Trust bank loan agreement. Litigation on loans in favor of the borrower Loan agreement in NB Trust
SOLUTION
Name Russian Federation
Pavlovo-Posad City Court of the Moscow Region, consisting of: the presiding judge Ryakin S.E., with the secretary Parshenkova N.I., with the participation of the plaintiff Kartseva O.A., the representative of the plaintiff Kartsev A.A., the representative of JSC National Bank Trust » Ivanik E.P., having considered in open court a civil case No. 2-645 / 2013 on the claim of Kartseva Oksana Anatolyevna against OJSC National Bank Trust on consumer rights protection,
Installed:
Kartseva O.A. indicates that on 07/05/2012. between it and OJSC "National Bank "TRUST" concluded an agreement No. for the amount of rubles. A prerequisite issuance of a loan under the Agreement was a one-time payment of a commission for crediting credit funds to the client's account, which amounted to 5,990 rubles. As part of this loan, she was issued two cards: card 1 - No. (clause 3 of the agreement) and card 2-No. (clause 4 of the agreement).
03.12.2012 Kartseva O. A. contacted the call center to clarify the amounts for early repayment loan on two bank cards 1 and 2. The operator told her the amounts for early repayment and the date until which these amounts are valid, namely: on card 1 - the amount was RUB. kop., on the card 2 - the amount of early repayment amounted to rubles. kopecks, maturity date is December 24, 2013.
04.12.2012 to the cash desk of the Operational office "Paveletsky" of the city of Moscow, located at the address: Moscow, st. Valovaya, d. 11/19, Kartseva O.A. paid the money in full. After payment, she turned to an employee of the bank, Evgeny, who gave Kartseva O.A. application form for closing an account on a card 2. She handed over both bank cards to him.
27.12.2012 Kartseva O.A. came to the same branch of the bank where she made the full repayment Money using bank cards, where she found out that she had a debt in the amount of 235 rubles. When asked when this debt could have been formed, the bank employees did not answer. On the same day Kartseva Oh.A. wrote a statement of their disagreement with this withholding.
By e-mail she received a response from the bank, according to which Kartseva Oh.A. should have paid not Rs. 11 kop., and rub. 28 kop. As indicated in the answer, this amount consisted of the following payments: RUB. 87 kop. - main debt; rub. 41 kop. - interest on the loan; 390 rub. - Penalty for missing the payment of the minimum monthly payment.
Kartseva O.A. disagreed with this amount of the fine, t.to. the period of its accrual was not indicated, for which payment it was accrued and why the bank did not notify her of the presence of a fine.
27.12.2012 Kartseva O.A. was issued a certificate of closure of the loan agreement No. 23.07.2012, which stated that as of 27.12.2012. She has no debt, the loan agreement is closed. However, to date, on the mobile phone Kartseva O.A. SMS messages are received about her debt to the bank, which is growing and today amounts to 1315 rubles. 14 kop. Kartseva O.A. contacted the bank’s call center with a question about what kind of debt they were talking about, the bank replied that she did not pay the monthly minimum payment, so the bank accrues fines, which at that time amounted to 1315 rubles. 14 kop.
The application form for a loan for urgent needs is provided in the form developed by OJSC NB TRUST, which excludes any influence of the consumer Kartseva O.A. to determine the terms of the contract.
The loan agreement was concluded on the conditions established by the bank, to make any changes to the agreement, Kartseva Oh.A. didn't have the opportunity.
The specified provisions of the loan agreement, which provide for the conditions for paying a commission for crediting funds to the client’s account, contained onerous conditions for the borrower of an individual, which, based on reasonably understood interests, would not have been accepted by Kartseva O.A., if she had the opportunity to participate in determining the terms of the contract.
The norms of the Civil Code of the Russian Federation do not make the provision of a loan to an individual dependent on the opening of a settlement or other account for the borrower and does not entail the automatic conclusion of a bank account agreement.
The fee for crediting funds is actually an additional interest rate - which the borrower must pay.
According to Kartseva O.A. the bank is obliged, when concluding loan agreements, to bring to the attention of the borrower in an understandable language, all the necessary and reliable information about the cost of services and their properties.
The terms of the loan agreement on the payment by the Borrower of the commission for settlement services, as well as the commission for crediting funds to the account, violate its rights.
By their actions, the bank caused Kartseva Oh.A. moral suffering, tk. up to the present time he demands from her the money that she has already paid him and returns her overpaid money to her. She is experiencing in the current situation, experiencing moral suffering.
Kartseva O.A. asks the court: Recognize n. 1.16. loan agreement No. dated 23.07.2012. on the collection of commission for crediting funds received from the Client (at a time) invalid. Recognize as revoked her consent received by JSC "National Bank TRUST" on the application form for the conclusion of the Agreement on the issuance of servicing a bank card dated July 23, 2012. Close the accounts of Kartseva O.A., which were opened in the branches of the bank "National Bank "TRUST" ; collect from JSC National Bank TRUST in favor of the Client the amount of commission for crediting credit funds to the Client's account in the amount of 5990 rubles; illegally withheld funds in the amount of 154 RUB. 83 kop., interest for the use of other people's money in the amount of 327 rubles. 20 kopecks, compensation for non-pecuniary damage in the amount of 10,000 rubles; payment of legal expenses in the amount of 30,000 rubles; payment for drawing up a statement of claim in the amount of 4,800 rubles, payment for notary services in the amount of 1,300 rubles, to collect in her favor a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer.
At the hearing the plaintiff Kartseva Oh.A. supported the claims.
The representative of the defendant JSC «National Bank «TRUST» Ivanik E.P. submitted a review, the claim is not recognized, explained that the bank did not violate consumer rights Kartseva Oh.A. The defendant's representative failed to explain why the bank 27.12.2012g. Kartseva O.A. was issued a certificate of closure of the loan agreement No. 23.07.2012, which stated that as of 27.12.2012. debt from Kartseva Oh.A. absent, the loan agreement is closed.
After hearing the plaintiff, the representative of the defendant, having checked the case materials, the court finds that the claims are reasonable and subject to partial satisfaction on the following grounds:
In accordance with 4.1 Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law.
The court found that on 05.07.2012g. between OJSC National Bank TRUST and Kartseva Oh.A. signed loan agreement No. for the amount of RUB. A prerequisite for issuing a loan under the Agreement was a one-time payment of a commission for crediting credit funds to the client's account, which amounted to 5,990 rubles. Within the framework of this loan Kartseva O.A. two cards were issued: card 1 - No. (clause 3 of the agreement) and card 2 - No. (clause 4 of the agreement).
All banking documents are signed only by Kartseva O.A. There are no seals of the bank and signatures of its representatives.
27.12.2012 Kartseva O.A. issued a certificate of closing the loan agreement No. 23.07.2012, which states that as of 27.12.2012. she has no debt to the bank, the loan agreement is closed.
According to the calculation of the debt credit card as of May 14, 2013 the accumulated debt of interest for the use of the loan is 235 rubles. 14 kop. The representative of JSC «National Bank «TRUST» failed to explain to the court why the bank did not transfer the funds for their repayment from the funds paid by Kartseva Oh.A. for loan repayment.
By virtue of Art. 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to conclude a contract. The terms of the contract are determined at the discretion of the parties, unless the content of the relevant terms is prescribed by law or other legal acts.
In accordance with Art. 422 of the Civil Code of the Russian Federation, the contract must comply with the rules binding on the parties, established by law and other legal acts (mandatory law) in force at the time of its conclusion.
According to Art. 16 of the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On Protection of Consumer Rights”, the terms of the contract that infringe on the rights of the consumer in comparison with the rules established by laws or other legal acts of the Russian Federation in the field of consumer protection are recognized as invalid. It is prohibited to condition the purchase of some goods (works, services) on the obligatory purchase of other goods (works, services), which took place in relation to the Borrower (plaintiff). Losses caused to the consumer as a result of violation of his right to free choice of goods (works, services) are reimbursed by the seller (executor) in full.
The Constitutional Court of the Russian Federation in Resolution No. 4-P dated February 23, 1999 indicated that a citizen in legal relations with a bank is economically weak side and needs special protection of their rights, which entails the need to limit the freedom of contract of a credit organization (bank).
According to Part 1 of Art. 428 of the Civil Code of the Russian Federation, an accession agreement is a contract, the terms of which are determined by one of the parties in formularies or other standard forms and could be accepted by the other party only by joining the proposed agreement as a whole.
The application form for a loan for urgent needs is provided in the form developed by OJSC NB TRUST, which excludes any influence of Kartseva O.A. to determine the terms of the contract. The loan agreement was concluded on the conditions established by the defendant; she could not make any changes to the agreement.
The specified provisions of the loan agreement, which provide for the conditions for paying a commission for crediting funds to the client's account, contain onerous conditions for the borrower of an individual, which, based on reasonably understood interests, would not be accepted by Kartseva O.A., if she had the opportunity to participate in determining the terms of the contract.
The norms of the Civil Code of the Russian Federation do not make the provision of a loan to an individual dependent on the opening of a settlement or other account of the borrower and does not entail the automatic conclusion of a bank account agreement.
According to Art. 30 of the Federal Law of 02.12.1990. 395-1 "On banks and banking activities", opening a bank account is a right, not an obligation of citizens.
In accordance with paragraph 1 of Art. 819 of the Civil Code of the Russian Federation, payment under a loan agreement is the payment of interest on the loan amount. This interest is a payment to the bank for a set of actions performed during the issuance of a loan and its repayment by the borrower, must cover both its expenses and include the bank's income from this operation.
Likewise, the provisions of Art. 807, 809 of the Civil Code of the Russian Federation do not contain the concept of "loan credit, settlement service", in accordance with Art. 819 of the Civil Code of the Russian Federation, actions to provide and service a loan are the responsibility of the bank under the loan agreement.
The Regulation of the Central Bank of the Russian Federation of August 31, 1998 No. 54-P “On the procedure for providing funds by credit institutions and their return (repayment), also does not provide for the payment of any additional services when issuing a loan and repaying it by the borrower, nor opening and maintenance of a special account of the borrower.
Thus, the fee for crediting funds is actually an additional interest rate that the borrower must pay.
In accordance with Art. 9 of the Federal Law of January 26, 1996 No. 15-FZ "On the Enactment of Part Two of the Civil Code of the Russian Federation" in cases where one of the parties to the obligation is a citizen using, acquiring, ordering, or intending to purchase or order goods (works, services for personal household needs, such a citizen enjoys the rights of a party to an obligation in accordance with the Civil Code of the Russian Federation, as well as the rights granted to the consumer by the Law of the Russian Federation "On the Protection of Consumer Rights" and issued in accordance with other legal acts.
According to paragraph 1 pp. "d", paragraph 3 of the resolution of the Plenum Supreme Court of the Russian Federation dated June 28, 2012 No. 17 “On the consideration by the courts of cases on disputes on the protection of consumer rights” when considering civil cases: courts should take into account that relations, one of the parties to which is a citizen using, acquiring, ordering, or having the intention to acquire or order goods (works, services) exclusively for family, household, household and other needs not related to entrepreneurial activities, and the other - an organization (manufacturer, performer, seller, importer) providing services that are relations regulated by the Civil Code Russian Federation. Law of the Russian Federation of February 7, 1992 No. No. 2300-1 "On Protection of Consumer Rights", other federal laws and other regulatory legal acts of the Russian Federation adopted in accordance with them.
