The topic of credit relations between banks and individuals never ceases to be relevant. Typically, asking for help credit funds dictated not by vital necessity, but by the desire of people to realize their needs as soon as possible, without thinking about possible consequences and unforeseen circumstances. So, in N 12 for 2013 of the magazine “Lawyer in a hurry to help”, financial ombudsman Pavel Medvedev in his interview indicated that among the most frequent appeals that he receives are complaints about fate: “He was healthy, had good earnings, took a loan and got sick (lost his job). Help!".
Unfortunately, it is also not always necessary to count on the fact that the bank will meet halfway and will build its relationship with the client honestly and in accordance with the norms of the law.

Within the framework of this article, we will consider just such a case when credit legal relations developed into a very long and complex litigation, in which the author of the article was a participant, representing the interests of his principal.
Of interest will be the decisions made by the courts of various instances, which can also be useful to citizens in litigation with banks.
It should also be emphasized that this litigation was terminated due to the bank's refusal to claims.

background

O. (the defendant in the case) applied to Bank B. (we will immediately indicate that given bank was later reorganized by merging with Bank R., and Bank R. had already applied to the court to obtain a loan for a certain amount of several tens of thousands of dollars. Since O. was a regular customer of this bank and repeatedly received and timely returned credit cash, the bank issued a loan under more than low interest- 12.75% per annum. The loan was granted for a period of 120 months, annuity payments to repay the loan amounted to less than $1,000 per month. Thus, the amount that was supposed to be returned, in accordance with the terms of the agreement, including interest, was equal to the amount almost twice the amount received on credit. The bank also entered into a guarantee agreement with the wife of O. - T.
Both in the loan agreement and in the suretyship agreement, a clause was spelled out, according to which for each day of delay in fulfilling the obligation to return the amount (or part of the amount) of the principal debt and (or) interest due, the borrower (guarantor) was obliged to pay the creditor a penalty in in the amount of 0.2% of the amount of overdue debt.
In addition, as a security for the obligation to return the funds provided under the loan agreement, the bank entered into a mortgage agreement (mortgage of real estate) with the guarantor T., according to which land plot and a residential building located on it. This collateral was valued at three and a half times the amount of the loan received.
Later, after the first six months of making regular payments, O. had unforeseen problems with his business, including due to the outbreak of global financial crisis, in connection with which he could not make payments on the loan for nine months.
As soon as O. had financial difficulties, he immediately contacted the bank and tried to explain the situation. In most of these cases, bank employees offer to restructure the debt (as a rule, this is an increase in the loan repayment period). However, in this case, when repeatedly contacting the bank, its employees assured O. that simply in the future, when the financial condition improves, it will be enough to make payments for several months at once, thereby repaying the overdue debt.
After this period, O. continued to make payments, sometimes paying two or three months at a time, trying to get back on the payment schedule. However, a little more than two years later, the bank filed a lawsuit for the early return of the entire amount of debt, penalties and interest for using the loan.

