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, Vladislav Bank.ru Esenkov, Deputy Head of Department for working with clients to develop mortgage business CB Unifin "spoke about the possible consequences of this decision for ordinary borrowers and some of the nuances of this case. Vladislav, March 2, Presidium (the Supreme Arbitration Court) has set 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 one and the same problem have you had two mutually exclusive solutions for one similar case? Does this decision that the judiciary stood on the bank side in disputes with borrowers when the case concerns the credit agreements? You should not draw hasty conclusions about the preferences of one of the higher courts on the basis of such low statistics. The issue is that today in our country there is no clear legislative framework governing the relationship of the parties credit agreements. Of course, there are federal laws podzakonodatelnye and other acts, but the wording is so vague and evasive, that in each case, they can be interpreted in different ways. The problem lies in that, rather than bias in judges' opinions, because the very essence of the judicial system is the principle of impartiality. Decisions themselves contrary to formal logic, but from a legal point of view, no such contradictions. That is the absurd in reality. Until this problem is resolved, until then, until there are clear and transparent laws, we will witness the adoption of incomprehensible and contradictory decisions by courts at all levels, including the highest. In your opinion, is it worth waiting for as soon as new ships, which will analyze such problems? Most likely, it will be. On average, since a complete failure of the borrower to pay the loan or the beginning of arrears, pre-trial proceedings is 6-12 months. This means that those borrowers who have a crisis has worsened the financial position or who ever lost a job, already close to the trial stage, which is initiated by the banks. And there are tens of thousands of citizens. Banks in this situation, too, need to understand. They must return at least those funds that have been issued. I'm not talking about a percentage on credit, ie, loss of profits. From all this it follows that both parties to the dispute in preparation for the upcoming trial, study documents, pick up the facts to argue their position and make lists of requirements to kontrstorone. With a strong desire in the loan agreement can be found many contradictions existing legislation, which, unfortunately, the costs of the system and blame the banks here have absolutely no. It turns out that in the absence of a coherent and clear jurisprudence on such matters, we can expect any court decision. 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? Chances are undeniably there. I would rate them as 50 to 50%. I want to note that for large loans, mortgages, for example, such problems less. The fact is that by granting large sums of money more rigorous and balanced approach, not only by the lender (bank), but also by the borrower. About a week goes by that would be a client could learn all of the loan agreement and related documentation. Issuance of the same consumer loans have similar conveyor, and borrowers often do not even know with what kind of interest and on what credit terms. In place of what would be hastily apply to Federal Service, the Society for Consumer Protection, etc., call in advance before receiving the loan to find out all the representatives of the creditor bank and to consult with independent experts. But from the address to friends and acquaintances for advice I'd warned, unless they are professionals in this field course. Self-thing is certainly cheap, but dangerous. Do you think that in future the courts will increasingly become the side of borrowers, or bankers? Courts should not and will not stand on any side. Once again, the problem is not partisanship of judges, and the imperfection of the legislation. Of course, the losing side at every opportunity to blame the court of bias, give reasons and arguments in their favor. Terms of the fight in a situation Bank-borrower initially not equal. The bank has a staff of lawyers, and the borrower is in fact one. Here I would like to express a wish for our government: to establish a system of legal aid and support borrowers who fell into a bad situation. In your opinion, whose position is correct in this dispute, the debtor or the credit institution? Each such situation is unique and has its own background. It all depends on what were originally the terms and intent of the parties. If the bank is using the ignorance of the borrower offers a deliberately onerous conditions, then you need to side with the borrower. It happens, and vice versa, a citizen, taking credit, is already thinking that it would not pay for it. Know in advance about such motives can not be a stranger soul is darkness. In this case, the truth is on the bank side. I recommend all the same, to resolve all disputed issues with the bank in the pretrial order. Such good practice already exists. Note that this view is representative of the bank. We were also asked to comment on this situation Xenia Kononov, a senior lawyer of the Legal Bureau Padva and Epstein. " "The allegation that the Supreme Arbitration Court of the Russian Federation (RF) took on the same issue two mutually exclusive solutions are not entirely correct. Question, which considers Presidium of the Russian Federation March 2, 2010 in the case № 7171/09, concerned the legitimacy of the credit organization to unilaterally change the interest rate for the use of cash (credit) under a contract with an individual. Indeed, this provision does not comply with current legislation, since, in accordance with the provisions of Art. 310 Civil Code unilateral alteration of the obligation is not allowed, except as provided by law. The possibility of a unilateral change in the obligations provided for entrepreneurs in the case where such a condition is stipulated in the contract. However, in this case, the borrower - an individual who is not a business entity, and its relationship with the lending institution other than the provisions of Civil Code