Judicial practice consumer credit. Judicial practice in disputes regarding the payment of commissions in the field of lending is in favor of the borrower. Claim proceedings and debt collection

Have you taken out a loan from a bank and are faced with a situation where it has become difficult to pay: have you lost your job or gotten sick? Or even worse: once upon a time, out of stupidity, you vouched for a distant relative, who also recently died, and today you received a subpoena! When does the statute of limitations on a loan expire? Will the bank write off the debt? Is it possible not to pay?

In this material we will understand the subtleties and nuances associated with the statute of limitations on bank loans and maps individuals in Russia.

The statute of limitations on a loan is the time during which the bank can collect the loan through the court. The bank can demand payment of the loan through the court from the borrower, guarantor or assignee. The legal successor is the heir of the deceased debtor.

Below in the article we described in detail how the bank operates in such cases, what property the bailiffs can describe, we gave examples from judicial practice, in one such example a person took out a loan of 100,000 rubles, stopped paying, and after the trial returned it in total complexity 213,608 rubles.

How long is the statute of limitations and from when to calculate it?

The Civil Code states (Article 196) that the general limitation period is three years.

When do you start counting three years? This issue is controversial. Some lawyers believe that each individual payment should be counted separately. Their opponents propose to count from the expiration date of the loan agreement. Still others count from the date of the last payment.

Which one is right? Let's turn to the laws. Article 200 Civil Code The Russian Federation says that it is necessary to count from the moment the party whose right was violated learned about this violation. What does it mean?

The loan agreement contains a payment schedule, according to which the loan must be paid on a certain date each month. As soon as you are late on a payment, the bank will know about it. So, from this day we count three years. By next payment limitation of actions begins to count as soon as it is expired, etc.

That is, for each payment the limitation period is considered separately.

Example: Pavel took out a loan of 36,000 rubles for 12 months on February 14, 2015. On the 14th of each month you must pay the monthly loan installment. The first three months: until May 14 inclusive, Pavel regularly makes payments. June 14 is the date of the next payment, but Pavel does not pay or does not pay in full. From this moment on, the creditor already knows about the delay, and the statute of limitations for this payment begins to run.

After a month, the amount of the next payment plus a late fee is added to the amount owed. For this amount, the three-year period is counted from July 14, 2015, etc. (see Table 1).

Table 1: Calculation of the limitation period for loan payments

Limitation period for a loan for a guarantor

If you signed a guarantee agreement for a loan that was taken out by a relative, friend or other person, and this same person stopped paying the loan, then bank representatives will contact you. They will offer to pay the debt. It’s clear that you don’t want this at all. Let's deal with the issue of limitation of actions for the guarantor.

The guarantee is valid for as long as it is given. This period must be specified in the guarantee agreement. If a specific date is not specified, the guarantee is valid for one year after the end loan agreement. If the bank does not file a lawsuit within this period, the guarantee ends.

Here it should be taken into account that this period is preclusive - that is, the obligation itself terminates: it cannot be restored, interrupted or counted again.

Even if the bank sues the guarantor more than one year after the end of the loan agreement or after the period specified in the guarantee agreement, then it is necessary to declare the termination of the obligation, referring to clause 6 of Article 367 of the Civil Code of the Russian Federation.

In practice, there are situations when the loan agreement is still valid, but the borrower dies before fully repaying the loan. What awaits the guarantor in this case?

Limitation period for a loan from a deceased borrower

It all depends on the terms of the guarantee agreement. And there are two options:

1. If the guarantee agreement contains a clause stating that the guarantor agrees to be responsible for the new debtor in the event of the death of the debtor, then the guarantee does not terminate. And after the legal successor (heir of the deceased debtor) is identified, the guarantor will continue to be liable under the agreement, but for another person.
2. If the guarantee agreement does not contain a clause stating that the guarantor agrees to be responsible for the new debtor, then after the debt is transferred to another person (the heir of the deceased debtor), the guarantee is terminated.

If the debtor dies, this does not affect the term of the guarantee. It is valid for as long as specified in the agreement or a year after the end of the loan agreement.

Statute of limitations on credit card

For a credit card, just like for a loan, the statute of limitations is three years. In banking agreements for the provision credit card There is usually no payment schedule. However, the terms of the agreement stipulate that the debt must be repaid in parts.

For example, the following wording: “the borrower is obliged to repay at least 10% of the used credit limit monthly no later than such and such a date.”

If the next payment is not made, the bank learns about it (it becomes aware of the violated right), and accordingly, the statute of limitations begins to run from the date of delay.

The limitation period may be interrupted

The limitation period may be interrupted and the three years will have to be counted again - in this case the bank will have an advantage. This will happen if you:

• write an application for a loan extension or deferment of payments;
• sign – renegotiation of the terms of the loan agreement, in which payments become smaller and the term is longer;
• received a claim from the bank demanding repayment of the debt and wrote a response that they did not agree with the debt;
• and other actions that indicate agreement with the duty.

Attention! If you do not want the bank to be able to sue after the statute of limitations has expired, do not sign any documents acknowledging the debt.

