The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation (Judges Kireikova G.G., Bukina I.A., Razumov I.V.) in the framework of case No. defendant interest for the use of other people's in cash on interest collected earlier in other cases for the use of other people's money.

History of the case: in two cases, the plaintiff recovered from the defendant “closed” interest under Article 395 of the Civil Code of the Russian Federation, accrued on the amount of unjust enrichment and the cost of services rendered.

Due to the fact that the defendant paid the collected interest 2 months after the entry into force of the judicial acts, the plaintiff filed a lawsuit to recover interest for the use of other people's funds accrued on interest collected earlier in other cases, from the date of entry into force of the judicial acts until the date of payment of interest.

The question arose before the courts: whether the norm of paragraph 5 of Art. 395 of the Civil Code of the Russian Federation on the inadmissibility of accruing interest on interest, unless otherwise provided by an agreement or law?

The courts of the first and appellate instances considered that it was due and refused to satisfy the requirements of the grid company.

The court of cassation did not agree with the position of the lower courts, claims pointed out that after the award of interest by the court from the moment the judicial act comes into force, their legal nature no longer has an independent legal value, just as the nature of other sums of money collected by the court (losses, penalties, court expenses). In connection with the delay in their payment after the entry into force of the relevant judicial acts, Art. 395 Civil Code RF.

The Judicial Collegium for Economic Disputes of the Supreme Court annulled the judicial act of the court of cassation and upheld the judicial acts of the court of first instance and appellate instance.

The basis for the annulment of the decision of the court of cassation was the following position of the Collegium.

In this case, having collected interest on cases on the amount of debt for payment of services provided for by the agreement, and on the amount of unjust enrichment from this agreement, the court provided coverage for inflationary losses, taking into account the size of the discount rate (refinancing rate), average bank interest rates on deposits individuals compared to the rate of inflation. Plaintiff has not proven otherwise.

The collection of interest on the interest paid, accrued on the amount of the repaid debt, leads to non-compliance with the principle of proportionality of liability (the Civil Code of the Russian Federation) to the consequences of a breach of obligation.

Taking into account that measures to protect a violated right should not serve as a means of enriching one party at the expense of the other (the principle of commensurate civil liability with the consequences of a breach of obligation), the legislator, in Part 5 of Article 395 of the Civil Code of the Russian Federation, introduced a ban on calculating compound interest (interest on interest).

Let's try to figure it out - did the IES correctly resolve this case?

I think that the position of the IES cannot be recognized as correct.

The CES of the Armed Forces of the Russian Federation did not take into account that the courts, when collecting interest on the amount of debt and unjust enrichment, could only take into account in the interest collected inflationary losses for the use of the amount of debt and unjust enrichment for the period stated in the claim, but not in any way when the defendant used the recovered interest.

The plaintiff in this case requested that the defendant be held liable for the use of the collected interest.

From the moment the judicial act enters into force, the defendant no longer uses interest, but the amount of money that is awarded for payment in favor of the plaintiff and is unlawfully withheld by the defendant. A.G. drew attention to this circumstance. Karapetov.

Another interpretation of paragraph 5 of Art. 395 of the Civil Code of the Russian Federation leads to the fact that the conscious use of other people's property (money) in the presence of a judicial act that has entered into legal force becomes economically justified for the defendant, which discourages him from returning the plaintiff's property as soon as possible.

In addition, the second cassation did not take into account that, using the collected interest, the defendant unjustly enriches himself at the expense of the plaintiff, since there is a saving (gratuitous use) of funds that belong to the plaintiff from the moment they come into force.

This circumstance indicates that the defendant benefits from his illegal behavior, which is prohibited by paragraph 4 of Art. 1 of the Civil Code of the Russian Federation, since in this case the defendant carried out, at the expense of the plaintiff, as a result of withholding (using) the interest collected, preferential lending at a rate of zero percent. Consequently, the measures of protection did not serve as a means of enriching the plaintiff at the expense of the defendant.