also distributes its action under the provisions of Art. 9 of the Federal Law of 26.01.1996 № 15-FZ "On introduction of the second part of the Civil Code of the Russian Federation, the Federal Law of 07.02.1992 № 2300-1« On Protection of Consumers 'Rights (hereinafter - the Law "On Protection of Consumers' Rights ). Based on the provisions of a special normative act regulating relations in the banking sector, namely: art. 29 of the Federal Law of 02.12.1990 № 395-1 «On Banks and Banking (Federal Law" On Banks and Banking Activity ") a credit institution has no right to unilaterally change the interest rates on loans (deposits), the commission and terms of these agreements with customers, except as permitted by federal law or by contract with customer. The Civil Code of the Russian Federation Law "On Protection of Consumers' Rights, other federal laws do not provide the right bank to unilaterally change the interest rates on loan contracts with the citizens - the consumers. In a situation related to the dispute CPC-bank and Rospotrebnadzor A40-5236/09-17-45 case number, subject to review by the courts was a question of giving credit institution information about the service - a loan which carries a collection of commissions in the amount of 1.99% per month on the size of the loan and the right credit organization to change unilaterally the rates of the bank. Said issue has a different legal regulation, and this could be due commented RF solution. According to the article. 1930 Federal Law "On banks and banking activity" in the agreement between credit institutions and their clients should be given the interest rates on loans and deposits (deposits), the cost of banking services and the timing of their implementation, including the processing time of payments, the liability of parties for breach of contract, including liability for breach of obligations under the terms of payment and procedure for its dissolution, and other material terms of the contract. As established in the analysis of the conditions of the loan agreement, the courts rightly decided that it contains information about the service - the provision of credit, which carries a collection of the commission at a rate of 1.99% per month on the size of credit granted, since such information was contained in the 1951 contract, paragraph 5, section 1, paragraph 8 of Section 4, paragraphs 3 and 4 of section 5, paragraphs 1 and 2 in Section 6 of the contract, paragraph 2, the bank's fees. In accordance with Art. 8 of the Law on the Protection of consumer rights consumer is entitled to require the provision of relevant and reliable information about the manufacturer (performer, seller), its mode of operation and sold the goods (works, services). Said information in a clear and accessible form brought to the attention of consumers when entering into contracts of sale and contracts for performance of work (providing services) as adopted in some areas of customer service. Thus, commented upon the situation there is no violation of the provisions of the Law on Consumer Protection. Further, the contract stipulates that the bank has the right at any time to modify or amend terms and conditions, including fees of the bank. These changes come into force 30 days after their placement in the Bank (branches / offices of the bank), the Bank's website on the Internet or the placement in the newspaper Komsomolskaya Pravda. Information about such changes may additionally be contained in notices sent to the borrower in the presence of current account transactions. The Bank may also notify the borrower of changes in terms of the contract by mail, telephone and other communications. The parties acknowledge that the written form of agreement will be respected by both the bank and the borrower. The borrower is obliged to monitor changes in the terms of the contract. Therefore, in this case, comply with the requirements of the harmonization of conditions of the contract. If we talk about the prospects of new litigation, it should be noted that entered into force 17.03.2010 part 4 of Art. 1929 Federal Law "On banks and banking activity", according to which the loan contract with the borrower-citizen, a credit institution can not unilaterally reduce the term of this contract, to increase the amount of interest and (or) change the order of their determination to increase or establish commission on transactions, except as permitted by federal law. Thus, the legislator is given a clear limitation of the rights of a credit institution to a unilateral change in conditions of the loan agreement entered into with respect to the individual. It should be noted that this provision applies to legal relations arising from contracts concluded after the entry into force of this Part. Consequently, responding to a question on which side of the bank or the borrower is currently worth judiciary must make a reservation, that the outcome of litigation related to changes in the terms of credit agreements, depends on the circumstances of the case, these may include including : Conditions of the loan agreement, the substance and nature of subsequent changes, and, respectively, and the presence or absence of violations by the Bank of the provisions of existing laws, etc. It seems that the position of the borrowers - individuals who have signed loan agreements after entry into force of Part 4 of Art. 1929 Federal Law "On banks and banking activity", is more secure than those whose relationship with lending institutions on the use of credit funds have arisen before its entry into force. In any case, in violation of lending institution requirements of the Article. 310 (ban on unilateral alteration of obligations), art. 450 (about a unilateral change in terms of the contract), Art. 452 (on the order of changes in contract terms) of the Civil Code, Art. 1929 Federal Law "On Banks and Banking Activity" (on the credit agreement, the right to change, which unilaterally arises only in cases stipulated by law or contract), the borrower - a natural person must apply to the courts of general jurisdiction or in the territorial offices of the Rospotrebnadzor protection of infringed rights "- said the lawyer.
No comments:
Post a Comment