Litigation on loans is gaining momentum every year. Since borrowing money from financial institutions has become a common phenomenon, the number of insolvent debtors has increased significantly.

Regardless of the reason for which the client refuses to pay, the result is always the same - the bank does everything possible to ensure that the loan is repaid in full.

In this article, we will look at the features of litigation between a bank and a borrower, tell you what to do for a guilty debtor and what should be avoided.

general information

So, you have received a subpoena. The first thing I would like to advise is that under no circumstances should you go on the run.

Some debtors, in a state of panic, begin to pack their bags and change their place of residence - this is a big mistake. The bank will find you in any case, but escaping is not the best The best way solve the problem of.

On initial stage, when the trial has not yet taken place, you have a chance to come to an agreement with the bank, offering to pay part of credit amount at once. Many banks agree to such conditions - accordingly, the trial will not take place.

A lawsuit is a rather stressful event for a debtor, since in 70% of cases the decision is made in favor of the bank.

However, you have a chance to prove your innocence. The bank client has the right not to return the money if the term of the loan agreement has come to an end.

There is a huge nuance in this situation. It is possible to prove that a loan agreement is “overdue” if it was drawn up correctly and under the supervision of a specialist.

Sometimes it happens that a person turning to a little-known lender “turns a blind eye” to the correct preparation of documentation. The argument is usually like this: “I’m only borrowing 5,000 rubles, why so much red tape?”

If the contract was not drawn up or (even worse) was not read carefully, this is a big profit for the fraudster. Unfortunately, modern fraudsters are quite legally savvy, therefore, from the side of the law, their actions can be absolutely clean, and the debtor ends up in a lifelong debt trap.

In all other cases, banks get theirs. We are talking not only about late payments, but also fines, penalties, etc.

The court may decide in favor of the bank client if the amount assigned for return is limited to the balance or accumulated interest.

Loan litigation?

Everyone who is unlucky enough to be in the dock is interested in how the trial will go.

You will have to go through a summons, preliminary hearing, and main hearing. Now let's look at these processes in more detail.

Subpoena

First of all, the bank tries to “reach out” to the client by phone. Thus, the lender gives the borrower one last chance to resolve the debt problem peacefully. If the client does not react in any way, a corresponding letter is sent to the residence address - a summons to court for non-payment of the loan.

Ignoring a subpoena is the worst way to avoid a problem. What should the borrower do? After receiving a summons, a bank client must quickly find a good lawyer and prepare Required documents for consideration.

If you find yourself a victim of a “fraudster in law,” try to collect as much evidence as possible of your innocence. If they want to sue you quite rightly, do not try to turn the situation in your favor, otherwise you will create more problems.

What happens at the preliminary hearing?

Sometimes borrowers treat this procedure negligently – as a “rehearsal” for a real trial. The bravest may not even show up.

You need to not only show up at the preliminary hearing, but also prepare a speech, documents, etc. At this stage it is necessary:

• explain the reason for non-payment of the loan;
• support the reasons with documentation (if possible);
• present a debt repayment plan taking into account your financial situation.

A preliminary hearing is necessary for the court to get to the heart of the problem and sort it out “piece by piece.”

What and how to say - your lawyer will tell you, with whom you will meet several times before the first meeting.

Hearing the case on the merits

The main session includes hearing from both sides. All available documents, petitions, protests, etc. are taken into account.

The judgment is issued at this stage. In other words, the substantive hearing is the critical element that must be taken with the utmost seriousness.

Judicial practice on loans sometimes drags on. There can be many reasons for this: re-registration of documents for real estate, challenging rights to it, appeals, etc.

Process steps

Judicial practice for the collection of loan debts consists of the following steps:

1. Preparation of the necessary documentation.
2. Preparation of all relevant information about debts (loan contract, applications for the issuance of cash, Bank statements etc.)
3. The process of filing claims against the borrower if the lender, for its part, did not violate the obligations stipulated in the agreement.
4. The claim development process.
5. Preparation of an application from the plaintiff to collect existing debts from the defendant.
6. Indication of legal grounds for debt collection.
7. Filing a claim directly with the court.
8. Participation of both parties in the trial.
9. Decision-making.

During the trial, property may be seized. Below we will look at the basis on which this happens and what the relatives of the defendant should do if they are co-owners of the property.

Seized property: what you need to know!

Property seizure occurs at the time of trial. The seizure can be lifted after the client returns the borrowed amount to the bank in full.

When seizing real estate, it is worth remembering the following:

• a lawsuit on a loan can only contain information about property that is confirmed by a documentary base;
• If the client did not present real estate documents to the bank when applying for a loan, the institution does not have the right to find out about the presence of any property. Only the court has this privilege;
• if documents for real estate were not provided to either the bank or the court, information about existing deposits will be found out - these funds will be used to pay off the debt;
• the seized property of the defendant does not entail the seizure of the real estate of the guarantor until the time of payment of the second comes.

Arrest real estate- a complex procedure, since its implementation requires documentary confirmation from the applicant that the defendant has it.

Judicial practice on mortgage loans in favor of the borrower is possible when the lender cannot provide the necessary list of papers to seize the property.

Taking this into account, banks act as follows:

1. Lenders require their clients to provide documents confirming ownership of any property at the time of concluding a loan agreement. These papers must be certified by a notary. As practice shows, not all borrowers agree to such conditions, since collecting documents takes a lot of time and can threaten the seizure of real estate in case of non-payment of the loan.
2. After the procedure for collecting debt on a loan has been opened, the lender goes to court to seize the debtor’s expensive property. The petition indicates the address of the actual residence of the borrower and the place of his permanent registration. In this case, property means not only real estate or a car, but also less expensive objects (household appliances, furniture, etc.), which in total can cover part of the debt.

It is important to know!

Close people of the borrower whose property has been seized have the right to ask the court to lift the seizure from a certain part of it.

This is possible if part of the property is partially owned by another person. The defendant will be represented by the bailiff and the debtor himself.

Practice says that in 90% of cases, part of it is returned to relatives.

In this regard, some courts are in no hurry to seize the property of insolvent debtors, since red tape with statements from relatives only complicates the process of loan proceedings.

Seized transport: what you need to know!

A claim for debt compensation can be secured using liquid property owned by 50% of the debtors.

In this case we are talking about personal transport: cars, buses, motorcycles, etc. However arbitrage practice is ambivalent about this issue.

The problem is still the same - in order to seize a vehicle, you need to prove that it exists and belongs to the borrower, and not his family.

In this case, the court will independently send a request to the traffic police with a request to provide information about the availability of personal transport to the individual.

But here, too, not everything is so simple. In some cases, representatives of the traffic police refuse this request to the courts, arguing that the provision of personal information about individuals is contrary to the law.

As a result, of course, the court wins. Unlike applications from financial institutions, court requests must always be granted.

Seized accounts: what you need to know!

No less complex issue– arrest Money debtor. This is about court decision seize deposits of a bank client.

“Frozen” accounts are sent to secure a claim for collection of loan debts.

Legislation Russian Federation provides for such offsets based on the request of the lender.

But the financial institution itself does not have the right to disseminate any information about the monetary deposits of its clients.

In this case legislative act has another side to the coin: organizations that are lenders are allowed to provide information about customer deposits if required by law enforcement agencies (including the courts). Statistics show that courts independently send such requests to banking institutions.

Based on all of the above, it follows that the seizure of property is a hateful process not only for the defendants, but also for the court itself, since it stalls the loan proceedings and turns it into a vicious circle.

It is quite difficult to determine the line at which the bank would not violate the rights of the borrower, and at the same time be able to promptly return the funds. Creditors filing claims to collect debts and seize clients' savings must submit petitions in the amount of overdue obligations. However, the exact amount of the balance is not specified.

If the defendant is dead

Sometimes it happens that the defendant dies before the trial. In this case, the proceedings will last for many months, since the party receiving the inheritance is determined within six months (maximum).

Along with the inheritance, all outstanding loans of the deceased are distributed among relatives/guarantors. Accurate information about this can only be obtained from the notary office after 6 months, when all the heirs have been identified.

Notary employees claim that they do not have the right to provide any information about individuals to outside organizations. However, in some cases they are forced to do this when it comes to collecting debts of a deceased person.

What awaits the debtor at the end of the trial?

The court verdict is impossible to predict. Even the most experienced lawyer can only guess, to one degree or another, how the trial will end for his client. The only thing that is known for sure is that whatever the sentence, it will have to be carried out.

The defendant must remember that credit organizations are much more savvy in legal matters. In some cases, the court may grant a deferment of payments if the debtor is literally insolvent.

Although this sentence seems attractive, it has a big caveat. During the entire period of deferment, interest and penalties will continue to accrue, which will ultimately make the debt even more unbearable for the defendant.

If during the trial the creditor's property was seized, he loses the right to any disposal of it: donate, sell, exchange and use, among other things.

Seized accounts also cannot be used, converted or exposed.

Conclusion

A subpoena scares all debtors. The first thought a bank client faces is: “Am I going to go to jail?”

The good news is that imprisonment for non-payment of debts is completely excluded, the bank will only return the borrowed funds with the help of the court.

Prison threatens only those who tried to pull off a financial scam by “collaborating” with various banking institutions. The bad news is that the defendant will suffer significant losses regardless of what the court decides.

For some borrowers, their relationship with the bank ends in litigation. As a rule, when a bank cannot collect a debt for a long time, and its size is large enough, going to court is the only option to solve the problem. Moreover, this is a chance for the debtor to get rid of constant pressure from the creditor. Therefore, going to court with a bank is not such a scary procedure; you just need to know some of the features of its implementation and prepare for the process in advance.

How to sue a bank over a loan?

Practice shows that any delay on a loan entails calls from the bank’s collection services demanding immediate repayment of the debt and threats of going to court otherwise. However, quite a lot of time passes before the actual filing of the claim. Most banks go to court when the loan is overdue for 6 months or more, and the amount of debt is more than one hundred thousand rubles. By the way, according to credit cards the amount of debt can be fifty or more thousand rubles. But these are average figures; in some cases, credit institutions go to court with a smaller amount of debt.

Before filing a lawsuit, the bank carries out certain preparatory work:

• compares the costs of litigation and the amount owed;
• checks the relevance of information about the borrower that the bank has;
• sends claims demanding repayment of the debt.

Sometimes bank employees can take a borrower to other credit institutions in order to assess his debt level and determine possible claims from other creditors. Only after this the bank goes to court with statement of claim on debt collection on a loan.

A borrower with an overdue loan also needs to prepare for a possible lawsuit initiated by the bank. In this case, you should not avoid communicating with the creditor or ignore court letters. First of all, if a situation arises where the loan is overdue, it is necessary to send it to the bank. This document must state the reason for the inability to fulfill the terms of the loan agreement, for example, such a reason could be. Even if the bank refuses to satisfy the application, its presence will be a powerful argument in the lawsuit that the debtor notified the bank about his problems and tried to resolve the issue. Another way to prove your good faith in court is to contribute a small amount to repay the debt; in this case, the creditor will not have the opportunity to refer in court to the fact that the borrower ignores the terms of the loan agreement regarding his obligations to pay the loan.

The second important step for the borrower is to directly participate in the proceedings. To do this, it is necessary to familiarize yourself with the creditor’s statement of claim in advance and prepare reasonable objections to it. Attendance at all court hearings is extremely important, since various motions can be submitted during the process, which will allow you to achieve the most acceptable court decision.

For a borrower with problem debt, the court is great opportunity solve some of his problems with debt, since court proceedings have a number of positive aspects for him:

• the amount of the debt is fixed - after going to court, the bank cannot charge penalties, fines and penalties;
• it is possible to challenge certain sections of the loan agreement, which means there is a chance to reduce the amount of debt;
• the court may reduce the amount of accrued fines;
• it becomes possible to obtain an installment plan to repay the debt without additional pressure from the bank.

The debtor should, if possible, collect all documents that are relevant both to the loan that is being sued and to its financial situation. All this will allow you to obtain the most acceptable court decision.

Advice: The borrower should be aware that the court itself cannot reduce the penalty or provide an installment plan to repay the debt - for this it is necessary to submit a corresponding petition.

How to win a lawsuit against a bank on a loan with a large overdue loan?

Despite the fact that the Internet has recently offered many courses, master classes, methodological manuals, which should help borrowers not pay anything on credit debts, judicial practice demonstrates completely different results. Let us immediately note that it is possible to win a lawsuit against a bank on a loan in the presence of overdue debt only in isolated cases, which are becoming less and less common. As a rule, these are loans issued for small amounts with obvious violations on the part of bank employees, which makes it possible to invalidate such loan agreements. But most loan agreements cannot be recognized as such, so you will have to pay for them. However, there are real chances to reduce the amount of debt in court. This is achieved in the following ways:

• cancellation illegal commissions with the return of amounts previously paid to them;
• termination of insurance contracts with return of insurance premium;
• reduction of penalties in accordance with Art. 333 Civil Code RF.

Experience shows that these three reasons help reduce the amount of debt on an overdue loan by 25-30 percent.

A real opportunity to win a lawsuit against the bank is to file a missed deadline. limitation period. Currently, this period is three years, after which the creditor loses its right to judicial protection. The expiration of the statute of limitations does not deprive the right to go to court, but if the defendant claims that the deadline has been missed, the claim will be denied. Regarding credit relations, for a long time there was ambiguous judicial practice on calculating the limitation period, since there were two approaches. In the first case, three years were counted from the moment the next payment date under the loan agreement was missed. In the second - from the end date of the loan agreement. Currently, most courts take the second point of view regarding consumer loans. And the first is in relation to credit cards. Note that banks extremely rarely miss the statute of limitations, so the opportunity to win a lawsuit against a bank on this basis rarely arises.