In accordance with Art. 16 of the Law of the Russian Federation "On Protection of Consumer Rights" it is prohibited to condition the purchase of certain goods (works, services) on the obligatory purchase of other goods (works, services).
However, according to Art. 10 of the same law, the contractor is obliged to provide the consumer with the necessary and reliable information about the services provided in a timely manner. This information in a visual and accessible form is brought to the attention of the consumer when concluding contracts for the provision of services in the ways adopted in certain areas of service. In part 4 of Art. 12 of the Law states that the consumer's lack of special knowledge is assumed. Consequently, the borrower, due to his lack of special knowledge in the field of banking legislation, cannot know about the legality or illegality of certain conditions of loan agreements. In accordance with Part 3 of Art. 10 of the Civil Code of the Russian Federation, the reasonableness of actions and the voluntariness of participants in civil legal relations is assumed.
It follows from this that the Bank was obliged, when concluding loan agreements, to bring to the attention of the borrower in an understandable form, all the necessary and reliable information about the cost of services and their properties - but did not. The court found that the bank documents available in the case, information about tariffs and conditions are printed in small print, which makes it difficult to read and understand them.
By virtue of paragraph 1 of Art. 16 of the Law of the Russian Federation "On the Protection of Consumer Rights", the terms of the contract that infringe on the rights of the consumer in comparison with the rules established by laws or other legal acts of the Russian Federation in the field of consumer protection are recognized as invalid.
The norms of the Civil Code of the Russian Federation, the Federal Law “On Banks and Banking Activity”, other regulatory legal acts do not provide for the possibility of charging a fee in the form of a commission for crediting funds when granting a loan to individuals, and therefore the terms of the loan agreement on payment of commission for settlement service is contrary to the provisions of art. 16 of the Law of the Russian Federation "On Protection of Consumer Rights".
According to the provision of Art. 168 of the Civil Code of the Russian Federation, a transaction that does not comply with the requirements of the law or other legal acts is void, unless the law establishes that such a transaction is voidable, or does not provide for other consequences of the violation.
The terms of the loan agreements on the payment by the Borrower of the commission for settlement services, as well as the commission for crediting funds to the client's account, violate the consumer's rights established by law and by virtue of Articles 168. 180 of the Civil Code of the Russian Federation, paragraph 1 of Article 16 of the Law of the Russian Federation "On Protection of Consumer Rights" and are invalid (insignificant).
In accordance with the provisions of Art. 395 of the Civil Code of the Russian Federation, paragraph 2 of Art. 1107 of the Civil Code of the Russian Federation, interest is charged for the use of other people's funds from the time when the acquirer found out or should have found out about the unreasonableness of receiving or saving money.
Interest for illegal use by the Defendant of the Borrower's funds under the loan agreement No. dated 23.07.2012. amount to 327 rubles. 20 kopecks. According to the calculation of interest presented by the plaintiff (calculation of the amount of debt is carried out taking into account the legal position set forth in the Decree of the Presidium of the BAS RF No. 5451/09 dated September 22, 2009): The amount of debt is 5,999 rubles. 0 kop., including VAT 0% 0 rub. 0 kop. Overdue period from 07/23/2012 to 03/20/2013: 238 (days). Refinancing rate: 8.25%. Total interest for the period = (5999) * 238 * 8.25 / 36000 = 327 rubles. 20 kop.
By virtue of Art. 15 of the Law "On the Protection of Consumer Rights", moral damage caused to the consumer as a result of a violation by the manufacturer (executor, authorized organization) of the consumer's rights provided for by the laws and legal acts of the Russian Federation regulating relations in the field of consumer protection, is subject to compensation by the tortfeasor in the presence of his fault. The amount of compensation for moral damage is determined by the court and does not depend on the amount of compensation for property damage. Compensation for moral damage is carried out regardless of compensation for property damage and losses incurred by the consumer.
By their actions, the bank caused Kartseva Oh.A. moral suffering, expressed in feelings due to the current situation, until now the bank demands the money that she paid him and does not return the overpaid money, sends SMS messages to her mobile phone.
In accordance with Art. 151 of the Civil Code of the Russian Federation, if a citizen has been inflicted moral harm (physical or moral suffering) by actions that violate his personal non-property rights, or encroach on other non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.
In accordance with Art. 1101 of the Civil Code of the Russian Federation, when determining the amount of compensation for non-pecuniary damage, the court takes into account: the nature of the physical and moral suffering caused to the victim, the degree of guilt of the tortfeasor, the actual circumstances under which the harm was caused, the individual characteristics of the victim, as well as reasonableness and justice. Therefore, taking into account reasonableness and sufficiency, the court reduces the amount of non-pecuniary damage to be recovered to 5,000 rubles. 00 kop.
In accordance with paragraph 6 of Art. 13 of the Law of the Russian Federation “On Protection of Consumer Rights”, when the court satisfies the consumer’s requirements established by law, the court collects from the manufacturer (executor, seller, authorized organization) for non-compliance with the consumer’s requirements on a voluntary basis, a fine in the amount of fifty percent of the amount awarded by the court in favor of consumer, which is 5 736 RUB. 01 kop.
In accordance with Article 98 of the Code of Civil Procedure of the Russian Federation, the court awards the party in whose favor the court decision was made to reimburse all court expenses incurred in the case on the other side.
The plaintiff's costs for legal services amounted to: drawing up a statement of claim - 4,800 rubles.
In accordance with Art. 100 Code of Civil Procedure of the Russian Federation to the party in whose favor the court decision was held, the court awards, on the other hand, the costs of paying for the services of a representative within reasonable limits.
According to the order agreement No. 85/19-03-13 dated March 19, 2013. expenses for representation in court - 30,000 rubles. subject to recovery in part in the amount of - 15 000 RUB. given the complexity of the case and the number of court hearings.
Notarial services for drawing up a power of attorney to represent interests
court - 1300 rubles. payable in full.
In accordance with Art. 98 Code of Civil Procedure of the Russian Federation from the defendant to the income of the local budget are subject to
recovery costs state duty in the amount of 688 RUB. 32 kop.
Based on the foregoing, guided by Articles 194-198 of the Code of Civil Procedure of the Russian Federation, the court
Decided:
The claim of Kartseva Oksana Anatolyevna to the Open Joint Stock Company "National Bank "Trust" on the protection of consumer rights is partially satisfied.
Recognize paragraph 1.16. loan agreement No. dated 23.07.2012. on the collection of a commission for crediting funds to the Client's account (at a time) invalid.
To recognize as revoked the consent of Kartseva Oksana Anatolyevna, received by National Bank TRUST OJSC on the application-questionnaire for the conclusion of the Agreement for the issuance and maintenance of a bank card dated 23.07.2012.
Close the accounts of Kartseva Oksana Anatolyevna, which were opened in the branches of the bank JSC "National Bank" TRUST ".
To recover from JSC National Bank TRUST in favor of Oksana Anatolyevna Kartseva the amount of commission for crediting credit funds to the Client's account in the amount of 5,990 (five thousand nine hundred ninety) rubles.
To recover from OJSC National Bank TRUST in favor of Oksana Anatolyevna Kartseva, illegally withheld funds in the amount of 154 (one hundred and fifty four) rubles 83 kopecks.
To recover from JSC National Bank TRUST in favor of Oksana Anatolyevna Kartseva interest for the use of other people's funds in the amount of 327 (three hundred twenty-seven) rubles 20 kopecks.
To collect compensation for non-pecuniary damage in the amount of 5,000 (five thousand) rubles 00 kopecks from JSC National Bank TRUST in favor of Oksana Anatolyevna Kartseva.
To recover from JSC National Bank TRUST in favor of Oksana Anatolyevna Kartseva a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer in the amount of 5,736 rubles 01 kopecks.
To recover from JSC National Bank TRUST in favor of Oksana Anatolyevna Kartseva the payment for notarial services in the amount of 1300 (one thousand three hundred rubles.
To recover legal fees in the amount of 15,000 (fifteen thousand) rubles from OAO National Bank TRUST in favor of Oksana Anatolyevna Kartseva.
To recover from OJSC National Bank TRUST in favor of Oksana Anatolyevna Kartseva the payment for drawing up a statement of claim in the amount of 4,800 (four thousand eight hundred) rubles.
The rest of the claims of Kartseva Oksana Anatolyevna are denied.
To collect from JSC "National Bank "TRUST" in favor of the local budget a state duty in the amount of 688 rubles 32 kopecks.
The decision can be appealed by the parties on appeal to the Moscow Regional Court, through the court that accepted it, within a month.
presiding: S.E. Ryakin
In the Nizhny Novgorod region, the court recovered from the bank "Trust" in favor of the borrower the amount of monthly fees that were illegally included in the terms of the loan agreement, the press service of the Nizhny Novgorod Regional Court reports.
Earlier, citizen M. applied to the Pavlovsk City Court with a lawsuit against OJSC NB Trust to recognize the terms of the contract as null and void, to recover funds. January 19, 2011 between the plaintiff and NB "Trust" was signed a loan agreement in the amount of 499,990 rubles for a period of 60 months. The money was received by the plaintiff, but not in full. Loan agreement was concluded not by signing a single document, but, in accordance with the requirements of paragraph 1 of Article 160, paragraphs 2,3 of Article 434 of the Civil Code of the Russian Federation, by signing the payment schedule by the parties tariff plan MasterCard Unembossed.
When concluding the agreement, the Bank included in the agreement a condition - tariffs "B "Trust" for the product "Time of Opportunities" clause 5, an application for a loan for urgent needs clause 2.16 and a condition in the payment schedule, according to which the borrower is charged a commission for crediting funds in the amount of 2,490 rubles. This amount was charged when the loan was issued, which is also indicated in the payment schedule in the "How to pay the loan" section. At the same time, the bank did not issue to the plaintiff a document confirming the collection of 2,490 rubles. The plaintiff received only 497,500 rubles. In addition, the defendant, in violation of the current legislation, included in the agreement, in addition to interest for using the loan, a condition on the collection of monthly commissions in the amount of 4,949 rubles 90 kopecks.
As a result, the plaintiff paid a monthly fee for the settlement service of the loan account for the period from February 21, 2011 to May 30, 2012 - a total of 17 payments in the total amount of 81,688 rubles 40 kopecks. The court satisfied M.'s claims in full. Thus, clause 2.8 of the application for a loan for urgent needs under a loan agreement on the establishment of a commission for settlement services (monthly) in the amount of 0.99% was declared null and void. Clause 2.16 of the application for a loan for urgent needs under a loan agreement on the establishment of a commission for crediting credit funds to a client's account was also recognized as null and void.
The court recovered from the NB "Trust" in favor of M. paid for crediting credit funds and for settlement services under the agreement, funds in the amount of 81,688 rubles 40 kopecks, interest for using other people's funds in the amount of 4,350 rubles 46 kopecks and payment expenses services of a representative in the amount of 5,000 rubles.
The court refused to consider the claim of Trust bank against the management company MDM for 785 million rubles.
The Moscow Arbitration Court left without consideration the claim of Trust Bank against the MDM management company, follows from the case file.