These issues are explained in detail by the Supreme Court in the Resolution of the Plenum of September 29, 2009 number 43 “On some issues related to the application of the norms of the civil code Russian Federation about the limitation period."

There is an opinion: if you deposit any amount to pay off the debt, this will be regarded by the bank as the debtor’s consent to the debt and the statute of limitations will be interrupted.

However, the Resolution of the Plenum states that if the borrower contributed only part of the money, this does not mean that he recognized the debt as a whole, and therefore does not interrupt the statute of limitations for the remaining payments.

In practice, there are cases when the deadline has passed, but the bank still goes to court, what to do in this case?

The statute of limitations has passed, will the bank write off the debt?

Firstly, you should not hope that the bank will miss the deadline and the loan will burn out.

Secondly, the bank can sue you even after the statute of limitations expires. Moreover, the court can satisfy the creditor's request and describe your property. But you can avoid this if you behave correctly. How exactly? We described this in detail below in the section “What to do if three years have passed and the bank has filed a lawsuit”

Third, if the bank does not go to court, then it transfers the right of claim (this is called an assignment agreement). And they will begin to zealously “knock” debts out of you, call your work, call your relatives, play all sorts of dirty tricks, threaten and blackmail. There are still cases where collectors sealed the doors of debtors with glue, painted the walls of the entrance, beat debtors and tortured them like business racketeers in the 90s.

Fortunately, on January 1, 2017, the law on the protection of the rights of citizens of the Russian Federation from unscrupulous collection agencies and microfinance organizations came into force, which is designed to protect debtors from such actions. However, collectors still have instruments of moral pressure.

If you are experiencing difficulties with debt collectors, we recommend reading our materials on how to deal with them correctly:

What to do if three years have passed and the bank has filed a lawsuit

By law, a bank can file a lawsuit even after the statute of limitations has expired. Therefore, do not be surprised if after the expiration of the three-year period you receive a summons.

The fact is that judges themselves do not check the limitation periods until the defendant declares this (Article 199 of the Civil Code of the Russian Federation). It is your responsibility to defend your interests.

All you need to do is tell the judge during the trial that you are asking to apply Art. 199 Civil Code (Application of limitation periods). After such a statement, the court will deny the bank’s claim, and you can breathe easy.

After the court denies the bank's claim, the bank will not write off the loan, even if you receive a salary on the card in this bank, and will not take the property that you left as collateral for this loan.

You can declare the expiration of the statute of limitations not only during the trial, but also in other ways:

• write a written statement (petition) and give it in court;
• send a petition to the court by registered mail with notification of delivery;
• submit the application to the court office.

If you submit through the office, it is better to write in two copies, on one of which the court office employee must mark receipt. .

Let's look at a few examples from judicial practice that will show how they behaved real people in such cases.

Cases from judicial practice

Svetlana appealed the decision of the court of first instance

Svetlana took out a bank loan in March 2011 for a period of one year. For three months she regularly made payments; on the fourth, due to personal circumstances, she stopped paying the loan. She made her last payment in June 2011.

In October 2016, she received a summons to appear in court. As it turned out, the bank filed a lawsuit to collect the debt on the loan - principal, interest, late fees for the entire period from June 2011 to October 2016. Svetlana fell ill and did not appear in court. The judge decided in favor of the bank - to collect the entire amount of the debt.

Svetlana filed an appeal - she appealed the decision to a higher court. She referred to the limitation period and asked the court to apply Art. 199 Civil Code. The appeal court agreed with her arguments and overturned the decision of the trial court - it decided to reject the bank's claim.

Yakov reduced the amount of debt

In September 2017, the bank filed a lawsuit against Yakov for collection of overdue loan payments. The debt was calculated from September 2013 to September 2015.

In court, Yakov stated that he did not agree with the bank’s calculations and provided his own. According to his calculations, from September 2013 to September 2014 (three years before filing the claim), the statute of limitations expired.

The judge agreed with Yakov's arguments and ordered the bank to recalculate the amount of the debt. As a result, the court decided to collect the debt only for the period from October 2014 to September 2015.

These examples are provided solely so that you understand how to behave in court if such situations arise. But this does not mean at all that you can not pay the loan. Let's look at why further.

What happens if you don’t pay at all?

If for some reason you decide not to pay your loans at all, then this threatens you with the following: unpleasant consequences:

• you'll ruin yours credit history and it will be problematic for you to take out new loans in the future;
• the debt will grow - interest and late fees will be added;
• if not a single payment has been made, then such actions can be regarded as fraud, and this is already criminal liability (Article 159 of the Criminal Code of the Russian Federation);
• Bailiffs can prohibit you from traveling abroad; for this you do not have to have millions of debts; a debt amount of more than 30 thousand rubles is enough.

If you decide not to pay the loan at all, the bank will harass you with calls and complaints. Bank security officers will send SMS and write on social networks, including to your friends. Simply changing your SIM card is not enough to get rid of moral pressure.

The most unpleasant thing is that they will call all the phone numbers they find. Including your friends, relatives, colleagues. The mother, mother-in-law and boss find out about the debt. Yes, according to the law, banks and collectors cannot threaten debtors and mislead them, but in some cases this is not required. The goal of bank employees is to achieve payments by acting on nerves, conscience and family feelings.