The loan trial has passed - what happens next?

As noted above, most banks' claims for overdue loans are satisfied by the courts. But the borrower should not despair, since any court decision is binding on both parties to the proceeding. Therefore, with the completion of the trial, the borrower receives certainty regarding his debt to the bank, since the amount of the debt will no longer grow, and the bank will not bother with numerous calls and demands.

The debtor may ask the court to provide an installment plan for the repayment of the awarded amount, and the bank’s consent is not required for this. Even if the court did not grant the request for installment payment, you should not worry that the bank will take everything to pay off the debt. A credit institution cannot independently carry out work on forced collection debt. To do this, she needs to contact the service bailiffs. Bailiffs will carry out collections taking into account the requirements of the Law “On Enforcement Proceedings”, and here it is also possible to find a compromise that allows you to pay off the debt, taking into account your financial situation.

A slightly different situation is observed in relation to loans with collateral. For example, they may provide that in the event of a court decision in favor of the creditor, the debtor must immediately transfer the collateral to him. In this case, the bank itself can seize the pledged property, and in case of obstacles on the part of the debtor, turn to bailiffs for help.

Recently, situations have arisen when debtors do not know... Many of them were paying off debts due to court decisions, which creates additional confusion. In this case, you need to contact the department of the Central Bank, where they will inform you about the legal successor of the closed bank. You should not think that the closure of a bank, including the revocation of its license, cancels a court decision made in its favor.

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A lawsuit with a bank (it doesn’t matter whether it is a large bank, for example, Sberbank, or a small credit organization like) for a borrower with overdue debt is not such a bad option. It is only necessary not to hide from the bank during the entire time before the trial, to enter into a dialogue with it, and in the trial itself to take advantage of all the rights provided for by current legislation. Banks are reluctant to go to court, since the practice is that in the vast majority of disputes, if the debtor takes an active position, the courts reduce the creditors' claims by about a third. Thus, for the debtor the court is good option stop the growth of debt and be able to pay off the debt in convenient amounts.

In contact with

The reason why the highest court drew attention to credit relations was the irreconcilable struggle of Rospotrebnadzor with banks to establish fair terms of contracts, in particular, the right to charge commissions

Taking into account that the Law of the Russian Federation of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights” (hereinafter referred to as the Law on the Protection of Consumer Rights) 2 is applied to credit relations with the participation of citizens, the rules prohibiting the imposition of additional services are more stringent than with the provisions of the Civil Code of the Russian Federation. The Presidium of the Supreme Arbitration Court of the Russian Federation, through the prism of disputes between banks and Rospotrebnadzor under its jurisdiction, essentially resolved the issues of applying the provisions of the Civil Code of the Russian Federation and the Law on in the field of credit relations.

It is obvious that, existing within a single legal framework, this position of the Presidium of the Supreme Arbitration Court of the Russian Federation should not be ignored by the courts general jurisdiction.

But if the picture is more than clearer with consumers, then the question of charging a fee for a loan in relations related to entrepreneurial activity remains interesting. What borrower payments can be disputed within the framework of business relations? On this issue, there is some practice developed by arbitration courts, as well as clarifications of the Presidium of the Supreme Arbitration Court of the Russian Federation, contained in Review No. 147.

Commission for transactions under a loan agreement may be recognized as unjust enrichment of the bank

As a rule, the provision of funds under a loan agreement at a certain percentage is accompanied by additional payments: commissions for processing an application, issuing a loan, maintaining a loan account, maintaining a limit line of credit, early repayment loan in part and (or) in full, etc. The law does not regulate these relations, and therefore banking environment a stable practice of charging commissions has emerged due to freedom of contract (Article 421 of the Civil Code of the Russian Federation).

A credit institution usually appeals to this article of the Civil Code of the Russian Federation when challenging commissions by borrowers.

Before the adoption of Review No. 147, judicial practice regarding challenging commissions and other payments in favor of banks was not uniform. Some courts satisfied the borrowers' demands, others refused.

“The bank has the right to receive a separate remuneration (commission) along with interest for using the loan if it is established for the provision of independent services to the client. In other cases, the court evaluates whether the specified commissions can be attributed to the fee for using the loan” (clause 4 of Review No. 147).

QUOTE

By virtue of the explanations of the Presidium of the Supreme Arbitration Court of the Russian Federation, an independent service is understood as such a service, the provision of which provides the borrower with an additional property benefit or other useful effect. Such services cannot be standard actions of a credit institution, without which the bank is unable to properly fulfill the obligations assumed by the loan agreement. The court came to such conclusions based on the provisions of Article 779 of the Civil Code of the Russian Federation. If the commission is not an independent service, this provision of the contract is void, and the charged commission is unjust enrichment.

The second condition under which a bank commission is considered legal is if the obligation to pay it is periodic, and the amount is determined as a percentage of the balance of the borrower's debt to the bank on the date of payment. As explained by the Supreme Arbitration Court of the Russian Federation, such a commission will be a feigned condition covering the amount of the loan fee, however, such a condition cannot be declared invalid, since, firstly, the law does not prohibit the inclusion of such conditions in a loan agreement and, secondly, the parties they formulated them of their own free will.

Through the specified qualifications, you can consider the most commissions that exist in banking practice.

The fee for processing a loan application is illegal

In practice, such a commission is paid in a lump sum. The economic goal is obvious - it is to cover the bank’s expected expenses for assessing credit risks for a specific borrower. However, the payment of this commission is not conditional on the provision of any services to the borrower, as a result of which the borrower could have an independent property benefit. Under such conditions, charging such a commission is illegal, and the funds received by the bank are unjust enrichment. This is, in particular, indicated in paragraph 4 of Review No. 147.

The issuance of a loan is included in the subject of the loan agreement and cannot be paid for as a separate service

In practice, there is also such a commission as a commission for issuing a loan. This payment is also intended to minimize the bank’s expenses (losses) in the event, for example, of early repayment of the loan by the borrower.

Before the adoption of Review No. 147, the collection of this commission from entrepreneurs was recognized by arbitration courts as permissible and not contrary to the provisions of Article 421 of the Civil Code of the Russian Federation 3.

PRACTICE

Previously, courts took an extremely categorical position regarding debtors.

“In cases where, on the basis of clause 2 of Art. 811, Art. 813, paragraph 2 of Art. 814 of the Civil Code of the Russian Federation, the lender has the right to demand early repayment of the loan amount or part thereof, together with the due

interest, interest in the amount established by the agreement (Article 809 of the Civil Code of the Russian Federation) can be collected at the request of the lender until the day when the loan amount in accordance with the agreement should have been repaid" (clause 16 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of October 8, 1998 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds”).

Now the position of the Presidium of the Supreme Arbitration Court of the Russian Federation regarding borrowers has softened. In the event of early collection of the loan amount by the bank, the interest due is not collected until the day on which the loan amount should have been paid. Otherwise, the bank, being professional participant market, can place these funds and receive double income from providing the same amount of money for use (clause 6 of Review No. 147). Therefore, in the event of a violation of obligations by the borrower upon early repayment of the loan, the bank can count on collecting interest until the day the loan is actually repaid and additionally on interest for one month, during which, after the borrower repays the debt, the lender may incur losses associated with non-placement of the received funds to the new borrower.

When collecting interest due, the court will take into account changes in loan rates, as well as examine the losses caused to the bank. It follows from this that judicial practice is currently moving from the position of collecting lost income (lost profits) of the bank to a more fair assessment of the losses of the credit institution that arise in the event of early recovery of the loan amount from the borrower.

Thus, the explanations provided by the Presidium of the Supreme Arbitration Court of the Russian Federation in Review No. 147 indicate that arbitration courts take a more conservative position on the issue of the legality of charging fees under a loan agreement, indirectly establishing the only, in fact, fee for using the loan amount - interest - in strict accordance with the provisions of Article 809 of the Civil Code of the Russian Federation.

Korolev Sergey Anatolyevich, legal department for support of insolvency (bankruptcy) procedures of Law Firm “Private Law” LLC (Moscow)

The need for a uniform approach of arbitration courts to the consideration of disputes related to the conclusion and fulfillment of credit obligations has arisen with the sharp development of the consumer and commercial lending market. Its development in the last few years has revealed the presence of important issues that are not regulated by law. Such gaps were often exploited by unscrupulous lending parties.

The author draws the correct conclusion that the adoption by the Presidium of the Supreme Arbitration Court of the Russian Federation of information letters dated September 13, 2011 No. 146 “Review of judicial practice on certain issues related to the application of administrative liability to banks for violation of legislation on the protection of consumer rights when concluding loan agreements” and No. 147 “Review judicial practice of resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement" (hereinafter referred to as the Reviews) and the conditions contained therein on the payment of commissions are intended to ensure the protection of borrowers, as well as the fact that citizens, as the economically weaker party in legal relations, need special protection their rights.

An important role in the adopted documents is played by provisions relating to the protection of the interests of borrowers, who actually do not have the opportunity to determine the terms of contracts concluded commercial banks lending transactions, and are forced to accept responsibilities imposed by banks. The provisions of the Reviews under consideration are aimed at further development economic market countries through lending to its participants, establishing economic turnover between them, as well as suppressing abuses committed by unscrupulous parties.

The Supreme Arbitration Court of the Russian Federation has achieved the so-called balance of interests. It is to be hoped that a significant part of these important and not regulated by law issues have been resolved by the highest court in these Reviews and that arbitration courts will not in the near future be faced with the dilemma of choosing the interests that are subject to judicial protection.

________________________________________________________

1. Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2009 No. 8274/09, dated March 2, 2010 No. 7171/09.

2. Paragraph 1 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated September 29, 1994 No. 7 “On the practice of courts considering cases on the protection of consumer rights.”

3. Resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 6, 2010 in case No. A43-26116/2009, West Siberian District dated July 5, 2011 in case No. A45-19196/2010.

4. Resolution of the Federal Antimonopoly Service of the Ural District dated August 15, 2011 No. F09-4491/11

5. For more details on the relationship between “fulfillment of an obligation” and “fulfillment of an obligation,” see: Sarbash S.V. Fulfillment of a contractual obligation. M.: Statute, 2005. (Chapter 1, §4).

6. Resolution of the Eighth Arbitration Court of Appeal dated November 22, 2011 in case No. A81-1482/2011.

7. Resolution of the Federal Antimonopoly Service of the Ural District dated October 20, 2011 No. F09-6417/11 in case No. A76-1847/11.

8. Determination of the Supreme Arbitration Court of the Russian Federation dated December 8, 2011 No. VAS-13567/11.

9. Orlova O.E. Parity of interests of borrowers and banks restored // Current issues accounting and taxation. 2011. No. 22.

10. Resolution of the Twentieth Arbitration Court of Appeal dated November 24, 2011 in case No. A62-941/2011.

11. Resolutions of the Fifteenth Arbitration Court of Appeal dated October 19, 2011 No. 15AP-10321/2011, No. 15AP-10323/2011, No. 15AP-10328/2011.

12. Resolution of the Federal Antimonopoly Service of the East Siberian District dated August 21, 2008 No. A58-9193/07-F02-4002/08.

13. Bevzenko R.S. Disputes around loans // Corporate 2011. No. 11. P. 62.

14. Resolution of the Federal Antimonopoly Service of the Moscow District dated August 30, 2011 No. KG-A41/8931-11 in case No. A41-21860/10.

15. Federal Law of October 19, 2011 No. 284-FZ “On Amendments to Articles 809 and 810 of Part 2 of the Civil Code of the Russian Federation.”

16. Resolutions of the Nineteenth Arbitration Court of Appeal dated October 17, 2011 in case No. A36-1622/2011, in case No. A36-1620/2011.

Often, many banks unlawfully include loan agreement conditions contrary to the law. At the moment, numerous judicial practices have already developed in disputes with banks (under loan agreements), and, as a rule, in favor of borrowers.

To the legal relations of the parties arising within the framework loan agreement(including credit cards), the rules of the Law of the Russian Federation N 2300-1 of 02/07/1992 “On the Protection of Consumer Rights” are applicable, hereinafter referred to as the Law on the Protection of Consumer Rights. In paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 1994 N 7 “On the practice of courts considering cases on the protection of consumer rights,” the court explained that relations regulated by legislation on the protection of consumer rights may arise from contracts for the provision of financial services aimed at satisfaction of personal, family, household and other needs of the consumer - citizen, not related to business activities, including the provision of loans. According to Part 1 of Art. 16 of the Law on the Protection of Consumer Rights, the terms of a loan agreement that infringe on the rights of a consumer in comparison with the rules established by laws or other legal acts of the Russian Federation in the field of consumer protection are declared invalid.

In accordance with Part 2 of Art. 16 of the Law on the Protection of Consumer Rights, it is prohibited to condition the purchase of some goods (works, services) on the mandatory purchase of other goods (works, services). Losses caused to the consumer as a result of violation of his right to free choice of goods (work, services) are reimbursed by the seller (performer) in full.
Judicial practice proceeds from the fact that loan agreements are accession agreements of a public nature, since due to the bank’s obligation to provide consumers with information about the content of banking services, this agreement is concluded on conditions previously announced by the bank with all clients who meet the criteria of the relevant bank.

At the same time, the courts indicate that as a result, citizens wishing to receive a loan, as a party to the agreement, are deprived of the opportunity to influence its content, which is a restriction of their freedom in the agreement.
In practice, the bank tells citizens that the form of the loan agreement or the General Conditions for Granting Loans and the Proposal for Concluding Agreements or other documents of the bank are approved standard forms, therefore the bank does not accept any objections to the text and does not change it, and in case of disagreement, the loan is simply will not be issued. Taking into account the fact that citizens who really need money apply for a loan, they turn a blind eye, sign a loan agreement without disagreement, on the proposed non-alternative terms of the bank, and take money from the bank. The situation is similar with credit cards.