Consideration of the case by the court of first instance

An application was submitted to the court for the recovery of debt on a loan. The total amount of recovery indicated in the claim was about 50% of the amount received on credit. In addition, in the lawsuit, the bank demanded to foreclose on the pledged property.
Let us immediately note one important point. A few months before the acceptance of this claim by the court and once six months before the acceptance of this claim for proceedings, the representative of the bank R. - D. applied to the court with similar requirements, but both times statement of claim was returned due to the fact that the claim was signed by an improper person whose authority was not confirmed by a power of attorney.
Thus, by accepting this statement of claim for proceedings, the court violated the norms of procedural law, especially since this court (though by another judge) had previously repeatedly refused to accept the statement of claim. Later, when considering the case, the person who filed the statement of claim was not present at the court, but another representative, G., was present. This was the procedural violation, since the person who filed the statement of claim did not confirm his authority to file a claim.
In accordance with Part 3 of Art. 53 Code of Civil Procedure of the Russian Federation "a power of attorney on behalf of the organization is issued signed by its head or other person authorized to do so by the constituent documents, sealed with the seal of this organization."
The representative of G., who participated in the court hearings, first presented a power of attorney similar to that presented by the representative of D. who filed the claim. The power of attorney again contained information that CEO law firm S. delegates his powers to this employee. Subsequently, at the request of the defendant's representative, the court requested powers of attorney confirming the authority of G. Several powers of attorney were submitted to the court, from the content of which it followed that the chairman of the bank's board issued a power of attorney for the head of one of the bank's branches. This head issued a power of attorney to the authorized person of this branch. The authorized person issued a power of attorney for the general director of the legal company S. And the general director issued a power of attorney for his employee. And everything would be fine, if only one interesting detail had not been discovered: in the power of attorney issued by the head of the bank branch to the authorized person of this branch, in one of the paragraphs it was written that "the person who is entrusted with the rights under this power of attorney does not have the right to represent interests banks in court general jurisdiction". Thus, all subsequent powers of attorney regarding the transfer of the right to represent the interests of the bank in the courts were invalid.
It should be noted that the power of attorney itself, issued to the representative of G., was made on the letterhead of the bank, and certified by a notary, which contradicts the provision of Part 3 of Art. 53 Code of Civil Procedure of the Russian Federation.
Later, in connection with the court's questions about the powers of attorney, G.'s representative presented a direct power of attorney from the chairman of the board of the bank. This power of attorney also raised a number of questions, but they were ignored by the court.
It is interesting that in the decision the court of first instance indicated that the court considered the arguments of the representatives of the defendants that D. did not have the authority to bring a claim unconvincing.
At the very first meeting, which was attended by a representative of Bank G., an amended claim was submitted, in which, to the claims for early repayment of the loan, a claim for the payment of interest was added, as well as a claim for payment of a penalty for late payment. Moreover, the amount of the penalty exceeded the amount of the loan received by the borrower. Thus, the final requirements of the bank amounted to 210% of the initial loan amount (this despite the fact that more than half of the loan amount (excluding interest for the use of funds) has already been returned to the bank).
As evidence substantiating the bank's claims, the following were presented: a claim for early repayment of the loan, a new house and land appraisal report, a copy of the bank's charter, a copy of an extract from the minutes of the shareholders' meeting, postcards, etc.
Let's look at the evidence in more detail.
When studying the charter of the bank, it was found that the invalid charter of the bank was attached to the statement of claim. The new charter was never presented by the representative of the bank.
Turning to the consideration of the requirement for early repayment of the loan submitted to the court as evidence, let us pay attention to one important detail. Bank B., in which the loan agreement was drawn up in 2009, was reorganized by merging with Bank R. in April 2011, which contained the relevant information in the extract from the Unified State Register of Legal Entities.
In accordance with paragraph 4 of Art. 57 of the Civil Code of the Russian Federation "when a legal entity is reorganized in the form of a merger of another legal entity with it, the first of them is considered reorganized from the moment it is entered into the Unified State Register legal entities of the record on the termination of the activities of the affiliated legal entity".
The corresponding entry in the Unified State Register of Legal Entities was made in mid-June, respectively, the rights and obligations of Bank B. were transferred to Bank R. also in mid-June.
In the claim originally submitted to the court for early repayment of the loan, the date was indicated - mid-April 2011, i.e. one week after Bank R. held an extraordinary meeting of shareholders and the decision was made to reorganize in the form of a takeover of Bank B. However, in accordance with the law, Bank R. should not have had any rights of claim against debtors at that time.
In addition, this demand did not contain the seal of the bank and it was stated that in case of non-fulfillment of this requirement within 15 days, the bank would levy a claim on the pledged vehicle. About what vehicle was discussed, it is not clear, given that the pledge agreement was drawn up in relation to the house and land.
Perhaps the evidence presented is just a bank employee's mistake. On the other hand, the absence of a seal, dubious requirements may indicate a possible dishonesty of the bank when providing evidence. In any case, later another claim was presented to the court, already from Bank B. (photocopy), which did not indicate the date, but contained an indication that initially, back in March, Bank B. sent a request for early repayment of the loan.
With regard to the submitted copy of the requirement, it must be indicated that, in accordance with Part 6 of Art. 67 of the Code of Civil Procedure of the Russian Federation "when evaluating a copy of a document or other written evidence, the court checks whether, when copying, the content of the copy of the document has changed in comparison with its original." And in part 7 of Art. 67 of the Code of Civil Procedure of the Russian Federation states that "the court cannot consider proven circumstances, confirmed only by a copy of a document or other written evidence, if the original document is lost and not handed over to the court."
In addition, in confirmation that the requirement for early repayment loan the defendant was received, the representative of the bank presented to the court copies of postcards. The cards did not indicate which document was handed over. However, another point is interesting. These cards did not bear the signature of the defendant, but of a completely different person, which, even when visually compared with the defendant's signature in the power of attorney, was significantly different from the defendant's signature. The petition for a handwriting examination, declared by the defendant's representative, was not granted.
The defendant claimed that he did receive a letter from the bank during this period of time, but not with a demand for early repayment of the loan, but with a notification of a decision to reorganize the bank. Thus, there was no actual evidence confirming the fact that the bank sent a request for early repayment of the loan and that the debtor received this request.
The need for the debtor to receive this claim was justified by the fact that, in accordance with the conditions loan agreement disputes related to the performance of the contract were subject to resolution in the claim procedure. The contract also stated that the party that received a written claim from the other party is obliged to satisfy the claims stated in the claim within 20 days or send a reasoned refusal to the other party indicating the reasons for the refusal. All must be attached to the answer. Required documents. If the dispute that arose is not resolved in a claim procedure, it was subject to resolution in a court of general jurisdiction at the location of the creditor (we wrote in N 11 for 2013 that this condition is contrary to established judicial practice).
Recall that the loan agreement is an accession agreement. In accordance with paragraph 1 of Art. 428 of the Civil Code of the Russian Federation, an accession agreement is an agreement, the terms of which are determined by one of the parties in forms or other standard forms and can be accepted by the other party only by joining the proposed agreement as a whole (in this case, the conditions are determined by the bank in standard forms). Thus, by concluding an agreement in the proposed form, the borrower does not have the opportunity to influence its content, including in matters of jurisdiction of disputes. Consequently, the obligation of the claim procedure was proposed by the bank.
Evidence that the bank complied with the claim procedure was not presented to the court (except for non-confirming postcards, which contained the signature of an unknown person).
It is also worth paying attention to another document presented by a representative of the bank. Since one of the bank's claims was foreclosure of a residential house and land, the court was presented with a new valuation report conducted by the bank before going to court, according to which the value of the mortgaged house and land became cheaper compared to the original valuation by 1/5 (or more than 1 million rubles).
What was interesting about this report was the following. Firstly, in the report itself, on each page, the guarantor under the loan agreement T was indicated as the customer. Secondly, due to the fact that T. did not order any assessment, the appraiser did not appear on the territory of the house and on the basis of which he made his conclusion - unclear. And, finally, thirdly, the defendant took a loan to carry out repairs in the house and to increase its living space, in connection with which, and also taking into account the general increase in real estate prices, this property could not fall in price.
Accordingly, an application for an assessment was filed, which was granted by the court. The court appointed an appraisal organization, according to the results of the appraisal of which the value of the house with land was estimated at almost twice as high as in the appraisal provided by the bank.
Another evidence presented to the court - probably the most important and most controversial - is the calculation of the debt. It should be noted here that the Russian arbitrage practice, as a rule, follows the following path: there was a delay, which means that the terms of the contract were violated, therefore, it is necessary to return the entire amount, as indicated in the contract, with interest and a penalty (see, for example, the Ruling of the Moscow City Court dated 05/22/2014 N 4g /1-5525, Determination of the Supreme Arbitration Court of the Russian Federation of 16.08.2007 N 9687/07). It follows that any calculation presented by the bank is taken as the only correct one. This approach is based on strict adherence to the norm of the law, when, violating the terms of the contract, it is necessary to pay appropriate compensation. In this regard, it is often quite difficult in court to prove that there was some kind of agreement with the bank, or to prove other circumstances that testify to the attempts of debtors in good faith (albeit with possible violation of deadlines) to fulfill their obligations.
So, let us dwell in more detail on those points that raised doubts in the presented calculation.
First, the payment was signed by a representative of G., and not by a bank specialist. Nothing was indicated in G.'s power of attorney about the right to make such calculations. As stated by the representative of G. at the hearing, economic education he does not possess, and the calculation for their company is sent from the bank.
