Litigation on calls from the bank. Debtors are sold with relatives

Delay in loan payments forces banks to use any options for influencing debtors - written claims, phone calls, going to court, selling debt to collectors, etc. However, banks often abuse their rights and begin to "get" the debtor's relatives, who have nothing to do with the loan agreement and the debt.

How justified are such actions, and do banks have the right to call the debtor's relatives? In this article, we will answer these questions, taking into account the practice of the Supreme Court of the Russian Federation.

Do they have a right?

It is necessary to immediately determine that banks have the right to use legal methods of influencing only the persons specified in the loan agreement. In addition to the borrower himself, under the terms of the loan, obligations may be borne by co-borrowers or guarantors, who, as a rule, are relatives of the debtor. In relation to this circle of persons, directly indicated in the text of the agreement, the bank may take the following actions aimed at repaying the debt:

sending written notices and claims with a demand to repay the debt and accrued interest;
call on contact numbers specified in the contract, in compliance with the requirements of legislative acts (calls are allowed only during the daytime and on working days, their total number is also regulated by regulatory acts);
send claims to judicial institutions for debt collection both from the main borrower and from the co-borrower or guarantors in the manner of joint and several liability;
transfer the right to claim for the recovery of a debt third parties and persons (collectors) in compliance with the requirements of the law.

If a bank or an organization hired by it to collect a debt violates the requirements of the law, they can be held liable, including under the norms of the Criminal Code of the Russian Federation. First of all, this concerns cases of violence or threats of its use by collectors.

If these methods of debt collection do not bring results, employees banking institutions often arbitrarily expand the list of available methods of influence - they can call the debtor's work, disturb his close relatives and friends with calls. How legitimate are such actions? In 2016, the Supreme Court of the Russian Federation expressed its position on this issue, considering the case at the request of a relative of the debtor.

Based on analysis Definitions Supreme Court RF dated April 12, 2016 No. 9-KG 15-21, to qualify the actions of banking institutions, the following nuances must be taken into account:

notification of the existence of a debt and a request to repay it can only be sent to persons acting as a party or participant in the agreement - the borrower, co-borrower and guarantor (sending documentation to other persons, including close and distant relatives, is an illegal action);
calls to citizens about a debt to their relatives are a violation of the principle of good faith banking, even if these contacts are single;
calling a relative would be illegal even if there was no threat of violence.

Thus, the bank has the right to call only persons to whom monetary claims under a loan agreement. A similar rule applies to cases of transferring debt to collection agencies - oral or written appeals can be addressed only to the debtors themselves, but not to their relatives.

Consider how you can protect yourself from the endless calls of bank employees, and whether it is possible to present material claims in this case.

What to do if they call?

Even if you got a call from the bank once and filed a claim for your relative's debts, you can assert your legal right to protect your privacy. To avoid a stressful situation, it is advisable to politely warn a bank employee about the illegality of his actions and ask him to stop calling. If possible, even the first call must be recorded, this will be evidence in the further process.

If the calls continue, you can proceed as follows:

record each conversation, during which you need to politely find out which bank is calling you, the personal data of an employee of a banking institution;
you can send a written claim to the bank indicating the number of calls, demand to stop illegal activities and compensate for non-pecuniary damage;
must be taken from mobile operator details of calls, from which you can establish the data of the number from which you were called on behalf of the bank (if different phone numbers are used, it will be possible to request information about their owner in a lawsuit);
on the facts of unlawful interference with privacy, you can file statement of claim V district court for compensation moral damage.

In the actions of bank employees, a crime can only arise if there are real threats of violence or the dissemination of disgraceful information. If these facts are established when calling from the bank, you can immediately contact the police, a pre-investigation check will be carried out.

Recovery of compensation for non-pecuniary damage is an unconditional right of a citizen who was called by the bank for the debts of a relative. The amount of compensation will be determined by the court based on the nature of the violation committed - the number of calls, their content, the lack of response of employees of a credit institution to the requirement to stop illegal actions will be determined. In the above case, which was considered by the Supreme Court of the Russian Federation, compensation for non-pecuniary damage in the amount of 150,000 rubles was presented for collection.

If you need help in protecting against unlawful calls on the debts of a relative, we advise you to immediately contact our lawyers for a consultation. Call the 24-hour line or leave your questions in the form of an online chat on our website, we will help you stop calls and seek compensation for moral damage.