Such conclusion of loan agreements actually deprives citizens of the opportunity to participate in determining the terms of the loan agreement and express their will regarding its terms. And accordingly, the citizen, as an acceding party, is deprived of the opportunity to influence the terms of the loan agreement (credit card), including the condition on comprehensive insurance, loan commissions, the condition on the bank’s right to unilaterally change tariffs, etc.

When considering such disputes, the courts proceed from the fact that the consumer’s receipt of a loan is conditioned by the purchase of bank services for connection to the Insurance Program and the conclusion of an accident insurance agreement. At the same time, the courts point out that the provision of this type of service under the condition of the need to purchase other types of services is directly prohibited by the Law on the Protection of Consumer Rights (Part 2 of Article 16), due to which this condition of the loan agreement on charging a fee for connecting to the insurance program is invalid .

In addition, almost all banks establish contractual jurisdiction for disputes arising from a lending agreement, or provide that all disputes are resolved in arbitration or in court at the location of the bank. Of course, all this is done in order to infringe on the rights of the borrower. However, the inclusion of this condition in the loan agreement does not comply with the law and, therefore, is invalid.

So, part 2 of Art. 17 of the Law on the Protection of Consumer Rights allows the consumer to bring claims for the protection of consumer rights in court at the location of the organization, the place of residence or stay of the plaintiff, the place of conclusion or execution of the contract.

Judicial practice proceeds from the fact that the inclusion of a clause on the jurisdiction of disputes in a loan agreement, which is a standard one, with predetermined conditions, infringes on the rights of the consumer.

However, citizens should take into account that the law establishes a statute of limitations for filing a lawsuit against the bank to invalidate those conditions that infringe on the rights of the borrower.
If you have a dispute with a bank over a loan, then by contacting us you will receive a full legal advice, our loan lawyers They will give a legal assessment of the prospects of the court case and calculate the amounts that can be returned.

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The Supreme Court of the Russian Federation monitored the practice of courts resolving disputes arising in the field of credit relations with the participation of individuals.

An analysis of the statistical data presented by the courts in this category of cases allows us to conclude that parties to civil legal relations have increasingly resorted to judicial protection of violated rights, freedoms and interests protected by law.

The number of cases on the issues under consideration for the period from 2009 to 2012 indicates a steady growth trend (more than three times) in appeals from interested parties to the courts and magistrates for resolution of controversial situations in the field of lending to citizens. At the same time, in 2011, compared to 2010, the courts noted a slight decrease in the number of cases on certain types of disputes. This is primarily due to the fact that the judicial practice that has emerged on a number of legal issues has allowed the parties to resolve them pre-trial.

A significant part of civil cases on credit disputes consists of cases of claims for debt collection from borrowers and guarantors - individuals, for foreclosure of property pledged to secure the repayment of a loan, for early repayment of a loan, declared credit organizations. Individuals, as well as those acting in their interests public organizations consumers and territorial bodies of Rospotrebnadzor, as a rule, go to court or to magistrates with claims to invalidate certain terms of loan agreements, collect losses in connection with this, and terminate the pledge or guarantee.

The purpose of this review is to consider the application by courts of legislation regulating relations between banks, other credit organizations and individuals related to the fulfillment of loan obligations.

1. Disputes arising from credit relations involving individuals are subject to the jurisdiction of courts of general jurisdiction.

The Supreme Court of the Russian Federation, exercising constitutional powers to clarify issues of judicial practice in order to ensure its unity, in the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2006, approved by the Presidium of the Supreme Court of the Russian Federation on September 27, 2006, indicated that the agreement lending, the guarantor of which is an individual who is not an entrepreneur without forming a legal entity, is not related to the implementation of his entrepreneurial or other economic activity, therefore the requirements arising from the said agreement, are subject to the jurisdiction of a court of general jurisdiction.

Despite this clarification, cases of incorrect application of the rules on the jurisdiction of these disputes continue to occur in judicial practice.

Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the court's ruling, which terminated the proceedings in the case of a bank's claim against an individual entrepreneur and his guarantor (individual) for the collection of loan debt.

In terminating the proceedings, the court, in particular, proceeded from the fact that the agreement on the provision of a loan concluded between the bank and the individual entrepreneur (defendant) provided for a condition that the dispute be subject to jurisdiction of the arbitration court.

Meanwhile, the jurisdiction of civil cases is determined by law and cannot be changed by agreement of the parties (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 23, 2010 No. 18-B10-66).

In another case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the termination of proceedings in the case regarding the bank’s claims against the state unitary enterprise (hereinafter referred to as the SUE) for the collection of debt under a loan agreement, for the foreclosure of property pledged under a pledge agreement equipment and under an agreement on the pledge of goods in circulation.

In terminating proceedings in the case in this part, the courts proceeded from the fact that consideration of the claims made by the bank, including against guarantors - individuals, is possible separately from the consideration of claims brought against the main debtor - the State Unitary Enterprise; the requirements presented to the state unitary enterprise are of an economic nature and arise from entrepreneurial activity.

In addition, loan agreements concluded between the bank and the State Unitary Enterprise provide for the consideration of disputes by an arbitration court.

Canceling those held in the case court rulings, The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation indicated that a claim by a creditor brought simultaneously against both the debtor and the guarantor, who are jointly and severally liable to the creditor, is subject to consideration in one case (clause 1 of Article 363 of the Civil Code of the Russian Federation).

According to paragraph 1 of part 1 of Article 22 of the Code of Civil Procedure of the Russian Federation, courts consider and resolve claims involving citizens, organizations, state authorities, local governments for the protection of violated or disputed rights, freedoms and legitimate interests, in disputes arising from civil, family, labor , housing, land, environmental and other legal relations.

On the basis of Part 3 of Article 22 of the Code of Civil Procedure of the Russian Federation, courts consider and resolve cases provided for in Parts 1 and 2 of Article 22 of the said Code, with the exception of economic disputes and other cases referred to the jurisdiction of arbitration courts by federal constitutional law and federal law.

In accordance with Part 4 of Article 22 of the Code of Civil Procedure of the Russian Federation, when applying to court with an application containing several interrelated claims, some of which are within the jurisdiction of a court of general jurisdiction, others - of an arbitration court, if separation of claims is impossible, the case is subject to consideration and resolution in a court of general jurisdiction .

In this case, the bank's claims for debt collection under the loan agreement dated April 29, 2010 were filed against both the main debtor - the State Unitary Enterprise - and the guarantors - individuals (who do not have the status of individual entrepreneurs). At the same time, during the consideration of the case, the plaintiff did not waive his claims against any of the defendants.

In terminating the proceedings in the case regarding the claims filed against the debtor - State Unitary Enterprise, the court did not take into account that the joint and several nature of the liability of the debtor (legal entity) and guarantors (individuals), taking into account the submission by the creditor of claims against all of these joint and several debtors at the same time, does not allow the court make a decision on the separation of the stated claims based on the subject composition of the dispute and, therefore, the dispute that has arisen is subject to the jurisdiction of a court of general jurisdiction.

The court’s reference to the existence of an economic dispute between the parties arising from entrepreneurial activity is unfounded, since the conclusion of a guarantee agreement, the essence of which is the obligation of the guarantor to pay the debtor’s creditor a sum of money if the latter fails to fulfill this obligation, is not an entrepreneurial activity, that is, independent, carried out on your risk by activities aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services (clause 1 of Article 2 of the Civil Code of the Russian Federation).

The fact that the loan agreement dated April 29, 2010, concluded between the bank and the State Unitary Enterprise, provides for the resolution of disputes in an arbitration court, has no legal significance, since the guarantors (defendants in the case) are not parties to the loan agreement.

In such circumstances, the bank’s demands regarding debt collection under this loan agreement, the fulfillment of obligations under which is secured, among other things, by surety agreements, were subject to consideration in a court of general jurisdiction in relation to all defendants and the grounds provided for by law for termination of proceedings in the case in this part in relation to The court did not have a state unitary enterprise (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 6, 2012 No. 23-KG12-5).

1.1. The introduction of a monitoring procedure in relation to a legal entity that is a debtor under a loan obligation secured by a citizen’s guarantee does not change the jurisdiction of a court of general jurisdiction to consider the creditor’s claim to collect debt from the guarantor.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the termination of proceedings in the case of a bank's claim against a limited liability company and against guarantors (individuals) for the collection of loan debt.

In terminating the proceedings in this case, the court proceeded from the fact that in relation to the company (defendant), by decision of the arbitration court, a monitoring procedure was introduced and a temporary manager was approved, and therefore, taking into account the provisions of Articles 63 and 71 of the Federal Law of October 26, 2002 No. 127 -FZ “On Insolvency (Bankruptcy)” consideration of claims against this defendant for recovery credit debt outside the framework of a bankruptcy case considered by an arbitration court is impossible and the case is not subject to consideration and resolution in civil proceedings.

Meanwhile, the current legislation does not provide for a rule according to which a dispute about the collection of a debt from a guarantor under an obligation secured by a guarantee can be considered by an arbitration court with the participation of an individual.

According to paragraph 1 of Article 363 of the Civil Code of the Russian Federation, in case of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the guarantee, the guarantor and the debtor are jointly and severally liable to the creditor, unless the law or agreement provides for the subsidiary liability of the guarantor.

The court in the case established that guarantee agreements concluded by the bank with individuals provide for the joint liability of the guarantors for the fulfillment of monetary obligations by the borrower - a limited liability company.

Thus, when terminating the proceedings against the guarantors, the court did not take into account that the said defendants (guarantors) are individuals, the legal relationship between them and the bank is outside the scope of legal regulation of the Federal Law “On Insolvency (Bankruptcy)”, taking into account the subject composition of the arising legal relations under surety agreements, this dispute is within the jurisdiction of a court of general jurisdiction (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 6, 2010 No. 18-B10-27).

1.2. The procedural form of involving the debtor and the guarantor in the case as subjects of joint liability, which arose for them simultaneously and to an equal extent, is to involve them as co-defendants.

In cases where banks present claims against the guarantor and the borrower separately, based on the provisions of paragraph 1 of Article 363 of the Civil Code of the Russian Federation on the joint liability of the guarantor and the debtor to the creditor in the event of non-fulfillment or improper performance by the debtor of the obligation secured by the guarantee, the courts have questions about the need to involve in participation in the case other subjects of joint liability and their procedural status.

According to the general rule, if the subject of the obligation secured by the guarantee is indivisible, the joint liability of the debtor and the guarantor arises for them simultaneously and for each of them has an equal volume. The substantive legal claim of a bank or other credit organization for debt collection under the joint liability of the debtor and guarantor can be filed against each of them separately, both in full and in part of the debt.

The procedural form of involving subjects of joint liability in a case, which arose for them simultaneously and to an equal extent, is to involve them as co-defendants. In the case where the creditor demands collection of the debt only from the guarantor, the court has the right, on its own initiative, to involve the main debtor in the case (paragraph two of part 3 of article 40, part 2 of article 56 of the Code of Civil Procedure of the Russian Federation). The issue of the entry of co-defendants into the case is resolved by the court during the preparation of the case for trial (clause 4 of part 1 of Article 150 of the Code of Civil Procedure of the Russian Federation).

When considering such cases, claims against guarantors and borrowers are presented by banks separately to various courts: to guarantors (individuals) - to courts of general jurisdiction, and to borrowers (legal entities) - to arbitration courts.

If the creditor's statement of claim for debt collection is filed in a court of general jurisdiction only against the guarantor, then when making a decision on the merits of the stated claim, a legally significant circumstance that is included in the subject of proof is the fact of execution of the arbitration court decision to collect the debt under this loan agreement from the main debtor and the volume of satisfied creditor claims.

Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal court decisions to satisfy the bank’s demands for recovery from the debtor ( individual entrepreneur) and its guarantors (individuals) jointly and severally for the amount of debt and foreclosure of the property pledged to secure the repayment of the loan, accepted without establishing and examining the specified circumstances.

In resolving the case and satisfying the stated demands, the courts proceeded from the fact that the obligations assumed under the loan agreement by the defendant were not properly fulfilled; the surety agreements concluded between the bank (plaintiff) and individuals (defendants) provided for joint liability of the guarantors, and therefore the amount of the principal debt, interest and penalties are subject to recovery from the debtor and guarantors jointly.

Meanwhile, the courts have established that earlier, by a decision of the arbitration court, the same debtor, an individual entrepreneur, was recovered in favor of the bank (the plaintiff in this case) for the amount of debt under the same loan agreement (principal debt, interest for using the loan, penalties for late payment of interest) and a foreclosure was applied to the collateral with the establishment of its initial sale price. This decision of the arbitration court entered into legal force, enforcement proceedings were initiated, and the bailiff issued a resolution on the transfer of the seized property for sale. These circumstances were not assessed (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 3, 2009 No. 49-B09-16).

2. An analysis of judicial practice indicates that the application of the provisions of the law on the jurisdiction of cases in disputes arising from credit legal relations is not uniform.

The Plenum of the Supreme Court of the Russian Federation in Resolution No. 17 of June 28, 2012 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights” explained that the provision of credits (loans) to an individual is a financial service, which also falls within the scope of regulation Law of the Russian Federation “On the Protection of Consumer Rights” (subparagraph “e” of paragraph 3).