Thus, the position of the EC on non-compliance with the principle of proportionality in this case cannot be considered justified.

Microfinance organizations (MFIs) have limited the accrual of interest on microloans.

Limitation of interest on microloans

Articles 12 and 12.1 came into force on January 1, 2017 federal law"On microfinance activities and microfinance organizations" dated 02.07.2010 N 151-FZ, which introduces a ban on collecting from borrowers Microfinance organizations (MFIs) unreasonably high interest on consumer microloans. What is the reason for limiting interest on microloans? The reason is as simple as the world - Microfinance organizations (MFIs), striving to obtain super-profits, issue microloans instantly and practically without checking the client's solvency.
Microloan- This is a small loan that is provided for a short period of time, and as a rule, without confirmation and verification of the solvency of the borrower.

In article 2 of the Federal Law N 151-FZ of 07/02/2010, the concept of "microloan" is described as follows:

3) microloan - a loan provided by the lender to the borrower on the terms and conditions stipulated by the loan agreement, in an amount not exceeding size limit obligations of the borrower to the lender for the principal debt, established by this Federal Law;

According to Federal Law No. 151 of July 2, 2010, the amount of a microloan issued to one borrower cannot exceed one million rubles. The actual issuance of microloans in the amount of up to 30 - 50 tr. is issued only with a passport and naturally without checking the solvency of the client.

Federal Law No. 151 of July 2, 2010 No. There are two types of restrictions on the accrual of interest by Microfinance Organizations (MFIs) on issued consumer microloans, namely:

1. Threefold limitation of accrual of interest under a consumer microloan agreement.
2. Termination of accrual of interest on overdue loans as soon as the interest reaches twice the amount of the outstanding part of the debt.

The Bank of Russia provides an explanation of the essence of the restrictions imposed by Federal Law No. 151, which boils down to the following:

1. From January 1, 2017, a three-fold restriction on the calculation of interest under a consumer microloan agreement entered into starting from this date comes into force.

If the repayment period under the agreement does not exceed one year, microfinance organizations (MFIs) are not entitled to charge interest to the borrower - an individual after their amount reaches three times the loan amount.

So, for example, with a loan of 5,000 rubles, the debt of the borrower at no time can exceed 20,000 rubles. This amount includes:

• loan amount of 5000 rubles
• accrued interest in the amount of 15,000 rubles (5,000 rubles x 3).

The Bank of Russia draws the attention of borrowers to the fact that the limitation on the amount of interest does not apply by law to penalties (fines, penalties), as well as payments for services provided to it for a separate fee.

This is how it is stated in the Federal Law of 02.07.2010 N 151-FZ (as amended on 03.07.2016) "On microfinance activities and microfinance organizations" (as amended and supplemented, entered into force on 01.01.2017) :

Article 12
1. A microfinance organization is not entitled to:
9) accrue to the borrower - an individual interest under a consumer loan agreement, the term of repayment of a consumer loan for which does not exceed one year, with the exception of a penalty (fine, penalty fee) and payments for services provided to the borrower for a separate fee, if the amount accrued for the interest agreement will reach three times the amount of the loan. The condition containing this prohibition must be indicated by the microfinance organization on the first page of the consumer loan agreement, the term of repayment of the consumer loan for which does not exceed one year, before the table containing individual conditions consumer loan agreements; (As amended by the Federal Law of July 3, 2016 N 230-FZ)

2. The second limitation concerns the delay in the repayment of a short-term (up to one year) consumer microloan: after the delay occurs, the MFI can charge the debtor interest only on the remaining (outstanding) part of the principal amount, however, the accrual will stop as soon as the interest reaches the double amount of this amount.

At the same time, the MFI will be able to start accruing interest again only after partial repayment the borrower of the loan and (or) payment of interest due.

The penalty (fines, penalties) should be charged only on the part of the principal amount not repaid by the borrower.

