mortgage under the mortgage agreement;

- the period of delay in fulfilling the obligation secured by the pledge is less than three months.

Foreclosure on property pledged to secure an obligation fulfilled by periodic payments is allowed in case of systematic violation of the terms for making them, that is, in case of violation of the terms for making payments more than three times within 12 months, regardless of the size and duration of the delay. In this case, this condition may be changed in the mortgage agreement.

The pledgee is not entitled to foreclose on the pledged property extrajudicially if the amount of the unfulfilled obligation secured by the mortgage is less than 5% of the value of the subject of mortgage under the mortgage agreement, and the delay period is less than 3 months at the time of the auction, which, however, does not prevent the foreclosure of the pledged property in an extrajudicial manner when the specified circumstances change.

In accordance with paragraph 2 of Article 348 of the Civil Code of the Russian Federation, paragraph 1 of Article 54 of the Federal Law “On Mortgage (Pledge of Real Estate)”, foreclosure on property pledged under a mortgage agreement may be refused if the debtor violates the obligation secured by the mortgage extremely insignificant and the size of the pledgee's claims as a result is clearly disproportionate to the value of the pledged property, except for the case provided for by paragraph 2 of Article 50 of the Law.

- extreme insignificance of the breach of the obligation secured by the pledge committed by the debtor

- obvious disproportion due to this size of the pledgee's claims to the value of the pledged property.

Thus, when resolving the issue of foreclosure on pledged property, it is necessary to ascertain the presence of both of these conditions (Determination of the Supreme Court of the Russian Federation No. 5-В09-14 of March 24, 2009, determination of the Supreme Court of the Russian Federation No. 56-В08-16 of January 13, 2009).

Satisfaction of the pledgee's claims out of court is not allowed if:

The mortgage of an individual's property required the consent or permission of another person or authority;

The subject of mortgage is an enterprise as a property complex;

The subject of the mortgage is a land plot from the composition of agricultural land;

The subject of the mortgage are land plots that are in municipal ownership and land plots, state ownership of which is not delimited and which are intended for housing construction or for comprehensive development for the purposes of housing construction and which are transferred as security for the repayment of a loan granted by a credit institution for the development of these land plots. plots through the construction of engineering infrastructure facilities;

The subject of mortgage is property of significant historical, artistic or other cultural value for society;

The subject of the mortgage is property that is in common ownership, and any of its owners does not give consent in writing or in any other form established by law to satisfy the claims of the mortgagee in an out-of-court procedure;

The subject of the mortgage are residential premises owned by natural persons;

The subject of a mortgage is property that is in state or municipal ownership.

The conclusion of an amicable agreement on an obligation secured by a mortgage does not entail the termination of the mortgage, unless otherwise provided by the amicable agreement. From the moment the court approves the amicable agreement, the mortgage secures the debtor's obligation, as amended by the approved amicable agreement. The mortgage registration record in the USRR is subject to a corresponding change (clause 3, article 23 of the Law on Mortgage).

Foreclosure on pledged property - residential premises (house, apartment, etc.) is possible, even if this is the only place of residence of the debtor and the mortgagor (if the apartment was purchased at the expense of credit funds). If an apartment or other residential premises was not purchased at the expense of credit funds, and was the subject of a mortgage, and a minor child lives in this residential premises, the guardianship and guardianship authority must be involved in the case.

Mistake: By the decision of the D-th city court of the Nizhny Novgorod region with T.N.V. in favor of Bank Uralsib OJSC, a debt was collected under a loan agreement in the amount of 1,552,055.5 rubles, expenses for the payment of state duty.

The foreclosure on the pledged property - an apartment located at the address………………… was refused.

In dismissing the claim for foreclosure on the apartment that was the subject of bail, the court indicated the following reasons:

- a minor child T.S., born in 2008, after birth was registered in this apartment, acquired the right to a dwelling and has no other housing.

- the apartment was purchased at the expense of Bank Uralsib JSC in ½ share, and ½ share of the defendant's personal funds, the apartment was renovated at the expense of the defendant, which was an increase in the cost of the apartment at the expense of the defendant, which is confirmed by an increase in the initial sale price of the apartment.