The said resolution (clause 26) also clarifies that if a statement of claim is filed with the court by a consumer in accordance with the terms of an agreement on jurisdiction concluded by the parties, the judge does not have the right to return such a statement of claim with reference to paragraph 2 of part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation. However, the judge does not have the right, referring to Article 32, paragraph 2 of part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation, to return the statement of claim of the consumer challenging the terms of the agreement on the territorial jurisdiction of the dispute, since by virtue of parts 7, 10 of Article 29 of the Code of Civil Procedure of the Russian Federation and paragraph 2 of Article 17 of the Law Russian Federation “On the Protection of Consumer Rights”, the choice between several courts that have jurisdiction over the case belongs to the plaintiff.

Previously, a similar position was reflected in the judicial practice of the Supreme Court of the Russian Federation in a ruling issued in a case with similar factual circumstances in a citizen’s claim against a bank to invalidate the terms of an agreement bank deposit on the resolution of disputes in court at the location of the bank.

Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, canceling the court decisions in this case to refuse to satisfy the claims, proceeded from the provisions of Part 7 of Article 29 of the Code of Civil Procedure of the Russian Federation and paragraph 2 of Article 17 of the Law of the Russian Federation “On the Protection of Consumer Rights”.

At the same time, the Judicial Panel indicated that the legislator, in order to protect the rights of consumers, in particular (in this case) citizen-investors as the economically weaker party to the contract, introduced additional mechanisms legal protection, including in the matter of determining the jurisdiction of civil cases with their participation. The bank’s inclusion in the accession agreement (Article 428 of the Civil Code of the Russian Federation), including in the fixed-term bank deposit agreement, a provision on the jurisdiction of the dispute in a specific court (in particular, at the location of the bank) infringes on the consumer’s rights established by law (determination of the Judicial Collegium for Civil Cases of the Supreme Court Russian Federation dated May 10, 2011 No. 5-B11-46).

Thus, judicial practice proceeds from the possibility of a citizen challenging, on the basis of Part 7 of Article 29 of the Code of Civil Procedure of the Russian Federation, paragraph 1 of Article 16 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the terms of the agreement on the territorial jurisdiction of disputes in cases where it is included by the counterparty in the standard form of the agreement , that taking into account the rule on alternative jurisdiction provided for by the above-mentioned norms, as well as the provisions of Article 421 and paragraph 2 of Article 428 of the Civil Code of the Russian Federation on its validity and on the conditions for terminating or amending the accession agreement, it does not violate the rights of the borrower - an individual only when he had the opportunity to conclude a loan agreement with the bank and without a specified condition.

At the same time, if the condition contained in the loan agreement, which determines the territorial jurisdiction of cases arising between the disputing parties to the credit relationship, has not been disputed in the manner prescribed by law and is valid, then this condition continues to apply on the day the case is considered by the court.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal the court ruling on the return, on the basis of paragraph 2 of part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation, of the bank’s statement of claim for the collection of credit debt from the borrower, filed with the court in accordance with the terms of the loan agreement on the territorial jurisdiction of the dispute, according to for the following reasons.

In accordance with Article 32 of the Code of Civil Procedure of the Russian Federation, which regulates contractual jurisdiction, the parties may, by agreement among themselves, change the territorial jurisdiction for a given case before the court accepts it for its proceedings. The jurisdiction established by Articles 26, 27 and 30 of this Code cannot be changed by agreement of the parties.

It follows from the above norm that the parties have the right to change, by agreement between themselves, the territorial jurisdiction of the case established by law before the court accepts the application for its proceedings. The parties do not have the right to change the exclusive and generic (subject) jurisdiction, which is determined by law. An agreement on jurisdiction can be included in a civil contract, including a contract of adhesion.

An indication that all disputes related to the loan agreement are subject to consideration in a court of general jurisdiction at the location of the bank or its separate division, who issued the loan, is contained in the clause of the loan agreement concluded between the bank (plaintiff) and the borrower - an individual (defendant).

Guided by the principle of discretion in civil proceedings, the parties, using the right to choose between several courts, determined jurisdiction for all cases related to the execution of the loan agreement, including this case.

Since the agreement of the parties to determine territorial jurisdiction, reached on the basis of Article 32 of the Code of Civil Procedure of the Russian Federation is mandatory not only for the parties, but also for the court, the court did not have any grounds provided by law for returning the statement of claim filed by the bank to the court in accordance with the contractual jurisdiction.

The agreement to change the territorial jurisdiction was concluded between the parties before filing a statement of claim in court in the manner prescribed by law, was not disputed by anyone and was not recognized as invalid (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 22, 2009 No. 5-B09-115 ).

2.1. Law enforcement practice shows that the courts have not yet developed a uniform approach to resolving the issue of territorial jurisdiction to consider cases related to the foreclosure of real estate pledged as security for loan repayment. In this regard, a number of courts raise the question of the legality of applying the rule of exclusive jurisdiction, provided for in Article 30 of the Code of Civil Procedure of the Russian Federation, to the relations under consideration.

It should be recognized that the established judicial practice is justified, which proceeds from the fact that the requirement to foreclose on real estate pledged as security for the repayment of a loan is not an independent dispute about the rights to this property. The material and legal prerequisite for this kind of controversial relationship is the debtor’s failure to fulfill the loan obligation, which involves satisfying the creditor’s demands at the expense of the value of the collateral, and therefore Article 30 of the Code of Civil Procedure of the Russian Federation is not applicable to credit relations.

This approach to resolving disputes about jurisdiction has been clearly established in the courts of the Republic of Bashkortostan, the Kabardino-Balkarian Republic, the Altai and Stavropol Territories, as well as in the courts of the Belgorod, Bryansk, Volgograd, Irkutsk, Lipetsk, Novosibirsk, Oryol, Samara, Sverdlovsk, Ulyanovsk and Pskov regions (based on judicial practice).

Thus, by the ruling of the district court it was refused to satisfy the petition of the defendant’s representative to transfer jurisdiction to another district court of the same city in a civil case based on a claim by a bank against a borrower (individual) for the collection of debt under a loan agreement and for foreclosure on the mortgaged property.

Refusing to satisfy the request to transfer the case to jurisdiction at the location of the pledged real estate, the court of first instance proceeded from the fact that the requirement to foreclose on the subject of the pledge is not vindication, but is one of the ways to satisfy the monetary claims of the plaintiff, therefore this claim is not The provisions of Article 30 of the Code of Civil Procedure of the Russian Federation on exclusive jurisdiction apply.

The judicial panel for civil cases of the regional court, when making a ruling to leave the said ruling of the first instance court unchanged, proceeded from the fact that claims for foreclosure on mortgaged real estate do not relate to claims for rights to such property, but are related to the resolution of the issue of preferential receipt the creditor of the mortgagor is satisfied from the value of the pledged property to other creditors of the debtor. There is no dispute over the right to real estate, to which the law connects the rule on exclusive jurisdiction of disputes, in this case (based on the judicial practice of the Novosibirsk Regional Court).

By the ruling of the district court judge, on the basis of paragraph 2 of part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation, the credit organization’s statement of claim to the citizen was returned to collect the debt under the loan agreement with foreclosure on the pledged property filed with the court at the location of the subject of the pledge. When determining jurisdiction, the plaintiff referred to Article 30 of the Code of Civil Procedure of the Russian Federation, indicating that claims for rights to residential and non-residential premises brought to court at the location of these objects. Returning the said application as filed in violation of the rules of jurisdiction, the court proceeded from the fact that the rule of exclusive jurisdiction in this case is not applicable, since the claim stated in the claim to foreclose on the mortgaged apartment by selling it at public auction cannot be regarded as a dispute about the right to real estate (based on the judicial practice of the Ulyanovsk Regional Court).

The ruling of the Irkutsk Regional Court left unchanged the ruling of the Angarsk City Court of the Irkutsk Region in the case of transferring the case on the bank's claim to the borrower for foreclosure on property, for collecting the amount of debt, interest and penalties of jurisdiction to the Kuibyshevsky District Court of St. Petersburg.

When making its ruling, the court of first instance was guided by the provisions of Article 32 of the Code of Civil Procedure of the Russian Federation, according to which the parties may, by agreement among themselves, change the territorial jurisdiction for a given case before accepting it for their proceedings. An agreement on jurisdiction can be included in a civil law agreement, including a loan agreement.

The court found that, according to the terms of the loan agreement, if disagreements arise between the lender and the borrower regarding the execution of the agreement, the disputes are considered at the location of the lender - the legal owner of the mortgage. The location of the creditor, who is the owner of the mortgage, is determined in accordance with its charter in the city of St. Petersburg. Since the agreement of the parties to determine territorial jurisdiction, reached on the basis of this article, is mandatory not only for the parties, but also for the court, then under the specified circumstances this case could not be considered by the Angarsk City Court.

At the same time, the court did not agree with the plaintiff’s arguments that, by virtue of Article 30 of the Code of Civil Procedure of the Russian Federation, this case is subject to consideration in the court at the location of the real estate on which foreclosure should be applied, since the rules of exclusive jurisdiction do not apply to this claim. A claim for foreclosure on pledged property is not a dispute about the rights to such property, but is related to the resolution of the issue of priority receipt by the creditors of the mortgagor of satisfaction from the value of the pledged property over other creditors of the debtor (based on the judicial practice of the Irkutsk Regional Court).

2.2. Certain difficulties in practice are raised by the question of whether the condition of the loan agreement (guarantee agreement) on the jurisdiction of the dispute at the location of the bank, agreed upon between the creditor and the borrower (guarantor), is recognized as valid in the event of assignment of claims for overdue credit debt to third parties.

An example of the correct application of legislation on this issue is the practice of the courts, which, based on the provisions of Article 44 of the Code of Civil Procedure of the Russian Federation, proceed from the fact that succession in material and legal relations entails procedural succession. When the bank assigns the right of claim to another person, the provisions on contractual jurisdiction agreed upon in the agreement between the original creditor and the debtor remain in force. However, it should be borne in mind that the new creditor has the right to bring a claim according to the rules of jurisdiction that are agreed upon in the agreement. For example, if the loan agreement contains a provision for the consideration of disputes at the location of the bank indicating its legal address, then the organization in whose favor the claim was assigned has the right to go to court at the location of the original creditor (based on the judicial practice of the Sverdlovsk Regional court).

3. As practice shows, when resolving questions about the application of limitation periods in cases of the analyzed category, the courts, taking into account the current legislation, take into account the still valid explanations of the joint decisions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation, including:

In the resolution of February 28, 1995 No. 2/1 “On some issues related to the implementation of part one of the Civil Code of the Russian Federation”, providing that the application for the application of the statute of limitations does not prevent the consideration of the application of the plaintiff-citizen for recognition of a valid reason for absence the limitation period and its restoration, and also that the limitation period missed by a legal entity cannot be restored, regardless of the reasons for its omission (clause 12);

In the resolution of July 1, 1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” (clause 32) on the deadlines for submitting demands for recognition of the invalidity of a void transaction;

In the resolution of November 12, 15, 2001 No. 15/18 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period” (to the extent that does not contradict current legislation).

Judicial practice proceeds from the fact that in disputes arising from credit legal relations, the claim for the protection of a violated right is accepted for consideration by the court regardless of the expiration of the statute of limitations, which is applied by the court only upon the application of a party to the dispute made before the decision is made (Article 199 of the Civil Code RF). When calculating the limitation period for claims for collection of overdue debt under a loan obligation that provides for execution in the form of periodic payments, the courts apply the general limitation period (Article 196 of the Civil Code of the Russian Federation), which is subject to calculation separately for each payment from the day when the creditor learned or owed was to find out about a violation of his rights. For requests to declare one or another condition of a loan agreement void, the courts, based on paragraph 1 of Article 181 of the Civil Code of the Russian Federation, apply a three-year limitation period, the duration of which is calculated from the day when the execution of the insignificant part of the transaction began. If there is a statement from a party to the dispute about missing the limitation period, having established the fact that this period was missed without good reason (if the plaintiff is an individual), in accordance with Part 6 of Article 152 of the Code of Civil Procedure of the Russian Federation, the courts make decisions to refuse the claim without examining other factual circumstances according to business.

3.1. A significant number of issues in court practice are related to the application of limitation periods for claims related to the consequences of the invalidity of a void transaction.

In cases of the analyzed category, questions of this kind arise, in particular, when considering claims of individual borrowers to banks for the recovery of commission amounts for opening and maintaining a loan account, paid under the terms of loan agreements in the form of one-time or periodic payments along with interest for using the loan.

The established judicial practice is based on the invalidity (nullity) of this condition of the loan obligation.

Thus, when considering a specific case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation recognized as legal the court’s conclusions about the invalidity (nullity) of the terms of the loan agreement on the payment of a commission for opening and maintaining a loan account for a consumer borrower (determined by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation Federation dated May 17, 2011 No. 53-B10-15).

As a general rule, the borrower's claims filed after the expiration of the limitation period in the absence of valid reasons for missing it, as stated by the creditor (defendant), are not subject to satisfaction. By virtue of paragraph 1 of Article 181 of the Civil Code of the Russian Federation, the limitation period for a claim to apply the consequences of the invalidity of a void transaction, which is three years, begins from the day when the execution of this transaction began.

From of this rule Jurisprudence arises in cases where the defendant claims to have missed the deadline for protecting a violated right in a claim by a citizen-borrower to apply the consequences of the invalidity of a void condition of a loan agreement providing for the payment of a commission for opening and maintaining a loan account. The limitation period under these circumstances is calculated from the day when the borrower began fulfilling the invalid (void) part of the transaction, namely from the date of payment of the disputed payment. In this case, the courts take into account the requirement of civil law to terminate the obligation by proper execution (clause 1 of Article 408 of the Civil Code of the Russian Federation).