The application was submitted on January 9, the case was considered by Judge Tatyana Ilyina. The details of the lawsuit are unknown, the amount of claims amounted to more than 785 million rubles. (See "Bank" Trust "recovers from the management company MDM over 785 million rubles."). The third party in the case is the National Settlement Depository NCO.
MDM specializes in securities management, its authorized capital is 5.65 billion rubles. The founders of the company are Bin Engineering LLC and Freedom Private Capital Funds PSS Limited.
The National Bank "Trust" was founded in 1995. In 2015, a criminal case was initiated on embezzlement in a credit institution, the defendants of which were top managers (see "The heads of Trust Bank were suspected of fraud with loans for 7 billion rubles and $ 118.3 million"). In December last year, the ex-owner of the bank, Ilya Yurov, was detained in Ukraine (see “The Ukrainian court did not arrest the detained ex-owner of the Trust bank”). In addition, the "Trust" filed a lawsuit in the High Court of London to cancel the transfers of funds by its former owners to the accounts of their wives. Representatives of the credit organization stated that as soon as financial problems arose in the bank, the shareholders transferred $68 million from offshore companies associated with the bank's borrowers to their wives and other family members, issuing them as gifts (see “Bank Trust” demands the return of $68 million, which its ex-owners gave to their wives").
Sue Trust Bank
Hello! In 2014, he took a consumer loan from Trust Bank in the amount of 130,000 rubles. In a certain period, due to financial difficulties, it was not possible to repay the loan debt, as a result of which the bank filed a claim with the court, after which, in May 2016, enforcement proceedings were initiated against me, according to which I was obliged to pay the remaining amount of the loan - 47000 rubles. I found out that enforcement proceedings were initiated against me a few days ago, I immediately went to the bailiff to resolve the issue of repaying the debt. However, before I learned that enforcement proceedings were initiated against me, I paid off part of the debt in the bank in the amount of 25,000 rubles. The bailiff advised me to go to the bank and take an extract on the partial repayment of the remaining debt in order to change the amount of the payment for the lawsuit. Arriving at the bank, they showed me that I owed 62,000 rubles, although the court had already made a decision in the amount of 47,000. The 25,000 rubles that I credited to the bank were not taken into account at all, or were taken into account in favor of interest invented by the bank. Thus, without receiving a clear answer from the bank, I repaid the full debt assigned by the court to the bailiff in the amount of 47,000. Can I sue Trust Bank to recover from them the money credited by me in repayment of a loan in the amount of 25,000 rubles, so How is this amount significant to an individual?
Lawyers Answers (10)
Roman, if you really paid the Bank more than established by the court decision, you have the right to demand their return. But you should figure out what kind of additional charge it is up to 62 tr. Therefore, first of all, I would suggest writing to the bank a statement demanding a reconciliation of mutual settlements. Depending on what exactly will be indicated in the reconciliation and what are the grounds for additional charges, it will be possible to assess your chances of going to court.
Clarification of the client
The fact of the matter is that the bank operates with some of its own fictitious accruals of interest, commissions, and so on, however, the contract, after the court decision, was terminated with them, a lawsuit was filed, after which they do not have the right to charge any interest.
Have a question for a lawyer?
First write a claim demanding a refund. The bank will give an answer on the basis of which such amounts were withheld. After reading the answer (if any), decide whether to go to court or not.
You can file a lawsuit in court, and it will be a lawsuit for the protection of the rights of consumers of financial services. (You do not pay state duty.)
Roman, good evening. Please specify whether you paid these 25,000 rubles BEFORE or AFTER pronouncement judgment?
Clarification of the client
After the judgment. I was not informed about the judgment at all.
However, without reconciliation, you will not be able to write a reasoned statement of claim. In principle, you can, of course, request a reconciliation directly in court, but the court may not satisfy your request, since you could do this without involving the court. Now, if they don't answer you, then you can apply for it in court.
The application (claim) can be written in any form, but you must have a copy with a mark of delivery or a receipt and a notification from the post office that you sent the corresponding letter to the bank.
I really hope that you still have a document confirming the deposit of 25 thousand to the bank.
Clarification of the client
Thank you! Receipts remain. Then the first thing I will do is exactly that, after which I will start from the answer of the bank.
So, and if AFTER the court decision. That question is what? You voluntarily partially complied with the judgment. Did you show the bailiffs a document confirming the payment?
Clarification of the client
They showed, but the bailiffs needed a bank statement on partial repayment, the bank refuses to issue one.
You can apply to the bank, but for this you first need to understand what payments the bank sent to. For this you will need a bank statement. It will be necessary to check on it how the interest is calculated, where the payments went. In addition, you need to look at the court decision - whether the loan agreement was terminated. If not, the bank could continue to charge interest and penalties.
In other words, you need an extract
Exactly. Depending on what he accrued there, it will be possible to motivate his demands.
And the receipt indicates that this is the repayment of debt on a loan or something else that can be identified as partial repayment debt?
The fact that the contract was terminated, is it indicated in the operative part of the court decision, or did you decide that yourself?
If the contract has not been terminated, then they can still count you and go to court again.
If you found out about the court decision, then you should not rush to pay, but first take the court decision, because. as a rule, if you were not at the trial, then you were awarded both commissions and fines, which could be reduced.
Take a printout of the cash flow on the account of the loan agreement from the bank in order to understand where your money went
And why bailiffs need a bank statement? A document confirming the payment made after the judgment is rendered is a partial voluntary enforcement of the judgment.
Art. 43 FZ On Enforcement Proceedings:
2. Execution is terminated bailiff-executor in the following cases:
1) the adoption by the court of an act on the termination of the execution of the executive document issued by it;
2) acceptance by the court of the refusal of the recoverer to collect;
3) approval by the court of a settlement agreement, an agreement on conciliation between the recoverer and the debtor;
4) cancellation of the judicial act on the basis of which the enforcement document was issued;
5) cancellation or invalidation of the enforcement document, on the basis of which the enforcement proceedings were initiated;
6) termination on the grounds and in the manner established by federal law, enforcement of a judicial act, act of another body or official in the case of an administrative offense by the court, other body or official that issued the executive document
In this case, you have already partially fulfilled. Pay the rest and the bailiff is obliged to stop the enforcement proceedings. The fact of payment is not a bank statement, but a primary document confirming payment. I would like to draw your attention to the fact that this is not about paying off debts under a writ of execution, but about the execution of a judicial act. The bailiff is obliged to accept from you this document. Write an application to the UFSSP with a request to take into account this operation. Otherwise, you can also appeal against the actions of the bailiff.
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The decision in the civil case on the claim of the National Bank "TRUST" (OJSC) against B.D. A., B. E. N. on debt collection - reduced penalty
SOLUTION
IN THE NAME OF THE RUSSIAN FEDERATION
07/09/2015 Oktyabrsky District Court of Samara consisting of:
presiding judge A.Kh. Kurmayeva,
under the secretary of the court session Tregub U.V.,
having examined in open court a civil case №… at the suit of the National Bank «TRUST» (JSC) to B.D. A., B. E. N. on debt collection,
SET UP:
JSC NB "Trust" applied to the court with the said statement, referring to the fact that the date with the defendant B.D. A. signed a loan agreement No. 03-900-7158. The loan under the agreement was granted on the terms and conditions contained in General conditions provision and servicing of loans, payment card conditions, tariffs. In the application, the defendant agreed that the acceptance of his offer to conclude an agreement is the actions of the Creditor to open an account for him, and the tariffs, conditions and payment schedule are an integral part of the application and the agreement. The Bank fulfilled its obligations. According to the terms, the loan is considered to be granted on the date of reflection of the amount of the operation performed at the expense of funds provided by the bank on the client's account. From the date of conclusion of the contract, the client has obligations to pay fines, commissions, repayment of debts. In order to ensure the fulfillment by the borrower of obligations to repay the granted loan and pay interest, the bank concluded surety agreements with B. E. N. In violation of the conditions, the defendant evades the fulfillment of its obligations for the planned repayment of the current debt. He asks the court to recover jointly with B.D. A., B. E. N. in favor of OJSC NB "Trust" the amount of debt in the amount of *** rubles, as well as in equal parts the costs of paying the state fee ***
At the court session, the representative of the National Bank "TRUST" (OJSC) - G. A. I., acting under power of attorney No. ... dated 10/31/2014, supported the stated requirements on the grounds set forth in the claim, requests to be satisfied in full.
The representative of the defendants B.D. A., B. E. N. - A. L. M., acting under powers of attorney No. 12-5266, 12-5265 dated 12/19/2014, at the court session recognized the claims in terms of collecting the principal debt and interest from the defendants for the use loan, the amount of interest on overdue debt and fees for skipping payments asked to be reduced to *** rubles, taking into account the difficult financial situation, B. E. N. is currently on maternity leave to care for a child.
After hearing the parties, having studied the materials of the case, the court considers the claims to be satisfied on the following grounds.
The court found that the date of the National Bank "TRUST" (OJSC) and B.D. A. entered into loan agreement No. 03-900-7158, under which the lender undertook to provide the borrower with funds in the amount and on the terms provided for in this Loan Agreement, and the borrower undertook to repay the loan received, pay interest on the loan and fulfill other obligations stipulated by the loan agreement in full. The amount of the loan amounted to *** rubles, the interest rate for using the loan was 29% per annum. The loan repayment period is 60 months from the date following the date of the loan.
In accordance with Art. 196 of the Civil Code of the Russian Federation, the general limitation period is three years from the date determined in accordance with Article 200 of this Code.
In accordance with Part.2 Article. 200 of the Civil Code of the Russian Federation for obligations with a certain period of performance, the limitation period begins at the end of the period of performance.
From paragraph 1.3. loan agreement concluded between the Bank and B.D. A. it follows that the loan repayment period is 60 months from the date following the date of the loan.
Thus, the deadline for the fulfillment of obligations under this agreement is determined until 10/28/2016, therefore, the limitation period expires on 10/28/2019, it follows from the case materials that the plaintiff sent a statement of claim to the court on 05/29/2015, i.e. without missing the deadline.
In accordance with Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit institution (creditor) provides the borrower with funds in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount of money received and pay interest on it.
According to the Loan Terms, the Bank has the right to refuse to fulfill the obligation to provide the Loan or a part thereof, as well as to demand from the Borrower early fulfillment of obligations under the Loan Agreement (early repayment of the loan), as well as compensation for losses caused to the Bank due to non-fulfillment or improper fulfillment by the Borrower of the provisions of the Loan Agreement and these Terms, or non-fulfillment/improper fulfillment of obligations by third parties with whom the Bank has concluded agreements on securing the obligations of the Borrower, or deterioration in the quality of collateral for the obligations of the Borrower, in cases provided for by these terms.
In accordance with Art. 307 of the Civil Code of the Russian Federation, by virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, pay money, etc., or refrain from a certain action, and the creditor has the right to demand from the debtor the performance of his obligation.
According to Art. 309 of the Civil Code of the Russian Federation, the obligations of the debtor must be performed properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with the customs of business or other usually imposed requirements.
Article 819 of the Civil Code of the Russian Federation establishes that 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 of money received and pay interest on it, to relations under the loan agreement, the rules provided for by paragraph 1 of Chapter 42 of the Civil Code of the Russian Federation are applied, unless otherwise provided by the rules of paragraph 2 and does not follow from the essence of the loan agreement.