So, for example, if the outstanding part under the overdue contract is 5,000 rubles, the amount charged to the borrower will be equal to 15,000 rubles, which includes the amount of overdue debt - 5,000 rubles and accrued interest - 10,000 rubles (5,000 rubles x2).

Each MFI is required to place information about these restrictions on the first page of a short-term consumer loan agreement before a table with individual terms of the agreement.

The Federal Law of 02.07.2010 N 151-FZ "On Microfinance Activities and Microfinance Organizations" (as amended and supplemented) states this restriction as follows:

Article 12.1. Features of the calculation of interest and other payments in case of delay in fulfilling loan obligations (introduced by Federal Law No. 230-FZ of 03.07.2016)
1. After the occurrence of a delay in fulfilling the obligation of a borrower - an individual to repay the loan amount and (or) pay interest due, a microfinance organization under a consumer loan agreement, the term for repayment of a consumer loan for which does not exceed one year, has the right to continue accruing interest to the borrower - an individual only on part of the principal amount not repaid by him. Interest on the portion of the principal outstanding by the borrower continues to accrue until the total amount of interest payable is equal to twice the amount of the outstanding portion of the loan. A microfinance organization is not entitled to accrue interest for a period of time from the moment the total amount of interest payable is reached in an amount equal to twice the amount of the outstanding part of the loan, until the borrower partially repays the loan amount and (or) pays the interest due.

2. After the occurrence of a delay in fulfilling the obligation of a borrower - an individual to repay the loan amount and (or) pay interest due, a microfinance organization under a consumer loan agreement, the term for repayment of a consumer loan for which does not exceed one year, has the right to charge a borrower - an individual a penalty (fines, fines) and other measures of liability only for the part of the principal amount not repaid by the borrower.

3. The conditions specified in parts 1 and 2 of this article must be indicated by the microfinance organization on the first page of the consumer loan agreement, the consumer loan repayment term for which does not exceed one year, before the table containing the individual terms of the consumer loan agreement.

Sources:

• The message of the Bank of Russia dated 01.01.2017 - “The accrual of interest on short-term microloans is limited”
• Federal Law No. 151-FZ of 02.07.2010 “On Microfinance Activities and Microfinance Organizations” (as amended)
• Federal Law No. 230-FZ of July 3, 2016 “On the Protection of the Rights and Legitimate Interests of Individuals in the Process of Reimbursing Overdue Debts and on Amendments to the Federal Law “On Microfinance Activities and Microfinance Organizations””

Some citizens do not suspect that the compound interest clause of a loan agreement concluded with a bank is illegal. By default, citizens can fulfill their obligations, taking into account the amount of such interest on interest, and the courts can recover debt from the consumer in the absence of active resistance from the citizen himself during the proceedings. Meanwhile, in itself, the inclusion of such conditions in the contract is an offense on the part of banks.

"Not free" loan agreement

In the conditions of the so-called principle of freedom of interest, the parties to the loan agreement have the right to independently determine the content of the interest clause. This principle is not named in the Civil Code of the Russian Federation, other laws, but is a special case of the principle of freedom of contract (Article 421 of the Civil Code of the Russian Federation).
Summarizing modern tendencies protection of consumer rights under loan agreements regarding the terms of interest, several requirements (restrictions) should be noted. Freedom of interest is not absolute.
Firstly, the lender's ability to unilaterally increase interest rates and the procedure for determining interest in loan agreements with individual borrowers is limited (Article 29 of the Federal Law of December 2, 1990 N 395-1 "On Banks and Banking").
Secondly, the legislation establishes uniform requirements for the procedure for determining interest in loan agreements (Regulation No. 39-P of June 26, 1998, approved by the Central Bank of the Russian Federation).
Thirdly, a ban is introduced on bonded transactions, to the category of which the courts include transactions with unusually high interest rates (Article 179 of the Civil Code of the Russian Federation).
Fourth, the lender's right to charge interest over the loan term is limited in case of early repayment of a consumer loan (clause 2, article 810 of the Civil Code of the Russian Federation).
Fifthly, a ban is established on the collection of compound interest in consumer loan agreements (clause 3 of the information letter of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 146).