Life story:

Masha gained credits. At first, I missed one payment due to the fact that I did not calculate my salary correctly and spent it on new clothes, although I had to pay off the loan first. Then I missed another payment. The debt began to grow like a snowball. As a result, the girl gave up on loans.

After some time, collectors began calling. At first they interacted with her politely. Then they began to scare me with courts and bailiffs. Masha promised to pay, even made some payments, but she never covered the entire amount of the debt. Collectors began to increase pressure, found her parents’ phone numbers, began calling them, scaring them that they would take the apartment because of a small debt.

The debtor’s mother, unskilled in legal matters, got scared and began to put pressure on her daughter worse than the debt collectors. It’s one thing when you ignore debt collectors and don’t respond. you block their phones. But it’s much more difficult to hide from your parents’ anger.

The next step is for the bank to go to court or involve debt collectors.

If the bank sues within the statute of limitations, the decision will not be in your favor. The debt will have to be repaid, only a penalty will be added to it for late payments, legal expenses of the bank, etc.

When the decision comes into force, bailiffs will come to you to describe the property in order to sell it at auction and repay the debt to the bank. If there is not enough property, a document - a writ of execution - will be sent to your place of work. A certain portion (up to 50%) will be withheld from each salary and transferred to the bank.

If you are not officially working and there is no property, then the bank will periodically send a writ of execution to the bailiffs, until your retirement. After you become a pensioner, the writ of execution will be sent to the Pension Fund and will be withheld from your pension.

Case from practice:

Gennady took out a loan - 100 thousand rubles at 20% per annum for a year. Each month, according to the payment schedule, you need to pay 9,263 rubles. The total overpayment on the loan for the year is 11,159 rubles. Quite an acceptable amount. But that would be if Gennady paid regularly. However, after five months he stopped paying. As it turned out, the loan agreement included a clause regarding penalties for missed payments - 0.5% per day (!) of the debt amount.

A year later, the bank filed a lawsuit. total amount The claim amounted to 152,379 rubles, of which 87,538 rubles were penalties for late payments. Plus, court costs (state fees) were added to this amount - 4,248 rubles.

The court satisfied the bank's demands. Plus, the bailiffs collected an enforcement fee from Gennady equal to seven percent of the collection amount - 10,666 rubles.

But before that, Gennady had already paid 46,315 rubles when he paid regularly. It turned out that he took 100 thousand rubles from the bank, and returned a total of 213,608 rubles. To do this, he had to sell the car.

There is no need to wait for the trial. If difficulties arise: you lost your job, got sick, and you need to pay the loan, agree with the bank on deferment or installment payments, and do not wait until the debt grows like a snowball or collectors call.

With what debt will they not be allowed to go abroad?

If the amount of debt in the writ of execution is 30 thousand rubles (from October 1, 2017, previously - 10 thousand rubles) or more, then keep in mind that most likely you will not be able to vacation abroad, since the bailiff imposes a restriction on departure from the Russian Federation - sends a corresponding decision to the Border Control Department.

This resolution is valid for six months. If the debt is not paid within this time, the bailiff will issue a new order.

But even if the amount of the debt is less than 30 thousand rubles, but more than 10 thousand, then after the writ of execution is received by the bailiff service, the debtor is given 5 days to voluntarily pay the debt. If after these 5 days plus two months the debtor does not pay the debt, then the bailiff also has the right to restrict travel abroad. Moreover, the amount can consist of different writs of execution. That is, in this case, to restrict departure, an amount that exceeds only 10 thousand rubles is sufficient.

Is it legal to transfer debt to collectors?

Please note that the expiration of the statute of limitations does not prevent the bank from selling the debt to collectors. Moreover, this is common practice. Of course, banks, as a rule, do not wait until three years have passed, but get rid of problem assets earlier.

There is a lot of conflicting information on the Internet that transferring debt to debt collectors is illegal. Allegedly, this is a violation of bank secrecy and the law on personal data.

Let's figure it out.

It all depends on the terms of the documents that you signed at the time of receiving the loan: the loan agreement and consent to the processing of personal data and on the date of receipt of the loan.

If you took out a loan before July 1, 2014, then the loan agreement and consent to the processing of personal data must stipulate that the borrower is not against transferring data to third parties. Then the bank can transfer the debt to collectors according to the law.

On July 1, 2014, a law came into force according to which the bank can transfer debt to third parties, even if this is not specified in the agreement. It is enough that the contract does not contain a direct prohibition on such actions (Article 12 Federal Law“On consumer credit (loan).”

If you find that the debt was transferred to collectors illegally, complain to Roskomnadzor. To file a complaint:

1. A form will open for filling out - indicate the requested data in it (full name, subject of appeal, email, place of residence).

Screenshot 2

1. Describe the situation – briefly, concisely, to the point, without emotion.
2. Attach supporting documents: loan agreement, written demands from collectors or records telephone conversations.
3. Enter security code, click the send button.

In what cases can a debt not be paid by law?