Part 1 Art. 810 of the Civil Code of the Russian Federation determines that the borrower is obliged to return to the lender the received loan amount on time and in the manner prescribed by the loan agreement.
According to part 2 of Art. 811 of the Civil Code of the Russian Federation, if the loan agreement provides for the return of the loan in installments (in installments), then if the borrower violates the deadline set for the return of the next part of the loan, the lender has the right to demand early repayment of the next part of the loan, the lender has the right to demand early repayment of the entire remaining loan amount together with interest due.
According to Art. 363 of the Civil Code of the Russian Federation in case of non-performance or improper performance by the debtor of the obligation secured by the guarantee, the guarantor or the debtor shall be jointly and severally liable to the creditor. The guarantor is liable to the creditor to the same extent as the debtor, including the payment of interest, reimbursement of legal costs for collecting the debt and other losses of the creditor caused by the debtor's failure to perform or improper performance of the obligation.
In accordance with Article 323 of the Civil Code of the Russian Federation, in the event of a joint and several obligation of debtors, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, moreover, both in full and in part of the debt.
A creditor who has not received full satisfaction from one of the joint and several debtors has the right to demand what was not received from the other joint and several debtors.
Solidary debtors remain obligated until the obligation is fully performed.
It follows from the case materials that, in order to ensure the fulfillment of the borrower's obligations under the loan agreement No. ... dated October 28, 2011, the bank concluded a surety agreement No. ... with B. E. N.
Under the terms of the guarantee agreements No. ... dated October 28, 2011, the guarantor B. E. N. assumed the obligation to answer to the creditor for the execution of B.D. A. (borrower) of his obligations under the loan agreement No. ... dated 10/28/2011, which includes repayment of the loan, payment of interest for using the loan, payment of penalties, fees and commissions, as well as other obligations of the borrower in accordance with the loan agreement.
By virtue of clause 3.1 of the loan agreement, the loan is considered granted on the date the loan amount is credited to the borrower's account, and the borrower has an obligation to pay the appropriate interest for using the loan and other commissions and fees provided for by the tariffs of NB Trust.
According to account statement No. B.D. A. credit in the amount of *** rub. was provided by the plaintiff by transferring a sum of money to the specified account.
The court found that the obligations assumed under the loan agreement by B.D. A. are not fulfilled.
JSC NB "Trust" to the defendants sent demands for early fulfillment of obligations under the loan agreement, to which no response was received.
According to the calculation of the debt as of the date, the debt of the borrower B.D. A. before the Bank is ***., including:
principal debt in the amount of ***.;
interest for using the loan in the amount of ***
interest on overdue debt -***
fee for skipping payments - ***
At the hearing the representative of the defendants asks in accordance with the provisions of Article. 333 of the Civil Code of the Russian Federation to reduce the amount of fees for missing payments and interest on overdue debt, taking into account the financial situation of the defendants.
According to the legal position of the Constitutional Court of the Russian Federation, formed during the implementation of the constitutional and legal interpretation of Article 333 of the Civil Code of the Russian Federation (Determination dated date N 263-O), Article 330 of the Civil Code of the Russian Federation recognizes as a penalty an amount of money specified by law or contract, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation, in particular in the event of delay in performance.
According to the first part of Article 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty.
Thus, civil law provides for a penalty as a way to ensure the fulfillment of obligations and a measure of property liability for their non-performance or improper performance, and the right to reduce the penalty is granted to the court in order to eliminate its obvious disproportion to the consequences of a breach of obligations.
The court believes that the fee for missing payments, as well as interest on overdue debt are one of the types of penalties, given the financial situation of the defendants, the court considers it possible to reduce them, namely the fee for missing payments from ***
Based on the foregoing, taking into account the partial recognition of the claim, the court considers that the claim of the plaintiff to recover from the defendant the amount of debt under the loan agreement, which consists of: the amount of the principal debt - ***
In accordance with the requirements h.1 Article. 98 Code of Civil Procedure of the Russian Federation, from the defendants in equal shares in favor of the plaintiff, the amount of state duty is to be collected in proportion to the amount of claims satisfied by the court in the amount of ***
Guided by Article.Article. 194-199 Code of Civil Procedure of the Russian Federation,
DECIDED:
The claim of OJSC NB TRUST shall be satisfied in part.
Collect jointly with B.D. A., B. E. N. in favor of OJSC NB "TRUST" debt under the loan agreement, namely: the amount of the principal debt - ***
Collect in equal shares from B.D. A., B. E. N. in favor of OJSC NB "TRUST" the amount of state duty in the amount of ***
The decision can be appealed to the Samara Regional Court through the Oktyabrsky District Court address within a month from the date of adoption in the final form.
The final decision was made on July 13, 2015.
Presiding judge: signature Kurmaeva A.Kh.
Court with TRUST bank
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1. In 2012, he took a loan from JSC Bank Trust, paid it monthly for 2 years, then lost his job, got into a debt hole. In 2014, the court decision satisfied the requirements of OJSC Bank Trust. Currently, the bailiffs have a writ of execution, but I do not work, I do not make any payments. The other day, a subpoena came to court in the case described above in connection with the new successor of PJSC Bank Trust is Trust LLC. Do I have the right not to repay the loan to Trust LLC if I have not concluded any agreements with PJSC or Trust LLC, I have a loan agreement with NB Trust OJSC in my hands! And what about the statute of limitations? Or if the bailiffs have the production, then the deadlines are not violated? How to be in this situation? There is really nothing to pay!
Lawyer Gushkina Z.M., 15590 responses, 5858 reviews, online since 10/20/2008
1.1. Good afternoon
In your case, the statute of limitations does not apply, since the enforcement proceedings have not been terminated.
The right to claim the bank arose in the order of universal succession.
If the amount is more than 500,000 rubles, you can contact arbitration court with a declaration of bankruptcy.
2. The consequences of not appearing in court according to such a notice: NOTICE
The justice of the peace of court district No. informs you of the consideration of the application of Express-Credit LLC for procedural succession in a civil case on the claim of OJSC NB TRUST against the full name of the debt under the loan agreement.
Please appear in person or ensure that your representatives appear at the hearing.
I personally cannot appear due to the remoteness of the court, for lack of funds for the trip, I have no representatives, and the statute of limitations before the TRUST bank has long expired. What to do in this case, my actions?
Lawyer Salnikov A. A., 4456 responses, 2909 reviews, online since 11/30/2015
2.1. You can do nothing. Procedural succession solves nothing. But when considering a claim on the merits, you must be present.
Lawyer Zlotnikova L. G., 13390 responses, 7476 reviews, online since 04/08/2017
2.2. Hello.
Prepare written objections to the claim, be sure to refer to the expiration of the limitation period, Articles 196-200 of the Civil Code of the Russian Federation, attach a request for consideration of the case in your absence, indicate good reasons in it.
3. Such a question. In 2015, the Astrakhan court ruled to satisfy the claim of Trust Bank (on a credit card). Paid court. bailiffs. There is still a balance of 96 thousand. Today I received a letter from the court, informing me that there will be a trial on August 2, 2019, at the request of Phoenix LLC about procedural succession in a civil case on the claim of NB Trust to me for debt collection.
What is most surprising is the amount already under the credit card agreement has already increased.
Please tell me what to do. Initially, the amount was 235 thousand (which I paid 3 thousand per month) .. and now they write 286 thousand. I personally can’t pay that much. There are no more forces.
Lawyer Kiseleva O.G., 4592 responses, 2087 reviews, online since 10/29/2013
3.1. Hello Albina!
The declared debt can be completely written off by recognizing the contract of assignment of rights as invalid, as well as challenging the amount of the debt.
4. I paid a loan to Trust Bank, now there are some problems with it and the Bank assigned my debt to Otkritie Bank (in their words). I found out when my payment returned after 3 weeks (I pay through the online payment system). I called the Trust, then they told me about it. After a while, a letter came from the Trust Bank about the assignment. The letter came in a copy, on a plain sheet of paper (Trust Bank is unprinted in the corner. I can also create one). There is no print. I heard that there must be an original with a blue seal. A day later, I received an SMS, supposedly from Otkritie Bank, where they write that now I have to pay them using the specified details. And they indicated the amount of the payment, I think that with interest for the month whose payment was returned. Can I have the right to ask them for documents confirming the assignment to make sure that the transaction took place? As well as a loan agreement, because I didn’t sign it (I have a credit card, they gave it to me in the store after I paid off the loan for household appliances in good faith). Until I receive the documents, can I not pay the new creditor, and will they not charge fines? Payments to Trust Bank do not go through. Money is withdrawn and immediately returned. Thank you.
Lawyer Makarenko O. N., 4648 responses, 3057 reviews, online since 06/08/2016
4.1. You have the right to request documents. But you have to pay the loan, otherwise a fine will run up.
On the official website of the Central Bank there is a general license Bank "Trust" (PJSC) Moscow.
Moscow, for banking operations No. 3279 dated August 26, 2015.
Question: loan agreements and loans issued by Bank "Trust" (PJSC) to individuals in the period before the issuance of this license, i.e. until August 26, 2015 are valid? And the general license does not specify the type of activity for issuing loans? Read answers (2)
5. In June 2014, she took a consumer loan (2 contracts for 100 and 80 tons separately) at the opening bank paid the first installments, then didn’t pay for about six months, then she put 20 tons on each of the loans, then in January 2018 she threw 30 on one of the loans t in the end .. In 2016 there was a court where they were ordered to pay amounts without interest. Now I made a request to the bank, they told me that the loans were closed and there were no open loans for me. 2 days ago I received a letter from the trust campaign with a notification that the bank had transferred the contract to them and they were resuming the dripping interest as it was prescribed in the terms of the contract (70 tr per this moment with a state duty and penalties, a net loan of 63,000) and the second loan agreement was bought by the RSC (33,800 debt), I called them and they said to pay the first mandatory amount of 5,000 r and then they would issue an installment plan. What to do?
Lawyer Plyasunov K.A., 145007 responses, 35783 reviews, online since 26.02.2013
5.1. Hello.
You need to look at the calculations.
If it is difficult for you to formulate a question, call the free multi-channel phone 8 800 505-91-11 a lawyer will help you
6. On May 6, 2019, she was in court and asked to postpone the consideration of the case for several days in connection with the familiarization of the case, since I received a court notice on May 4, 2019. The applicant of the NAO First collection bureau on the procedural succession in a civil case number 2-1584 / 14-2016 by PJSC statement Bank (TRUST) to Goncharova O.V. on issuance of a court order for the recovery of debt under a loan agreement. The court order on August 19, 2016 in favor of PJSC Bank (TRUST) passed without me, I didn’t even know until May 4, 2019. Can I cancel court order under Article 128; st.129 tomorrow in court and how to do it?
Lawyer Koporulina A. A., 408 responses, 282 reviews, online since 04/05/2018
6.1. Oksana Vasilievna, good afternoon. Writ proceedings do not imply the participation of the parties. If you do not agree with a court order, you can cancel it. There is no need for special reasons for this. You can indicate that you do not agree with the calculation. To cancel, you need to write a statement to the justice of the peace. If the deadline for filing such an application is missed, you must additionally write a petition for the restoration of the deadline for filing an application, describing the reasons for the omission.