- it is possible for the defendant to repay the debt to the Bank without imposing a penalty on the apartment, which is confirmed by the arguments of the defendant's representative and the receipt presented at the court session.

- foreclosure on the subject of mortgage - the apartment is not lost in the future in the process of execution of the court decision, which corresponds to clause 5.4 of the loan agreement.

Reversing the court's decision regarding the dismissal of the claim for foreclosure on the apartment, the judicial panel in the cassation ruling pointed to the court's misinterpretation of the substantive law - Article 54.1, Article 77 of the Federal Law "On Mortgage (Pledge of Real Estate)".

When resolving the dispute, it was found that since December 2008. the defendant fails to fulfill obligations under the loan agreement;

The fact that a minor child lives in an apartment has no legal significance, since T.S. was moved into the disputed apartment after the mortgage on the apartment was registered.

The Judicial Board made a new decision, foreclosing the disputed apartment by selling real estate at public auction.

The initial selling price of the apartment was determined in the amount of 1,594,000 rubles.

The right to use the disputed apartment T.N.V. and T.V.S. terminated.

Answers on questions.

1. If the defendant does not dispute the amount of debt under the loan agreement, should the court check the correctness of its determination? If yes, how? If the defendant disputes the amount of the debt, how can the court verify the correctness of the calculation?

Since the amount of the debt is the subject of the dispute, the court should check the amount of the debt indicated by the plaintiff in order to verify the compliance with the law and the contract of the amount claimed for collection (Articles 420,421,422 of the Civil Code of the Russian Federation). In addition, without contesting the amount of the debt, the defendant actually recognizes the claim. And when accepting the recognition of the claim by the defendant, the court must verify the compliance with the law of the commission of this action.

If the defendant disputes the amount of the debt or if the defendant agrees with the amount of the debt, the amount of the debt is checked by the court, based on the requirements of the law and the terms of the loan agreement.

2. Does a court of general jurisdiction have jurisdiction over a civil case on a bank claim against a person in respect of whom bankruptcy proceedings have been initiated in the Arbitration Court, and his guarantors, if the latter are individuals?

This dispute is under the jurisdiction of a court of general jurisdiction (Article 22 of the Code of Civil Procedure of the Russian Federation).

Since the law (Article 1 of the Civil Code of the Russian Federation) gives the Bank, as a creditor, the right to bring a claim against both the principal debtor and guarantors (separately or together against the debtor and guarantors based on joint and several liability), such a claim, if the guarantors are individuals, will be subordinate to the court general jurisdiction in accordance with the rules of jurisdiction, established by Article.Article.28,29 Code of Civil Procedure of the Russian Federation.

3. Are the obligations of guarantors terminated when the borrower is declared bankrupt?

In accordance with paragraph 1 of Article 367 of the Civil Code of the Russian Federation, the guarantee terminates with the termination of the obligation secured by it from the moment such obligation terminates.

According to Article 419 of the Civil Code of the Russian Federation, an obligation is terminated by the liquidation of a legal entity (debtor or creditor), except in cases where the law or other legal acts entrust the fulfillment of the obligations of the liquidated legal entity to another person. Thus, the legislator associates the moment of termination of the main obligation with the onset of a specific event - the liquidation of a legal entity (debtor).

By virtue of part 8 of article 63 of the Civil Code of the Russian Federation, the liquidation of a legal entity is considered completed, and the legal entity ceases to exist after changes are made to the Unified State Register of Legal Entities.

According to part 3 of article 149 of the Federal Law “On insolvency (bankruptcy)”, the basis for making an entry in the Unified State Register of Legal Entities on the liquidation of the debtor is the decision of the arbitration court on the completion of bankruptcy proceedings. The consequences of opening bankruptcy proceedings, specified in Article 126 of the Federal Law “On Insolvency (Bankruptcy)”, do not contain grounds for excluding the Company from the register of legal entities.

Thus, if the Arbitration Court decides to declare the borrower bankrupt, the guarantee is retained until the borrower is excluded from the state register of legal entities (testament of the liquidation procedure).