Recently, the work of banks through telephone communication has become very widespread. Bank employees call to offer a service, help in obtaining a loan, and sometimes call to remind you of existing debts.

It would seem that when receiving a loan, a person himself agrees to be notified by phone, but when a debt appears, many banks begin to remind you of it too often. And sometimes people get calls that are not at all about their credit, and even getting rid of such erroneous calls is not easy. Indeed, in call centers, calls are dialed automatically from the database of bank debtors, and in order to delete yourself from this list, you often need to perform many operations.

We will tell you in this article how to act in such situations, and how you can punish the bank for frequent calls and demand compensation for moral damage.

How often can they call?

All restrictions regarding calls made from the bank to customers are established in the Federal Law on consumer lending. According to Art. 15 banks or collection organizations have the right to disturb the client about loan repayment issues by phone or in person at a meeting only on weekdays and weekends from 6 am to 10 pm. At night, disturbance is prohibited.

Info

There are no restrictions on the number of calls per day in the law, but the State Duma is discussing possible additions to this in the law. Perhaps in the near future the law will be amended, according to which banks will have the right to call a certain number of times a day.

Can they call for work?

Sometimes bank employees make calls and work visits to the debtor, in this case, if they report on the debt he has to the bank and disclose other information related to the loan, they are committing a crime. Indeed, according to Art. 26 “Banking secrecy” of the Federal Law of the Russian Federation “On banks and banking activities” No. 395-1 dated December 2, 1990, as amended on June 29, 2012 No. 97-FZ, bank employees do not have the right to disclose any information about accounts, transactions, documents and other information about their clients.

Attention

Thus, every time a bank employee calls his client at work, he contributes to the disclosure of information. Also, Federal Law No. 152 “On Personal Data” is the legal basis for the issue of illegal disclosure of personal data of a bank client. When is loan agreement, the bank is obliged to give a promise not to disclose your personal data.

Can the problem be resolved peacefully?

Sometimes you want to solve the problem quickly and without litigation. When calls become too frequent or even “to the wrong address”, you can try to resolve the issue without a trial by contacting the bank. You can write a statement or claim with a request to stop calling and disclose personal data. If you want to punish bank employees or the entire organization, you cannot do without a court.

Advice

If you really have problems paying off the loan, you can ask for a debt restructuring. Perhaps the bank will meet you halfway and give you new convenient conditions for repaying the debt. In order to have more grounds, you can bring a certificate of dismissal, change wages, poor health, etc.

court with a bank

If it is not possible to resolve the existing conflict with the bank peacefully, then it is necessary to resolve the conflict. You can file an application against the illegal action of a bank employee who persistently called you, or entirely against the organization whose employees made the calls. But in order to win the court and collect moral damages from the bank, you must have enough grounds to receive compensation.

In order to receive compensation for non-pecuniary damage received by phone calls, you will need to prove that they affected your well-being, health and state of mind. Moreover, it will be necessary to have medical certificates, conclusions or testimonies of witnesses that will confirm that you experienced mental anguish. It will also be necessary to collect evidence of the bank's guilt and its actions.

In a lawsuit, you must specify:

Name of the judicial body;
The data of the parties;
The essence of the claim;
The amount of the claim;
List of attached evidence and documents;
Date and signature.

To prove the bank's intrusiveness, the details of calls to your phone from the operator, the testimony of witnesses and the recording of calls from the phone are suitable. To win the court, you will need to provide enough evidence, otherwise the court may consider that the claim is unfounded.

Documentation

The following documents must be attached to the claim:

Calculations of the amount of the claim;
Documents, video and audio recordings confirming the fault of the bank;
Medical certificates;
Written testimonies of witnesses;
Receipt for payment of state duty.

Criminal Lawyer. Experience in this field since 2006.

The decision to recover moral damages from the bank for the actions of collectors

MOSCOW CITY COURT

DEFINITION

The Judicial Collegium for Civil Cases of the Moscow City Court, having heard in open court the case on appeals against the decision of the Meshchansky District Court of Moscow, which ruled:

Collect from the Respondent in favor of N., G., compensation for non-pecuniary damage and the costs of paying the state fee,

SET UP:

The plaintiffs filed a lawsuit against the defendants for compensation for non-pecuniary damage and asked to recover from the defendants jointly and severally compensation for moral damage, the costs of paying the state fee, to oblige the defendants to provide acts on the destruction of confidential information, to destroy their personal data from information databases, to destroy information discrediting their honor, dignity and business reputation, to update their credit histories in the central catalog of credit histories and credit history bureaus to which they were transferred.