No legal grounds, for which you can simply take out and not pay the loan debt. It is better not to trust companies that promise to help you cancel your loan. But there are cases when the law is on the side of the debtor:

• the statute of limitations on the loan has expired, and the court rejected the bank’s claim due to the expiration of the term;
• the bank wrote off the debt as bad: in practice, such cases are extremely rare - it is easier for the bank to sell the problem asset, especially since the law does not oblige banks to write off debts;
• a written agreement was concluded with the bank, where the debtor agreed to pay part of the debt, and the bank agreed to write off the rest;
• if an insurance contract was concluded and an insured event occurred, for which the insurance contract provides for the condition that the balance of the debt is paid by Insurance Company.

Example: The insurance contract states that if the debtor becomes disabled, the loan balance is covered by insurance. In order for the insurance company to pay the balance of the debt for you, you need to send it a notice of the occurrence of an insured event. In response to the notification, the insurance company will provide a list of documents and further actions.

Answers to frequently asked questions:

A year ago, the debt was transferred to collectors; how is the statute of limitations calculated in this case?

Answer: Transferring the debt to collectors does not affect the limitation period.

How is the statute of limitations calculated for late loans?

Answer: for each late payment, the limitation period is calculated separately.

Consumer loan debt from nine years ago. Should I give it away?

Answer: Only if a decision is received in favor of the bank to collect the debt from you, and you will not be able to appeal it. In other cases, the decision is yours.

The statute of limitations on your loan is running out and collectors are starting to bother you? What to do?

Answer: Offer to meet in court. If the statute of limitations has passed, then declare this in court, and according to the law, no one will demand anything from you.

Conclusion

1. Calculate your options before taking out a loan.
2. If you cannot pay the loan due to illness or job loss, carefully read the insurance contract, perhaps in this case the debt can be covered by insurance;
3. Agree with the bank about or refinancing the loan (see also:

I. Basic provisions of the loan agreement

I. Basic provisions of the loan agreement

In accordance with clause 1 of Article 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization (lender) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount received and pay interest on her.

The main provisions of the loan agreement are established in § 2 “Credit” of Chapter 42 of the Civil Code of the Russian Federation. At the same time, the rules on the loan agreement established by § 1 of Chapter 42 of the Civil Code of the Russian Federation are also applied to relations under the loan agreement, unless otherwise provided by the rules of § 2 and does not follow from the essence of the loan agreement.

Based on the provisions of Article 819 of the Civil Code of the Russian Federation to essential conditions The loan agreement includes terms and conditions regarding the amount of the loan, the term and procedure for providing it to the borrower, the amount of interest for using the loan, the term and procedure for paying interest on the loan and repaying the loan amount. Meanwhile, the mere absence of agreement between the parties on any essential condition of the loan agreement does not entail the unconditional recognition of the agreement as unconcluded or invalid, since the general provisions of the Civil Code of the Russian Federation on civil contracts and obligations can be applied to the corresponding relations of the parties (see paragraph 12 Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 147 “Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement”).

Let us immediately note that credit agreements, unlike a loan agreement, are less often recognized as unconcluded or invalid, especially if the borrower is a legal entity or entrepreneur, since the relationship between them and the lender is regulated in detail by law and is laid down according to special rules. Basically, contracts are declared invalid if the concluded contract causes significant damage to the borrower’s creditors, there is no economic feasibility in concluding the contract, or the contract is unprofitable (and the bank is aware of the nature of the transaction). More often, an agreement is recognized as not concluded when the borrower is an individual, mainly due to fraudulent acts committed by bank employees or unidentified persons.

Much more often a loan agreement invalidated in terms of establishing commissions by banks , including when the borrower is a legal entity. As a rule, if a commission is charged for a service that is not independent and does not provide additional benefits (benefits) for the borrower, then the corresponding provision of the loan agreement is invalid.

For example, a fee for processing a loan application or for issuing a one-time loan may be considered illegal, since consideration of the application and issuance of a loan are an integral part of the bank’s lending service. At the same time, the commission for opening a credit line can be considered legal, because the bank incurs losses due to the need to create an appropriate reserve for the needs of the borrower. Let us separately touch upon the commission for early repayment of a loan: in judicial practice, there is a widespread position on the legality of such a commission in relation to legal entities and entrepreneurs, since early repayment entails additional benefits on the borrower’s side.

If a loan agreement provides for the periodic collection of a commission, for example, for maintaining a loan account (monthly or quarterly), then the courts perceive such a condition of the agreement as feigned, and the commission is regarded as part of the loan fee.

Loan agreement form according to Article 820 of the Civil Code of the Russian Federation - written; failure to comply with the written form entails the invalidity of the loan agreement, such an agreement is considered void. Therefore, the courts, if the creditor cannot provide written confirmation of the conclusion of the agreement, recognize the agreement as not concluded (see also paragraph 73 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by the courts of certain provisions of Section I, Part One of the Civil Code of the Russian Federation”) . This is one of the differences between a credit agreement and a loan agreement; the latter is a real agreement and failure to comply with the written form of the loan agreement does not entail its nullity.

Please note that in addition to directly providing the original loan agreement, the creditor may provide other written evidence in the event of loss of the loan agreement, which would indicate that such an agreement was concluded. But an analysis of judicial practice shows that this is an ineffective measure, since courts are critical of such evidence if there is no real evidence that the borrower received Money from the bank as a loan.