Based on the provisions of Articles 365,387 of the Civil Code of the Russian Federation, in the event that the claims of the creditor included in the register against the guarantor are satisfied, by virtue of a direct indication of this in the law (Article 365 of the Civil Code of the Russian Federation), the rights of claim of the bankruptcy creditor (the Bank) included in the register with all the ensuing consequences, that is, it is possible to make changes to the register of creditors in the amount executed by the guarantor for the debtor. Since the guarantor does not have independent obligations to the Bank, but actually repays the debt for the main debtor (borrower), then in the specified amount he acquires the rights of the creditor's claim by virtue of a direct indication of the law.

In accordance with Part 1 of Article 223 of the Arbitration Procedure Code of the Russian Federation, insolvency (bankruptcy) cases are considered by the arbitration court in accordance with the rules provided for by this code, with the features established by federal laws governing insolvency (bankruptcy) issues.

According to Article 48 of the Arbitration Procedure Code of the Russian Federation, in cases of withdrawal of one of the parties in a disputed legal relationship or established by a judicial act of an arbitration court (reorganization of a legal entity, assignment of the right to claim, transfer of debt, death of a citizen and other cases of change of persons in obligations), the arbitration court replaces this parties to its successor and indicates this in a judicial act.

Federal Law No. 127-FZ “On Insolvency (Bankruptcy)” does not contain any specifics regarding the regulation of issues of procedural succession in a bankruptcy case, and therefore, when considering the issue of procedural succession in a bankruptcy case, one should be guided by the provisions of Art. 48 APC RF.

According to the meaning of this rule, the replacement of the departed party by its successor in the arbitration process can take place only when the succession has occurred in a material legal relationship.

After the liquidation of a legal entity and its exclusion from the register, there is no possibility of inclusion in the register of guarantors' claims, since the guarantee terminates with the termination of the obligation secured by it, which terminates in connection with the liquidation of the legal entity.

4. When foreclosing the pledged property, if there is a dispute between the parties about its value, should the value of the property be determined by appointing an expert examination, or should it be based only on the price of the property specified in the pledge agreement, regardless of possible damage or deterioration of the property? How should the court foreclosing the pledged property determine the initial sale price of the pledged property, if the indicated price is not determined by agreement between the pledgee and the pledgor? Is it necessary to oblige the parties to the case to provide evidence on the initial value of the property, if the pledge agreement indicates the total value of all property, and in relation to each type of property - only a correction factor?

By virtue of Article 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to conclude an agreement. The terms of the contract are determined at the discretion of the parties, except when the content of the relevant terms is prescribed by law or other legal acts (Article 422).

In cases where the term of the contract is provided for by a rule that is applied insofar as the agreement of the parties does not establish otherwise (dispositive rule), the parties may, by their agreement, exclude its application or establish a condition different from that provided for in it. In the absence of such an agreement, the terms of the contract are determined by a dispositive norm.

Based on the provisions of this norm of the law, as well as the regulatory provisions of the Federal Law “On Pledge”, the Civil Code of the Russian Federation, the Federal Law “On Mortgage (Pledge of Real Estate)”, if there is a condition in the pledge agreement that establishes a mechanism for determining the initial sale value of the property, or an indication in the text of the agreement the initial sale value of the property, one should be guided by this condition of the contract, if it is not disputed and invalidated. At the same time, one should also take into account the period of time since the conclusion of the pledge agreement, changes in the market value of the pledged property (for example, the economic crisis, falling prices on the real estate market, etc.). As an example, the decision of the Supreme Court of the Russian Federation of March 24, 2009 No. No. 5-B09-14.

In the absence of such conditions in the pledge agreement and there is a dispute about the value of the initial sale value of the property, the court in accordance with Articles 56.57 of the Code of Civil Procedure of the Russian Federation, as well as the requirements established in the Resolutions of the Plenum of the Supreme Court of the Russian Federation No. 11 of 06/24/2008. "On the preparation of civil cases for trial", No. 13 of 06/26/2008. “On the application of the norm of the Code of Civil Procedure of the Russian Federation in the consideration and resolution of cases in the court of first instance”, the parties should be invited to provide evidence regarding the market value of the pledged property at the time of resolution of the dispute, including the conclusion of the examination.

5. How should the court act in cases where the defendant does not agree with the assessment of the value of the pledged property, but for its part refuses to provide evidence of the value of the property?