circumvention of the law

Considering the fifth limitation mentioned above, it should be noted that otherwise (setting interest on interest) the consequences of the new circumvention rule would be applicable. Paragraph 3 of Art. 10 of the Civil Code of the Russian Federation establishes that, if the abuse of the right is expressed in the commission of actions bypassing the law with an unlawful purpose, the consequences provided for in clause 2 of this article will be as follows: the courts, taking into account the nature and consequences of the abuse committed, refuse to protect the right belonging to him in whole or in part, as well as apply other measures provided by law.
Updated Art. 10 of the Civil Code of the Russian Federation calls the concept of "circumvention of the law", but does not disclose its content. Thus, the norm leaves room for judicial interpretation. It seems appropriate to name as a special case of such circumvention of the law the condition of the loan agreement, which covers "compound interest", more precisely, the bank's action to include the named condition in the text of the agreement.
In the Civil Code of the Russian Federation there are no norms regulating the content and form of the terms of the loan agreement on interest. Nevertheless, this Code states: unless otherwise provided by law or a loan agreement, the lender has the right to receive interest from the borrower on the loan amount in the amount and in the manner determined by the agreement (clause 1, article 809 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 received sum of money and pay interest on it (clause 1, article 819 of the Civil Code of the Russian Federation).
From the content of Parts 2 and 4 of Art. 29 of Law N 395-1 it follows that the parties may agree on a condition on a fixed interest rate or a condition on the procedure for determining interest.
In Regulation N 39-P, two types of conditions on interest are named: using a fixed or floating interest rate. In the first case, the contract provides for a fixed interest rate, the amount of interest is calculated as the product of this rate by the amount of the loan and the actual period of use of it.
The condition on floating interest rates implies agreement on the procedure for determining the interest rate, which may vary depending on a certain baseline. A floating interest rate clause is usually included in medium- and long-term loan agreements.
Until recently, disputes regarding the regulation of the so-called terms of loan agreements with interest on interest remained vague.
Today, the practice can be called well-established, but there are cases of ignoring the restriction in question or its incorrect interpretation.
As established by Art. 9 of the Federal Law of January 26, 1996 N 15-FZ "On the Enactment of Part Two of the Civil Code 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 the 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 of February 7, 1992 N 2300-1 "On Protection of Consumer Rights" and other legal acts issued in accordance with it.
In view of the foregoing, in this case, the provisions of Art. 29 of Law N 395-1 should be applied in the part that does not contradict the Civil Code of the Russian Federation and Law N 2300-1.
It should also be noted that the Decree of the Constitutional Court of the Russian Federation dated February 23, 1999 N 4-P clarifies that a citizen is an economically weak party and needs special protection of his rights, which entails the need to limit the freedom of contract for the other party, that is, for banks.
One of the criteria for classifying the condition on compound interest as a circumvention of the law is the consequence for the consumer (the difference between what the citizen received and what he expected when concluding the contract).
The consequences of breach of obligation may include property and funds not received by the plaintiff, losses incurred, other property or non-property rights, on which the plaintiff is entitled to rely in accordance with the law and the contract. When assessing such consequences, the court may take into account, among other things, circumstances that are not directly related to the consequences of a breach of an obligation (the price of goods, works, services, the amount of the contract, etc.). The criteria for establishing disproportion in each particular case may be: high percent penalties; a significant excess of the amount of the forfeit of the amount of possible losses caused by the violation of obligations; the duration of non-fulfillment of obligations, etc. Similar explanations are given in paragraph 42 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 6 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated 07/01/1996, paragraphs 2, 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 1997 No. 17.
In the civil case N 33-1517 / 2012, the Volgograd Regional Court in the Cassation Ruling dated 09.02.2012 indicated that the satisfaction of the claims for the recovery of interest in the stated amount for the use of other people's funds was rightfully denied, since the court of first instance, when calculating the amount of interest, did not proceed from the amount of the principal debt, but from the amount of the debt, taking into account inflation, and actually made the accrual of interest on interest.
The risk of recognizing the condition of compound interest as legitimate is as follows. It is not uncommon for banks to argue that they negotiated these conditions on a case-by-case basis with a consumer who himself agreed to them by signing the contract, fully aware of the consequences.
In arbitration case N A13-5569/2011, the bank's position was that it individually discusses the terms of the contract with the party. According to the bank, this discussion is expressed in informing customers about the change general conditions of the agreement in advance (30 calendar days in advance) in a publicly accessible way (bank information stands, bank website, other methods), which allows the borrower to inform the bank about this in the absence of consent. However, the FAS SZO in its Resolution dated 12/26/2011 on this case noted that the above methods of informing customers by the bank cannot be recognized as an individual discussion of the terms of the contract with the party. At the same time, there is no information in the case materials themselves confirming that the bank individually discussed the disputed condition with the party to the loan agreement.