In support of the claims, they indicated that in 2011 they began to receive calls to their mobile and home phones, SMS notifications, letters from Capital Collection Agency LLC with threats and unreasonable demands for the return of the debt, which caused them moral harm, due to constant threatening calls, an extremely tense atmosphere was created in the family.

The plaintiffs and their representative lawyer Zhukova Oh.C. At the hearing, the claims were upheld.

The representative of CJSC “Raiffeisenbank” at the court session objected to the satisfaction of the claims, asked to dismiss the claim.

The representative of LLC “Capital Collection Agency” at the court session objected to the satisfaction of the claims, referring to the fact that LLC “Capital Collection Agency” is not a proper defendant.

The court ruled the above decision, the repeal of which, in part of satisfying the claims of the plaintiffs, is requested by the representative of the defendant on the arguments set forth in the appeal and in part of the refusal to satisfy the claims, the plaintiffs are asking.

Having checked the case materials, after hearing the plaintiffs' representative, a representative of ZAO Raiffeisen Bank by proxy, having discussed the arguments of the appeals, the panel of judges concludes that the decision of the court of first instance in the present case regarding the recovery of compensation for non-pecuniary damage and the costs of paying the state fee is subject to cancellation on the following grounds.

According to Part 1 of Article 195 of the Code of Civil Procedure of the Russian Federation, the decision of the court must be lawful and justified.

As the Plenum of the Supreme Court of the Russian Federation explained in Resolution No. 23 of December 19, 2003 “On judgment”, the decision is legal in the event that it is made in strict observance of the rules of procedural law and in full compliance with the rules of substantive law that are subject to application to this legal relationship, or is based on the application, where necessary, of the analogy of the law or the analogy of law (part 4 of article 1, part 3 of article 11 of the Code of Civil Procedure of the Russian Federation).

The decision is justified when the facts relevant to the case are confirmed by evidence examined by the court that meets the requirements of the law on their relevance and admissibility, or by circumstances that do not need to be proven (Articles 55, 59-61, 67 of the Code of Civil Procedure of the Russian Federation), and also when it contains exhaustive conclusions of the court arising from the established facts.

The court found that between N. and ZAO Raiffeisenbank Austria a loan agreement was concluded under the terms of which the plaintiff was granted a loan in US dollars for a period of 36 months and a pledge agreement vehicle, and between G. and ZAO Raiffeisenbank Austria a surety agreement was concluded.

By the decision of the Meshchansky District Court of Moscow, which has entered into force, with N. and G. in solidarity in favor of ROOF RUSSIA S.A. the amount of the debt under the loan agreement, the costs of paying the state duty were recovered. From the above decision of the court it follows that as a result of the assignment accounts receivable, the rights of claim of ZAO RaiffeisenBank under the loan agreement, the pledge agreement and the surety agreement were transferred to ROOF RUSSIA S.A.

On March 31, 2011 ZAO Raiffeisenbank issued a certificate stating that the decision of the Meshchansky District Court of Moscow in terms of obligations under the loan agreement was fulfilled by N.M. in full March 18, 2011.

On September 13, 2011, an agency agreement was concluded between Capital Collection Agency LLC and Raiffeisenbank CJSC, under the terms of which Capital Collection Agency LLC assumed obligations, on behalf of Raiffeisenbank CJSC, to take actions aimed at collecting overdue debts from the principal's borrowers. In accordance with the terms of the above agreement, only those borrowers who have a delay in fulfilling obligations under loan agreements should be transferred to the work of an agent by the principal.

In November 2011 ZAO Raiffeisenbank transferred the plaintiffs' personal data to OOO Capital Collection Agency. This circumstance is confirmed by the materials of the case examined by the court and was not disputed by the representative of ZAO Raiffeisenbank.

November 18, 2011 on the basis of clause 3.1. under the agency agreement, Borrower N. entered the work of Capital Collection Agency LLC, G.

Based on clause 10.1.1. the agent proceeded to perform the actions provided for in clause 2.2. agency agreement. LLC “Capital Collection Agency” did not have information that obligations under N.’s loan agreement were fulfilled at the time of entry into work, and as part of the execution of the agency agreement, telephone calls were made to the borrower in order to clarify the circumstances preventing the repayment of the debt.