Default by the borrower of their obligations under the loan agreement may serve as a basis for early termination of the agreement, while attempts by borrowers to challenge the relevant provisions of the agreement are suppressed by the courts if the agreement stipulates the conditions under which the creditor has the right to demand early termination. As a rule, such a condition is late payments on the loan, violation of the condition on the intended use of loan funds. In such cases early dissolution The agreement is regarded as a measure to protect the interests of the lender from the actions of an unscrupulous borrower. In this case, early termination of the agreement does not entail the termination of the borrower’s obligations to repay the principal amount of the loan, pay interest and penalties. Even after termination of the loan agreement, the creditor has the right to demand payment of overdue debt, as well as interest on overdue debt.

If the borrower improperly fulfills his obligations under the loan agreement, the lender has the right to demand collection of the loan debt, payment of interest, and penalties in court. Moreover, violation of the procedure for paying interest may also be grounds for going to court. From an unscrupulous borrower, as a rule, the debt, interest, penalties (if provided for by agreement or law) are collected, and foreclosure on the pledged property may also be made. The creditor can divide his demands over time regarding the payment of the principal debt and interest, therefore going to court to collect interest on the loan amount after a previously considered case for collecting the principal debt is completely legal.

The loan agreement may provide for a condition about the intended use of the loan , in this case, the relations of the parties are subject to the provisions of Article 814 of the Civil Code of the Russian Federation on a targeted loan, incl. the borrower is obligated to provide the lender with the opportunity to monitor the use of the loan. Violation of this obligation may serve as grounds for early termination of the loan agreement.

Meanwhile, the misuse of credit funds itself is rarely an independent basis for terminating a loan agreement (as opposed to a loan agreement); the main reason is the borrower’s failure to fulfill the obligation to repay the loan, and misuse is an additional reason, and even then banks do not always mention misuse as an argument for terminating the contract if there are late payments on the part of the borrower. Misuse of funds issued under an agreement to open a credit line may serve as grounds for refusal to provide the next credit tranche.

Loan agreement is a consensual agreement , i.e. comes into force from the moment of signing (unlike a loan agreement, which is real and comes into force from the moment of execution), therefore, obligations arise from the moment the agreement is concluded (signed) not only by the borrower, but also by the bank, incl. in terms of issuing a loan to the borrower in the manner and within the terms established by the agreement.

Meanwhile, if the lender fails to fulfill its obligations to issue a loan, the borrower cannot demand in court to force the bank to issue a loan. Based on established judicial practice, the borrower will face a refusal if such claims are presented. The borrower cannot demand payment of interest for the use of someone else's funds in the event of a suspension of the loan or delay in issuing a loan, since the funds do not belong to him, and the bank does not lose the status of a creditor if there is a delay in issuing a loan. However, the borrower has the right to demand payment of a penalty if it is provided for by the contract or law, as well as compensation for losses caused by the delay, suspension or refusal to issue the next tranche.

This review provides judicial practice in the following sections:

- Disputes regarding invalidation of the contract;

- Disputes regarding recognition of the contract as not concluded;

- Disputes regarding bank fees;

- Disputes regarding termination of the loan agreement;

- Disputes in case of failure to provide a loan within the period specified in the agreement;

- Disputes in case of violation of the obligation to repay the loan amount;

- Disputes in case of violation of the obligation to pay interest;

- Disputes in case of violation of the conditions on the intended use of the loan.

As an additional source on the topic of the review, it is recommended to study:

- "Review of judicial practice Supreme Court Russian Federation No. 2 (2015)" (approved by the Presidium of the Supreme Court of the Russian Federation on June 26, 2015) regarding the establishment by the bank of a commission for maintaining a loan account;

- Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 147 “Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement”;

- “Review of judicial practice in civil cases related to the resolution of disputes regarding the fulfillment of loan obligations” (approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2013)

II. Conclusions of courts on controversial issues when courts consider cases under a loan agreement

Disputes regarding invalidation of a loan agreement

A loan agreement may be declared invalid if it is established that it is economically inexpedient to enter into an agreement, the terms of the agreement infringe on the rights and interests of the parties to the agreement, third parties, or contradict (do not comply with) the requirements of the law; not approved by the party to the contract, etc.

1. The loan agreement is declared invalid in whole or in part.

1.1. Resolution of the Arbitration Court of the North-Western District dated April 21, 2015 N F07-1703/2015 in case N A56-38600/2013

Claim:

On invalidation of the loan agreement and assignment agreement.

The court's decision:

The requirements have been satisfied.

Court position:

The Court of Appeal concluded that the disputed transactions were interconnected, concluded with the aim of causing harm to both the debtor and its creditors, without actual consideration from the Bank and in the presence of signs of abuse on its part. The appellate court, guided by clause 1 of Article 170 of the Civil Code of the Russian Federation , also considered the existence of grounds for recognizing the transactions as void, since he established that when concluding the transactions, the parties did not intend to execute them and the transactions were aimed at obtaining unsecured property preferences by the Bank in relation to the Company in anticipation of its bankruptcy.

