Recently, the Supreme Arbitration Court (IAC) has refused to transfer the case to the Presidium of HCF-Bank, successfully challenged the decision of Rospotrebnadzor in the courts of three instances of the Moscow District. The fact that the loan agreement with an individual allowed the bank to change its terms and to charge a fee for providing credit. Legality of the actions the bank has confirmed a panel of judges. In an interview with Paul Bank.ru Konde, head of the judiciary and tax practices of CIT Finance Investment Bank, spoke about the possible consequences of this decision for ordinary borrowers and some of the nuances of this case. Paul, March 2, Presidium established a precedent for similar work. The Bureau upheld the decision of Rospotrebnadzor, fined Russian Bank for Development for inclusion in the contract with the lender the right to unilaterally change the interest rate on the loan. Can we say that the same problem have you had two mutually exclusive solutions? Does this decision that the judiciary stood on the bank side in disputes with borrowers when the case concerns the credit agreements? With regard to this case, you should say that the judiciary is not got to protect the borrower, and to protect the bank in a dispute with an administrative body. Cases referred to, are similar at first glance - they have different circumstances. The Presidium said about the illegality of significant changes in contract terms (interest rates on loans (deposits), the duration of these contracts) and the illegality of collecting funds for neokazannuyu service (commission for the conduct and the discovery of a loan account). Left in place judicial board YOU Ruling of the Federal Ministry of Defense said the legality of contract terms that provide the right at any time to modify or amend these conditions, including tariffs. In this case, the text of the Resolution it is about the tariffs on the current account of the borrower, which opens when issuing credit. At the same time - and this is a common element in these judgments - Bureau of you pointed out that in relation to Art. 819 SC Commission may not apply, because this norm is available only interest payments. Judicial board you do not apply st.819 CC. and concludes on the legality of the establishment of loan fees. This fact quite clearly illustrates the current jurisprudence of you, in which the supreme judicial organ itself in violation of uniformity in the interpretation and application of the law. In your opinion, is it worth waiting for as soon as new ships, which will analyze such problems? Such disputes are likely to be terminated at the Supreme Judicial Board, which will refuse to transfer the case to the Presidium of the Russian Federation. In this case, it is hoped the Plenum YOU. The full issue of conflict of judicial acts may be withdrawn by the joint plenum of EAC and the Supreme Court on case of violation / Consumer Protection. Which laws and regulations referred to the bank when proving its right to change some terms of the contract unilaterally? What are the laws referenced Rosprotrebnadzor and other government agencies that stand to the side of borrowers? Bank credit agreements do not contain conditions allowing to unilaterally change their terms. Administrative bodies and tribunals, including the RF, to justify the inadmissibility of unilateral changes in contract terms refer to the collection of articles 310 and 450 of the Civil Code, somehow mixing with the two legal concepts: the treaty and the obligations arising under the contract. Article 310 provides for the inadmissibility of unilateral withdrawal or modification of obligations, and Article 450 regulates the modification or termination of the contract. Do you think there is now a chance for the borrower to challenge the decision of the bank to unilaterally raise the rate on the loan, or change in their favor for some other condition? Where he should apply? To date, the borrower is almost 100% guaranteed when you contact the Court to declare the term of the contract unilaterally change the rate on the loan illegal. In the case of rate increases, the borrower must apply to the court for invalidation of contractual terms on the right bank to unilaterally change the rate. The same procedure can be challenged, and other conditions that allow the bank to modify the contract unilaterally, for example, the sequence of write-offs for failure of payment amount. However, the borrower should keep in mind that under the agreement "floating" rate is not changing the conditions of the contract. Do you think that in future the courts will increasingly become the side of borrowers, or bankers? The judiciary can not be independent from the state. If the State is in a certain period of the electorate needed to vote, then the courts will not adjudicate in favor of banks. It seems that the unstable economic situation, the judiciary as an organ of state power, would be to meet the wishes of workers and unemployed people, recognizing the illegal collection of any commissions when issuing credit. In your opinion, whose position is correct in this dispute, the debtor or the credit institution? According to Section 1, Art. 450 CC, change and termination of the contract may be agreed by the parties, except as otherwise provided in this Code and other laws or by contract. In Part 2 of Article 29 of the Federal Law "On Banks and Banking Activities" states: "The credit institution has no right to unilaterally change the interest rates on loans and (or) the order of their definition, the interest rates on deposits (deposits), the commission and terms of these agreements with clients - individual entrepreneurs and legal entities, except as permitted by federal law or by contract with customer. " Thus, the Civil Code and special laws expressly establish the possibility of changing conditions of the loan agreement unilaterally if it is provided by the loan agreement. Charging a fee for issuance of the loan, ie the transaction (Article 5 of the Federal Law), banks also operate within the confines of a special law, as Part 2 of Article 29 of the Federal Law establishes the right of the bank to charge a commission for operations under the agreement with the client. Consequently, if the loan agreement provides for the commission, loan fees, then, the Bank does not violate the law on consumer protection. Note that this view is representative of the bank. We were also asked to comment on this situation Vaneeva Alexander, a lawyer international law firm Magisters. "Determination of the RF on the refusal to refer the case to the Bureau drew attention to themselves, primarily for its brevity. The Trial Chamber does not consider it necessary to provide details of the case, which is already causing problems. And the facts of the case, perceived in the context established by the Bureau of the RF in the decree of March 2, 2010 position, really showed the need to review the case. With regard to the possible grounds for denial of reconsideration, it appears that they all contradict the explanation of the Constitutional Court on similar issues. Thus, in its decision of 23.02.1999, № 4-H Constitutional Court of the Russian Federation explained that in dealing with the bank is a citizen of the weak side, and his right to be protected, including by limiting the freedom of contract for the banks. Because of this, any unilateral changes in tariffs in the contract with the national bank should not be. At this position he cited the RF court decision on March 2, 2010. Why now, this position was inapplicable, and the difference between the position of the tariff changes contemplated in the contract "Home Credit and Finance Bank", from the provisions of the tariff changes contained in the contract of CB Russian Development Bank ", resolutely clear. Perhaps there were some significant differences, however, is clearly reflected in judicial acts not found. In view of this, the question remains open as a result, further practice courts will remain unpredictable, "- says the lawyer.
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