After November 19, 2011, the plaintiffs' mobile and home phones began to receive calls, SMS notifications, letters from Stolichnoye Collection Agency LLC with threats and unreasonable demands for debt repayment.

From the plaintiffs LLC "Capital Collection Agency" it became known that the obligations under the loan agreement were fulfilled in full. N. and G. refused to submit a certificate of repayment of the debt to the Capital Collection Agency LLC.

On December 12, 2011, the transaction on the debt of N.M. was withdrawn from the work of Capital Collection Agency LLC, due to the fact that the Principal recognized the debt of the borrower as fully repaid.

The processing of personal data has been terminated from the specified date (data blocked). On December 13, 2011, the personal data of N., G. in the information system of Capital Collection Agency LLC were destroyed, which was confirmed by the Act on the destruction of confidential information dated December 13, 2011.

Under such circumstances, the court of first instance came to a reasonable conclusion that no violations of the rights of the plaintiffs by LLC “Capital Collection Agency” were established and refused to satisfy the claims of the plaintiffs against LLC “Capital Collection Agency”.

Refusing to satisfy the claims for compensation for moral damages brought against CJSC Raiffeisenbank, the court indicated that CJSC Raiffeisenbank, when signing the agency agreement, on the basis of which the personal data of the plaintiffs were transferred to LLC Capital Collection Agency, acted on the basis of a power of attorney issued by ROOF RUSSIA S.A.

The Judicial Collegium cannot agree with the said conclusion of the Court of First Instance and finds it unfounded and unsupported by the examined materials of the case, since it is seen from the text of the agency agreement that it was concluded by CJSC Raiffeisenbank represented by the head of the department economic security acting on the basis of a power of attorney and Capital Collection Agency LLC. The data that said contract concluded on behalf of and in the interests of ROOF RUSSIA S.A. agency agreement does not contain.

Under such circumstances, the court decision regarding the recovery of compensation for non-pecuniary damage from ROOF RUSSIA S.A. can not be recognized as legal and it is subject to cancellation.

In response dated December 24, 2011 to the complaint of N.M. CJSC Raiffeisenbank confirms and acknowledges the mistake made by CJSC Raiffeisenbank. At the same time, the plaintiff was informed about the withdrawal from LLC “Capital Collection Agency” of work on his debt.

According to clause 2 of article 1099 of the Civil Code of the Russian Federation, moral damage caused by actions (inaction) that violate the property rights of a citizen is subject to compensation in cases provided for by law.

According to Article 9 of the Federal Law of the Russian Federation No. 152-FZ, the subject of personal data decides to provide his personal data and agrees to their processing freely, by his own will and in his own interest. Consent to the processing of personal data must be specific, informed and conscious. Consent to the processing of personal data may be given by the subject of personal data or his representative in any form allowing to confirm the fact of its receipt, unless otherwise provided by federal law. In case of obtaining consent to the processing of personal data from a representative of the subject of personal data, the authority of this representative to give consent on behalf of the subject of personal data is checked by the operator.

According to paragraph 1.1. and 3.1 of the loan agreement concluded by the claimant, the loan is provided by transfer Money to the borrower's demand deposit account in US dollars at the bank. Accounts of individuals are serviced in the bank in accordance with general conditions maintenance of bank accounts and deposits of individuals, clause 2.8 of which provides that for the purposes of the Federal Law of the Russian Federation “On Personal Data”, the client consents to the processing of the client’s personal data by the bank, which is given until the client fully fulfills its obligations under each agreement and can be early withdrawn only after the termination of each agreement.

In accordance with Article 17 of the Federal Law of the Russian Federation “On Personal Data”, if the subject of personal data believes that the operator is processing his personal data in violation of the requirements of this Federal Law or otherwise violates his rights and freedoms, the subject of personal data has the right to appeal against the actions or inaction of the operator to the authorized body for the protection of the rights of subjects of personal data or in court. The subject of personal data has the right to protect his rights and legitimate interests, including compensation for losses and (or) compensation for moral damage in court.

Considering that consent to the processing of personal data is given until the client fully fulfills its obligations under the agreement, as of the date of transfer of the personal data of the plaintiffs to Capital Collection Agency N. LLC, the obligations under the loan agreement were fully fulfilled, it should be recognized that CJSC Raiffeisenbank had no grounds for transferring the personal data of the plaintiffs.