The transactions were concluded on the same day, the loan agreement contains a condition on the purpose of the loan: this is payment under the assignment agreement. As a result of the conclusion of the disputed loan agreement, the funds transferred by the Bank to the Company were not actually at its disposal, since they were at the same time written off by the Bank from the Company’s account in order to pay remuneration to the Bank for the right of claim transferred under the assignment agreement.

The cassation court did not agree with the appellate court in terms of qualifying the transactions as sham, but since, in general, the appellate panel correctly established the circumstances of the case, the district court found no grounds for canceling the appeal ruling.

1.2. Resolution of the Volga District Arbitration Court dated August 19, 2014 in case No. A12-10845/2013

Claim:

Invalidate the agreement on the provision of a credit line, the mortgage agreement.

The court's decision:

The requirements have been satisfied.

Court position:

The court concluded that agreements for the provision of a line of credit, collateral, and mortgage do not have a reasonable business purpose and economic interest and are unprofitable for the debtor. Given the accumulating debt, the completion of these transactions, which formally comply with the requirements of the legislation of the Russian Federation, indicates that the transactions are aimed at increasing accounts payable in violation of the interests of bona fide creditors that existed at the time of concluding the agreements. Thus, the completion of these transactions indicates the abuse by the bank and the debtor of their rights to conclude contracts, a violation of Article 10 of the Civil Code of the Russian Federation , which entails the nullity of these transactions due to Article 168 of the Civil Code of the Russian Federation .

The main result of the contested transactions was a significant improvement in the terms of repayment of the debtor's original debt to the bank, primarily to other creditors of the debtor under the settlement agreement. At the same time, the bank had the opportunity to study the debtor’s accounting documentation and be aware that the conclusion of the disputed agreements with the debtor is unprofitable for the latter, as well as the infringement of the rights of other creditors.

1.3. Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 13, 2014 in case No. A43-1714/2011

Claim:

On invalidation of a revolving short-term loan agreement.

The court's decision:

The requirements have been satisfied.

Court position:

The courts came to the conclusion that the borrower did not approve the execution and receipt of the loan, since the agreement and all subsequent documents were signed by another person, the entrepreneur’s signature was falsified; The court rejected the Bank’s argument that the defendant, in the current economic situation, could not carry out business activities without the loan received, since the defendant fulfilled his obligations under the previously received loan until 2008, and then had nothing to do with operations on the loan. The argument of the applicant of the cassation appeal that the entrepreneur recognized all actions on the current account with the Bank after receiving an account statement in November 2010 and its closure was found untenable, because In itself, the closure of a current account does not indicate confirmation by the client of all transactions performed on it and is not evidence of the conclusion of a loan agreement, but only indicates the person’s intention to terminate future relations with the Bank associated with this account.

2. The loan agreement was refused to be declared invalid.

2.1. Resolution of the Federal Antimonopoly Service of the North-Western District dated January 27, 2014 N F07-9714/2013 in case N A66-4571/2013

Claim:



The court's decision:



Court position:

The parties entered into loan agreements, the terms of which provide for the right of the bank to demand early repayment of loan amounts in the cases established by the agreements. Believing that such conditions infringe on the rights of the borrower and give the bank an unlimited right to arbitrarily change the terms of the loan, the borrower went to court with the above requirements. The court rejected such arguments, since the right to demand early repayment of the loan amount is a measure to protect the bank from the borrower’s dishonest behavior in case of non-repayment of the loan; The bank does not have the unconditional right to demand early repayment of the loan at its own discretion, but only in the cases established by the agreement. No violations of legal requirements were established when such conditions were included in the text of the contract.

2.2. Resolution of the Arbitration Court of the North Caucasus District dated May 14, 2015 N F08-2789/2015 in case N A53-20566/2014

Claim:

Invalidate loan agreements.

The court's decision:

The demands were denied.

Court position:

The court concluded that the disputed transaction does not meet the criteria provided for by the provisions Article 179 of the Civil Code of the Russian Federation, and rejected the plaintiff’s argument about the enslavement of the transaction. The plaintiff did not prove that the will of the borrower when signing the loan agreements did not correspond to his intentions and the lender (bank) took advantage of the difficult situation in which the borrower allegedly found himself. From the case materials it is clear that the disputed agreements were signed by the parties without disagreement.

2.3. Appeal ruling of the Krasnoyarsk Regional Court dated September 15, 2014 in case No. 33-8924/2014

Claim:

Invalidate the loan agreement.

The court's decision:

The demands were denied.

Court position:

The court refused to satisfy the claims because the plaintiff did not provide evidence confirming that the bank knew or should have known about his disagreement with the spouse entering into a loan agreement. Besides, Clause 3 of Article 35 of the RF IC contains an exhaustive list of transactions for which it is necessary to obtain the notarized consent of the other spouse. The lack of consent of the spouse to conclude a loan agreement does not entail the invalidity of this agreement, since in this case there is no disposal of the common property of the spouses (Article 34 Part 1 , 45 part 1 of the RF IC , 256 part 3 of the Civil Code of the Russian Federation). The consent or lack of consent of the spouse when the second spouse concludes a loan agreement is not an essential condition of the loan agreement (Article 819 of the Civil Code of the Russian Federation ).