Secondly, there was no bank seal on the calculation.
Thirdly, when applying to the bank (in all its branches), the defendant was given an account statement in which the amount of the debt was three times less (it corresponded to the amount indicated in the bank's initial claim) than stated in the claims, but at the same time This statement was signed by a bank employee and stamped by the bank.
Fourthly, upon a detailed study of the extract, one could easily find that the calculation in it was not entirely correct. If we follow the data indicated in the calculation, it turns out that one day after sending the request for early repayment of the loan to the bank, the entire amount was transferred to the column "Overdue Debt" and interest began to accrue on the entire remaining amount. Thus, from the second half of April 2011, huge amounts of forfeit have already begun to accrue.
In our opinion, this calculation whole line errors. Some of them follow from the contract.
1. The contract did not contain a clause according to which it would be possible to transfer the entire amount into overdue debt in order to charge a penalty on it. The contract contained a clause according to which, for each day of delay in fulfilling obligations to repay the amount (part of the amount) of the principal debt and (or) interest due, the borrower pays the creditor a penalty in the amount of 0.2% of the amount of the overdue debt.
It would seem that this is a moot point, since formally we are talking about the return of the amount (the size is not defined). in various major Russian banks there is a very simple scheme that is used in such cases: the bank makes a claim, if it is not fulfilled within a month, the bank goes to court. At the same time, from the moment a claim is made, the amount is, as it were, "frozen", and no penalty is charged on it. The agreement in question did not provide for a time limit for filing a lawsuit. That is, a bank can accrue interest for a long time (during the civil law limitation period - three years), and then go to court with claims for a huge amount.
In our opinion, in this case there is an abuse of the right. In accordance with paragraph 1 of Art. 10 of the Civil Code of the Russian Federation "it is not allowed to carry out civil rights solely with the intent to cause harm to another person, actions bypassing the law with an unlawful purpose, as well as other obviously unfair exercise of civil rights (abuse of the right). "Clause 2, Article 10 of the Civil Code of the Russian Federation provides for the refusal of a person to protect his right in case of bad faith exercise them of their civil rights.This provision is specified in paragraph 5 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 6 and the Supreme Arbitration Court of the Russian Federation N 8 of 07/01/1996 "On some issues related to the application of part one of the Civil Code Russian Federation", where it is indicated that "when resolving disputes, it should be borne in mind that the refusal to protect the right by the court is allowed only in cases where the case materials indicate that a citizen has committed or legal entity actions that may be qualified as an abuse of the right (Article 10), in particular, actions aimed at causing harm to others.”
Thus, the absence in the contract of a specific period for going to court gives the right to artificially increase the amount of debt.
2. In the calculation, the amount of debt was transferred to the overdue debt column one day after the request (ie, sending, not receiving by the borrower) for early repayment of the loan. And this is despite the fact that the contract stipulated a 20-day period for responding to a claim (not counting the period during which the borrower must receive this claim) and the claim procedure was mandatory.
3. As we have already indicated, it was during this period of time that a decision was made to reorganize Bank R. by joining Bank B. And in accordance with paragraph 4 of Art. 57 of the Civil Code of the Russian Federation, Bank R. acquired all the rights and obligations of Bank B. from the moment an entry was made in the Unified State Register of Legal Entities on the termination of Bank B. At the same time, the calculation with the transfer of the entire amount to the overdue debt column was made by Bank R. rights, Bank R. calculates the existing debt for the period from the second half of April to mid-June. At the same time, in court, the representative of the bank referred to the fact that for the period of time from the moment the decision on reorganization was made (April) until the relevant information was entered into the Unified State Register of Legal Entities (June), the calculation was made by Bank B., however, no evidence of this fact was presented.
The bank's statement of claim also indicated the need to pay interest on the loan. This requirement was not substantiated, nor was it substantiated for which period the interest was payable. The representative of the bank referred to the fact that in the event of a delay, all amounts received on the borrower's account were used to repay the principal debt. However, this contradicted the provisions of the loan agreement itself, which contained a clause according to which, in the event of the formation of debt, the creditor satisfies his claims as follows: the creditor's expenses for obtaining performance; in payment of a penalty for late payment; in the payment of interest on a loan; to repay the principal of the loan. Thus, in the event of debt formation, the loan agreement stipulated that the principal debt should be repaid last. Subsequently, the representative of the bank stated that these interest must be paid in accordance with the agreement before the expiration of its validity. That is, taking into account the fact that the bank demanded an early repayment of funds, it also wanted to receive payment of interest for the period when the borrower would no longer use the loan in connection with its repayment.
This issue was reflected in paragraph 5 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 N 147 "Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement", which refers to the return of part of the interest paid in accordance with with a loan agreement, since they were paid for the period during which the use of funds has already ceased. Concretizing this position, the court explained that, within the meaning of Art. 809 of the Civil Code of the Russian Federation, interest is a payment for the use of the loan amount. Consequently, interest, which is a payment for the use of funds, is payable only for the period from the date of issuance of the loan until the date of its full repayment. The collection of interest for the period in which the use of the loan amount was not carried out cannot take place according to the rules of the said norm.
Before proceeding to the decision adopted in the case, I would like to dwell on one more important detail. As mentioned above, the borrower after the improvement financial condition continued to pay monthly payments, including for several months at once, and at the time the bank applied to the court, the borrower was already paying more than a year ahead of the payment schedule (in accordance with account statements received from the bank), provided for in accordance with the loan agreement. In addition, the defendant's representative presented his calculation of the debt, made by a professional auditor, which coincided in amounts with the statements received by the borrower from the bank (and also coincided with the amount indicated in the bank's original statement of claim), and did not coincide with the calculations of the bank representative .
With seemingly rather controversial evidence presented by a bank representative, problems with powers of attorney, settlements, etc. The court ruled against the borrower.
Thus, the court considered that, since the borrower acknowledged the existence of debt in the past, therefore, the terms of the loan agreement were not fulfilled, which led to the formation of overdue debt and the charging of a penalty by the bank. The court also concluded that the requirement for early repayment of the loan and the transfer of the principal amount to overdue debt in order to accrue interest on the entire amount was justified. At the same time, as a justification for this conclusion, the court referred to the materials of the case that had nothing to do with the overdue debt (to the sheets of the case, which contained an extract from the bank from the Unified State Register of Legal Entities), i.e. in fact, this provision was not substantiated.
In accordance with Part 1 of Art. 333 of the Civil Code of the Russian Federation, paragraph 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 14, 1997 N 17, the court has the right to reduce the penalty if it is clearly disproportionate to the consequences of a breach of obligation. Based on this, the court reduced the amount of the penalty three times. And still, the total amount that had to be paid in accordance with the court decision exceeded the amount contained in the statements of the bank itself (received by the borrower), twice.
The court refused the bank's request to foreclose on the mortgaged property, citing paragraph 1 of Art. 54.1 federal law No. 102-FZ of July 16, 1998 "On Mortgage (Pledge of Real Estate)", according to which foreclosure of pledged property in court is not allowed if the debtor's violation of the obligation secured by the pledge is extremely insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property .
And, finally, one more point, which, we believe, needs to be addressed. The court in its decision, based on Art. 98 Code of Civil Procedure of the Russian Federation and art. 333.19 of the Tax Code of the Russian Federation, collected a state duty in favor of the bank from the "satisfied part of the requirements" in the amount of more than 500 thousand rubles.
Let's explain this moment.
In accordance with paragraphs. 1 p. 1 art. 333.19 of the Tax Code of the Russian Federation in cases considered in courts of general jurisdiction, by justices of the peace, when filing a claim of a property nature subject to assessment, the state fee is paid in the following amounts:
with a claim value of up to 20 thousand rubles. - 4% of the price of the claim, but not less than 400 rubles;
from 20 001 rub. up to 100 thousand rubles - 800 rubles. plus 3% of the amount exceeding 20 thousand rubles;
from 100 001 rub. up to 200 thousand rubles - 3200 rub. plus 2% of the amount exceeding 100 thousand rubles;
from 200 001 rub. up to 1 million rubles - 5200 rub. plus 1% of the amount exceeding 200 thousand rubles;
over 1 million rubles - 13 200 rubles. plus 0.5% of the amount exceeding 1 million rubles, but not more than 60 thousand rubles.
In accordance with Part 1 of Art. 98 Code of Civil Procedure of the Russian Federation "in the event that the claim is partially satisfied, the court costs indicated in this article are awarded to the plaintiff in proportion to the amount of claims satisfied by the court, and to the defendant in proportion to that part of the claims in which the plaintiff is denied." That is, this article refers to court costs that have already been spent when applying to the court and are subject to return (for example, when applying to the court, the plaintiff paid a state duty of 10 thousand rubles, if the court partially satisfied the plaintiff's requirements, for example, half of those declared by the plaintiff requirements, the defendant is obliged to pay 5 thousand. RUB. court costs in favor of the plaintiff).
In the case file there was a receipt for the payment of the state duty, the amount of which was a little more than 20 thousand rubles.
Subsequently, the court had to issue a ruling to correct the error in the court decision regarding the amount of the state duty to be returned.
Here are some norms of the Code of Civil Procedure of the Russian Federation, which the court decision must comply with.
So, in Art. 195 of the Code of Civil Procedure of the Russian Federation states that "the court's decision must be lawful and justified" (part 1) and that "the court bases the decision only on the evidence that was examined at the hearing" (part 2). In Art. 196 of the Code of Civil Procedure of the Russian Federation states that "when making a decision, the court evaluates the evidence, determines what circumstances relevant to the consideration of the case have been established and what circumstances have not been established, what are the legal relations of the parties, what law should be applied in this case and whether the claim is subject to satisfaction" .
In accordance with Part 4 of Art. 198 Code of Civil Procedure of the Russian Federation "in the reasoning part of the court decision, the circumstances of the case established by the court; the evidence on which the court's conclusions about these circumstances are based; the arguments on which the court rejects certain evidence; the laws by which the court was guided."