The study of law enforcement practice has shown that courts generally correctly apply the legislation on limitation periods when considering cases in which obligations under loan agreements have been fulfilled (terminated). An example of a justified refusal to satisfy a claim of a debtor against a creditor for the recovery of the amount of commission paid during the period of validity of the loan agreement is the following case.

On April 16, 2011, the borrower appealed to the district court with a demand to the bank to invalidate the terms of the loan agreement concluded between them on March 17, 2007, on charging a fee for opening and maintaining a loan account, as contrary to the provisions of Article 16 of the Law of the Russian Federation “On the Protection of Rights consumers”, application of the consequences of invalidity of the transaction, recovery from the defendant of the commission paid by the plaintiff, compensation for moral damage.

During the trial, the bank announced that the applicant had missed the statute of limitations, which, according to the defendant, should be calculated from the moment the loan agreement began to be executed.

Resolving the dispute and refusing to satisfy the claim, the district court in its decision indicated that in the Civil Code of the Russian Federation, as an exception to general rule in relation to claims related to the invalidity of void transactions, a special rule is provided (clause 1 of Article 181 of the Civil Code of the Russian Federation), according to which the running of the limitation period for these claims is determined not by a subjective factor (the awareness of the interested party about the violation of his rights), but by objective circumstances, characterizing the beginning of transaction execution. This legal regulation due to the nature of the relevant transactions as void, which are invalid from the moment they are made, regardless of whether they are recognized as such by the court (clause 1 of Article 166 of the Civil Code of the Russian Federation), and therefore have no legal force, do not create any rights and obligations for both the parties to the transaction and for third parties.

Consequently, since the right to bring a claim in this case is associated with the onset of consequences of the execution of a void transaction and is aimed at eliminating them, then it is precisely the moment of the beginning of the execution of such a transaction, when one or another illegal result arises from it, that in the current civil legislation is chosen as determining for calculating the statute of limitations.

Based on the foregoing, the court came to the conclusion that the statute of limitations had expired on the plaintiff’s demands to invalidate the part of the loan agreement dated March 17, 2007, since the execution of the disputed transaction began at the time the borrower made the initial payment towards the said commission on April 17, 2007, while He filed the corresponding demand in court after the expiration of the statute of limitations - April 16, 2011.

The court’s conclusion that the statute of limitations on the stated claim has passed is based on the norms of the current legislation and the explanations contained in the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 “On some issues related to the application part one of the Civil Code of the Russian Federation" (clause 32), resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 12, 15, 2001 No. 15/18 "On some issues related to the application of the norms of the Civil Code of the Russian Federation on limitation period" (clause 8 regarding the determination of the moment of calculation of the period) (based on the materials of the judicial practice of the Belgorod Regional Court).

Similarly, the courts refuse to satisfy the claims of debtors to recover the commission for opening and maintaining a loan account, paid under a loan agreement, the obligations under which they fulfilled ahead of schedule, and the claim was brought outside the statute of limitations.

Thus, the court decision rejected the borrower’s claims against the bank for the application of the consequences of the invalidity of a void transaction in the form of a refund of the paid commission for opening and maintaining a loan account, citing the plaintiff’s omission of the three-year limitation period, since the court found that the loan agreement containing the condition for such a commission was concluded on November 15, 2007, the loan obligation was repaid by the borrower ahead of schedule on November 15, 2010, and the claim was filed in court on January 31, 2011, that is, missing the three-year period established by paragraph 1 of Article 181 of the Civil Code of the Russian Federation.

At the same time, the court rejected the plaintiff’s arguments that since the loan agreement provides for the payment of the disputed amount in periodic payments, the statute of limitations for repayment should be calculated separately for each payment (commission). In the decision, the court indicated that paragraph 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated November 12, 2001 No. 15/18, to which the plaintiff referred, interpreting the provisions of Article 181 of the Civil Code of the Russian Federation, regulates the rules for applying the limitation period for claims for the collection of overdue time payments and does not apply to legal relations related to demands for the return of what has been executed under a transaction, which are not regulated by the provisions of Article 200 of the Civil Code of the Russian Federation (based on the judicial practice of the Kaliningrad Regional Court).

At the same time, the practice of courts resolving disputes regarding the application of the consequences of the invalidity of an insignificant condition of a loan agreement on the payment of a commission for opening and maintaining a loan account (an insignificant part of the transaction) in cases where the term for fulfilling the loan obligation has not expired, and the debtor filed a claim after the expiration of a three-year period, is developing ambiguously. period from the moment of commencement of execution of an insignificant part of the transaction. When considering this type of case, the courts do not always take into account that the debtor’s claims for recovery of commissions paid by him to the creditor, filed after the expiration of the statute of limitations in the absence of valid reasons for missing it, as stated by the creditor (defendant), are not subject to satisfaction (clause 2 of Article 199 , Article 205 of the Civil Code of the Russian Federation).

Courts also do not always take into account that a special limitation period for void transactions is provided for in paragraph 1 of Article 181 of the Civil Code of the Russian Federation to protect the violated right by applying the consequences of the invalidity of such a transaction (Article 12 of the Civil Code of the Russian Federation).

At the same time, a void transaction is invalid from the moment it is completed, regardless of whether it is recognized as such by the court (clause 1 of Article 166, clause 1 of Article 167 of the Civil Code of the Russian Federation).

Law enforcement practice shows that the lender does not in all cases voluntarily exclude from the agreement an invalid condition of the loan obligation.

Within the meaning of paragraph 32 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation”, in case of missing the limitation period, the debtor does not is deprived of the right to bring a claim for invalidation of a void transaction, which does not give rise to legal consequences and is invalid from the moment of its completion.

By virtue of Article 199 of the Civil Code of the Russian Federation, a claim for the protection of a violated right is accepted for consideration by the court regardless of the expiration of the statute of limitations, which is applied by the court only upon the application of a party to the dispute made before the court makes a decision. Thus, if the statute of limitations is missed, the debtor loses the right to recover from the creditor the funds paid by him in the form of a commission for opening and maintaining a loan account, along with interest for the use of someone else’s money (clause 1 of Article 395 of the Civil Code of the Russian Federation). However, if the relationship between the creditor and the debtor is ongoing and at the time of consideration of the case the agreement concluded between them continues, then the court, refusing to satisfy the debtor’s demands to apply the consequences of the invalidity of an insignificant part of the transaction in connection with the expiration of the period for the exercise of this right by him, has the right to check the transaction in this part regarding its validity and, if it is found to be contrary to the law, indicate in the reasoning part of the decision that the investigation is void. Otherwise, the court’s refusal to establish the nullity of the terms of a loan agreement that does not have legal force will give rise to an illegal result in the form of an obligation for a party to a transaction to fulfill the invalid part of it.

The Plenum of the Supreme Court of the Russian Federation in paragraph 5 of Resolution No. 23 of December 19, 2003 “On the Judgment” with reference to Part 3 of Article 196 of the Code of Civil Procedure of the Russian Federation indicated that the court has the right to go beyond the stated requirements and on its own initiative on the basis of paragraph 2 of Article 166 The Civil Code of the Russian Federation applies the consequences of the invalidity of a void transaction (void transactions include transactions specified in Articles 168-172 of the said Code).

Based on this interpretation, when resolving disputes between the creditor (plaintiff) and the borrower (defendant), for example, about the early collection of the amount of debt under a loan agreement that arose within the limitation period, the courts reduce the amount of the collected debt by the amount of the commission paid by the borrower for opening, maintaining and servicing the loan account, regardless of whether counterclaims were made by the defendant on this issue or not.

Thus, by an absentee court decision, the bank’s claims to the debtor (borrower-citizen) to collect the debt under the loan agreement were partially satisfied.

Considering that the defendant’s total debt on the loan included the debt on the commission for issuing funds, the commission for maintaining an account and the commission for settlement service, the court refused to satisfy the bank’s demands to collect debt from the borrower for the specified commissions, collecting from him the debt under the loan agreement, consisting of the amount of the principal debt and interest for using the loan (based on the judicial practice of the Tver Regional Court).

3.2. The limitation period for a claim for debt collection under a loan obligation secured by a guarantee, subject to execution in installments, begins from the day the borrower fails to make the next payment and is calculated separately for each overdue payment.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation declared illegal court decisions to refuse to satisfy the bank's claims to collect the amount of debt from the guarantor due to the expiration of the statute of limitations, taking into account the following.

The court found that, under the terms of the agreement, repayment of the loan must be made by the borrower monthly, no later than a certain date of the month following the payment month, in accordance with the urgent obligation, which is an integral part of the loan agreement. Thus, the loan agreement provides for the fulfillment of the obligation in parts (Article 311 of the Civil Code of the Russian Federation). Since the borrower did not fulfill the obligation to make the next payment within the period established by the agreement, it was from this date that the bank, according to the terms of the agreement, arose the right to demand joint performance of the obligation from the borrower and the guarantor.

Meanwhile, in this case, the claim was filed by the bank more than a year after the deadline for fulfilling the relevant part of the obligation and, as a consequence, the termination of the guarantee agreement regarding the return of funds beyond the one-year period by virtue of paragraph 4 of Article 367 of the Civil Code of the Russian Federation.

At the same time, the Judicial Collegium indicated that the agreement concluded between the bank and the guarantor cannot be considered terminated in the part that concerns the guarantor’s liability for failure to fulfill the loan agreement to repay the loan before the expiration of one year from the moment the right to demand the fulfillment of the relevant part of the obligation arises (determined by the Judicial Collegium Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 6, 2009 No. 46-B09-27).

3.3. In order to form a consistent law enforcement practice when considering similar cases related to claims of invalidity (nullity) of additional payments collected by banks from borrowers-citizens when providing them with loans, courts in each specific case should find out whether certain amounts are fees for the provision of independent financial services or they are provided for standard actions, without which the bank would not be able to conclude and execute the loan agreement.

In the latter case, judicial practice correctly recognizes such terms of the loan agreement as not corresponding to the interrelated provisions of Articles 819 and 845 of the Civil Code of the Russian Federation, Articles 5 and 29 of the Federal Law “On Banks and Banking Activities”, Article 57 of the Federal Law “On the Central Bank of the Russian Federation”, Articles 166 and 167 of the Civil Code of the Russian Federation and paragraph 1 of Article 16 of the Law of the Russian Federation “On the Protection of Consumer Rights”, and sums of money, paid to the bank in their execution, subject to return when resolving claims for the application of the consequences of the invalidity of a void transaction (based on judicial practice).

4. As additional method To ensure the fulfillment of a loan obligation, only voluntary insurance by the borrower of the risk of his liability is allowed.

Thus, the judicial panel for civil cases of the regional court, overturning the decision of the district court regarding the invalidation of the clause of the loan agreement, according to which the borrower, within five working days from the date of issuance of the loan, is obliged to conclude and provide the bank with a policy and a life and health insurance agreement for the entire the validity period of the agreement indicating the bank as the beneficiary, proceeded from the fact that the provisions of the current legislation do not exclude the possibility of including in loan agreements a condition on the borrower’s life and health insurance.

As the court pointed out, part 2 of Article 935 of the Civil Code of the Russian Federation provides that the obligation to insure one’s life or health cannot be assigned to a citizen by law.

However, such an obligation may arise for a citizen by virtue of a contract. In accordance with Article 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to enter into an agreement.

According to Article 329 of the Civil Code of the Russian Federation, the fulfillment of obligations can be ensured, in addition to the methods specified therein, by other methods provided for by law or contract.

The above legal norms indicate that loan agreements may provide for the borrower’s ability to insure his life and health as a way to ensure the fulfillment of obligations, and in this case the bank may be indicated as a beneficiary.

In this case, the judicial panel did not establish any grounds for recognizing the disputed clause of the loan agreement as infringing 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, and therefore invalid. Despite securing the obligations with an insurance agreement, the borrower did not refuse to draw up a loan agreement and receive a loan, did not object to the conditions proposed by the insurance company, and did not propose other insurance companies (based on the judicial practice of the Omsk Regional Court).

In another civil case, the court, refusing to satisfy the plaintiff’s demands to the bank to invalidate the terms of the loan agreement on the need to insure the life and health of the borrower, also proceeded from the proof of the voluntary choice by the citizen borrower of the conditions for securing the fulfillment of the loan obligation.

The court in the case established that when issuing consumer loan To citizens, the bank applied the rules it developed for issuing loans to individuals, according to which life and health insurance of the borrower is a measure to reduce the risk of loan non-repayment. These rules provide that a loan can be issued to a borrower in the absence of an insurance contract, but in this case a higher interest rate is set on the loan. Assessing the evidence presented by the bank, the court found that the difference between the two rates was not discriminatory. In addition, from the mentioned rules it follows that the bank’s decision to grant a loan does not depend on the borrower’s consent to insure his life and health, indicating the bank as the beneficiary.

The court also noted that the difference between interest rates for loans with and without insurance was reasonable. According to the loan application signed by the borrower, he chose a loan option that included life and health insurance as one of the mandatory conditions, with a lower interest rate (based on the judicial practice of the Arkhangelsk Regional Court).

4.1. The inclusion in the loan agreement of a condition on the borrower’s obligation to insure his life and health, which is actually a condition for obtaining a loan, indicates an abuse of freedom of contract.

For example, by a court decision, the borrower's claims against the bank to invalidate the terms of the loan agreement, which conditioned the borrower's receipt of a loan on the need for the mandatory purchase of another service - life and health insurance of the borrower, were satisfied.