7. In 2014, I applied for a loan at Trust Bank, paid it all this time, in August 2018 I put the amount on the early repayment of the loan, but as it turned out later, it was necessary to write an application either 30 or 55 working days before so that this money is written off as early repayment. Bottom line: I didn’t write any statements, since there is no office in my region, but I didn’t write a statement, certify it with a notary, I think, I’ll just report the required amount of money when the last payment is made, and that’s it. So I would have lived quietly until August 2019, if at the end of April I had not started to worry about the Otkritie bank, claiming that I had an overdue debt there. It turns out that the Trust bank sold all the loans to the Otkritie bank, no one notified me about this, so it turns out that I have the money in the Trust bank account, but for some reason I have to pay my money to Otkritie again, and in order to return that money , which I have in the Trust, I must contact the office of Otkritie Bank, write an application for the transfer of the balance of my funds to an account with Otkritie Bank, and then Otkritie will return the overpayment to me. And my application will be considered, attention!, 55 working days! That is, in fact, before the expiration of my loan agreement, my application may not have time to be processed, and then, as I understand it, my money was crying. I am not going to pay anything to this bank, but the employees of Otkritie Bank claim that they will take me to court, although I do not understand what documents they will go there with. Gentlemen lawyers, be so kind as to explain to me, please, what exactly Otkritie Bank has the right to do, and what threatens me for refusing to pay?
Lawyer Saurov E. O., 4515 responses, 2331 reviews, online since 10/08/2017
7.1. Legal situations are studied by lawyers individually, if an order is made. No one will even read your footcloth!
8. In 2011 I took a loan (credit card) from Trust Bank.
Pay on time, but went into arrears several times. Fully repaid the loan in 2015. And no one bothered me for 3.5 years. But a week ago, I received a call from FASP - the Financial Agency for the Collection of Payments and demanded to return the debt, which I fully repaid and I consider this a mistake by an employee of Trust Bank, possibly due to its Sanitation in 2015. FASP said they bought my "Debt" without providing me with any written confirmation of the assignment of my contract to a third party.
I contacted the TRUST Bank via the hotline and in the appeals department asked to prepare a statement of funds under my agreement.
Due to the age of my last payment to Bank Trust, I did not keep a receipt for the defeat of the entire amount.
Please let me know what should be my next steps in this matter.
Sincerely, Victor!
Lawyer Karavaytseva E.A., 57763 responses, 27411 reviews, online since 03/01/2012
8.1. Keep all documents in case of litigation. There are no grounds for other actions yet.
She opened cards in 2016 at Trust Bank. Closed after a few months. Now I have received letters that I must pay under the loan agreement, that these agreements have been transferred to the collectors of the company (Phoenix). I would like to know if I have to pay for them? And they don’t tell me how much, just the contract number to which I have to transfer money. Thank you very much for the answer. Read answers (1)
9. I have a credit card from Trust Bank. All its offices and branches in our city have closed. Payments have stopped going through the details. Then I found out that the bank was deprived of its license. It was not possible to pay the minimum payment. Then they called me from the opening bank and said that the bank transfers all agreements to their management. I asked to show the documents where this is confirmed legally, but they excused themselves by saying that everything is supposedly still at the approval stage. Then I did not pay, because there is no evidence that the bank transferred my loan to another bank. Now they called my relatives from the FASP, about the debt to the Opening. But I never received a written notification of the transfer of the debt, as well as calls from the bank itself. They left their phone, and I don’t know if it’s worth calling at all, and also what to do in this situation. I don’t plan to run from credit obligations, but I don’t want to pay it to anyone either. Please tell me the solution.
Lawyer Sadykov I. F., 49435 responses, 26528 reviews, online since 10/11/2017
9.1. Wait for the original documents, because. if there was a fact of assignment of the right to claim (Article 388 of the Civil Code of the Russian Federation), then you should have been notified about this, and until then you should have made payment to the original creditor.
Lawyer Isaev R. S., 18640 responses, 8148 reviews, online since 03/04/2016
9.2. Hello, in this case, you need to look, if there was no court decision against you, then do not pay, according to Article 333 of the Civil Code of the Russian Federation, you can reduce fines and penalties in court.
Lawyer Parfenov V.N., 140941 responses, 61229 reviews, online since 05/23/2013
9.3. It is in your interests to make it clear as soon as possible where exactly you should pay the loan stst 807-808 819 of the Civil Code of the Russian Federation. Therefore, of course, it makes sense to call the FASP yourself to find out everything in detail there.
Lawyer Falyaev M. A., 217 responses, 168 reviews, online since 02/06/2019
9.4. Article 382 of the Civil Code of the Russian Federation establishes that the assignment of the right to claim a debt is transferred in accordance with an assignment agreement and does not require the obligatory consent of the debtor, unless otherwise provided by law or the agreement. It turns out that by general rule The consent of the debtor is generally not required.
If the parties entered into an agreement prior to entering into legal force Federal Law "On Personal Data", the rights of the creditor are sharply limited, he will need the consent of the debtor. In addition, the practice of higher courts, namely the Resolution of the Plenum of the Supreme Court of June 28, 2012 No. 17, establishes that the bank is not entitled to assign debt to persons who do not have the appropriate license.
The conclusion is simple - if the contract was concluded before 07/01/2014, then such a transfer is illegal without the consent of the debtor.
The position of the debtor changes somewhat after the specified date. Federal Law "On consumer credit (loan)". After the entry into force of this law, the creditor is able to conclude an assignment agreement without the direct consent of the debtor.
But no one has canceled the obligation to notify, so in your case, if you are sued for debt collection, you can always refer to non-notification and reduce penalties. (the norms of Article 388 of the Civil Code of the Russian Federation must be observed)
9.5. You don't have to pay anyone. In the event that an application for a court order is filed against you in the Magistrate's Court, you will need to receive it and within 10 days from the date of its receipt file your objections for its cancellation, and after the judge cancels the issued court order, he will issue definition and explain to the claimant the right to file a claim against you for the recovery of the amount of the debt. Upon receipt of the court summons and a copy of the statement of claim, you should write your response to it, and if the limitation period has expired, which is 3 years from the date of the last payment on the loan, you can tell the court that the court should apply the limitation period in such In this case, the court will dismiss the claim altogether.
Code of Civil Procedure of the Russian Federation Article 129. Cancellation of a court order
The judge cancels the court order if the debtor in fixed time there will be objections to its implementation. In the ruling on the cancellation of the court order, the judge explains to the exactor that the stated requirement can be presented to them in the course of action proceedings. Copies of the court ruling on the cancellation of the court order shall be sent to the parties no later than three days after the date of its issuance.
Civil Code of the Russian Federation Article 199. Application of limitation period
1. The claim for the protection of the violated right is accepted for consideration by the court, regardless of the expiration of the limitation period.
2. The limitation period is applied by the court only upon the application of the party to the dispute, made before the court decision.
The expiration of the limitation period, the application of which is declared by the party to the dispute, is the basis for the court to issue a decision to dismiss the claim.
3. Unilateral actions aimed at exercising the right (set-off, direct debiting of funds, extrajudicial foreclosure of pledged property, etc.), the limitation period for the protection of which has expired, are not allowed.
(Clause 3 was introduced by Federal Law No. 100-FZ of May 7, 2013)
Lawyer Moiseev V.N., 50590 responses, 19831 responses, online since 07/10/2009
9.6. Dear Svetlana, Omsk!
Assignment of the RIGHT OF REQUEST OF DEBTS by the Bank in favor of the so-called Third Parties could be made only after a written notification to you "On the assignment of the right to claim" together with the ORIGINAL AGREEMENT for the assignment of the right to claim with original signatures and "wet" (genuine) seals, a written notification to you of the assignment debt (Article 824 of the Civil Code of the Russian Federation)!
Thus, if you did NOT receive the original Assignment of Claim Agreement from the Lender, this means that there was NO assignment of the right to claim in favor of third parties.
Therefore, in this case, you can NOT pay any attention to the so-called third parties.
Good luck Vladimir Nikolaevich
Ufa 04/08/2019
Lawyer Ikaeva M.N., 14628 responses, 6698 reviews, online since 03/17/2011
9.7. Write a written claim to the bank, ask for a document confirming their right to claim the debt and receive a written response.
If the succession was executed in violation of the law and npa, then you can invalidate these actions on the grounds of Article 166 of the Civil Code of the Russian Federation.
Lawyer Obolonskaya T. N., 2689 responses, 1717 reviews, online since 09/24/2018
9.8. The grounds for revoking a license are prescribed in Article 20 of the Federal Law of December 2, 1990 N 395-1 (as amended on December 27, 2018) "On Banks and Banking Activities".
Revocation of the license from the bank does not terminate your credit obligations. When the license is revoked, the bank is temporarily deprived of the opportunity to conduct financial activities. But the institution itself entity doesn't disappear. The structure of the bank has not been liquidated. The bank can always try to get the license back. It happens that a bank is not only revoked its license, but also excluded from the register of credit institutions.
You need to find out these points. You can find all the necessary information on the website of the Central Bank of the Russian Federation. Or you can do it easier. If a bank branch without a license is still open, you can apply there. Find a temporary manager who will provide the information of interest. The transfer of a license is sometimes delayed. Therefore, they form a temporary administration of the bank, with which it is possible to resolve most issues, in accordance with Art. 183.5 of the Federal Law of October 26, 2002 N 127-FZ (as amended on December 27, 2018) "On Insolvency (Bankruptcy)".
If the successor of Trust Bank is Otkritie Bank, then you should be sent by mail the payment details for which you need to pay for the loan.
There is another option, you can contact a notary and make a loan to the notary's deposit.
Lawyer Shabanov N. Yu., 20164 responses, 9651 reviews, online since 03/23/2017
9.9. Hello, the assignment of the right to claim is provided for by law Article 388. Conditions for the assignment of a claim
...
4. The right to receive non-monetary performance may be assigned without the consent of the debtor, if the assignment does not make the performance of his obligation significantly more burdensome for him. But you are absolutely sensible, the assignee must confirm his rights by providing you Required documents, however, it is worth calling them and demanding the provision of documents in order to clarify the situation as soon as possible, or even better, send a written request for the provision of documents so that they do not have a reason to demand payment of a penalty from you later, and you have confirmation that you applied with such a demand and did not refuse to pay the loan.
10. Since 2014, had a credit card in Trust Bank in the amount of 40,000, paid monthly payments from 2014 to 2018. I've already paid out much more than the money I borrowed. In December 2018, Trust Bank transferred all loans to Otkritie Bank, a letter was received from Otkritie Bank with a proposal to come and sign a new agreement with them. I have a loan agreement with Tinkoff bank no (and I don’t remember at all that it was, the card came by mail). I haven’t made any payments to the bank yet, naturally there is a delay. What to do in this situation? Is it better to sign a new agreement with Otkritie Bank and start paying or wait until the bank sues? Or maybe there is some article of the law, according to which I can sue the bank myself so that the loan is withdrawn from me altogether? (I remind you that I have no documents on the loan and there is no branch of Trust Bank in the city either.)
Lawyer Fedorov Yu. A., 951 responses, 639 reviews, online since 12/19/2018
10.1. It all depends on the situation, but it’s better not to start it, if the delay is not large, then it’s better to negotiate with a new lender.