Appeal stage

It should immediately be indicated that before filing an appeal, the defendant applied to the bank with a statement in which he asked for a detailed calculation of the amount of the penalty, interest and the remaining amount of the principal debt. A month later, in response to this request, a representative of the bank said that the debt was the amount indicated in the court decision. Thus, the bank refused to present the official settlement.
At the same time, none of the branches of the bank, where the defendant applied, could not provide the calculation of the penalty, which was presented by the representative of the bank in court.
The basis of the appeal was based on the following arguments.
1. In the decision, as a basis for the legitimacy of the presented calculations, the court refers to the sheets of the case, which contain an extract from the Unified State Register of Legal Entities. Thus, the court, in fact, groundlessly recognized the calculation of the debt presented by the representative of the bank as correct, despite the fact that the calculation was not certified by a bank employee and did not have the appropriate seal of the bank. At the hearing, it was not established who and on the basis of what document made these calculations. The bank statement submitted by the defendant from the moment the loan was opened to the day the case was considered in court, in which each page was signed by a bank employee and certified by the bank's seal, and in which the amount of the debt was several times less, was not taken into account. The calculation of the specialist presented by the defendant was not taken into account.
2. The court refused to conduct a handwriting examination, arguing that the evidence that the defendant intends to establish does not relate to the subject of proof in a dispute on the collection of debt under a loan agreement.
At the same time, it was not taken into account that, in accordance with the provisions of the loan agreement, all disputes regarding the agreement are subject to resolution in a claim procedure. The contract also provides for a written form of both the claim itself and the response to it. And only if the dispute was not resolved in a claim procedure, it is subject to resolution in court.
Thus, there was no evidence that the defendant received the claim. It follows from the mail notice submitted by the representative of the bank that this claim (if it was sent) was received by an unknown person, i.e., having received the mail notice, the plaintiff knew that the claim was not received by the defendant, since the signature in this notice not only does not match the signature defendant, but also testifies to a completely different surname of the person who signed the notice.
It follows that the bank did not comply with the mandatory claim procedure, which is established in the loan agreement drawn up by the bank, respectively, the bank had no legal grounds for going to court.
3. Also, it was not taken into account that at the time of the bank's appeal to the court, the defendant was making monthly payments, ahead of the payment schedule stipulated by the agreement.
4. The bank abused its right by going to court almost two years after sending the request for early repayment of the loan.
5. The court was never presented with a power of attorney, on the basis of which the person who initially applied to the court with a statement of claim had the authority to apply to the court.
6. The court did not take into account the position of the Supreme Arbitration Court of the Russian Federation, reflected in paragraph 5 of the information letter N 147, obliging the defendant to pay interest on the use of credit money for the period in which this use will not be carried out.
In addition, it should be noted that the appeal was also filed by a representative of the bank, who did not agree with the court's decision to refuse to foreclose on the pledged property.
However, despite the detailed and seemingly conspicuous errors and shortcomings, the Judicial Collegium for Civil Cases in the appeal ruling indicated that it “agrees with the conclusions of the court of first instance and finds the arguments of the defendants regarding the calculation presented by them untenable.”
Moreover, the panel of judges indicated that, according to paragraph 1 of Art. 54.1 of the Federal Law "On Mortgage (Pledge of Real Estate)", unless otherwise proven, it is assumed that the violation of the obligation secured by the pledge is extremely insignificant and the amount of the bank's claims is disproportionate to the value of the pledged property, if at the time the court decides on foreclosure, the amount of the debt is less than 5 % of the value of the subject of mortgage, and the period of delay in fulfilling the obligation secured by the pledge is less than three months. In view of the fact that the delay period exceeded three months and the amount of the unfulfilled obligation exceeds 5% of the value of the pledged property, which was established by the court of first instance and was not disputed by the parties, the panel of judges, in accordance with the provisions of paragraph 1 of part 2 of Art. 330 of the Code of Civil Procedure of the Russian Federation finds the court's decision regarding the refusal to satisfy the claim of the plaintiff (bank) to foreclose on the pledged property unreasonable and subject to cancellation.
Thus, the Judicial Board refused to satisfy the defendant's claims set forth in the appeal, and at the same time satisfied the plaintiff's claims to foreclose on the objects of pledge.

Stage of cassation appeal

In addition to the cassation complaint itself, numerous additions were filed to it, in which the violations, in the defendant's opinion, committed by the bank were described in more detail. We will not dwell on their content, but will proceed directly to the decision of the court of cassation.
Thus, the court of cassation, analyzing the decision made in the appellate instance on foreclosure on pledged property, due to the defendant exceeding the delay in payments by more than three months and due to the fact that the amount of the unfulfilled obligation exceeds 5% of the value of the pledged property, considered that the conclusion of the judicial board appeal is based on the incorrect application and interpretation of substantive law.
The decision of the court of cassation states that "in accordance with paragraph 1 of article 348 of the Civil Code of the Russian Federation, the execution of the pledged property to satisfy the claims of the pledgee (creditor) may be levied in case of non-fulfillment or improper performance the debtor of the obligation secured by the pledge due to the circumstances for which he is responsible. A similar provision is contained in paragraph 1 of Art. 50 FZ "On Mortgage (Pledge of Real Estate)".
Article 54.1 (clause 1) of the Federal Law "On Mortgage (Pledge of Real Estate)" contains clarifying rules, in the presence of which foreclosure on pledged property in court is not allowed, in particular, if the violation of the obligation secured by the pledge committed by the debtor is extremely insignificant and the amount of claims the mortgagee is clearly disproportionate to the value of the mortgaged property.

When communicating with the bank, it is desirable that any action of the borrower and the bank be in writing.

At the same time, according to the payment documents submitted to the court, at the time of the plaintiff's appeal to the court, not only was there no debt, but there was an advance of the periodic payments established by the schedule.
The court also pointed out that the pledge performs an incentive function, and the purpose of the pledge agreement is not the transfer of ownership of the pledged item from the pledgor to another person.
Thus, the court of cassation annulled the adopted appellate ruling and sent the case for a new trial to the court of appeal.