The court motivated its decision by the fact that since loan agreements are concluded by citizens with banks for consumer purposes, these legal relations between them are called consumer and are regulated by the Law of the Russian Federation “On the Protection of Consumer Rights”, paragraph 2 of Article 16 of which prohibits conditioning the provision of certain services mandatory provision other services. This ban is intended to limit the freedom of contract in favor of the economically weaker party - the citizen - and is aimed at implementing the principle of equality of parties. Moreover, this prohibition is mandatory, since it is not accompanied by the clause “unless otherwise provided by the contract.” Consequently, its violation in the form of the mandatory conclusion of an insurance agreement, by which the bank stipulated the issuance of a loan, entails the nullity of this part of the agreement (Article 16 of the Law of the Russian Federation “On the Protection of Consumer Rights”, Article 168 of the Civil Code of the Russian Federation). In addition, by virtue of the direct indication of paragraph 2 of Article 935 of the Civil Code of the Russian Federation, personal life or health insurance is voluntary and cannot be imposed by anyone on a citizen as an obligation conditioning the provision of another independent service to him.

When resolving this dispute, the court found that the borrower did not have the opportunity to enter into a loan agreement without this condition, since the proof that the bank’s provision of services mortgage lending conditioned by the provision of another service (life and health insurance), are the provisions of the clauses of the loan agreement, according to which, in the event of non-fulfillment or improper fulfillment by the borrower of obligations regarding the conclusion of a personal insurance agreement, the lender has the right to demand full early fulfillment of the obligation. In the case under consideration, the bank’s inclusion in the loan agreement of the borrower’s obligation to insure his life and health is actually a condition for obtaining a loan, without which the borrower will not acquire the right to receive the funds he needs. Such actions are an abuse of freedom of contract in the form of imposing unfair contract terms on the counterparty (based on the judicial practice of the Sverdlovsk Regional Court).

4.2 The bank’s requirement to insure the borrower in a specific insurance company named by the bank and the imposition of insurance conditions when concluding a loan agreement is not based on the law.

For example, by a decision of the district court, the borrower’s demands to invalidate the terms of the loan agreement on insuring the borrower with a certain insurance company were satisfied.

The court came to the conclusion that, by establishing in the contract as the insurer the only entity(indication of a specific insurance company), the defendant obliges the borrower to insure himself only with this insurance company, thereby violating the right of an individual consumer to the freedom provided for in Article 421 of the Civil Code of the Russian Federation both in choosing a party to the contract and in concluding the contract itself. This decision was left unchanged by the court of cassation (based on the materials of the judicial practice of the Sverdlovsk Regional Court).

4.3 Losses caused to the borrower as a result of a delay in the insurance payment ensuring the fulfillment of the loan obligation are subject to compensation by the insurer in full.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation overturned the court decisions made in the case of a citizen's claim against an insurance company for compensation of losses and interest for the use of someone else's money, regarding the refusal to compensate for losses on the following grounds.

The court in the case established that on the day the loan agreement was concluded between the bank and the citizen (February 15, 2008 for a period until February 15, 2012), an insurance agreement was concluded between the same citizen (debtor) and the insurance organization, the subject of which was insurance of his life and health . Based on the concluded contract, the citizen was issued an insurance policy, from which it follows that the insurance risk is the permanent complete loss of the insured person’s ability to work (disability of groups I and II) during the period of validity of the insurance contract for any reason. The bank is indicated as the beneficiary of the agreement.

On January 23, 2009, the debtor was assigned disability group II due to a general illness for an indefinite period. About the offensive insured event stated February 20, 2009. The insurer refused to pay insurance compensation. The amount of insurance compensation was recovered from the defendant by a court decision dated July 10, 2009. Since the insurer fulfilled its monetary obligations untimely, the policyholder (citizen) suffered losses due to overpayment of interest on the loan.

In resolving the dispute, the courts proceeded from the fact that the claim of the plaintiff (citizen) to recover losses from the defendant (insurer) cannot be satisfied, since the delay in payment of insurance compensation violated the right of the person to whom it was intended, that is, the bank (beneficiary under the loan agreement ). In such a situation, collecting interest under a loan agreement from an insurance organization in favor of the debtor would mean replacing his obligation to pay the loan (pay interest) on the terms stipulated by the agreement, and placing this obligation on a person who is not a party to the obligation.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation did not agree with the court’s conclusions for the following reasons.

According to Article 309 of the Civil Code of the Russian Federation, obligations must be fulfilled 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 business customs or other usually imposed requirements.

By virtue of paragraph 2 of Article 314 of the Civil Code of the Russian Federation, an obligation that is not fulfilled within a reasonable time, as well as an obligation the deadline for fulfillment of which is determined by the moment of demand, the debtor is obliged to fulfill within seven days from the date the creditor presents a demand for its fulfillment, unless the obligation to perform within a different period arises from the law, other legal acts, terms of the obligation, business customs or the essence of the obligation.

As stated in Article 393 of the Civil Code of the Russian Federation, the debtor is obliged to compensate the creditor for losses caused by failure to fulfill or improper execution obligations. Losses are determined in accordance with the rules provided for in Article 15 of the said Code.

Based on Article 15 of the Civil Code of the Russian Federation, a person whose right has been violated may demand full compensation for the losses caused to him, unless the law or contract provides for compensation for losses in a smaller amount.

Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right was not violated (lost profits).

If the person who violated the right received income as a result, then the person whose right was violated has the right to demand compensation, along with other damages, for lost profits in an amount not less than such income.

The fact that the bank was a beneficiary under the insurance agreement and did not refuse to receive the insurance payment indicates its consent to the early execution of the loan agreement by receiving an insurance payment from the insurer, which ensured its claim under the loan agreement in the amount that it had at the time satisfaction.

Accordingly, if the insurer’s obligation was fulfilled ahead of schedule by timely (within seven banking days) payment of insurance compensation to the bank, the debtor’s obligations to the bank would be considered fulfilled.

Meanwhile, the insurer avoided fulfilling its obligations under the insurance contract, and therefore the loan obligations between the bank and the debtor were not terminated and the applicant, being a bona fide party to the loan agreement, paid the loan debt to the bank.

The courts did not take into account that if the insurer had timely fulfilled its obligations under the insurance contract, the debtor’s obligations under the loan agreement would have been terminated and the payments that he was obliged to make in pursuance of the loan agreement would have been his income.

Thus, due to the insurer’s untimely fulfillment of its obligations, losses caused to a citizen (debtor under a loan agreement) are subject to compensation in accordance with Article 15 of the Civil Code of the Russian Federation (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 22, 2011 No. 77-B10-7 .)

4.4. When providing loans, banks do not have the right to independently insure the risks of borrowers. However, this does not prevent banks from concluding relevant insurance contracts on their own behalf in the interests and with the voluntary consent of borrowers.

The panel of judges proceeded from this legal position, upholding without change the decision of the district court to refuse to satisfy the demands to invalidate the clause of the loan agreement regarding the inclusion in the loan amount of the payment for connection to the insurance program.

The court in the case established that in the application form for a loan there is a column about connecting to the Program voluntary insurance life and health, while the borrower must write “agree” or “disagree” in his own hand, which is what he did. In the application for insurance, the borrower was informed and agreed that for connection to the Insurance Program the bank has the right to charge him a fee in accordance with the bank’s tariffs, consisting of a commission for connecting the client to this Program and compensation for the bank’s expenses for paying insurance premiums to the insurer.

The bank provided evidence of the conclusion of the insurance contract and the transfer of the insurance premium to the insurer. By concluding an insurance agreement for the borrower and determining the fee for connecting to the Insurance Program, the bank acted on behalf of the borrower. This service, like any contract, is paid due to the provisions of paragraph 3 of Article 423, Article 972 of the Civil Code of the Russian Federation.

There was no evidence presented to the court that the plaintiff’s refusal to join the Insurance Program could have resulted in a refusal to conclude a loan agreement.

In case of unacceptability of the terms of the loan agreement, including in terms of connection to the Insurance Program, the borrower had the right not to assume the above obligations. Meanwhile, handwritten signatures in the insurance application and application form confirm that the plaintiff consciously and voluntarily assumed obligations, including paying the bank a fee for the provision of services for concluding an insurance contract (based on the judicial practice of the Altai Regional Court).

5. The terms of the loan agreement containing grounds for its early termination that are not provided for by law are invalid.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, recognizing as correct the decision of the trial court to partially satisfy the borrower's demands to invalidate the terms of the loan agreement, indicated the following.

In this case, the borrower filed a claim with the court to invalidate the terms of the loan agreement, according to which the lender has the right to unilaterally demand from the borrower early repayment of the loan amount, payment of due interest and commission if the borrower intends to change or has already changed his place of residence or has terminated his employment relationship with his employer and has no other permanent source of income; Regardless of the reason, the technical condition of the pledged vehicle has deteriorated, resulting in a decrease in its collateral value by 40% or more; the borrower announced the termination of the demand bank deposit agreement concluded with the lender; The borrower, within 10 calendar days, did not submit, at the request of the lender, a certificate of income for the requested period.

Meanwhile, the grounds that give rise to the creditor’s right to demand early fulfillment of obligations by the borrower, the Civil Code of the Russian Federation includes, in particular, the borrower’s violation of the deadline established for repaying the next part of the loan (clause 2 of Article 811 of the Code), failure to fulfill the obligation stipulated by the contract to ensure repayment of the loan , loss (or deterioration of the conditions) of securing an obligation for which the lender is not responsible (Article 813 of the Code), violation by the borrower of the obligation to ensure that the lender can exercise control over the intended use of the loan amount, as well as failure to comply with the condition on the intended use of the loan (clauses 1 and 2 of Article 814 of the Code).

If a loan agreement concluded with a borrower (individual) who is an economically weaker party and needs special protection of his rights is a standard one, the terms of which are determined by the bank in standard forms, and the borrower is deprived of the opportunity to influence its content, then the inclusion of grounds in such an agreement , not provided for by the norms of the Civil Code of the Russian Federation, entailing the emergence of the creditor’s right to demand early fulfillment of obligations by the borrower, violates the rights of the consumer (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated June 19, 2012 No. 77-KG12-2).

6. If the fulfillment of a loan obligation is secured in several ways (pledge, guarantee), then the invalidity or termination of one method of security does not in itself entail similar consequences in relation to another method of securing the obligation.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, considering the arguments of the complaint about the termination of the guarantee, indicated that the pledge and surety are independent and independent from each other ways of ensuring the fulfillment of an obligation. The grounds for termination of the guarantee are provided for in Article 367 of the Civil Code of the Russian Federation. The court in the case established that, according to the guarantee agreement, it is valid from the moment it is signed and terminates after full fulfillment of obligations under it, including the proper fulfillment of obligations by the borrower and (or) guarantor, and in other cases provided for by current legislation. The surety agreement does not specify such grounds for termination of a guarantee as a change in the collateral agreement concluded as security for a loan agreement without the consent of the guarantor. Changing methods other than a guarantee to ensure the fulfillment of an obligation without the consent of the guarantor is not provided as a basis for terminating the guarantee. The pledge agreement concluded by the parties to the loan agreement also does not contain provisions obliging the pledgor and the pledgee to obtain the guarantor’s consent to change the pledge obligation (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 13, 2011 No. 39-B11-5).

By virtue of paragraph 1 of Article 329 of the Civil Code of the Russian Federation, the fulfillment of obligations can be ensured by a penalty, a pledge, retention of the debtor’s property, a guarantee, bank guarantee, deposit and other methods provided by law or contract.

In this case, the obligation can be ensured in one or several ways. In relation to each other, the methods of securing obligations are not mutually dependent (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated July 26, 2011 No. 11-B11-11).

7. In the event of a change in the loan obligation, entailing an increase in liability or other adverse consequences for the guarantor ensuring its execution, the guarantee is terminated from the moment the changes are made to the main obligation, unless the consent of the guarantor has been obtained for such a change in the form provided for in the guarantee agreement.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, canceling the court decisions taken in the civil case, indicated that based on paragraph 1 of Article 367 of the Civil Code of the Russian Federation, the basis for termination of the guarantee is the entire set of conditions named in it, namely a change in the main obligation, entailing an increase in the liability of the guarantor , and lack of consent of the guarantor to change the conditions. Moreover, in the event of a change in the main obligation, entailing an increase in liability or other adverse consequences for the guarantor, without the consent of the latter, the guarantee is terminated from the moment the changes are made to the main obligation.

If the guarantor has agreed to be responsible for the fulfillment to the creditor of another person of the changed main obligation, entailing an increase in his liability, then the guarantee does not terminate. In this case, the consent of the guarantor must be expressed directly, unambiguously and in such a way that would exclude doubts regarding the intention of the guarantor to be responsible for the debtor in connection with a change in the secured obligation.

A change in an obligation entailing an increase in liability or other adverse consequences for the guarantor without the latter’s consent should also be understood as cases where there is an increase in the amount interest rate under a loan agreement to which the guarantor did not give his consent.

According to paragraph 1 of Article 431 of the Civil Code of the Russian Federation, when interpreting the terms of an agreement, the court takes into account the literal meaning of the words and expressions contained in it. The literal meaning of the terms of the contract, if it is unclear, is established by comparison with other conditions and the meaning of the contract as a whole.

The court found that, on the basis of guarantee agreements dated October 13, 2008, individuals (defendants in the case) accepted the obligation to answer to the creditor for the debtor’s fulfillment of obligations under the loan agreement concluded on the same day, in the amount, manner and under the conditions provided for them.

According to General conditions of the surety agreements, which is their annex, any changes and additions to the surety agreements are valid only if they are drawn up in writing with the proper signatures of both parties.

