Banks are asked to forget about commissions and penalty interest

The Supreme Arbitration Court (IAC) is going to forbid banks to take extra interest for early repayment of the loan and may recognize the illegal commissions in loan agreements. Writes about this on Tuesday, April 26, Vedomosti newspaper in an article "Rules of the loan." Available editorial publications was a draft review of court practice on corporate lending, prepared by the EAC. Arbitrators are not obliged to follow the recommendations of the review, but in practice are guided by them. According to the deputy head of the court Andrei Yegorov, the final document has not yet been prepared, but the goal - consider it at the podium you in the middle of May. These clarifications will apply for credit, not only companies but also citizens, stresses Egorov. YOU going to finally solve the problem of bank charges. The Bureau suggested two options for clarification. The base charge for the performance of individual bank operations is possible only if the client is an independent service. The sample is a case in which the borrower is required from the bank to return the money that make up the amount of commissions within the credit agreement. EAC notes that the Commission, for example, consideration of the application, or maintaining the loan account were paid for actions that do not create for the customer "self-property benefit or other benefits. So, not a service within the meaning of Article 779 of the (contract paid service). With this approach, the bank must return the commission. On alternative EAC would take pretended commission payments which cover agreement between the parties on board for the loan. Then the commission will not be returned to the borrower. YOU twice negatively assessed the commission in considering specific cases, like Egorov. In 2010, the presidium of the court in a dispute with the Russian Rospotrebnadzor Development Bank (now - "Opening") has recognized the illegal commission to work with the loan account. According to Yegorov, a loan agreement not to complicate the commissions, they should be included in rate. This is a simple contract like sales, because when you come into the store with you not charge a commission for entry, he notes, with the inclusion of commissions in the contract misleads consumers about the actual fees for the loan. The draft also restricts banks' appetite for early repayment of the loan. If the borrower returns the loan ahead of schedule and paid for the time to use it interest, the bank has no right to claim interest on the remaining time of the contract. A similar approach is applied to the annuity payments - with the first blanked mostly interest for the entire period. If this contract is terminated early, the bank should not receive interest for a time when money is not actually used, it is said in the draft. Then the bank must recalculate the interest already paid and if necessary, return of the borrower. Criticized the project and increase the interest rate authorized by the borrower in violation of debt service. "Penalty" interest the court may reduce to acceptable levels by Article 333 of the Civil Code. This article is universally applied only to the penalty, "penalty" interest courts have often feared to touch, though, in fact, they have nothing of it are no different, said Egorov, stressing that the interest on the loan itself may not reduce the court. Thus, the court does not change the condition of the contract, but merely refuses to recover the increased interest in the part which, in the opinion of the court is excessive, he explains. Part of the explanation the court prepared for the benefit of banks. Market interest and penalties can be levied after the termination of the loan agreement, according to a survey. Now if the contract is terminated prematurely, then cease to have effect as a condition of interest, and of clauses, explains Yegorov, in the end the borrower rather than the market rate uses were not returned by the bank funds at the rate of refinancing. The review also states that in such a case, repayment of the loan retained prescribed in the contract of interest and penalties. Overview can not be called "prokreditorskim" said Yegorov: an attempt to find a balance of interests as in those matters where banks are "too far", and where they suffer unjustly. Provisions in favor of the borrower's more, you still tend to limit freedom of contract with respect to "Bank - Client", especially if the latter is the weaker party, says partner Goltsblat BLP Maxim Kulkov. The project is balanced, says Baker & McKenzie lawyer Andrei Lebedev, though, if the Bureau takes the basic version of commissions for the banks it will be a shock: while under a ban would be even a commission for the maintenance of the credit limit. It is impossible to solve such a complicated issue as the legality of the commissions, newsletter, says partner Yakovlev and Partners "and a member of the Supervisory Board of Investbank Igor Dubov. As a rule, the court accepts the basic version, but then the banks would face with the shaft of lawsuits from borrowers about the return of the commissions, he said. At the same time will increase and the risk of fines from the Rospotrebnadzor adds Dubov, because its checks on loans to citizens is challenged in courts of arbitration. The main focus of banks will focus on the point about the commission, agrees to Head of Legal Department SDM-Bank Alexander Golubev. Some commissions have indeed economically unreasonable, for example, maintaining the loan account, he agreed, but other direct costs associated with the bank. Maintenance fee covers the cost of the credit limit the bank's reserve funds under the credit line, he gives an example.