In this case, the court should resolve the dispute based on the evidence that is available in the case, including evidence that has not been refuted by the defendant (Article 56 of the Code of Civil Procedure of the Russian Federation).

6. How should the debtor's arguments about his disagreement with the amount of debt be considered, in the event that the bank sells the pledged property (for example, a car), if the debtor claims that he was misled by a power of attorney to sell the car and sold it as repayment at a knowingly underestimated price?

The debtor has the right to challenge the concluded transaction in accordance with the grounds specified in the Civil Code of the Russian Federation (Articles 166-180 of the Civil Code of the Russian Federation) by presenting the relevant claims.

7. What are the regulatory requirements for the operative part of the decision, which levies execution on the pledged property?

In accordance with paragraph 3 of Article 350 of the Civil Code of the Russian Federation, paragraph 4 of Part 2 of Article 54 of the Federal Law “On Mortgage (Pledge of Real Estate)”, when deciding to foreclose property pledged under a mortgage agreement, the court must determine and indicate it contains the initial sale price of the pledged property upon its sale.

Thus, in the operative part of the court decision, it is necessary to indicate the initial sale price of the property that is foreclosed.

An example of the wording of the operative part of the decision:

“To foreclose on the pledged property - an apartment (full address, technical characteristics (data of the cadastral passport), owned by (full name of the owner), by selling at a public auction, setting the initial sale price………………….. ".

8. How to relate to the arguments of the defendants that the main debt should be repaid first, and only then penalties, fines, etc.?

9. What is the amount of state duty to collect from the pledger?

The amount of the state duty to be collected is established by Articles 333.19, 333.20 of the Tax Code of the Russian Federation. A claim for foreclosure on pledged property is a property claim that is not subject to valuation. At the same time, it is necessary to take into account Article 333.36 of the Tax Code of the Russian Federation, which establishes benefits associated with the payment of state duty.

10. What to do if the borrower died, the guarantor did not agree to the replacement, and the heirs do not accept the inheritance?

If the guarantor did not agree to be responsible for any other debtor, the surety agreement is terminated (clause 2 of article 367 of the Civil Code of the Russian Federation), and the claims against the guarantor must be denied.

If there is hereditary property, but the heirs do not accept the inheritance, then the proper defendant, who is charged with the obligation to fulfill obligations for the debtor within the value of the transferred hereditary property, will be the body exercising powers in relation to the escheated property.

11. Does the guarantee terminate if the Arbitration Court decides to declare an individual entrepreneur bankrupt?

The grounds for termination of the guarantee are established by Article 367 of the Civil Code of the Russian Federation.

In accordance with paragraph 1 of Article 367 of the Civil Code of the Russian Federation, the guarantee terminates with the termination of the obligation secured by it.

Meanwhile, the loss of the status of an individual entrepreneur, including when an arbitration court decides to declare an individual entrepreneur bankrupt, does not mean the termination of the obligations of this entrepreneur to the creditor (bank) under the loan agreement.

In accordance with Article 24 of the Civil Code of the Russian Federation, a citizen is liable for his obligations with all his property, with the exception of property, which, in accordance with the law, cannot be levied.

By virtue of clause 3 of article 25 of the Civil Code of the Russian Federation, the claims of creditors of an individual entrepreneur, if he is declared bankrupt, are satisfied at the expense of his property, which can be levied on.

Based on the above norms of the law, the loss of the status of an individual entrepreneur by a citizen does not in itself mean the termination of his obligations.

Chapter 26 of the Civil Code of the Russian Federation (termination of obligations) does not provide for such a basis for termination of an obligation as the loss of the status of an individual entrepreneur.

Application by analogy with a legal entity of Article 419 of the Civil Code of the Russian Federation is unacceptable.

Since the obligations of a citizen in connection with the loss of the status of an individual entrepreneur do not terminate, the accessory obligation of guarantors is also not subject to termination.

12. Can the district court consider the case if there is a decision of the arbitration court on the recovery of the amount of debt from the borrower, and the bank turns to the guarantors in the district court?

Chapter 26 of the Civil Code of the Russian Federation does not provide for such a basis for termination of an obligation as a court decision in respect of the main debtor.