Compound Interest Condition Example

In our hands was the text of the agreement, which contains the following clause: "In case of late payment of interest, the borrower pays the lender a penalty in the amount of 32% per annum for each day of delay on the amount of accrued but not paid interest."
This condition is contrary to consumer protection laws. Let's explain what the contradiction is.
In accordance with paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, unless otherwise provided by law or the loan agreement, the lender has the right to receive interest from the borrower on the loan amount in the amount and in the manner specified by the agreement.
From paragraph 1 of Art. 819 of the Civil Code of the Russian Federation, it follows that 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 provided for by the agreement, and the borrower undertakes to return the amount of money received and pay interest on it.
Based on paragraph 1 of Art. 16 of Law N 2300-1, 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.
As follows from paragraph 3 of the information letter of the Supreme Arbitration Court of the Russian Federation N 146, the ability of the parties to change the provisions of the dispositive norms of the law in contractual relations with the participation of the consumer is limited by paragraph 1 of Art. 16 of Law N 2300-1, which prohibits the worsening of the situation of the consumer in comparison with the rules established by laws or other legal acts of the Russian Federation. As such a rule, the provisions of paragraph 1 of Art. 809 and paragraph 1 of Art. 819 of the Civil Code of the Russian Federation, according to which general rule in credit relations, interest on a loan is calculated on the amount of the loan; the possibility of accruing interest on interest does not follow from these norms. It follows from the provisions of these norms that under a loan agreement, interest is charged only on the amount of the loan.
Thus, the disputed condition of the loan agreement is aimed at circumventing the provisions of the law, therefore, it contradicts them and is void. The courts should refuse to protect the claims of banks for the collection of debts under loan agreements in terms of compound interest.
The Supreme Arbitration Court of the Russian Federation in the specified explanation made the following conclusion: "The condition of the loan agreement, aimed at the direct or indirect establishment of compound interest (interest on interest), infringes on the rights of the consumer established by law."