Waiver of a claim

At the very first meeting of the newly considered case in the court of appeal, the court asked the representative of the bank to submit the necessary calculations of the penalty and interest for using the loan, which would be certified by a bank employee and sealed by the bank. In addition, the panel of judges ordered the bank to submit a penalty calculation made by bank B. in the period prior to its reorganization by merger (i.e. from late April to mid-June 2011), also certified by a bank employee and sealed by bank B.
It should be noted that, before the start of the next court session, the defendant paid the amount of the debt, which was initially provided to him in accordance with the bank statement.
At the next court session, the representative of the bank presented the calculation of the penalty and interest for the use of the loan, certified by a bank employee and with the seal of the bank. This calculation fully corresponded to the calculation originally received by the defendant from the bank (according to which he repaid the remaining debt). Further, the representative of the bank refused the claim, the proceedings were terminated.
It is worth adding that, explaining the difference in the amounts of the initially submitted calculation (not certified by anyone) and the calculation presented at the last meeting, the bank representative indicated that the bank simply went to meet the client and forgave all the penalty and interest for using the loan.
In conclusion, I would like to note that this trial lasted more than a year and a half, and during all this time, seemingly obvious things had to be proved in court. It is hoped that this article will serve as an incentive for bona fide borrowers to assert their legal rights, which at a certain stage may also find themselves in a difficult situation. financial position. We add that when communicating with the bank, it is desirable that any action of the borrower and the bank (such as allowing the bank to pay in the future for several months at once) has a written form, so that in the future, in order to avoid various difficulties, it can be used as evidence in court.

Today we will talk in detail about how to win a lawsuit with a bank on a loan and what to do next if the bank still wins the lawsuit.

The Bank has the right to go to court in the presence of various violations of the terms of the loan agreement. But, as a rule, the reason for filing a claim against the borrower is the formation of a delay in loan repayments and the transformation of debt in accordance with banking standards into problem debt. The second category of disputes in terms of prevalence are claims for the recovery of penalties and commissions from borrowers in excess of the repaid debt, including principal and interest. True, the number of such claims is significantly less than in the first category, since these claims are usually included in the claim for the recovery of the entire set of payments accrued on the loan.

Borrowers also have the right to sue the bank on various grounds. In this case, there are usually demands for the recognition of the loan agreement in part of some of its provisions as illegal and (or) for the recovery from the bank of amounts illegally withheld to repay the loan, penalties, commissions.

The probability of winning a case in court and its main factors

From the point of view of the probability that the borrower will win the case in court, it is not so much the fact of who exactly initiated the claim that is important, but the following circumstances:

1. Goals and objectives set by the borrower. A win can be viewed in different ways, and it is far from always associated with the satisfaction of all the requirements of the borrower by the court or, on the contrary, the refusal to satisfy the bank claim. Goals and objectives must be realistically achievable, otherwise everything will turn into a waste of effort and money.
2. Availability of legal or contractual grounds for satisfying the borrower's requirements.
3. Argumentation of the position of the borrower and proof of the facts to which he refers. Solving these problems is the responsibility of the borrower. And the more effectively these tasks are solved, the higher the chances of winning will be.
4. No violations of procedural rules. Unfortunately, this is one of the main problems of conducting legal cases by borrowers on their own, without the proper level of legal training and experience in participating in processes. No matter how right you are, no matter how complete and categorical the evidence base is, violation of the requirements of procedural law may result in the refusal of the court to satisfy the requirements on formal grounds - just because of procedural violations.

Determination of the goals and objectives of the litigation

Goals and objectives are the basis of your legal position in court. Winning the process should not be an end in itself, as winning can be a Pyrrhic victory. It is necessary to analyze and evaluate in advance:

• the chances of a particular outcome of the case;
• evidence base, available and really possible to form;
• readiness to conduct the process for a certain amount of time, to spend energy, time, money on this, to risk lost profits.

As a goal, you need to set what you expect from the process. As tasks - what you must and can realistically do to achieve the goal.

As examples:

1. If your goal is to get the court to refuse to satisfy the bank's claim for the recovery of principal on the loan, interest and penalties, it can rightfully be classified as unrealistic. Even if you achieve the recognition of the loan agreement as completely illegal, the amount of the loan taken will still have to be returned. Therefore, in such a situation, it is more reasonable to set the goal of minimizing the amount of recovery (refund), which means that the tasks can be:

• exclusion from the requirements of the amount of the penalty;
• reduction in the amount of the penalty;
• reduction in the amount accrued on interest (sometimes this can also be achieved).

1. Your goal is favorable (loyal) terms of debt repayment. This is the best and most easily achievable goal in the recovery process. credit debt from the borrower. The tasks should be:

• creating conditions for the bank under which it will be ready to conclude a settlement agreement with the borrower and provide him with favorable conditions for debt restructuring (difficult, but possible, and usually the problem is solved by searching for gaps in the loan agreement, challenging certain provisions of the agreement, filing counterclaims to the bank for the recovery of both material and moral damage, and not necessarily related to the subject of the claim under consideration);
• formation of an evidence base for the court so that it accepts and approves your restructuring plan - establishes a deferral or installment plan (the task is solved by convincing evidence of difficult financial situation, temporary inability to pay the entire amount at once, and similar circumstances).

1. Your goal is the refusal of the court to satisfy the bank's claim for the recovery of commissions accrued due to various grounds on the loan. A few years ago, such cases were very frequent in judicial practice. Today they are rare. But there are good prospects for winning for them, even if the commissions were provided for by the loan agreement. The task in this case is one of two possible:

• prove that the terms of the loan agreement regarding the calculation of commissions are contrary to the law, and demand that such provisions of the agreement be declared illegal;
• require the court to recognize the bank's claim as not subject to satisfaction due to the illegality of its claims - the absence of grounds for charging commissions both in the contract and in the law.

1. Your goal is to recognize the loan agreement in part or completely illegal in accordance with your claim (objection to the bank's claim). In this case, the probability of winning critically depends on how justified and legal your requirements are. The main tasks of such processes are to prove that there are grounds to recognize the contract in whole or in part as invalid (void / voidable), and, accordingly, to collect and present such evidence to the court, and do it convincingly.

If you want to know your real reasons for winning a lawsuit with a bank on a loan, then our online lawyer on duty is ready to promptly advise you.

Legal position and action plan: preparation for the process

As soon as you receive a subpoena, you must already begin to prepare for the process. It is better, of course, to do this in advance - when you are already beginning to realize that judgment cannot be avoided.