11. By the decision of the city court in 2016, the debt under the loan agreement was collected from me in favor of Sberbank of Russia PJSC.
I did not recognize the Bank's claims, in a written statement I asked the court to consider the case in my absence. The court satisfied the requirements of the Bank, I appealed against the decision of the court on appeal. The Judicial Collegium for Civil Cases left the decisions of the City Court in force.
In 2018, Trust Company filed an application with the Court for procedural succession under an agreement on the assignment of rights (claims) with PJSC Sberbank of Russia. I objected to the satisfaction of the application of "Company Trust", in a written objection I asked the court to consider the case in my absence. The court satisfied the requirements of the "Company Trust", I appealed the court's ruling on appeal. The Judicial Collegium for Civil Cases upheld the ruling of the City Court.
Again in December 2018, Trust Company (apparently by mistake) filed with the Court an application for procedural succession under an agreement on the assignment of rights (claims) with Sberbank of Russia PJSC under this husband’s loan agreement.
I sent an application to the Court requesting that I be given the opportunity to familiarize myself with the materials of the civil cases in full.
The court refused to satisfy the claim of "Company Trust" since the Court had already issued a ruling in this case.
Having familiarized myself with the materials of the civil case, to my surprise (learned) I discovered that the original loan agreement was missing in the case. Moreover, the copy of the loan agreement was not even properly certified by the Bank itself in accordance with the requirements of the Law, the Court did not compare the copy of the loan agreement with the original, since there is no record of this fact in the case.
As part of enforcement proceedings by the decision of the Court, by the decision of the bailiff, the replacement from PJSC "Sberbank of Russia" to the successor "Company Trust" has already been made.
On my example, I was once again convinced that the Court selectively approaches the parties to the case, and the independence of the Court today is like the Law of Averages. If I filed a claim against the Bank, the Court would obligatorily ask me for the original document or a duly certified copy, otherwise the claim would be denied. It is necessary to fight for your legal right.
Dear lawyers and lawyers of the site
I am addressing you personally, taking into account the practice and work experience, please, I need your recommendation for my correct further actions.
I think that with such a fact (disgrace) I need to file now with the Court that issued the decision an application for review of the court order due to newly discovered circumstances within 3 months (from the day I found out). Due to the plaintiff's failure to provide PJSC Sberbank of Russia to the Court with the original loan agreement. Since the copy of the loan agreement is not duly certified by the Bank itself (the location of the original is not indicated on the copy), etc. is not admissible evidence as required by law.
In the application, ask the Court:
1. Reconsider the judgment of the city court on newly discovered (new) circumstances.
2. Cancel the court decision and consider the civil case on the merits.
I do not rule out that, along with filing with the Court an application for reconsideration of the court decision due to newly discovered circumstances, I also need to prepare a number of motions, including the request for the original loan agreement from the plaintiff PJSC Sberbank of Russia.
Best regards, Sergei.
11.1. Your question is very informative and is not subject to consideration within the framework of a free consultation. Contact an individual lawyer.
Lawyer Ershov D.S., 12186 responses, 4411 reviews, online since 11/09/2011
11.2. Good day, Sergey!
Judging by the text of your question, there are no grounds for reviewing the court's decision due to newly discovered or new circumstances.
No one prevented you from participating in the case, getting acquainted with the materials of the case and making appropriate petitions for the retrieval of evidence. Now, as they say, the train has left. Everything must be done on time.
12. The problem is that my bank in which I was credited (TRUST) went bankrupt and sold my debts to the bank (OPENING) and it happened on 11/19/2018. And I found out about this only at the end of November, and then by accident. They told me at Trust Bank that they sent all the contracts on which grounds I have to pay to another bank, to this day there are no letters or anything from one bank or another. Today I went to a branch of Otkritie Bank and wrote an application for the provision of a process offer and an agency agreement to me. Now the opening bank is calling and saying why are you not making money? I answer them, I don’t mind paying and paid all 4 years regularly without delays and I will pay to your bank, but if I have contracts on what grounds should I pay to your bank. She tells me why an employee of the Otkritie Bank did not show you these contracts on the computer monitor. I told me they didn't offer me and it wouldn't suit me at all to look at the documents on the computer monitor, I need official documents, their copy wrapped by your bank. She said we will soon transfer your debts to the collection department and the conversation ended. Tell me how to deal with the bank correctly, since I don’t want to quarrel with the bank and spoil my credit history, but I don’t want to pay them just like that without contracts.
Lawyer Kukovyakin V. N., 10320 responses, 6739 reviews, online since 11/16/2017
12.1. Hello Nikolay. You did the right thing. The only thing, in order not to increase the debt, I would recommend that you drive to the bank yourself and find out the issue of assignment agreements.
Lawyer Kaigorodtsev I.N., 2443 responses, 786 reviews, online since 30.08.2013
12.2. Apply with applications to the bank in which you were credited (TRUST) and to the bank (OPENING), to which your debts were transferred, with a request to provide you with all the documents for the transfer of your debts. In case of refusal, contact the Central Bank of the Russian Federation.
13. In 2012, I took out a loan, a credit card was provided for the loan, which I used. In April 2015 was the last installment. (All the debt in the amount of 3000, I have not repaid).
In 2018, in November, a letter arrives from the bank that I have accumulated penalties in the amount of 6,000 over the years to the principal amount of the debt. The total debt is 9000. The question is why the bank didn’t notify me in any way that there was a debt, I didn’t know about it! After 3 and a half years before the New Year, the bank notifies. There were no calls, sms, and letters over the years! This bank has not been in our city of Vologda for a long time, we went to the nearest city of Cherepovets, 2 hours away. But there is no Trust Bank office there either, it has long been renamed to another one. I need a loan agreement!, as there is no one since 2012. I wrote a letter to Moscow with a request to send me a copy of the contract and all my payments to the card, but they refused. I want to sue them! Since over the years no one has notified me about the debt to the bank. I agree to pay the main debt, but do not pay the penalties that have come up over the years. Question - Can I win the case in my favor?
Lawyer Kuderov V.A., 99 responses, 47 reviews, online since 20.02.2017
13.1. Good day, Anastasia!
Based on what you have described, you do not have to pay anything because the statute of limitations (three years) has expired. You don't have to sue them either. If they apply for a court order (most often this happens), then write objections and refer to the omission of the limitation period and the judge will not issue an order against you.
14. Have a credit card from Trust Bank. I pay on time, without delay. Received an SMS about the transition to the bank Otkritie. OK. The opening sent an SMS with details and a monthly payment. And a monthly payment of 1000 r. more than the Trust. In the Trust, the payment was according to the contract. I am not happy with this amount. It turns out I'm going back. And I will pay one percent, almost without writing off the debt. I can't pay more. Is it legal to increase the monthly payment by the Opening?
Lawyer Trofimov D.S., 2607 responses, 1676 reviews, online since 02.10.2018
14.1. Good afternoon
You need to look at the terms of the contract.
There was a change of party under the contract.
In the contract, you need to look at whether the bank has the right to transfer rights and obligations to another bank and in what form.
Lawyer Kirina V. A., 932 responses, 562 reviews, online since 07.11.2018
14.2. Good afternoon, according to the Civil Code of the Russian Federation, a unilateral change to the contract is not allowed, and therefore, an increase in the amount is illegal.
15. In 2007, he took a credit card for 15,000 rubles. at Trust Bank, the loan agreement is lost, what maximum term validity of the agreement on the card.
Lawyer Shamolyuk I.A., 61033 responses, 25767 reviews, online since 07.11.2009
15.1. Good afternoon The term of the contract is as specified in your contract. But why do you need this term? The limitation period is calculated from the DATE OF THE LAST PAYMENT ON THE CARD.
Lawyer Voronchikhin D. A., 7230 responses, 4632 reviews, online since 11/14/2018
15.2. Did the card remain? The validity period is indicated on it, it usually corresponds to the term of the contract, if the card is not reissued, it terminates. Only if the debts were they do not disappear.
16. Please help me figure it out. In 2013, I took a loan from PJSC NB "TRUST" to the contract they gave me credit card No. 2. In November 2013, I was fired due to the liquidation of the enterprise. In July 2014, the bank filed a lawsuit to recover debt under a loan agreement. The decision was made in favor of the bank. The debt was paid by court order. In June 2018, the bank again went to court, but with credit card debt No. 2, and attached the same agreement from the first court and an account statement to the claim. The court order was cancelled. meeting in December. Can I file a statute of limitations? Can I file a motion to require the plaintiff to provide proper evidence? I did not activate the card, after the trial it was blocked. Which petition should be filed first?
Lawyer Granyukov S. I., 395 responses, 277 reviews, online since 09/06/2015
16.1. It is mandatory to file a petition to skip the statute of limitations. It is better to do this in writing, it can be reflected in the objections to the claim.
17. In 2011, I took a Trust Bank credit card for 40 thousand, paid on time, increased the loan amount by 80 thousand, then financial difficulties occurred. I stopped paying in 2013. And they didn't get in touch. In 2016, a couple of letters came. That the debt is 400 thousand, then a letter came that the debt of 20,000 will be fulfilled. Document. It hung on the FSSP website and I paid for it. As I later realized that I did it in vain, because. I could declare the statute of limitations, and now a letter has arrived that the debt is 500,000. Of these, 130 thousand of the principal debt, 370 thousand of accrued interest, pay by November 25, the bank breaks the contract and I will pay interest at cent rates. jar. There is nothing to pay, what to do?
Lawyer Belousov S.N., 91442 responses, 34146 reviews, online since 04/05/2009
17.1. At the moment, doing anything is very difficult. You missed all deadlines.
18. In 2011, she took a credit card from Trust Bank for 40 thousand, paid on time, increased the loan amount by 80 thousand. Then financial difficulties occurred. I stopped paying at the age of 13. And they didn't get in touch. In 2016, a couple of letters came. That the debt is 400 thousand, then a letter came that the debt was 20,000, and he would fulfill it. Document. It hung on the FSSP website and I paid for it. As I later realized. That she did it in vain. because could declare a limitation period, and now a letter has arrived that the debt is 500,000, the bank is terminating the contract and I will pay interest at Cent rates. jar.
What should I do?
Lawyer Averkova T. N., 9951 responses, 7576 reviews, online since 04/11/2017
18.1. Hello Lila!
According to the requirements of proportionality (Article 333 of the Civil Code of the Russian Federation), fines and penalties should not exceed the amount of the principal debt. 80 + 80 = 160 but not 500.
State this requirement in court if it comes to that.
Wish you luck!
19. I repay the loan to the TRUST bank. However, an SMS notification arrived, more precisely, a reminder already from the Bank "OTKRITIE" "do not forget to make a payment on the loan ... Without any details. At the same time, the details and account number of PJSC Bank FC Otkritie also came via SMS to my wife's phone (?) . With an explanation that from October 19, 2018, the rights of the creditor under the loan agreement were transferred to them. All this via SMS. No email notifications. Is it correct? Could it be a scam? What to do? Thank you. Oleg.
Lawyer Stepanov A. E., 35394 responses, 23838 reviews, online since 07/21/2017
19.1. Oleg Anatolyevich, maybe so. There is no need to pay anything until there is reliable information. I advise you to get official confirmation from the TRUST bank about the transfer of your debt to the Opening. In addition, Otkritie must provide you with information on the purchase of such debt.