Also, the fact of using a standard form of a loan agreement when concluding it cannot serve as a basis for declaring a loan agreement invalid, since this does not contradict current legislation.

2.4. Resolution of the Federal Antimonopoly Service of the North Caucasus District dated 08.08.2013 in case No. A53-8528/2012

Claim:

Invalidate loan agreements.

The court's decision:

The demands were denied.

Court position:

Since the funds were received and spent by LLC "Nika" to finance the costs of construction of multi-apartment residential buildings carried out by LLC "Maria", which is not disputed by the parties, as well as the fact that LLC "Nika" received funds, the appellate court did not rightfully recognize the transactions as sham , since the funds were received and spent in accordance with the terms of the loan agreements. Having assessed in aggregate the terms of the loan agreements, taking into account their target orientation, the investment agreement, as well as the actual actions of Nika LLC in paying the bills of Maria LLC, which reflected the costs of financing the construction of residential buildings, the appellate court came to the conclusion that the will was consistent and the will of the parties when concluding loan agreements and the validity of concluded transactions.

Disputes regarding recognition of a loan agreement as not concluded

A loan agreement may be recognized as unconcluded, for example, due to its lack of funds, lack of agreement between the parties essential conditions agreement, falsification of the signatures of the parties, conclusion of an agreement by an unidentified person and etc..

1. Determination of the Supreme Court of the Russian Federation dated 01.09.2015 N 19-КГ15-18

Claim:

Main: on termination of the loan agreement, collection of debt under the agreement jointly and severally.

Counter: on recognizing the loan agreement as not concluded.
After confirmation of payment, the page will be

released a 44-page review of judicial practice in cases related to the protection of the rights of consumers of financial services. In order to bring uniformity of legal approaches, the Supreme Court informed how the courts should act if the bank simultaneously makes demands on the borrower to collect the debt under the loan agreement and to terminate it, and what consequences occur if the terms of the loan agreement on the payment of a commission for servicing the account are invalidated.

The Supreme Court notes: if the bank simultaneously makes demands on the borrower to collect the debt under the loan agreement and to terminate it, such demands must be considered in the manner of claim rather than writ proceedings. For example, the Supreme Court Collegium for Civil Cases did not agree with the lower authorities that the bank’s demand to terminate the loan agreement is derivative and secondary in relation to debt collection. The Supreme Court noted that the requirement to terminate the contract through writ proceedings is not considered (Article 122 of the Code of Civil Procedure). At the same time, the derivative nature of the requirement to terminate the contract has no legal significance. Consequently, such applications are subject to consideration in the manner of claim, and not writ proceedings (determination of July 11, 2017 No. 41-KG17-12).

The borrower cannot unilaterally terminate the agreement on a bank account intended to record his accounts payable, if the opening of such an account was a condition for concluding a loan agreement.

Pavel Grishko* demanded that the bank close his bank account opened for accounting for accounts payable, and demanded that a different procedure for accounting for accounts payable be established by opening a loan account. The bank refused and explained that for this it was necessary to pay off all debts, which Grishko did not do. He went to court.

The court satisfied his demands, pointing out that the plaintiff’s right to terminate the bank account agreement was established by the Civil Code and the law “On the Protection of Consumer Rights,” and whether he had debts or not was unimportant.

The Civil Collegium of the Supreme Court called these conclusions unlawful. Yes, according to general rule, the contract can only be changed by the parties by their consent. In this case, opening an account to record accounts payable was one of the conditions for concluding a loan agreement. Thus, Grishko wants to abandon his obligations, which is unacceptable (determination dated March 7, 2017 No. 7-KG16-6).

If the borrower wrote one amount in the application for early repayment, but contributed another, smaller amount, this is not yet a reason to refuse to credit these amounts.

Lidiya Gorokhova* wrote a statement to the bank about early repayment debt under the loan agreement. At the same time, a small part of the funds - 759 rubles. from 316,000 rub. - she deposited separately, on the same day and in the same branch, through her other account. The bank did not offset this part of the debt, so Gorokhova went to court. According to the appeal, the plaintiff did not prove that she contributed 759 rubles. from another account. The amount that Gorokhova contributed was not enough for full repayment loan, and applications for partial repayment she didn't write.

The Judicial Collegium for Civil Cases did not agree with the conclusions of the appeal. The bank did not notify Gorokhova that it had not credited 759 rubles. to pay off debt. The Supreme Court noted that the actual deposit of funds towards the early repayment of the loan in a slightly smaller amount than was indicated by the borrower in the application for early repayment of the loan is not in itself a basis for refusing to credit these amounts towards the repayment of the debt. The law does not limit the right to repay the loan early (Definition dated May 30, 2017 No. 4-КГ17-20).

If the condition of the credit agreement on the commission payment for servicing the account is declared invalid, the consumer must be compensated for losses according to the rules of Art. 15 GK.