At the stage of preparation for the process on the claim filed by the bank, the most important thing is to develop your legal position and draw up an action plan for yourself:

1. Contact the court and familiarize yourself with the available case materials. You have every right to do so. It is important to understand what requirements the bank makes and what it has presented at the moment as a justification and confirmation of its position. You can make extracts from the case materials and copies.
2. It is necessary to carefully analyze the position of the bank, determine for yourself what you can oppose, how legitimate and justified the bank's requirements are, whether the bank's arguments can be refuted. This is painstaking work, even for a lawyer, so it is advisable to seek legal help, at least consulting.
3. If the bank, together with the claim, filed a petition for the application of interim measures, in particular, for the seizure of property, accounts, prepare your objections to the court, and if a court decision has already been made on this issue, prepare a petition for the removal of interim measures, naturally substantiating it. If the court refuses, the decision can be appealed to a higher court.
4. If the deadline has not yet passed, prepare objections to the bank's requirements. But you don't have to, especially if you don't want to reveal your position and evidence beforehand.
5. Check out the jurisprudence for similar cases. This is not difficult to do in terms of the availability of materials on the Internet, but it is still a laborious process. Most effective method- ask a question to lawyers. You can do this for free: there are many sites on the network with free legal advice that will tell you exactly how certain categories of disputes with banks are resolved in court and what you can count on.
6. Determine for yourself the real goals and objectives of the process: what is realistic to achieve and what is not, what resources will be required for this.
7. Analyze the evidence you have (documents, testimonies of witnesses who can be invited to court and who can come, photos, videos, etc.), as well as evidence that you can obtain, including in court - by filing a petition for their reclamation by the court, on the examination.
8. Familiarize yourself with the features of the process, read the code (CPC), judicial practice, write down or remember the most important points. Be prepared for the fact that in the process you will have to not only convince the court that you are right, but also refute the arguments of the bank representative, as well as argue with him and answer, perhaps, not very pleasant questions - acquaintance with judicial practice.
9. Your goals, objectives and ways to solve them, supported by the norms of the law, the terms of the contract, evidence, will become your legal position. However, it is worth thinking in advance about how, if necessary, to quickly adjust the position if the trial goes according to an unplanned scenario. Simply put, if it becomes clear that you will not be able to achieve the main goal, you need to have a “plan B” - how to minimize your losses.
10. Make a plan of action for yourself before the trial and in the process. It needs to be prepared in such a way that you see and understand how and by what means you will achieve the desired result in court, what steps you need to take, what fallback options you will have.

How to act in court

Provided that you have thoroughly prepared for the process, you must act according to your plan. If there was no preparation, you will have to act according to the circumstances. In this situation, again, it is important to understand what exactly the bank wants, how much you agree with the requirements, what you can oppose or suggest to resolve the problem in your favor.

1. Do not immediately agree with the claim, requirements and proposals of the bank. Give yourself time to analyze and evaluate them. You have the right to apply to postpone the court session for a specific period, motivating your request with a need, for example, to prepare evidence, study the bank's offer, its pros and cons. In some cases effective means delaying the process, if necessary, of course, are sick leave, an urgent business trip, etc. The main thing is to prove these facts and present good reasons to the court in a timely manner. But we must not forget about the risk that the court decides to hold a meeting without your participation.
2. If the bank has offered a dispute resolution option that suits you more or less, study the offer carefully. Perhaps it is really beneficial for you, and it is better to resolve the conflict peacefully by concluding an appropriate agreement. Sometimes it is unreasonable to go on principle, based on the circumstances and prospects of the case.
3. Do not be afraid and panic if a bank representative begins to operate with an abundance of norms, provisions of the contract, judicial practice, and this makes his position seem more convincing than yours. Speaking beautifully, legally competently is the job of a bank representative in court. The courts are used to this, as well as to the fact that ordinary citizens express their position in the way they can. Therefore, it is important to speak clearly, understandably, logically, convincingly and with evidence. The ability to operate with legal terms is secondary, and if you do not understand this terminology, it may look inappropriate and even stupid.

The bank won the loan case. What's next?

Consider in advance the option of losing the process. Yes, this is not the goal, it is undesirable, but it is necessary to keep such an outcome in mind. Therefore, it is worth being prepared that enforcement proceedings will begin, which means that measures should be taken to ensure that the consequences of losing the case hit you as little as possible.

If the court failed to win, you have the right to appeal and appeal the decision to higher authorities. Consider this option very carefully. It is reasonable if you need to get some extra time before the start. enforcement proceedings, or if the practice of other courts in similar cases differs from the court decision.

If you have any questions about how to win a lawsuit with a bank on a loan or you want to understand your situation in more detail, then our online lawyer on duty is ready to advise you free of charge.

A bank client has the right to close his account at any time - both the Civil Code and the law on consumer protection speak about this. But is it just as easy to end a relationship with a bank if the account is linked to a heavily indebted credit card? For a long time, the practice was ambiguous: some courts agreed to close the account - after all, obligations can be fulfilled without it. Others, on the contrary, insisted that the agreement with the client binds the credit card and the account together and cannot be closed if there is a debt. Which of the two approaches is correct? Supreme Court.

One question, different approaches

Paragraph 1 of Art. 859 of the Civil Code provides that the bank account agreement is terminated at the request of the client at any time. And if the contract is terminated, this is the basis for closing the account (clause 4 of article 859 of the Civil Code). Moreover, it is not necessary to sign an agreement to terminate the bank account agreement - the client's application is already enough. But if we are talking about a credit card to which the account is linked, closing it with a debt will be difficult, if not impossible.

Courts have different approaches to the possibility of closing an account in case of debt, notes Denis Bobyr, a lawyer at Yukov and Partners. One position is to recognize this possibility. If we analyze the provisions of Art. 421, 422, 859 of the Civil Code or Instruction of the Bank of Russia dated May 30, 2014 No. 153-I, it follows that the requirements for closing a bank account must be satisfied, since by virtue of the law the bank account agreement is terminated at the request of the client at any time, Bobyr notes. Such a conclusion, for example, was made by the Novosibirsk Regional Court in the appeal ruling dated January 31, 2017 in case No. 33-881 / 2017, in which the plaintiff sought the right to close credit account in Alfa-Bank. The court explained: the agreement concluded between the parties is a mixed agreement containing elements of a loan agreement and elements of a bank account agreement, and a bank account agreement - one of the components of a mixed agreement - can be terminated at any time.

Rosportebnadzor received a complaint……

Rospotrebnadzor demonstrated a similar approach in 2015. Rosportebnadzor received a complaint from a citizen who was refused to close an account with MTS-Bank, and the agency saw this as a violation of consumer rights. The bank was ultimately held liable under Part 2 of Art. 14.8 of the Code of Administrative Offenses (inclusion in the contract of conditions that infringe on the rights of the consumer). The bank failed to defend its position in the courts.

The courts explain that when closing a bank account, it is still possible to fulfill obligations under a loan agreement and deposit cash at the cash desk - this method of payment is provided for by law. As a result, the presence of a person's debt does not affect the ability to close the account, and the borrower has the right, in accordance with Art. 859 of the Civil Code, send an application for termination of the account, while this will not affect the loan agreement.

However, there is another approach. It consists in the fact that opening an account by a bank is associated with the need for a person to fulfill obligations to repay a loan. That is, a bank account has not an independent, but an optional value, and its opening is due only to the servicing of a loan agreement, says Bobyr. In this case, if the loan is not repaid, the bank has all legal grounds to refuse to close the bank account, the lawyer reminds. This approach was applied, in particular, by the Stavropol Regional Court in the appeal ruling dated 06/06/2017 in case No. 33-4114/2017. This position was also supported by the Supreme Court in another dispute about the possibility of closing an account with a loan debt.