Thus, the issuance of a decision, including by an arbitration court, on the collection of the amount of debt from the debtor, does not in itself terminate the guarantee, and therefore, the creditor is not deprived of the right to bring a claim directly against the guarantors in a court of general jurisdiction, if the guarantors are individuals (Art. 22 Code of Civil Procedure of the Russian Federation).

However, when resolving a dispute, the court should verify the fulfillment by the borrower of obligations to the Bank, including the execution of the decision to recover the amount of debt from him.

13. What is the procedure for foreclosure on pledged property owned by third parties, including when they are not known to the court?

The legal successor of the pledger takes the place of the pledger and bears all the obligations of the pledger, unless otherwise provided by agreement with the pledgee.

Thus, the owner of this property will be the proper defendant in the claim for foreclosure of the pledged property.

The procedure for levying execution on the pledged property in the event of the transfer of ownership of this property to another person shall remain in force for the new owner of the pledged property.

If, when considering a dispute, the transfer of ownership of the pledged property is reliably established, the court, in accordance with Article 41 of the Code of Civil Procedure of the Russian Federation, should decide on the replacement of the improper defendant.

14. When collecting debt under a loan agreement, when the Bank asks to collect interest on a loan agreement until the actual payment of the debt, that is, for the future after the decision is made up to the full payment of the principal debt, can the court collect interest for the future?

In accordance with clause 2 of Article 819 of the Civil Code of the Russian Federation, the rules provided for in paragraph 1 of this chapter (Chapter 42 “Loan and Credit”) apply to relations under a loan agreement, unless otherwise provided by the rules of this paragraph and does not follow from the essence of the loan agreement.

According to paragraph 2 of Article 809 of the Civil Code of the Russian Federation, unless otherwise agreed, interest is paid monthly until the day the loan amount is repaid.

Since the law provides for the collection of interest before the date of repayment of the loan amount, the court has the right to satisfy the relevant requirement of the Bank, indicating in the court decision that interest must be collected before the day the debt is actually paid.

Taking into account the fact that the decision is an act of justice, finally resolving the case on the merits, and the principle of enforceability of the judicial act, the decision must contain a mechanism for calculating the amount of debt with a mandatory indication of the mechanism for calculating interest.

However, it should be borne in mind that the interest provided for in paragraph 2 of Article 809 of the Civil Code of the Russian Federation is interest for using a loan, and not a penalty, a fine, penalties that cannot be collected in the future.

15.If the Bank claims to foreclose on the pledged car, in the event that the pledgee alienates such car to third parties who are bona fide purchasers, is it possible to foreclose such vehicles. Are the rights of bona fide purchasers protected?

According to paragraph 1 of Article 353 of the Civil Code of the Russian Federation, in the event of transfer of ownership of the pledged property or the right of economic management of it from the pledgor to another person as a result of a paid or gratuitous alienation of this property or by way of universal succession, the right of pledge remains in force.

The legal successor of the pledger takes the place of the pledger and bears all the obligations of the pledger, unless otherwise provided by agreement with the pledgee.

Thus, when the right to the pledged car is transferred to another person, the pledge remains valid, and collection can be levied on this car.

The norms of the law on a bona fide purchaser (Article 302 of the Civil Code of the Russian Federation) are not applicable to pledge legal relations.

The rights of bona fide purchasers may be protected in a different manner, by filing a claim against the guilty person for damages (Art. 15.1064 of the Civil Code of the Russian Federation).

16.In the event that the Bank makes claims for debt collection in a joint and several manner from the main debtor and guarantors, which are individuals and legal entities, and one of the legal entities is declared bankrupt, is it possible to divide the claims against the defendants and how, if the claims are declared on recovery in a solidary manner, and in accordance with the Federal Law "On Insolvency (Bankruptcy)" all monetary claims against a bankrupt are permissible only in the manner prescribed by this law?

In accordance with clauses 1 and 2 of Article 363 of the Civil Code of the Russian Federation, in case of non-performance or improper performance by the debtor of an obligation secured by a surety, the guarantor and the debtor shall be jointly and severally liable to the creditor, unless the law or the surety agreement provides for subsidiary liability of the guarantor.