Evgeniy Petrov* filed a lawsuit against the bank to apply the consequences of the invalidity of a void transaction, in part, to collect a commission for servicing the account, a penalty, a fine, and legal expenses. The court satisfied Petrov's demands, since the controversial conditions infringe on the rights of the consumer. In favor of the plaintiff, in accordance with the provisions of the Law “On the Protection of Consumer Rights,” a penalty was collected for delay in fulfilling the obligation to return the commission. However, as the Civil Collegium of the Supreme Court pointed out, no penalty will be collected for this. Only losses are compensated, the presence and amount of which is proven by the consumer under Art. 15 of the Civil Code (definition of November 3, 2015 No. 16-КГ15-25).

* the names and surnames of the characters have been changed by the editors

The full text of the review of judicial practice in cases related to the protection of the rights of consumers of financial services, approved by the Presidium of the Supreme Court on September 27, 2017, can be found.

The use of bank loans has become a common practice. Unfortunately, along with the number of loans received, the number of clients’ obligations to banks violated is also growing. A certain amount of judicial practice has already been developed regarding the collection of debt on loans. That is why debtors need to know the specifics of the situation in which they will find themselves when the bank files a claim in court.

It is much wiser not to allow the situation to come to an end. trial. By reaching an agreement with the bank on time, you can resolve the situation with significantly less losses for yourself. But if you still have to deal with the court, you should prepare to bear responsibility for failure to fulfill your obligations under the loan agreement.

The only possibility of not paying money would be the expiration of the statute of limitations under the contract, but it is very difficult to prove. In fact we're talking about only about reducing the huge amount calculated for most often a significant period of delay in loan payments. In addition to the usual interest, there are penalties, fines, interest on interest, and the amount often becomes significantly more than the entire amount borrowed on the loan.

Sometimes banks and collection agencies They themselves call with a message about the trial. In this way they are trying to speed up the process of repaying the debt. But letters with the corresponding return address indicate that you have actually been summoned to court for non-payment of a loan taken out from the bank.

It is impossible not to respond to such a challenge. On the contrary, you urgently need to look for an intelligent lawyer and prepare to close the case with minimal losses for yourself.

Preliminary hearing

The trial takes place in several stages, and before the main hearing there is a preliminary hearing. You need to not only come to it, but also thoroughly prepare for what to say in court regarding an overdue loan. Necessary:

• Justify the reasons for non-payment. They should not only look significant, but also be supported by documents: certificates from the place of employment about dismissal, from the place of treatment, from the place of residence stating that the borrower was seriously damaged by a natural disaster, and others. Only in this case will the incident be taken into account.
• Draw up a debt repayment table taking into account your real financial capabilities, supplementing it with documents about your solvency, the availability of movable and immovable property that can be put up for sale.
• Use the services of a specialist who will help you explain all this correctly and present it to the court in legal form.

Main hearing

At the main hearing, the court can once again listen to both parties and take into account new documents that the parties have managed to collect during the time that has passed since the preliminary hearing. A court verdict is immediately passed, which each party must fulfill unambiguously and accurately.

It happens that credit courts are delayed. There are many ways to do this, including changing documents for existing property, challenging property rights, and appeals. However, practice shows that appeals are very rarely granted. The court accepts the fact that the funds were taken and not returned. But for the additional time of proceedings, the bank may demand an increase in the amount of the client’s debt by court decision, and receive it.

Financial organizations may demand the seizure of the debtor's property during the trial, and also, by a court decision, until the amount specified in its decision is reimbursed. In this case there are many nuances:

• Legal claims for loans can only contain information about property that has a documentary basis. If the client has not submitted documents about property to the bank, most often financial organizations are denied the right to learn about the list of movable and immovable property from state registers.
• Courts may themselves request such information, and are most often provided with it.
• If neither the court nor the financial institution who provided the loan, then information on deposits even in another bank becomes known quickly, and it is these funds that are the first to be used to pay off the debt.
• If the debtor’s property is seized, then the guarantor’s property is not subject to the same procedure until his turn comes to pay off the loan, which requires a corresponding court decision.

If the debtor died

Until 6 months from the date of death of the borrower, it is not known which of the heirs will accept the inheritance, and along with it all the debts of the deceased. Accurate information about this can only be obtained from a notary six months after death, when all heirs must decide whether they will accept the inheritance.

The Chamber of Notaries expresses the opinion that it is not the duty of a notary to provide such information, but it is customary to provide information for loan claims.

After the end of the trial

What happens next depends on how the loan trial went. One thing is clear: if a court decision has been made, it will have to be implemented. Bailiffs have significantly greater powers compared to collection agencies.

Often the court grants a deferment on payments. However, it is unreasonable to use this opportunity: for all this time, interest and penalties continue to accrue, which makes the final amount of the debt unrealistic to return.

After a loan court is held and the property is seized, the debtor does not have the right to withdraw funds from accounts, sell the property and sell it to reduce the debt. Such actions require going to court for each property item, which prolongs the time for debt repayment and increases penalties and fines, which continue to accrue.

If there has already been a court judgment on the loan, it is too late to change anything; you will have to decide what to do next to comply with the court decision. In this case, you will have to bear additional financial losses. It is much wiser not to bring the case to court, and if it doesn’t work out, pay off the debt as soon as possible.

Getting a loan from a bank - what you need to pay attention to: Video