20. In 2015, the trust bank sued me (I found out about this when in 2017 my cards were arrested by the bailiffs)
The amount on the credit card was taken in the amount of 70 thousand rubles.
By performer List amount was 230 thousand + state duty 5 thousand rubles.
I agreed with a representative of the trust bank and he took the Execution. Production.
So I paid him 3 thousand a month with my salary of 13 thousand rubles and two children (former husband does not help).
I have already paid 120 thousand. The representative once told me that the interest is still being charged. And it's in my best interest to close the loan faster. Recently, I received a letter from Trust Bank (registered) where it is indicated that I have violated my obligations under this agreement. That the amount of debt at the moment is 302 thousand and that I need to pay it off before November 2018.
The appendix states: - principal debt 68242.81 -% 227560.25 - state. Duty 5503.36
And the total debt is 301306.42
And if I don't pay for all this, it will be sued.
But the most interesting % does not stop.
How to solve this problem.
Is it possible to write to the bank about the termination of the contract or the suspension of %.
How to live in such a situation when you have two children and the salary is very small.
Lawyer Zotov V.I., 36842 responses, 15126 reviews, online since 11.07.2009
20.1. Hello dear Karina!
Firstly, according to Part 1 of Article 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization (creditor) 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 of money received and pay interest on her.
You violated the terms of the loan agreement, therefore, at the suit of your creditor, the court recovered the amount of the debt and probably with interest.
Secondly, You need in 2017, when you learned about the recovery of the amount of debt from you under the loan agreement, not to "negotiate" with the representative of your creditor, but to receive a copy of the claim in court, study it and, with the help of a lawyer, appeal against it if you were charged interest and penalties. You didn't do it when it could REALLY be done.
Third, according to Article 450 of the Civil Code of the Russian Federation, amendment and termination of the contract are possible by agreement of the parties, unless otherwise provided by this Code, other laws or the contract.
That is, the borrower cannot unilaterally terminate the loan agreement, if this is not provided for by the loan agreement.
Bankers will never include such a condition for the borrower in the loan agreement, since it is beneficial for them to receive interest from the borrower.
Fourth How to live in such a situation that you have created for yourself is up to you to decide. But to resolve this situation with less legal costs for you, an already specific lawyer can help you, who will need more complete and necessary information from you on your issue. E
It makes no sense to pay you the entire amount that the bank representative requires from you.
All the best.
I had credit obligations in Trust Bank, had no delinquencies. I paid the next payment and a couple of days later I received an SMS that the Trust bank transferred my obligations to the opening bank. Now they call me from this bank and demand to pay off the overdue debt. Do I have the right not to pay Otkritie Bank because the contract is not signed with their bank. Read answers (1)
21. I have an awkward situation. There are 4 credits. Bank Otkritie, brao 391 thousand, consumer. Bank Trust, consumer, took 300 thousand. Bank OTP 119 thousand, card by mail. Refrigerator in installments Renaissance Bank, 8 thousand. The total amount of debt left is 370,000 left to pay at the same time. I decided to go to the first bank for refinancing with an additional amount on top, this is Sberbank, because. I receive my salary on the card, they said that it is impossible to repay my loan. my banks do not disclose all the information, they provide incorrect certificates from other banks, they refused to take the OTP bank from a credit card. In general, I decided to go further to the Rosselkhozbank, they generally said that they would cut me a maximum of 270 thousand with a penny and minus insurance, without an additional amount. It did not suit me, I went to VTB 24, there in general headache caught, they say that the bank Opening a strange account for repayment, incorrect dates of the contract, I generally owe the Trust bank 2 ohm amount that killed me, the OTP bank does not shine in their database. I went to my banks to sort it out, I did not receive an answer. I went to Sberbank to print out my BKI history, it turned out that Otkritie Bank transferred the rights of the contract to another organization, Trust Bank, set the date of the contract to a different one and the loan amount was not 391 thousand, but 325 thousand, but I pay to Otkritie Bank, called the opening, they said that everything was fine, I not satisfied with the answer, wrote a statement while waiting for a response. Then I discovered in the history of the BKI that the OTP bank does not shine there at all, and God bless him. I went to VTB 24 again to show my BKI data, by the way, I have an excellent history there, without delay, but it didn’t help, the managers couldn’t even send an application, they say incorrect data in Otkritie and Trust banks, although I provided them with certificates of those details for which I pay successfully. I went to Trust Bank to write a statement why the dates of the agreement had changed, other loan amounts and the basis for transferring the loan from Otkritie to Trust. Then I went with the last hope to Raiffeisenbank, where I showed only my passport, I didn’t even name the amount, but I didn’t say anything at all, I immediately refused without explanation, I was generally in shock. The manager advised me to look at another BKI website. I printed it out and I was surprised. Otkritie Bank sold my agreement to Trust Bank, is this legal? As I understand it, Bank Trust and Otkritie are now one bank, they have merged, but I don’t understand their policy. In BKI, the OTP bank also lit up. Now the main questions, if my application that I wrote to the banks do not help: 1. What should I do next? After all, I really need refinancing. 2. Does each bank have its own CBI bases? Not common? 3. Will lawyers or the court help me with this?
Thank you.
Lawyer Kriukhin N.V., 157614 responses, 69086 reviews, online since 07/14/2011
21.1. Hello.
To be honest, with such a credit history, if I were a bank, I would also refuse to refinance.
Do not be offended, but you are the kind of person who thoughtlessly grabs loans without thinking about how you will pay them.
The law allows banks to refuse to issue and refinance loans without explaining the reasons. Therefore, the court will not help you. All that can be done through the court is to demand corrections in credit histories, but then you will definitely not receive loans.
Now you have only one way - to repay part of the loans in full, and then try to refinance the rest. Renaissance and OTP definitely need to be repaid.
Anyone who now offers you their services and declares that I am wrong or not competent is a scammer who wants to extort money from you. Keep this in mind.
22. A month ago, the bankruptcy procedure for individuals was successfully completed. A person, just the other day, I received a letter from the bailiffs that I owe 372,000 rubles to the Trust Invest bank, of course, I didn’t have any loan agreements with this bank, only Sberbank. What does it mean and how to be.
Lawyer Ternovykh I.A., 22807 responses, 6377 reviews, online since 06/23/2014
22.1. Contact the bailiff department in which the IP was initiated to familiarize yourself with the materials and clarify the nature of the debt.
23. When buying a phone on credit, they gave me a bank trust card, a mixed contract was concluded. Initially, the card limit was 30,000, then the limit was increased by another 50,000, it turns out only 80,000. With the contract, there was an imposed insurance of 2.6 percent per month for the amount of the principal debt. Until April 15, I paid regularly and the amount of the principal debt was 71993. When the bank applied to the court, they set the amount of the credit limit 90104, the amount was 74,200, and the amount of 74,200 was taken from the fact that they withdrew money from the account against missed payments. The bank filed a lawsuit in court for overdue interest for under a year of 18,000 rubles, and in total I owe them 180,592. I have a question, can I terminate the contract with the bank unilaterally? Is it legal to write off funds from the account against fines without my consent?
Lawyer Maksimov M. V., 22010 responses, 12939 reviews, online since 09/15/2016
23.1. Termination of the contract does not terminate the obligations assumed under it earlier. Write-off is legal if the documents of the bank, i.e. the rules for the provision and maintenance of cards, your consent is provided. Such documents are usually posted electronically on the bank's website, so they do not even need to be signed;
24. Three days ago, by registered mail, I received a court order dated 03/16/2018 to recover from me the loan debt for the period from 12/24/2013 to 02/24/2014 under a loan agreement (whose number is not specified). I did not conclude any agreement with the bank "Trust" and, in addition, I believe that the limitation period of 3 years has passed. Please advise how I should proceed in this situation.
Lawyer Bogolyubov A. A., 19237 responses, 12726 reviews, online since 07/22/2017
24.1. Hello, everything is very simple from the moment you receive this court order, you should correctly write and prepare your objections for its cancellation within 10 days and send it by registered mail with notification either to the court website or take it directly.
Lawyer Tikhonov B.L., 15437 responses, 6750 reviews, online since May 19, 2013
24.2. Hello, Alexander.
Immediately address the judge who issued the writ with objections to its execution. The order will be canceled, and in the future, if the bank files a lawsuit, you will be able to present your arguments and evidence to the court.
Hurry up, you have 7 days left to cancel the court order.
In the bank TRast SSP, on other requirements, arrested my credit account. The bank transferred my regular payments under an agreement with it not to itself, but to another account and declared me a defaulter. This has been going on since February 2018. On my letters to find an opportunity for me to repay my debt to him - there was no answer. I refused to repay the debt. And the bank sent me a letter with the following content. What can be done? Read answers (1)
25. Loan agreement with Trust Bank: concluded on 09/26/2012 (credit card servicing), 02/25/2015 - the client goes into delay and stops paying the debt. On 06/29/2016, the bank submits to the mirvoy court for a court order for the amounts - 150,000-principal debt, 102,000 rubles - interest for use. On July 15, 2016, a court order for debt collection is issued, the client writes an application to cancel the order, citing inaccurate amounts, etc. On August 4, 2016, the order was canceled. Further, Bank Trust, after 2 years, again under the same agreement specified earlier on March 1, 2018, again submits to the Magistrate's Court for issuing an order for the debt that arose over the period from January 27, 2015 to May 25, 2015 in the amount of 20,356 rubles. The Magistrate's Court issues a debt collection order. And now the Question is the legitimacy of the issuance of the order and does the statute of limitations for this debt play a role in this case?
Lawyer Ladygin A. V., 7512 responses, 4465 reviews, online since 03/27/2017
25.1. Right, the subject of the dispute is different. In fact, the statute of limitations has not passed. It is three years from the date of the last payment on the loan. At the same time, if you cancel the court order, this does not deprive the bank of the right to file a claim in the order of action proceedings. Sincerely.
Lawyer Sargsyan A. L., 357 responses, 262 reviews, online since 04/25/2017
25.2. Good afternoon, Aleksey, in fact, the court violated the requirements of Article 200 of the Civil Code of the Russian Federation, which sets the statute of limitations, the bank used the right to appeal, but could not implement it. Even on the second lawsuit, the deadlines were missed. Write a letter of revocation as well.
Lawyer Stepanov V.I., 36189 responses, 15922 reviews, online since 10/15/2011
25.3. The court has the right to issue a court order without checking the calculations and other arguments in the case. You have the right to cancel the court order, for this it is enough to simply object to its execution.
Today, there are many ways to get rid of a loan. This may be the termination of the contract, and its invalidation in whole or in part, its recognition as not concluded, refusal to satisfy the requirements of the bank, debt cancellation through the bankruptcy procedure of an individual, termination of enforcement proceedings on the grounds of Art. 46 of the Federal Law "On Enforcement Proceedings" and many other legal tricks. Correctly get rid of credit debt and the loan agreement itself a financial lawyer can help.
Sincerely, financial lawyer - Stepanov Vadim Igorevich.