Thus, the guarantee agreements and appendices to them establish a certain amount of responsibility of the guarantors in terms of paying interest under the loan agreement, namely 19.5% per annum for the entire loan term, change of which is possible only with the written consent of the guarantors.

In this regard, the lender’s increase in the interest rate under the loan agreement from 19.5% to 23.5% per annum from February 2009, which changed the obligation secured by the guarantee and entailed an increase in the liability of the guarantors, had to be agreed upon with the guarantors in writing and confirmed by the signatures of both sides

Meanwhile, the court, without establishing whether there was agreement with the guarantors in the proper form on changes to the loan agreement regarding the increase in the interest rate, wrongfully referred to the fact that the guarantors had been sent the appropriate notice and there were no objections from them regarding the increase in the interest rate (determined by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated September 13, 2011 No. 77-B11-9).

8. The guarantor’s consent to be liable to the bank for failure to fulfill the loan obligation by the borrower, including in the event of changes in the terms of the loan agreement, must be clearly expressed by him in the guarantee agreement.

Thus, the court found that the guarantor expressed consent to any change in the loan agreement, including if the bank changes the interest rate for using the loan. The will of the guarantor to be responsible for the borrower’s failure to fulfill the obligation both under the original obligation and in the event of its change is defined in the surety agreement. This agreement indicates the guarantor’s agreement with a possible change in the terms of the loan agreement in the future, taking into account the interests of the lender and the borrower, without any restrictions on the loan repayment period and the amount of accrued interest. The inclusion of this clause in the guarantee agreement was a pre-given abstract consent of the guarantor to any change in the specified terms of the loan agreement and was due to the reasonable desire of the parties to reduce transaction costs, achieve legal certainty and balance the interests of the parties in managing risks associated with non-repayment of the loan, withdrawal in connection with This removes the unnecessary burden and risk from the lender of obtaining additional consent from the guarantor to change the terms of the loan agreement in the event of appropriate circumstances arising, including those preventing the timely repayment of loans by the borrower or associated with a change in the refinancing rate.

In such circumstances, by virtue of paragraph 2 of Article 363 of the Civil Code of the Russian Federation, the parties to the loan agreement did not need to agree with the guarantor to change the terms of the loan agreement in each specific case (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated February 22, 2011 No. 11-B10- 16).

9. The death of the guarantor is not one of the circumstances with which the law connects the possibility of termination of the guarantee.

In connection with questions arising in judicial practice about the possibility of succession in the event of the death of the debtor or guarantor under a loan agreement, one should proceed from the explanations given in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 29, 2012 No. 9 “On judicial practice in inheritance cases” in the third section “Liability of heirs for the debts of the testator” (including paragraphs 5, 49, 59-62).

The guarantor of the testator becomes the guarantor of the heir only if the guarantor has agreed to be responsible for the failure of the heirs to fulfill their obligations. In this case, based on paragraph 1 of Article 367 and paragraph 1 of Article 416 of the Civil Code of the Russian Federation, the guarantee is terminated to the extent that the obligation secured by it is terminated, and the guarantor is liable for the debts of the testator to the creditor within the value of the inherited property.

The heirs of the guarantor are liable to the extent of the value of the inherited property for those obligations of the guarantor that existed at the time of opening of the inheritance.

Thus, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation, canceling the court's ruling to terminate the proceedings regarding the bank's claims against the guarantor for the collection of debt under a loan agreement in connection with the death of the defendant, indicated the following.

Proceedings in the case in the event of the death of a citizen who was one of the parties to the case are subject to termination only if the disputed legal relationship does not allow succession (Article 220 of the Code of Civil Procedure of the Russian Federation). Meanwhile, in the event of the death of the guarantor, the disputed legal relationship allows succession.

According to Articles 361 and 363 of the Civil Code of the Russian Federation, under a guarantee agreement, the guarantor undertakes to be responsible to the creditor of another person for the fulfillment by the latter of his obligations in whole or in part. In case of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the guarantee, the guarantor and the debtor are jointly and severally liable to the creditor, unless the law or the guarantee agreement provides for the subsidiary liability of the guarantor.

The grounds for termination of the guarantee are established by Article 367 of the Civil Code of the Russian Federation. From the content of this provision it follows that the death of the guarantor does not relate to the circumstances with which the provisions of this article link the possibility of termination of the guarantee.

By virtue of Article 1112 of the Civil Code of the Russian Federation, the inheritance includes things and other property that belonged to the testator on the day the inheritance was opened, including property rights and obligations. The inheritance does not include rights and obligations that are inextricably linked with the personality of the testator, in particular the right to alimony, the right to compensation for harm caused to the life or health of a citizen, as well as rights and obligations, the transfer of which by inheritance is not permitted by the specified Code or other laws .

Moreover, in accordance with Article 1175 of the Civil Code of the Russian Federation, the heirs who accepted the inheritance are jointly and severally liable for the debts of the testator (Article 323). Each heir is liable for the debts of the testator within the limits of the value of the inherited property transferred to him. The testator's creditors have the right to present their claims against the heirs who accepted the inheritance within the limitation periods established for the relevant claims. Before accepting the inheritance, creditors' claims may be brought against the executor of the will or against the estate.

Thus, in the event of the death of the guarantor, his heirs, subject to their acceptance of the inheritance, are jointly and severally liable to the creditor of another person for the latter’s fulfillment of his obligations in whole or in part, but each of such heirs is liable within the limits of the value of the inherited property transferred to him (determined by the Judicial Collegium for Civil cases of the Supreme Court of the Russian Federation dated February 21, 2012 No. 44-B11-11).

10. When changing a credit obligation secured by a pledge, the pledge secures the debtor’s obligation in the amount in which it would have existed without such a change, unless the parties to the pledge agreement have agreed that if the amount of claims on the main obligation increases by the amount agreed by the pledgor and by the pledgee the amount of the pledge secures the obligation of the debtor in an amount increased within the agreed limits.

The grounds for termination of the pledge are provided for in paragraph 1 of Article 352 of the Civil Code of the Russian Federation. According to this norm, the pledge is terminated: with the termination of the obligation secured by the pledge; at the request of the pledgor in the presence of the grounds provided for in paragraph 3 of Article 343 of the Civil Code of the Russian Federation; in the event of the destruction of the pledged item or termination of the pledged right, if the pledgor did not exercise the right provided for in paragraph 2 of Article 345 of the Civil Code of the Russian Federation; in the event of the realization (sale) of the pledged property in order to satisfy the requirements of the pledgee in the manner prescribed by law, as well as in the event that its sale turns out to be impossible.

As established in paragraph 1 of Article 50 of the Federal Law of July 16, 1998 No. 102-FZ “On mortgage (mortgage of real estate)”, if there is a discrepancy between the terms of the mortgage agreement and the terms of the obligation secured by the mortgage in relation to claims that can be satisfied by foreclosure on mortgaged property, preference is given to the terms of the mortgage agreement.

Consequently, a change in the size or period of performance of the obligation secured by the pledge (for example, due to a change in the interest rate on the loan or a change in the loan repayment period) compared to how such a condition is defined in the pledge agreement does not in itself constitute grounds for termination of the pledge (determined by the Judicial Court). Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 19, 2011 No. 46-B10-27).

11. The application by the court of Article 333 of the Civil Code of the Russian Federation in cases arising from credit legal relations is possible in exceptional cases and at the request of the defendant with the obligatory indication of the reasons why the court believes that reducing the amount of the penalty is permissible.

Judicial practice shows that when making decisions to satisfy the demands of banks to collect credit debt from borrowers in the event of a defendant’s application to apply Article 333 of the Civil Code of the Russian Federation, courts proceed from paragraph 34 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 “On consideration by courts of civil cases in disputes on the protection of consumer rights”, and also take into account the explanations of the joint decisions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation, including:

In the resolution of July 1, 1996 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation”, stipulating that when deciding on the reduction of the penalty (Article 333 of the Code), it is necessary to keep in mind that the amount of the penalty may be reduced by the court only if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation. When assessing such consequences, the court may take into account, among other things, circumstances that are not directly related to the consequences of violation of the obligation (price of goods, work, services; amount of the contract, etc.) (clause 42);

In the resolution of October 8, 1998 No. 13/14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds” (as amended on December 4, 2000), providing that if determined in accordance with Article 395 of the Civil Code RF amount (rate) of interest paid in case of non-performance or delay in performance monetary obligation, is clearly disproportionate to the consequences of delay in fulfilling a monetary obligation, then the court, taking into account the compensatory nature of interest, in relation to Article 333 of the Code, has the right to reduce the rate of interest collected in connection with the delay in fulfilling a monetary obligation. When deciding whether to reduce the applicable interest rate, the court should take into account the change in the refinancing rate Central Bank Russian Federation during the period of delay, as well as other circumstances affecting the amount of interest rates (clause 7);

In the judgments of the European Court of Human Rights, in particular in the judgment of May 13, 2008 in the case of Galich v. Russian Federation.

Due to the disposition of Article 333 of the Civil Code of the Russian Federation, the basis for its application can only be the obvious disproportion of the penalty to the consequences of violation of obligations. When assessing the degree of proportionality of a penalty when resolving disputes, the courts correctly proceed from the actual (and not possible) amount of damage caused as a result of the defendant’s (debtor’s) violation of its obligations, taking into account that the loan amount is not the only criterion for determining the amount claimed by the plaintiff (bank) penalties.

Based on Part 1 of Article 56 of the Code of Civil Procedure of the Russian Federation, the burden of proving the disproportion of the penalty payable to the consequences of violation of the obligation lies with the defendant who has declared its reduction. Upon a request for payment of a penalty, the creditor is not required to prove that losses have been caused to him (clause 1 of Article 330 of the Civil Code of the Russian Federation).

The study of judicial practice has shown that, when deciding the issue of reducing the amount of the penalty to be collected, the courts take into account the specific circumstances of the case, taking into account, among other things: the ratio of the amounts of the penalty and the principal debt; duration of non-fulfillment of the obligation; the relationship between the interest rate and the refinancing rate; bad faith actions of the creditor in taking measures to collect the debt; property status of the debtor.

When assessing the degree of proportionality of the penalty to the consequences of violating a loan obligation, the courts proceed from the fact that the refinancing rate, being the single discount rate of the Central Bank of the Russian Federation, essentially represents the smallest amount of property liability for non-fulfillment or improper fulfillment of a monetary obligation. In this regard, reducing the penalty below the refinancing rate, as a general rule, cannot be clearly disproportionate to the consequences of late payment of funds.

Thus, when considering the application of the defendant (debtor) to apply Article 333 of the Civil Code of the Russian Federation and reduce the payable penalty for violating the deadlines for repaying the loan, based on an analysis of all the circumstances of the case and an assessment of the proportionality of the declared amounts, from the possible financial consequences for each of the parties, the court came to the conclusion that the amount of the penalty established in the loan agreement - 0.9% per day at the then current refinancing rate of the Central Bank of the Russian Federation of 8% per annum exceeds the weighted average rates of interest and penalties for commercial loans and civil obligations. The amount of the penalty claimed by the plaintiff due to the establishment of a high percentage in the contract is clearly overstated and disproportionate to the consequences of violation of obligations (based on the judicial practice of the Supreme Court of the Republic of Karelia).

A reduction in the amount of the penalty should not lead to an unreasonable release of the debtor from liability for delay in fulfilling the requirements under the loan agreement.

Thus, in the case of a bank’s claim to collect a credit debt from a citizen, despite the defendant’s petition to apply the provisions of Article 333 of the Civil Code of the Russian Federation when determining the amount of the penalty, the court found no grounds for reducing the amount of the penalty declared by the bank. The court did not establish any signs of disproportion between the collected penalty and the consequences of violation of the obligation (RUB 36,737 + RUB 8,020.33 = RUB 44,757.33) with the calculated fine amounting to RUB 6,770.02. (4,479.06 rubles (fine on overdue principal debt) + 2,290.96 rubles (fine on overdue fees for using the loan). At the same time, the court took into account the gross violation of the terms of the loan agreement by the defendant, who made the only payment upon concluding the agreement and subsequently avoided fulfilling his obligations (based on the judicial practice of the Supreme Court of the Komi Republic).

The court has the right, at the request of the defendant, to reduce the amount of the penalty to be collected from the borrower in favor of the bank if the bank fails to take timely measures to collect the loan debt.

In particular, when considering the case of the bank’s claim against the borrower and guarantors for the collection of debt under the loan agreement, the court came to the conclusion that the bank did not take reasonable measures to reduce losses caused by the debtor’s improper performance of obligations, and also, through its careless actions, contributed to an increase in the amount of debt, Since the loan provided in September 2007 was already in arrears in October 2007, in March 2008 the bank sent a notice to the borrower about the need to repay the debt, but until August 2010 it did not take any measures to enforce the collection of the debt in court. Due to the inaction of the plaintiff in accordance with Articles 333 and 404 of the Civil Code of the Russian Federation, at the request of the defendant, the court reduced the amount of the penalty (based on the judicial practice of the Supreme Court of the Komi Republic).

Since the court is not limited to a certain range of circumstances that it takes into account when assessing the consequences of a violation of an obligation, when deciding on the issue of reducing the amount of the penalty due to its obvious disproportion to the consequences of a violation of an obligation, the courts may take into account circumstances that are not directly related to the consequences of a violation of a loan obligation .

For example, a district court, collecting a debt under a loan agreement from a citizen in favor of a bank, reduced the amount of the penalty claimed for collection, taking into account, among other things, the presence of a dependent non-working spouse and a young child on the defendant (based on the judicial practice of the Samara Regional Court).