Implications for banks

The inclusion in the loan agreement of a condition that infringes on the rights of the consumer forms an administrative offense established by Part 2 of Art. 14.8 of the Code of Administrative Offenses of the Russian Federation. An administrative fine is provided for this offense: for officials - in the amount of 1,000 to 2,000 rubles; for legal entities - from 10 thousand to 20 thousand rubles.
In accordance with Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, an official is subject to administrative liability in the event that he commits an administrative offense in connection with non-fulfillment or improper execution their official duties.
It follows from the note to this article that the heads of organizations who have committed administrative offenses in connection with the performance of organizational and administrative or administrative and economic functions bear administrative responsibility as officials.
According to Art. 11.1 of Law N 395-1, the current management of the activities of a credit institution is carried out by the sole executive body.
From part 3 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, it follows that the imposition of an administrative penalty on a legal entity does not relieve the guilty individual from administrative responsibility for this offense, nor does bringing an individual to administrative or criminal liability does not relieve administrative responsibility for this offense entity.
Therefore, the bank is not entitled to provide in loan agreement With individual the specified condition on the calculation of interest on interest, since such a condition infringes on the rights of consumers, entails administrative liability.
In the case of establishing the composition of the named offense, both the legal entity and the relevant official may be held liable.
It is noteworthy that in the vast majority of cases, the loan agreement issued by the bank is typical (concluded with many borrowers), which indicates a systematic violation of the law and, as a result, indicates a higher public danger than a once concluded agreement with a controversial condition.
It must be borne in mind that the explanation contained in paragraph 3 of the information letter of the Supreme Arbitration Court of the Russian Federation N 146 is used to regulate relations in the scope of Law N 2300-1. The interpretation of the norms of substantive law given in the text of the said paragraph does not apply in cases where the borrower does not act as a consumer within the meaning of the said Law, and also if the creditor is not a credit institution (Resolution of the Eighteenth Arbitration Court of Appeal dated September 13, 2012 in case N A76-3639 / 2012 , the parties to the dispute were the Committee for Property Management and Land Relations and the management company).

Yuri Kantser, lawyer, Volgograd.

They are there in order to bring profit to the deposit holder. This is done through the payment of interest on the deposit. In fact, it is the interest rate that is one of the main terms of the deposit, which customers pay attention to. But there are subtleties in the calculation and payment of interest that are not always so obvious.

How is interest calculated on a deposit?

The amount of interest on the deposit is regulated in two ways:

• usually the percentage is prescribed in the deposit agreement, and is always annual, i.e. it will be charged on the amount of the deposit for the year;
• if the interest is not specified in the agreement, then the current refinancing rate is applied to accrue interest.

Interest begins to accrue the next day after you opened the deposit and put money on it, and ends on the day the deposit is closed (inclusive).

Calculating the amount of interest that can be received at the end of the year is very simple: it is enough to add an amount equal to the percentage of the deposit amount to the deposit amount. So, if at the beginning of the year you put 100,000 rubles. on a deposit at a rate of 5%, then at the end of the year you will receive 105,000 rubles.

The procedure for paying interest on deposits depends on the type of their accrual:

• interest is accrued at the end of the deposit term, and you can get it only at the very end of the deposit term (as a rule, such bank offers are the most profitable);
• interest is calculated and paid to the depositor on a monthly basis.

They are usually safer for the client in terms of the fact that he definitely receives money every month: the longer the term of the deposit, the higher the risks of inflation, devaluation, etc. The client himself may also have emergency circumstances that he can solve at the expense of the interest paid. But, unfortunately, for this type of deposit, the interest rate is always lower than when interest is paid only at the end of the deposit term.

How is interest calculated on deposits with capitalization?

In addition, the most important concept for calculating and calculating interest on a deposit is the concept. Capitalization works according to the following system:

• installed reporting period accrual of interest on the principal amount of the deposit (for example, 30 days);
• the interest capitalization period is set (for example, also 30 days);
• after 30 days, accrued interest is capitalized, i.e. are added to the principal amount of the deposit;
• in the next reporting period (next 30 days) the interest will be calculated in relation to the principal amount of the deposit, together with the interest for the previous month, i.e. in fact, the principal amount of the deposit is constantly growing, as is the accrued interest.

It is precisely due to the fact that the total amount of interest depends on the principal amount of the deposit, and this amount is constantly increasing during capitalization, such deposits in banks with monthly payment interest and capitalization are often more profitable than deposits with a high interest rate and payment of interest only at the end of the term.

An alternative option is the so-called "manual capitalization": if allowed, then you can independently increase its principal amount, which will lead to an increase in income from the deposit.

All conditions for calculating interest are prescribed in the deposit agreement. Before concluding an agreement and choosing a specific type of deposit, it is necessary to calculate all the options offered by the bank, as well as assess your financial situation in terms of the need for quick interest.

How is interest paid on a deposit?