There is a loan - there will be an account

In 2011, Tatiana Ruzaeva* took consumer credit in Sberbank. She was given a credit card with a limit of 20,000 rubles. and 19% per annum for a year and opened an account for operations. In 2016, Ruzaeva turned to the bank and asked to close the account - at that time her loan debt amounted to 52,091 rubles. The bank refused to do this, and the woman went to court. She insisted that the refusal violated her rights, since the ability to close the account and the obligation to return the money to the bank are not connected: the absence of an account does not relieve her of the need to return the money.

The first two instances upheld the applicant's claim. They recognized her contract with Sberbank as terminated in terms of opening a current account and ordered the bank to close it. 500 rubles were collected from the bank. moral damage and 250 rubles. fine.

The courts proceeded from the fact that the Civil Code and the law on the protection of consumer rights provide for the right of a bank client to close an account and this does not affect the credit obligations that have arisen. The bank account involves carrying out various operations on it, which indicates its independent nature, not related to the repayment of the loan, they added to the appeal. They pointed out that, according to the law on the protection of consumer rights, it is impossible to condition the purchase of some goods by the obligatory purchase of others.

Supreme Court…..

But the Collegium of the Supreme Court for Civil Disputes, chaired by Judge Vyacheslav Gorshkov, considered this approach to be erroneous (case No. 67-KG17-26). As the Supreme Court noted in its ruling in the case, when a bank customer enters into an agreement on the issuance and use of a credit card, it is a mixed agreement containing elements of a bank account agreement and a loan agreement.

In accordance with paragraph 1 of Art. 819 of the Civil Code, under a loan agreement, the bank undertakes to lend money to the borrower; According to the terms of the contract, the borrower undertakes to return the money with interest. Since the agreement is mixed, the obligation to repay the loan is related to the operations on the account, including its closure, the Supreme Court concluded. And the opportunity to get a loan, in principle, is associated with the conduct of operations on the account and its closure. In addition, according to the terms of use of Sberbank cards, the account is closed subject to the repayment of the overdraft and the absence of other debts. This approach is in line with Art. 421 of the Civil Code, which regulates relations under a mixed agreement, recognized the Supreme Court, and the application of the rules on the possibility of terminating the agreement at any time contradicts the essence of such an agreement - after all, it concerns only one part of it - the account. As a result, the Supreme Court canceled the acts of the lower courts and sent the case for a new trial to the court of appeal.

“In essence, the panel's conclusion seems to be correct, since in the situation with credit cards, both the use of a bank account for transactions and the use of a loan occur at the same time; these two components are inextricably linked, says Alexandra Gerasimova, Head of Practice at FBK Legal. At the same time, the justification of the board lacks logical completeness, she is sure.”

The approach to the interpretation of the norms of procedural law is also interesting, Gerasimova believes: for example, despite the establishment of the incorrect application of the norms of substantive law, the collegium did not adopt a new judicial decision, as follows from paragraph 5 of part 1 of Art. 390 of the Code of Civil Procedure, and sent the case for a new consideration on appeal, referring to the observance of reasonable terms of the proceedings. This is doubly unusual, the lawyer is sure, since the transfer to the appeal will only increase the time frame.

A loan court with a bank is waiting for everyone who systematically and for a long time evades payment under a loan agreement. Loan programs greatly simplify the lives of citizens, providing an opportunity to purchase housing or pay for education. However, things do not always work out well in the process of repaying a loan. As a result, debt may arise, the application of fines by the creditor. An extreme case is when the bank sued to collect the debt. How to win a lawsuit with banks on a loan? We will talk about this in detail later, in addition, we will analyze in detail the judicial practice in courts with banks.

First steps in litigation

Important! It should be borne in mind that:

• Each case is unique and individual.
• Careful study of the issue does not always guarantee a positive outcome of the case. It depends on many factors.

To get the most detailed advice on your issue, you just need to choose any of the proposed options:

For the creditor, going to court is an extreme measure used when other options for resolving the dispute have not had an effect. Negative side for the bank - additional expenses to conduct a trial, prepare lawsuit documents, attend meetings by a representative. In the event of a loss, the plaintiff will not be able to recover the costs of filing a claim, and with a significant amount of claims, the price of the claim is quite high.

Considering that the plaintiffs are often interested in winning a lawsuit with banks on a loan, rather than dragging out the process, the defendant can count on a reduction in requirements and the possibility of obtaining an installment plan or writing off part of the debt. However, it is not necessary immediately after receiving the subpoena to agree with everything that the bank has to offer.

agenda

It is necessary to study the received document (agenda) - for its validity. The practice is such that often the creditor sends a similar form to the debtor in order to expedite the repayment of the debt. This subpoena for a loan with a bank must be:

• made "by hand" on a special form f. 31;
• have an imprint of a court stamp;
• the color of the impression paste is blue;
• have a number and date of compilation;
• contain information about the date, place and time of the meeting;
• signed by the clerk of the court;
• addressed to a specific person (full name indicated).

Additionally, you can check whether the bank has really filed a claim with the court and you are going to participate in the process, you can check on the website of the particular court specified in the summons. The search can be carried out by the details of the court summons: number, date and full name of the judge.

Is a representative needed?

If the creditor decided to collect the debt forcibly and the bank nevertheless filed a lawsuit against the borrower, then the question of the advisability of seeking help from a lawyer will be paramount. Involving a representative - a lawyer - to participate in the process has pros and cons. The main disadvantage is the payment for the services of a lawyer. Nevertheless, qualified legal assistance in Russia is not cheap. However, saving on the services of a representative often leads to a loss of the process. Civil litigation is difficult for the average person to master on their own.

The benefits of being a representative are:

• reduction of claims in most cases - minimization of final costs;
• taking advantage of opportunities to win;
• drafting and filing motions that positively affect the process for the defendant;
• reaching an agreement with the creditor - obtaining an installment plan;
• full protection of the interests of the defendant in court;
• comprehensive examination at the root of the issue, and not superficially.

Studying judicial practice, it is worth noting that winning a lawsuit against a bank on credit business very, very difficult if a professional lawyer was not involved in the defense. Savings on expenses when paying for representative services are reasonable only if the amount of the claim is less than the invoice issued by the lawyer for the work.

Stages and essence of the trial

The civil procedure is regulated by the Russian civil procedural legislation- mainly by the norms of the Code of Civil Procedure. Civil litigation is based on the adversarial principle. This means that the law establishes the duty of each participant to motivate and substantiate his position by presenting evidence. Unlike criminal proceedings, there is no principle of innocence of the defendant until proven otherwise.

Process steps

The stages of a court loan with a bank are divided relatively, depending on the situation, deviations from the standard scheme are possible.