The guarantor is liable to the creditor to the same extent as the debtor, including the payment of interest, reimbursement of legal costs for collecting the debt and other losses of the creditor caused by non-performance or improper performance of the obligation of the debtors, unless otherwise provided by the surety agreement.

According to clauses 1 and 2 of Article 323 of the Civil Code of the Russian Federation, in the event of a joint and several obligation of debtors, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, moreover, both in full and in part of the debt.

A creditor who has not received full satisfaction from one of the joint and several debtors has the right to demand what was not received from the other joint and several debtors.

At the same time, in accordance with the Federal Law "On Insolvency (Bankruptcy)", all claims against a person declared bankrupt are presented to the arbitration court.

Thus, if this is an issue when accepting claims, then the acceptance of claims filed against a bankrupt should be denied due to the lack of jurisdiction of this claim to a court of general jurisdiction (clause 1, article 134 of the Code of Civil Procedure of the Russian Federation).

If this issue arises after the case is accepted for proceedings (in the process of resolving the dispute), then the proceedings in the case regarding claims brought against the bankrupt are subject to termination on the basis of Article 220 of the Code of Civil Procedure of the Russian Federation.

17.Who is responsible under the loan agreement to the bank in the event of the death of the guarantor, if the heirs did not accept the inheritance?

If claims are brought against the guarantor, but he died in the process of resolving the dispute, then the general rules apply, and the obligations of the guarantor will be borne by his heirs, who have accepted the inheritance in the manner prescribed by law. If the heirs did not accept the inheritance, in the presence of hereditary property, the obligation must be assigned to the body exercising powers in relation to the escheated property, within the value of the hereditary property.

The Supreme Court of the Russian Federation monitored the practice of resolving disputes by courts arising in the field of credit relations involving individuals.

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 on claims for debt collection from borrowers and guarantors - individuals, on foreclosure on property pledged to secure the repayment of a loan, on 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 the implementation of entrepreneurial or other economic activities by him, 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 by 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 declared illegal the termination of proceedings in the case of a bank's claim against a limited liability company and 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.

In accordance with paragraph 1 of Article 363 of the Civil Code of the Russian Federation, in the event of a debtor's failure to perform or improper performance of an obligation secured by a 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 suretyship agreements concluded by the bank with individuals provide for joint and several liability of 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 in the case 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 its resolution of June 28, 2012 No. 17 "On the consideration by the courts of civil cases on disputes on the protection of consumer rights" explained that the provision of loans (loans) to an individual is a financial service, which also relates to the scope 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 Collegium 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 to return, on the basis of paragraph 2 of part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation, 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 a 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 unequivocally established in the courts of the Republic of Bashkortostan, the Kabardino-Balkarian 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 on leaving 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 claim of the credit institution to the 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 upheld the ruling of the Angarsk City Court of the Irkutsk Region in the case of transferring the case on the claim of the bank to 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 are raised by 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 Enactment 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 on recognizing 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 has been 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 demand 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 determining the limitation period.

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 demand 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 monetary 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, due to the untimely fulfillment by the insurer of its obligations, losses caused to a citizen (debtor under a 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 the correct 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 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 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 failure of the borrower to fulfill the obligation both under the original obligation and in the event of its change is defined in the surety 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 mentioned 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 responsible 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 guarantee 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 periods 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 exercise 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 with respect to claims that can be satisfied by foreclosure 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. 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);

In the resolution of October 8, 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 funds" (as amended on December 4, 2000), providing that, if determined in accordance with Article 395 of the Civil Code In the Russian Federation, 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 penalty payable to the consequences of the violation of the obligation lies with the defendant, who declared that it was 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).

A study of judicial practice has shown that, when deciding the issue of reducing the size 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 amount 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 forfeit 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 using the loan). At the same time, 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 subsequently 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 granting a loan agreed by the parties in the agreement, interest for the use of a loan cannot be considered as a measure of responsibility 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 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 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 decisions 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, the pledged property may be levied to satisfy the claims of the pledgee (creditor) 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, the recovery 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 proper 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, 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 on the subject of pledge 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 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 (pledge, 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.).