In addition to the interest calculation system, the deposit agreement always prescribes the interest payment system, i.e. how the client actually can actually receive his interest and dispose of it. It is important to understand that the accrual periods and interest payment periods can be completely different: the daily interest accrual system is used (there are such offers on the market), and the payment is made only once a quarter.

The procedure for accruing and paying interest on a deposit allows the client to plan his income from the funds placed: whether he is ready to wait for real money from the deposit for a long time (i.e. he does not have expenses associated with this money in his plans), or whether he wants to receive them constantly at short intervals.

The following interest payment periods are available:

• daily;
• once a week;
• once a month;
• once a quarter;
• only at the end of the term.

The shorter the repayment period, the lower the interest rate itself.

When applying for a loan, some borrowers accidentally or deliberately skip the section of the loan agreement, which deals with penalties for late repayment of the debt. It seems to many that this will not affect them, and they do not need extra information. That is why inattentive bank customers are always surprised to find that instead of a mandatory payment, for example, 1,000 rubles, they are already demanding 1,500 from them. It turns out that the bank charged a penalty for a small delay in payment. How legitimate are such actions of the creditor, how is the amount of the penalty calculated, and is there a chance to avoid paying fines? We will try to answer all these questions in this article.

The legitimacy of accruing penalties and fines for late payment on the loan and the procedure for their calculation

Loan delinquency is considered to be a deviation from the established loan repayment schedule. Even if you are only 1 day late, the financiers will demand to pay a penalty. According to Art. 330, item 1. of the Civil Code of the Russian Federation, a penalty means fines and penalties:

A fine is a one-time penalty that is applied once, but for each delay. For example, if the fine is 100 rubles, and you have not paid the loan for 3 months, get ready to pay an additional fine - 300 rubles.

The penalty is calculated based on the period during which you delay the payment. If the delay is large, the penalty may exceed the amount of accrued interest.

Note that the penalty cannot be charged on the unpaid amount of the penalty.

According to Art. 395 of the Civil Code of the Russian Federation, the amount of penalties is calculated based on 1/360 of the refinancing rate - at the moment it is 8.25% per annum - for each day of delay (0.0229%).

Consider an example of calculating a penalty based on the amount of penalties established by the Civil Code of the Russian Federation. Suppose you took out a loan in the amount of 300 thousand rubles at 21.5% per annum and for 48 months; your annuity payment is equal to 9,370 rubles per month. You have not made 2 payments, and the delay is 40 days. Then the amount of the penalty will be 107.28 rubles:

9 370 * 30 * 0.0229 / 100 = 64.37 (rubles) - the amount of the penalty accrued when one planned payment is delayed for 1 month.

(9370 + 9370) * 10 * 0.0229 / 100 \u003d 42.91 (rubles) - the amount of the penalty accrued for the delay in 2 planned payments for 10 days of the second month.

64.37 + 42.91 \u003d 107.28 (rubles) - the amount of the fine for 40 days.

It is quite obvious that such a small amount of the penalty does not suit the banks. That is why financiers use paragraph 2 of Art. 332 of the Civil Code of the Russian Federation, which states that the amount of the penalty can be increased by agreement of the parties. In other words, by prescribing in the loan agreement a larger amount of penalties and fines than 1/360 of the Central Bank refinancing rate, the credit institution can legally charge you a penalty in the amount specified in the agreement.

You can resist too "greedy" banks: according to Art. 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. That is, if the case goes to court, the judge has the right to recognize the accrued amount of the penalty as overstated and refuse to satisfy the bank's claim to the borrower regarding its repayment. Such cases are known in judicial practice Russia, therefore, financiers tend not to abuse their capabilities.

We will tell you in more detail about what average fines and penalties are found in our country.