At the same time, in judicial practice there have also been cases of unjustified application of Article 333 of the Civil Code of the Russian Federation to the calculation of interest for using a loan.

Thus, the judicial panel of the regional court changed the court's decision in terms of reducing the amount of interest to be collected for using a loan due to their disproportion to the consequences of violation of the obligation, pointing out the incorrect application by the court of substantive law, since the court of first instance did not take into account that Article 333 of the Civil Code of the Russian Federation does not apply to the legal relations of the parties regarding the calculation of interest for using a loan. Taking into account the fact that the basis for the obligation to pay interest for using a loan is the terms of the loan agreed upon by the parties in the agreement, interest for using a loan cannot be considered as a measure of liability for violation of the obligation.

Interest paid by the borrower on the loan amount in the amount and in the manner specified in the agreement is a fee for the use of funds and is subject to payment by the debtor according to the rules on the principal monetary debt (clause 15 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 13 /14 dated October 8, 1998 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds”).

Since the provisions of Article 333 of the Civil Code of the Russian Federation are not subject to application to the legal relations of the parties regarding the calculation of interest for using a loan, the court of first instance had no legal grounds for reducing the amount of overdue interest (based on the judicial practice of the Leningrad Regional Court).

12. When the court resolves claims for foreclosure of real estate pledged to secure the repayment of debt under a loan obligation, a legally significant circumstance that is included in the subject of proof and is subject to investigation by the court is the clarification of the issue of the materiality of the debtor’s violation of the obligation secured by the pledge, as well as establishing legal grounds for foreclosure on mortgaged property.

Thus, in canceling the court decisions made in the case of the bank’s claim against the borrower for the collection of debt under the loan agreement, insurance premium and foreclosure of the mortgaged property - an apartment, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation proceeded from the following.

The court in the case established that a loan agreement was concluded between the bank and the borrower, according to which the plaintiff provided the defendant with a loan on the terms of urgency, repayment and payment (13.5% per annum). The loan was provided by transferring funds to the borrower's account. To ensure that the borrower fulfills his obligations under this agreement, a mortgage agreement was concluded between the bank and the borrower, under which the borrower provided real estate (apartment) as collateral. The mortgage agreement was registered by the Office of the Federal Registration Service. The rights of the bank as a mortgagee under the mortgage agreement are certified by the mortgage. In addition, in fulfillment of the obligations stipulated by the loan agreement, a comprehensive mortgage insurance agreement was concluded between the borrower and the insurance organization, under the terms of which the borrower is obliged to pay an insurance premium to the insurer. Since the loan obligations assumed by the borrower to make monthly payments were not fulfilled, a debt arose under the loan agreement, which at the time the court considered the case by the defendant was not repaid.

Resolving the dispute and satisfying the stated claims, the court of first instance, with which the higher court agreed, proceeded from the conclusion that the debtor had improperly fulfilled the obligations assumed under the loan agreement, as well as from the refusal of the debtor as a mortgagor to voluntarily transfer the pledged property to the pledgee ( bank) for its out-of-court sale at auction. At the same time, foreclosure on the apartment to satisfy the bank's claims at the expense of the value of this property, the court determined the initial sale price of the mortgaged property based on its price specified in the mortgage agreement on the day of signing this agreement. According to the court, there were no grounds for determining a different initial sale price of the pledged property.

Meanwhile, according to paragraph 1 of Article 348 of the Civil Code of the Russian Federation, foreclosure on the pledged property to satisfy the demands of the pledgee (creditor) can be applied in the event of failure to fulfill or improper performance by the debtor of the obligation secured by the pledge under circumstances for which he is responsible.

Within the meaning of the above norm, foreclosure on the collateral is possible only if there are grounds for the debtor’s liability under the main obligation, that is, in this case, under the loan agreement. A similar provision is contained in paragraph 3 of Article 50 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)”, which states that for claims caused by non-fulfillment or improper fulfillment of an obligation secured by a mortgage, foreclosure on the pledged property is not may be appealed if, in accordance with the terms of this obligation and the federal laws and other legal acts of the Russian Federation applicable to it (clauses 3 and 4 of Article 3 of the Civil Code of the Russian Federation), the debtor is exempt from liability for such non-fulfillment or improper performance.

Along with the general principle of foreclosure on the subject of pledge enshrined in the above-mentioned paragraph of Article 348 of the Civil Code of the Russian Federation only when the debtor becomes liable for violation of the main obligation, paragraphs 2 and 3 of the same article contain clarifying rules that allow determining the degree of violation of the main obligation necessary for filing claims mortgagee.

Since the pledge performs the function of stimulating the debtor to properly fulfill the main obligation and the purpose of the pledge agreement is not the transfer of ownership of the pledged item from the pledgor to another person (including the pledgee), foreclosure on the pledged item is not permissible in any case of the debtor’s liability for violation obligations, but only if he committed a significant violation.

The grounds for liability for violation of obligations are established in Article 401 of the Civil Code of the Russian Federation. A person who fails to fulfill an obligation or performs it improperly is liable in the presence of guilt (intention or negligence), except in cases where the law or contract provides for other grounds for liability (clause 1). Liability without fault arises only for persons who have not fulfilled or improperly fulfilled an obligation when carrying out business activities (clause 3).

From the above legal norms it follows that in order to foreclose on the collateral, a necessary condition is the debtor’s liability for a significant violation of the main obligation. If the obligation is not related to the debtor’s business activities, then the absence of the debtor’s guilt in violating the obligation entails the impossibility of foreclosure on the pledged property. Otherwise, it must be expressly provided by law or contract.

In this case, the court, based on the claims stated by the plaintiff, when determining the circumstances relevant for its correct resolution, did not take into account the above rules of law that are subject to application to the relations of the parties, and, accordingly, the subject of proof did not include clarification of the issue of the materiality of the violation committed by the debtor secured by a pledge of the main obligation (loan agreement), as well as establishing the basis for foreclosure on the pledged property, which is associated with determining the presence or absence of the defendant’s guilt in violating the loan agreement.

The correct resolution of the bank’s claim against the debtor for the collection of credit debt and foreclosure on the pledged property depends on the clarification of these circumstances.

When considering this case, the Judicial Panel also declared illegal the court's conclusion to determine the initial sale price of the pledged property, pointing out that in the event of a dispute, the initial sale price of the pledged property for the purpose of its sale is established by the court, regardless of the agreement of the parties to the mortgage agreement regarding the value of the pledged property.

Thus, when foreclosure on an apartment to satisfy the bank’s claims at the expense of its value and determining the initial sale price of the pledged property, the court proceeded from the value of the pledged property agreed upon by the parties when concluding the mortgage agreement.

The sale (sale) of mortgaged real estate, which has been foreclosed on in accordance with Article 349 of the Civil Code of the Russian Federation, is carried out in the manner established by the law on mortgages, unless otherwise provided by law (clause 1 of Article 350 of the Code).

Property pledged under a mortgage agreement, which has been foreclosed on by a court decision in accordance with Federal law“On mortgage (mortgage of real estate)” is sold through public auction, with the exception of cases provided for by the said Federal Law.

The issues to be resolved by the court when considering a case of foreclosure on mortgaged property are determined by Article 54 of the said Federal Law. In particular, within the meaning of subparagraph 4 of paragraph 2 of this article, when making a decision to foreclose on property pledged under a mortgage agreement, the court must determine and indicate in it the initial sale price of the pledged property upon its sale. The initial sale price of property at public auction is determined on the basis of an agreement between the pledgor and the pledgee, and in case of a dispute, by the court itself.

In this case, the initial sale price of the apartment, established by the court, was determined based on its value specified in the mortgage agreement concluded between the debtor and the bank, which does not correspond to its actual price (market value) at the time of foreclosure by the court. Subsequently, this circumstance may lead to a violation of the debtor’s rights in the course of implementation enforcement proceedings. The court, when foreclosure of the collateral and determining the initial sale price of the pledged property, based on the price agreed upon by the parties in the apartment mortgage agreement, did not take into account the significant period of time from the moment of concluding the mortgage agreement (2007) until the moment of foreclosure (2011). year), as well as the provisions of subparagraph 4 of paragraph 2 of Article 54 of the Federal Law “On Mortgage (Pledge of Real Estate)” (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 24, 2011 No. 5-B11-31).

13. An application by an interested party (mortgagor, mortgagee) to change the initial sale price initially established by the court in the decision of the property pledged as security for the fulfillment of a loan obligation, sold in the course of enforcement proceedings in the event that the auction for the sale of this property is declared invalid, is subject to consideration by the court based on the procedural analogy law (Part 4 of Article 1 of the Code of Civil Procedure of the Russian Federation) in the manner prescribed by Article 434 of the Code of Civil Procedure of the Russian Federation.

Changing the procedure for executing a court decision by establishing a different initial selling price for property sold at auction by the court does not mean a change previously decision taken court on the merits of the claim filed by the creditor to foreclose on the debtor's property pledged to secure the fulfillment of the loan obligation.

So, for example, the bank applied to the court to change the method and procedure for executing a court decision on foreclosure in fulfillment of obligations under a loan agreement for a non-residential building and land plot with determining the sale price of the pledged property by establishing a different initial sale price of the pledged property. At the same time, the applicant indicated that during the time that had passed since the auction was declared invalid due to the lack of applications for participation in the competition, the market value of the said property had decreased significantly. The court refused to satisfy this application on the grounds that establishing a different sale price for the pledged property in the execution of a court decision to foreclose on it would change the content of the court decision that entered into legal force, which established the initial sale price of the pledged property.

In canceling the ruling of the court of first instance to refuse to satisfy the bank's application, the judicial panel indicated the following.

The procedure for the sale of pledged real estate, which has been foreclosed by a court decision, is determined by the Federal Law “On Mortgage (Pledge of Real Estate)” in Articles 56 and 58. These norms regulate, among other things, the situation when the established initial sale price of the pledged property differs significantly from its market value at the time of sale. By virtue of the above articles, after a public auction for the sale of real estate is declared invalid, the mortgagor or pledgee has the right, before the repeated public auction, to apply to the court, by whose decision the foreclosure on the subject of the pledge was made and the initial sale price was established, with an application to change the initial sale price of the pledged property when its implementation. In this case, the applicant must prove that the market price of the collateral decreased significantly after the court decision to foreclose on it entered into legal force. Such an application is subject to consideration at the stage of execution of the court decision in the manner prescribed by Article 203 of the Code of Civil Procedure of the Russian Federation (based on the judicial practice of the Krasnoyarsk Regional Court).

In another case, justifying the decision to change the previously established initial sale price of the pledged property, the court stated the following.

The legal norms governing the procedure for the sale of pledged property, which has been foreclosed by a court decision, are based, among other things, on the fact that the initial sale price of the pledged property established by a court decision, which differs significantly from its market value at the time of sale, may subsequently lead to a violation of rights creditor or debtor during enforcement proceedings.

Therefore, if, at the initiative of an interested party, evidence is presented indicating that the market value of the property that is the subject of the pledge differs significantly from its assessment made by the parties in the pledge agreement, as well as in the court decision, the court in accordance with Article 203 of the Code of Civil Procedure of the Russian Federation has the right to resolve the issue of changing the initial sale price of such property in accordance with the evidence presented, regardless of its assessment by the parties in the pledge agreement, which does not indicate a revaluation of the circumstances regarding the value of the property established by a court decision (based on the judicial practice of the Leningrad Regional Court).

14. In order to prevent errors in the consideration of civil cases arising between banks, other credit organizations and individuals in disputes regarding the fulfillment of loan obligations, recommend to the chairmen of the supreme courts of the republics, regional, regional courts, Moscow and St. Petersburg city courts, courts of the autonomous region and courts of autonomous districts to familiarize judges with this Review in order to take into account the legal positions contained in it in law enforcement activities.

Document overview

The practice in cases related to the fulfillment of loan obligations is analyzed.

The issue of jurisdiction of disputes in this area is discussed.

It is noted that disputes arising from credit relations involving individuals are subject to the jurisdiction of courts of general jurisdiction. This rule applies even if the contract states otherwise.

The same rule applies in the case where a creditor brings a claim against a citizen who is a guarantor of a legal entity, even if a monitoring procedure has been introduced in relation to the latter.

An issue that has long been controversial in practice is also touched upon.

We are talking about the application of the rules of territorial jurisdiction of this category of cases when there is an agreement on it between the citizen and the bank.

An individual can challenge such a condition if it was included in the standard form of the contract.

A similar condition may be included in the adhesion agreement. In this case, consumer rights are not violated only if the citizen could have entered into an agreement without this clause.

If the condition of jurisdiction is not disputed, it is valid on the day the case is considered by the court.

There is no uniform approach to resolving the issue of territorial jurisdiction when foreclosure is applied to real estate pledged under a loan, as well as when assigning debt to third parties.

Regarding the collection of additional payments by banks from citizens, the following is indicated.

In each case, it is necessary to establish what exactly the bank takes money for, i.e. for independent financial service or for standard actions, without which it is impossible to conclude and execute a contract. Only the second case is illegal.

The bank has no right to force the borrower to insure its liability. Such a step on the part of a citizen should only be voluntary.

The same applies to life and health insurance of the borrower. However, banks do not have the right to impose a specific insurance company.

All grounds for early termination of a loan agreement are in the law.

Accordingly, banks do not have the right to establish other grounds in the contract (for example, dismissal from work, moving to another area).

If one of the methods of securing a loan (pledge, guarantee, etc.) turns out to be invalid or has ceased, this does not mean that others are not valid.

Other issues were also discussed (about the termination of the guarantee, about the reduction of penalties by the court, etc.).