Often, many banks incorrectly include in loan agreement terms that are against the law. At the moment, numerous judicial practice has already developed in disputes with banks (under loan agreements), while, as a rule, in favor of borrowers.

To the legal relations of the parties arising within the framework of loan agreement(including credit cards), the rules of the Law of the Russian Federation N 2300-1 of February 7, 1992 "On Protection of Consumer Rights", hereinafter referred to as the Law on Protection of Consumer Rights, are applicable. In paragraph 1 of the Decree of the Plenum of the Supreme Court of the Russian Federation of September 29, 1994 N 7 "On the practice of consideration by courts of cases on consumer protection," the court explained that relations regulated by consumer rights protection legislation may arise from contracts for the provision of financial services aimed at satisfaction of personal, family, household and other needs of the consumer - a citizen, not related to the implementation of entrepreneurial activities, including the provision of loans. According to Part 1 of Art. 16 of the Law on the Protection of Consumer Rights, the terms of a loan agreement that infringe 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 are recognized as invalid.

In accordance with Part 2 of Art. 16 of the Consumer Rights Protection Law, it is prohibited to condition the purchase of certain goods (works, services) on the obligatory purchase of other goods (works, services). Losses caused to the consumer as a result of violation of his right to free choice of goods (works, services) are reimbursed by the seller (executor) in full.
Judicial practice proceeds from the fact that loan agreements are related to accession agreements that are of a public nature, since, by virtue of the bank's obligation to provide consumers with information about the content of banking services, this agreement is concluded on conditions previously announced by the bank with all customers that meet the criteria of the respective bank.

At the same time, the courts point out that as a result, citizens who wish to receive a loan, as a party to the contract, are deprived of the opportunity to influence its content, which is a restriction of their freedom in the contract.
In practice, the bank tells citizens that the form of the loan agreement or the General conditions for granting loans and the Proposal for the conclusion of agreements or other documents of the bank are approved standard forms, so the bank does not accept any objections to the text and does not change, and in case of disagreement, the loan is simply will not be issued. Taking into account the fact that citizens who are in dire need of money apply for a loan, they turn a blind eye, sign a loan agreement without disagreement, on the proposed non-alternative conditions of the bank, and take money from the bank. The situation is similar with credit cards.

Such a conclusion of loan agreements actually deprives citizens of the opportunity to participate in determining the terms of the loan agreement and express their will regarding its terms. And accordingly, a citizen, as an acceding party, is deprived of the opportunity to influence the terms of the loan agreement (credit card), including the condition on comprehensive insurance, loan commissions, the condition on the right of the bank to unilaterally change tariffs, etc.

When considering such disputes, the courts proceed from the fact that the receipt of a loan by the consumer is due to the acquisition of bank services for connecting to the Insurance Program and concluding an accident insurance contract. At the same time, the courts indicate that the provision of this type of service under the condition of the need to purchase other types of services is expressly prohibited by the Law on the Protection of Consumer Rights (part 2 of article 16), which is why this condition of the loan agreement on charging a commission for connecting to the insurance program is invalid .

In addition, almost all banks establish contractual jurisdiction for disputes arising from a loan agreement, or provide that all disputes are resolved in an arbitration court or in a court at the location of the bank. Of course, all this is done in order to infringe on the rights of the borrower. However, the inclusion of this condition in the loan agreement does not comply with the law and, therefore, is invalid.

So, part 2 of Art. 17 of the Consumer Rights Protection Law allows the consumer to bring consumer protection claims to the court at the location of the organization, the place of residence or stay of the plaintiff, the place of conclusion or execution of the contract.

Judicial practice proceeds from the fact that the inclusion of a clause on the jurisdiction of disputes in a loan agreement, which is a model, with predetermined conditions, infringes on the rights of the consumer.

However, citizens should take into account that the law establishes a limitation period for filing a lawsuit against a bank to invalidate those conditions that infringe on the rights of the borrower.
If you have a dispute with a bank on a loan, then by contacting us you will receive a complete legal advice, our loan lawyers they will give a legal assessment of the prospects of the court case, calculate the amounts that can be returned.

In the event that the bank is currently suing you, then you will undoubtedly need legal aid and defense lawyer. We can help you because our lawyers and lawyers has a positive judicial practice in disputes with banks.

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