26. I had such a problem with Trust Bank, in December 2013 I issued a loan in the amount of 500,000. I issued it as an employee without insurance, the payment was 12,000. I paid regularly within three years, then faced financial difficulties and began to pay 2000-1000 per month. In January 2017, I received a NOTICE from the bank demanding to pay the amount of overdue debt 21035.24. Later, in August 2017, the bailiffs seize the bank account and withdraw this amount from the Sberbank debit card. Then I receive a demand from the bank to repay the entire debt, this is 300,000 rubles by 10/02/2017. Otherwise, the bank will have the right to collect penalties (forfeits) and other penalties in accordance with the terms of the loan agreement. On October 21, 2017 my husband died. I was left alone with two minor children. In December 2017, my maternity leave ended and I joined the ranks of the unemployed. In general, at the moment, the bank charges me a DAILY penalty for the entire amount of the debt of 0.1%. This is an unbearable amount for me. I contacted the bank with a request to stop the accrual of interest. She explained her situation, said that she was ready to partially repay as much as possible, but since they charge penalties daily, this is a dead end for me, I will never be able to close this loan in my life. Help me please. Can you please tell me what to do?
Lawyer Volkova I. Yu., 2982 responses, 1478 reviews, online since 10/16/2015
26.1. Hello, Julia, in a lawsuit it is possible to reduce the amount of the penalty. Therefore, you will have to wait for a lawsuit. Now it is more profitable not to pay anything, since the debt will not be repaid, and the bank will take into account your miserable payments as repayment of penalties. There is a section in the agreement that determines the sequence of repayment of the loan.
27. I had a trust bank credit card. I have not made payments on it since April 6, 2015. And on December 8, 2017, the bank filed a lawsuit to issue me a court order, I canceled this order. Then I received a message that the trust bank transferred my debt under an agency agreement to ABK LLC collectors. U. My question is why the bank did not go to court or is it still ahead, because the SID will expire soon?
Lawyer Pankratov V.V., 534 responses, 365 reviews, online since 20.08.2008
27.1. Hello, Lydia Alekseevna!
It is not profitable for the bank to sue you now. In court, the bank will win less than the collectors can take from you, at least they try.
Lawyer Matveeva T.G., 93126 responses, 39398 reviews, online since 03/26/2006
27.2. The statute of limitations in your case will be three years from the date of cancellation of the court order. So there is still a long way to go before it expires. As a rule, banks do not forgive debts.
28. I received an SMS from KEF LLC about the appointment of a personal meeting at the place of my registration. Debt allegedly to OOO Trust Bank. Although the loan was repaid ahead of schedule 2 years ago. But, as I understand it, the bank itself did not close the agreement and the amount of the debt consists of the calculation for servicing the loan agreement, which was repaid 2 years ago ahead of schedule.
My question is what to do with collectors and will they come? and a question. What to do now with the bank, am I obliged to pay for the maintenance of the contract, if I have all the receipts?
Lawyer Astsatryan N. V., 41725 responses, 23573 reviews, online since 11/24/2016
28.1. Hello! Collectors can be sued. If the loan agreement has not been terminated, then it continues to be valid. Good luck to you!
29. Once I got the front door on credit through the TRUST bank. The employees who processed it gave me a credit card of this bank with a limit of 67,000 thousand for use. I cashed it in full and did not pay. Then, after some time, he contributed 6,000 thousand and that's it. It's been 4 years and 2 months since that moment. There was no agreement on the card, the card expired in 2015. For all the time they sent 5 letters, I did not enter into contact with them. Can they sue? And the statute of limitations has already expired.
Law Firm Global Law Firm, 13525 responses, 2676 reviews, online since 08/11/2014
29.1. Hello.
Article 200
[Civil Code of the Russian Federation] [Chapter 12] [Article 200]
1. Unless otherwise provided by law, the running of the limitation period begins from the day when the person knew or should have known about the violation of his right and about who is the proper defendant in the claim for the protection of this right.
2. For obligations with a definite performance period, the limitation period begins upon the expiration of the performance period.
For obligations, the period of performance of which is not determined or is determined by the moment of demand, the limitation period begins to run from the day the creditor presents a demand for the performance of the obligation, and if the debtor is given a period for the performance of such a requirement, the calculation of the limitation period begins upon the expiration of the period provided for the performance of such an obligation. requirements. In this case, the limitation period in any case may not exceed ten years from the date the obligation arises.
3. For recourse obligations, the limitation period begins from the date of performance of the main obligation.
30. I have such a situation, I activated a credit card in 2013 in the amount of 35,000 in Trust Bank. I paid the amount even more, but there were delays and in the end I stopped paying them. Last year they filed a lawsuit and I paid them 53,000 in enforcement proceedings. After some time (approximately 3-4 months) again, enforcement proceedings under the same contract were already in the amount of 8500. I called them and asked why this was so, because I have already paid off enforcement proceedings under this agreement. To which she received the answer: "Now you will pay us all your life, since we did not file a lawsuit to close the contract, but only for the amount of the debt, which will continue to grow." I was outraged and I wrote to the court that I had already paid under this contract. The judge, of course, canceled the court order, but in November, enforcement proceedings are again hanging on the site for 21,000. What should I do in this situation?
Lawyer Golubtsov A.S., 5813 responses, 2459 reviews, online since 03/04/2013
30.1. You need to go to the bailiff, take a copy of the decision to initiate enforcement proceedings and find out on the basis of which, firstly, it was initiated, and secondly, on the basis of which the writ of execution was issued. All this information will be contained in the "header" of the resolution. Learning about the grounds for extradition writ of execution, You will go to court, receive a copy of the judicial act, and having studied its contents, you will already understand what to pay attention to when challenging.
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According to numerous statistical data, the level of debt load of the population is quite high. Many of us have a valid loan agreement, and often more than one. Not all loan agreements are concluded in strict accordance with current legislation. And this means that the consideration of disputes in the field of consumer lending by the courts various levels very common. We note right away that at the moment, on most contentious issues under loan agreements, judicial practice has developed in favor of the borrower. Therefore, it is worth considering the main situations when a positive court decision for the borrower is guaranteed in most cases.
Insurance premium refund
Almost all banks, when concluding a loan agreement, draw up insurance for the borrower. This may be insurance in case of death or disability of the borrower, loss of his job. The borrower has the right to refuse insurance, but, as practice shows, in reality this happens extremely rarely. Meanwhile, the borrower has the right to terminate the insurance contract throughout its validity. In addition, if the borrower proves that the conclusion of the insurance contract caused the issuance of a loan, then he has the right to demand that this insurance contract be declared invalid. This can only be done through a court order. To consider the case, the borrower must submit a loan agreement and an insurance agreement drawn up together with the loan. If there is a relationship between these two documents, for example, in a loan agreement it is indicated that one of the conditions for issuing a loan is insurance, then the court recognizes this provision of the agreement as contrary to the law and makes a decision to return the amount of the insurance premium to the borrower. By the way, recently there has been a tendency to force the courts of banks not only to return the amount of the insurance premium to the borrower, but also to recalculate the total amount of debt under the loan agreement, taking into account the reduction in the loan amount. For example, citizen V. filed a lawsuit against Bank S. The plaintiff demanded that his consent to join the collective insurance contract be invalidated and that the insurance premium be returned in the amount of 15% of the loan amount. As follows from the text of the loan agreement, the loan is issued to the borrower only after signing an agreement on accession to the collective insurance agreement. The court recognized this claim of the credit organization as unlawful and ruled to satisfy the claims of the plaintiff.
Commission refund
The federal law "On Consumer Credit" clearly outlined all the requirements for credit institutions when issuing loans to individuals. This law also determined that banks are not entitled to charge any commission from the borrower other than interest for the use of credit funds. However, it is not uncommon for a bank to charge a certain commission for opening and maintaining a loan account, accepting payments under a loan agreement, and early closing of a consumer lending agreement. All these types of additional payments are illegal and the borrower has the right to demand from the bank to return the funds paid by him as such commission payments. Experience shows that banks rarely voluntarily comply with such requirements. Judicial practice in such cases is clearly in favor of the borrower. For the court, it is enough to submit a loan agreement, payment receipts indicating the amount of commissions paid. In the statement of claim, it is desirable to indicate all the detailed information on the loan agreement, the procedure for its execution by the borrower, and also provide a link to the legal norms that were violated by the credit institution.
An example from practice. Citizen D. filed a claim against Bank S., in which she demanded to return to her the commission for opening a loan account and the commission for making monthly payments under the loan agreement. As evidence, the plaintiff presented a loan agreement, which indicated that the bank takes one percent of the loan amount from the borrower for opening a loan account, as well as receipts, which indicated that a commission of 100 rubles was charged for accepting a monthly payment. The representative of the bank explained that opening a loan account and accepting cash are additional services provided for a fee. However, the court indicated that the borrower did not ask to open a loan account for him, and therefore did not need this service. Therefore, it is imposed on the client. Acceptance of payments under a loan agreement is not a separate service, since the borrower must be able to repay his debt due to the fact that he is paid for the bank's services in providing a loan in the form of interest under the loan agreement. In this case, additional charges are not allowed. The court ruled to recover in favor of the plaintiff the amount of the commission for opening a loan account, accepting monthly payments under the loan agreement, as well as interest on the use of funds.
Advice: when applying to the court demanding the return of commissions under loan agreements, you should remember about the limitation period - three years. This period must be calculated from the moment of actual withholding or payment of the commission.
Decisions in favor of the borrower under the requirements of the bank
However, positive decisions in favor of the borrower are made not only in those cases where he acts as a plaintiff. It is not uncommon for a court to decide in favor of the bank when considering cases of debt collection on loans, but at the same time significantly reduce the amount of claims, thereby greatly facilitating the situation of the borrower. For example, the court may recalculate the amount of penalties and fines accrued by a credit institution for overdue debt. The bank may be asked to restructure the debt or develop a debt repayment schedule that is convenient for the borrower. Often, the court grants an installment plan for the execution of the decision in favor of the bank, especially in cases where the bank does not make concessions to the borrower.
It is important to note that for such a position of the court, the behavior of the borrower himself is extremely important. If the debtor does not evade participation in the lawsuit, provides all the information about the circumstances of the delay under the loan agreement, does not refuse to repay it, then the likelihood that the court will make a decision acceptable to the borrower is very high. By the way, the opinion that the more loans, the less likely that the court will make concessions on debt repayment is wrong. Much for the court more important than conditions these loans and the circumstances of the delay. And if the borrower does not belong to the category of unscrupulous citizens, then the court will always take a position to protect his interests, regardless of the requirements of the credit institution.
An example from practice. Bank Kh. filed a lawsuit against citizen T. According to the statement of claim, T. had arrears on one loan for eight months, on the second - six. In addition, the plaintiff submitted an extract from the bureau credit histories, according to which T. has three more loans, the delay on which is from two to six months. T. told the court that the first loan agreement was made by her for the treatment of her young daughter. After that, she took out loans to pay off the previous ones, the delay was formed due to the difficult financial situation: she alone brings up a minor child with a disability, works in two places, but the salary is minimal. The court, having studied all the materials in the case, made a decision to reduce penalties for overdue loans by seventy percent, the bank to provide the defendant with new payment schedules for each loan agreement, taking into account the objective capabilities of the borrower. At the same time, the bank obliged the borrower to adhere to new payment schedules under loan agreements.
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