1. The first stage is the preparation and collection of documents necessary for filing a claim. Until the moment the plaintiff goes to court - the filing of a statement of claim - officially court proceedings No. The documents are then submitted to the court. (here in detail about).
2. After receiving the claim documents, the court analyzes the completeness of the submitted papers and the validity of the stated requirements. Based on the results of consideration, the claim can be accepted, rejected or left without movement. It is also possible to return the claim. If the application is accepted, a date for the first hearing is set.
3. If the creditor simultaneously submits a claim and a petition for securing it, the court may consider a request for attachment or other restriction in order to preserve the property until the completion of the proceedings. This rate is possible at any stage of the process.
4. The first meeting is preliminary. Despite this, the call is made according to all standards - the agenda. During the preliminary hearing, the position of the plaintiff and the defendant is clarified, the expediency of conducting a full-fledged trial is analyzed. If the defendant agrees with the claim at the preliminary hearing stage, then the process may be completed.
5. Upon positive completion of the stage of preliminary proceedings, the court sets a date for the start of the main process. The parties and other participants in the process are notified of this.
6. The main litigation may consist of several hearings. There are no clear restrictions, but any grant of a delay or postponement of the case must be motivated.
7. During the main hearings, the judge first finds out the fact of the presence of the parties in the hall, then proceeds to consider the case on the merits. At this stage, petitions are made, proposals are made, and the opinions of the parties are heard. Schematically, it looks like this: the floor is given to the plaintiff, who reads out his claims, then time is given to the defendant, who reads out his objections. Then the parties are given the right to ask questions to each other. The judge has the right to participate in the process, to ask additional questions.
8. After completion of the hearing on the merits, the materials of the case are announced. In practice, a listing of all materials in the case to the judge.
9. After the announcement of the materials, the party is granted the right to make a closing speech.
10. The final stage of the main hearing is the judge's decision. To do this, he retires to the meeting room.
11. The operative part of the decision is announced immediately after the adoption by the parties in the courtroom. A full court decision containing a reasoning part is prepared later. You can get a decision with a seal in the court office.

After the decision is made, the civil process enters the waiting stage. The parties have a period of 10 days to file an appeal. In the absence of an appeal statement within 10 days, the judgment comes into full force. At the request of the plaintiff, a writ of execution is issued, sent bailiffs to exercise the right to collect debt. The trial is considered completed.

Protection tools: what to do?

When a citizen receives a subpoena for a loan with a bank, many make a mistake and ignore the subpoena, hoping for a miracle. On the contrary, if the case has gone to court, it is better not to waste time, but to immediately start analyzing the case and develop a defense strategy. Even before the first hearing, it is advisable to study the case materials in order to fully prepare. By law, a citizen has the right to get acquainted with the materials of the case without restrictions, but it is impossible to take the folder out of the court. Since the file may contain many documents, calculations and forms, which will not be easy to analyze right away, it is better to photograph all the sheets of the case. Under no circumstances should any papers be removed from the file!

First of all, pay attention to meeting deadlines. It is extremely rare for banks to violate statute of limitations, but there are precedents. The court accepts the case for consideration without examining the fact of compliance with the limitation period. Upon filing the defendant's petition for the application of the statute of limitations, terminates the proceedings, refusing the plaintiff.

When studying the statement of claim, it is important to pay attention to the calculations that substantiate the claims of the borrower. In practice, banks often overestimate claims, counting very large penalties. With the good work of a credit lawyer, these requirements can be significantly reduced.

Having studied the materials and content of the claim, it is necessary to prepare an objection to the statement of claim if you intend to challenge the claim. Objections should reflect objective facts, points with which you do not agree. If you want to file a petition to reduce the amount charged, you need to operate with facts, and not with an emotional component. For the court, the psychological and emotional state of the debtor, tears and tantrums in the courtroom, and so on, do not matter. Only the bare facts matter.

Litigation in courts with banks

Judicial practice with banks in credit disputes is quite unambiguous. In the overwhelming majority of cases, the case itself is won by the creditor - the plaintiff. The reason is simple - the borrower violates the terms of the loan agreement and does not repay the debt. Next, we have prepared several examples from the practice of courts with banks for loans.

For consumer and other types of loans

As a result, the rights of the creditor are violated, and the court objectively restores them, collecting the debt forcibly. An example of a winning process for a creditor can be case No. А70-12133/2016 of the Arbitration Court of the Tyumen Region. The defendant did not wish to challenge the claims of the plaintiff, did not make any motions, and the court ruled to fully satisfy the claims of the plaintiff. As a result, more than 1 million rubles will be recovered from the defendant.

The formal gains of borrowers include judgments, where the total amount to be recovered was significantly reduced in comparison with that stated in the claim. The reasons that influenced the outcome of the case are different. Basically, the defendants and their representatives operate:

• recalculation of the amount, taking into account previously paid funds on account of the principal debt;
• termination of the insurance agreement;
• application of Art. 333 Code of Civil Procedure of the Russian Federation.

There are cases of actual victories of the defendants in practice. Mostly in these victories, the plaintiffs who do not comply with the procedural norms or requirements for the content of loan agreements are “guilty”. A common reason for a creditor's loss is missing the statute of limitations due to incorrect calculation of terms. It is legally established that the limitation period is 3 years from the moment when the plaintiff learned about the violation of his rights. Some banks start counting not from the moment the delay starts, but from the date the loan agreement expires. In practice, the courts take into account the expiration date of the loan agreement in matters of consumer or mortgage agreements. In debt collection processes credit cards judges are guided by the date of occurrence of the first delay.

Case No. 2-61/2016 of the Chulymsky District Court of the Novosibirsk Region can be considered an example when documents prevail over words and emotions in court. The defendant substantiates her position with emotions - trust in the creditor, because of which she checked the terms of the loan agreement. Also, the defendant's objections are based on the obligation of the bank to perform actions that are supposed by the defendant, but are not the obligation of the creditor. For example, to notify additionally about debiting funds via mobile app to a mobile phone number not fixed in the contract.

For a mortgage loan

Litigation with a bank mortgage loan also deserves a separate topic for discussion. Mortgage is an expensive banking product. The price of a claim for recovery mortgage debt significant, so creditors sue as a last resort. If the debtor is unable to repay the debt to the bank, then it will not be possible to save the apartment. The sale of mortgaged real estate will be carried out at auction, regardless of the marital status of the borrower, whether he has children or the number of persons registered in the apartment. Self-administering a mortgage lawsuit is highly undesirable! There are a lot of "pitfalls" that have a negative impact on debtors.

In an effort to lower the amount of the fee when filing a claim, the creditor does not objective assessment property, declaring the contract value, even if the market price of the apartment has risen significantly over the years. As a result, the borrower can not only lose his home, but also pay off the debt to the bank after that.

There are no real opportunities to keep housing during a mortgage dispute, except in cases where the lender has violated the law and its requirements will not be satisfied at all. However, there are exceptions to the rule, for example, case No. 33-4010/2016 of the Sverdlovsk Regional Court of Yekaterinburg, where the defendants managed to keep the apartment.

The main job of the defense in such cases is to reduce claims and maximize the cost of real estate. In this case, the defendant will receive the largest amount of money after paying off the debt. Also, in the presence of circumstances, it is possible to terminate the mortgage agreement on favorable terms for the borrower. For example, as in case No. 2-1924/2010 of the Central District Court of Krasnoyarsk.