The amount of penalties in Russian banks

We have already considered an example with a loan of 300 thousand rubles at 21.5% per annum and a monthly payment of 9,370 rubles. Let's try to calculate the amount of penalties on it in 3 banks of Russia - Sberbank, Alfa-Bank and VTB 24, provided that the interest rate and annuity payment are the same everywhere, and taking into account the real penalties of banks (as of 2013):

Sberbank sets a fee for breach of obligations in the amount of 0.5% per day of the amount of overdue debt. That is, for 40 days of delay you would pay 2,342.5 rubles.

Alfa-Bank charges 2% per day on the amount of overdue debt. That is, if you missed 2 scheduled payments and with a total delay of 40 days, you would pay a penalty in the amount of 9,370 rubles (in fact, another scheduled payment).

VTB 24 charges 0.6% per day on the amount of overdue debt. In total, a delay of 40 days will cost you 2,811 rubles.

Comparing the figures obtained with the one that we calculated on a general basis - 107.28 rubles, one can understand why banks ignore the amount of the penalty proposed by the Civil Code of the Russian Federation, which is determined based on the refinancing rate. Next, we will consider what other options for calculating fines and penalties banks use.

Main types of fines

There are 4 main forms of fines:

Penalty in the form of a percentage of the amount of the debt, accrued for each day of delay. Most often, and we saw this in the example of 3 banks, credit organizations apply this option.

Fixed fines in monetary terms. For example, 500 rubles - for each delay.

Fixed penalties with cumulative total. For example, the first delay - 500 rubles, the second - 600, the third and subsequent - 800 rubles.

A penalty in the form of a percentage of the amount of the loan balance, accrued for each day of delay or once a month. In Russia, it is practically not found. That is, with a debt balance of 100,000 rubles and an overdue planned payment of 3,000 rubles, you may be required to pay a fine in the amount of, for example, 2% of the balance amount (2,000 rubles).

Some banks use combined methods: for example, they charge a penalty in the amount of 0.2 - 1% per day of the debt amount and a monthly fixed fine. In addition to penalties, lenders also use other methods of pressure on borrowers in order to obtain debt. About them - in more detail.

Actions of the bank in case of delay in payment of the loan

The law "On credit histories" obliges banks to transfer data on the delinquency of their borrowers to the bureau credit histories 1-2 times a week (regardless of the number of days of delay). That is, if at the time of transfer of the shared file you have a debt, it will be reported to the BKI. The result of your forgetfulness or inability to plan a budget can be not only an accrued fine, but also the refusal of other banks to work with you in the future due to a bad credit history.

As for collectors, whose work we will describe in detail in the next article, they accept borrowers' cases no earlier than 2-3 months after the first delay. Of course, the procedure for working with these organizations in each bank is set individually, but nevertheless, at first, creditors try to force the client to repay the debt on their own, for this:

send him SMS messages;

they call (calls can start within a few days from the moment the delay occurs, or they can even after a month);

write letters;

invite the debtor to a meeting.

The natural desire of every debtor is to reduce their obligations to pay fines. How realistic is this in modern conditions, as well as about the so-called " technical delays» We will tell you in more detail.

Is it possible to reduce the amount of fines and penalties

Not so long ago, politicians announced their intention to introduce into the draft law “On consumer credit» changes by setting a fixed penalty for late loans - 0.05-0.1% of the debt for each day of delay. If this amendment is adopted, banks will have to significantly revise their tariffs (now the average penalty in the country is from 0.2 to 1% of the amount owed per day).

You can also try to reduce the amount of the penalty in court, if it has come to that. Typically, debts are repaid in the following order: first, fines and penalties are paid, then interest, and finally the principal debt. Each borrower has the right to explain to the judge the reason for the debt and ask for either the abolition of penalties or their reduction. You can also ask to reconsider the procedure for repaying the debt: first, close the body of the loan and interest, and, according to the residual principle, pay off the penalty.

Not to mention the technical delays. For example, when repaying a loan through the terminal, the borrower may not take into account that the money does not immediately reach the account, but after 1-7 days. The same situation with weekends: unless otherwise specified in the contract, if the planned loan repayment date falls on a weekend, the payment should be made the day before.