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 Bank.ru Alexander Sidorov, head of legal department of JSC "Bank Finam told about the possible consequences of this decision for ordinary borrowers and some of the nuances of this case. Recall that on 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 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? In the analysis of judicial practice must take into account the fact that similar at first glance it is not always so much like when a detailed examination. Let's try to analyze the controversial findings of Vasa set forth in the company Home Credit & Finance Bank (HCF) and the fact ZAO "Russian Development Bank (RDB) on similar issues, of which I believe are three: - issue a unilateral change in terms of the contract - question the possibility of establishing the commission - a question the possibility of establishing a contractual clause. Pay attention to what you're in RBRa examines the possibility of a unilateral change in the specific conditions of the loan agreement - the terms of the interest rate reaches the following conclusion: "... the inclusion of bank credit agreement concluded with the citizen, the conditions of the possibility of unilateral changes in interest rates violates established law, consumer rights .... " The texts of judgments in the case HKFa the possibility of changes in the contract unilaterally considered very broadly, without reference to the condition of the interest rate. Thus, the Ruling on the case HKFa can be understood as an allusion to the possibility of a formal dialogue with the judiciary, the essence of which lies in a correct definitions (definitions - Ed.). The importance of correct definitions of confirmed and contradictory approach to the issue of the lawfulness of Vasa commissions. In fact RBRa YOU example found violating the rights of the consumer condition of fees for maintaining the loan account. In part, this is logical - maintaining the loan account is not a special service bank. Maintaining the loan account - "necessary evil", resulting from the specific accounting of credit operations. Bank in this case, outwitted himself, detail extending to lower courts about the specifics of accounting transactions and their effect. In fact HKFa YOU looked at the commission about the loan more broadly - as much as it was widely stated in the loan agreement. Side of the loan agreement the name of the commission formulated as follows - "the commission for the issuance of credit." Specificity regarding the content of this service is not provided. In general, the granting of credit is a fairly complex process that involves several departments of the bank, respectively, labor, etc. Direct contradiction to the position you on the pending cases is observed in determining contractual jurisdiction (the parties themselves agree on what the court will analyze the case where the right of the conflict between them - Ed.). The Bureau eliminates the possibility of contractual jurisdiction, the panel admits it. However, it should pay tribute to the small game board YOU in this matter, whose essence is as follows: "Upon Request jurisdiction is admissible in all cases, except in cases involving consumer protection." It turns out that the Bureau had "wronged", took into account its direct reference to the fact that cases of consumer protection should be considered in application of the rules of jurisdiction laid down by law, and made its complement, in fact does not contradict the conclusion of the Bureau. Thus, we can talk about the ambiguity of the situation held by judicial decisions. This ambiguity can be useful for larger borrowers, individuals who have the opportunity in court to try to recover overpayment interest, commissions, as unjustly obtained. But then the story can unfold differently - so much groundless been received? I think that such processes are. However, their 100% success, I would not count. Under the loan agreements concluded after 19.03.2010, the sense from this judicial practice a little - on the legislative level set severe restrictions relating to the banks unilaterally regulating interest rates and commissions. Remains an open question about the contract clause. This question has a "severe" the practical side - the courts of general jurisdiction in many areas often have a unique position, regardless of judicial practice and legislation in force. I want to note that the management processes for debt collection from a remote location (without the presence of) a very real process. A trial in a regional court in this mode is often faster than a court in Moscow. Place of execution - a separate issue. Unambiguous conclusion that the judiciary stood on any particular side, unfortunately, are not possible. In your opinion, is it worth waiting for as soon as new ships, which will analyze such problems? Yes, courts are likely to be. Rospotrebnadzor usually manifests sufficient persistence. 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? Links are, in fact, the same sources. The question of interpretation. 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? Chance is always there. Without a professional legal support decreases the chance at times. Refer to in the first place to the lawyer. Do you think that in future the courts will increasingly become the side of borrowers, or bankers? Hard to say. In Russia, everything is too political. In each dispute, everything will depend on which bank is involved in the dispute, and which region is proceeding. Space for law enforcement is always, as the practice of recent trials. In your opinion, whose position is correct in this dispute, the debtor or the credit institution? In my opinion, the bank is "right." When lending bank still runs the risk of their own money and customers money. These issues should be regulated by the legislator more subtly, to such situations was less. For example, for social importance of credit products, such as lending to real estate purchase for their own accommodation should be subject to more stringent regulatory environment, as this is one possible way of exercising the constitutional right to housing. For the consumer credit environment stiffness think one of the key moments, as Practice shows that the motives for their preparation and attitude to the process of return of more than negligence.
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