In addition, as of the date ZAO Raiffeisenbank entered into an agency agreement with LLC Capital Collection Agency, i.e. As of September 13, 2011, ZAO Raiffeisenbank did not have the right to claim under the loan agreement concluded with N., because as a result of the assignment of receivables, ZAO Raiffeisenbank's rights to claim under the loan agreement, pledge agreement and guarantee agreement were transferred to ROOF RUSSIA S.A.

It follows from the foregoing that the rights of the plaintiffs were violated by CJSC Raiffeisenbank, which transferred the personal data of the plaintiffs and information about the non-existent debt under the loan agreement to LLC Capital Collection Agency without the grounds provided for by law, since the obligations under the loan agreement were fully fulfilled by the plaintiffs on March 18, 2011, that is, even before the conclusion of the agency agreement and the transfer of information.

In this regard, moral damages and the cost of paying the state fee are subject to recovery from ZAO Raiffeisenbank.

Satisfying claims for the recovery of compensation for moral damage and determining the amount of compensation, the Judicial Board takes into account the actual circumstances of the case, the moral suffering of the plaintiffs in connection with the violation of their rights, guided by the principle of reasonableness and justice, comes to the conclusion that compensation for moral damage is subject to recovery in favor of the plaintiffs.

Resolving the dispute regarding the obligation of the defendants to provide acts on the destruction of confidential information, to destroy their personal data from information databases, to destroy information discrediting their honor, dignity and business reputation, to update their credit histories in the central catalog of credit histories and the credit history bureaus to which they were transferred, the court came to a reasonable conclusion to refuse to satisfy the claims, since their personal data from information databases was destroyed, which is confirmed by the submitted acts, and the requirement to update credit stories are not based on law.

Clause 9. 1 of the loan agreement provided that the borrower expresses his consent to the provision of all information available about him, to the extent, in the manner and on the terms determined by the Federal Law of the Russian Federation “On Credit Histories” to at least one credit history bureau included in the state register of credit history bureaus. Article 7 of the Federal Law of the Russian Federation “On Credit Histories” provides that the credit history bureau provides storage credit history within 15 years from the date of the last change in the information contained in the credit history. After the expiry of the specified period, the credit history is canceled (excluded from the number of credit histories stored in the relevant credit history bureau).

In accordance with Article 8 of the above-mentioned Federal Law, the subject of a credit history has the right to receive information in the Central Catalog of Credit Histories about which credit history bureau stores his credit history.

The subject of credit history has the right to receive a credit report on his credit history, including the one accumulated in accordance with this federal law information about the sources of credit history formation and about users of the credit history to whom credit reports were issued.

The subject of a credit history has the right to fully or partially dispute the information contained in his credit history by submitting to the credit history bureau, which stores the specified credit history, an application for amendments and (or) additions to this credit history.

The credit history bureau updates the credit history in the disputed part in case of confirmation of the application of the subject of the credit history specified in paragraph 3 of this article, or leaves the credit history unchanged. The credit history bureau is obliged to inform the subject of the credit history in writing about the results of consideration of the said application within 30 days from the date of its receipt. Refusal to satisfy the specified application must be motivated.

The subject of credit history has the right to appeal in court the refusal of the credit history bureau to satisfy the application for making changes and (or) additions to the credit history, as well as the failure to submit a written report on the results of consideration of his application within the period established by this article.

The decision of the court regarding the refusal to satisfy the claims of the plaintiffs on the obligation of the defendants to provide acts on the destruction of confidential information, to destroy their personal data from information databases, to destroy information discrediting their honor, dignity and business reputation, to update their credit histories in the central catalog of credit histories and the credit history bureaus to which they were transferred is legal and reasonable and there are no grounds for its cancellation.

The arguments of the plaintiffs' appeal do not refute the conclusions of the court of first instance, are aimed at a different interpretation of the substantive law and a different assessment of the circumstances established by the court, do not contain new circumstances that need additional verification, and therefore cannot serve as a basis for canceling the judgment.

Based on the foregoing, guided by Articles 328-330 of the Code of Civil Procedure of the Russian Federation, the Judicial Collegium

DETERMINED:

The decision of the Meshchansky District Court of Moscow regarding the recovery of compensation for non-pecuniary damage and state duty in favor of the plaintiffs from ROOF RUSSIA S.A. cancel.

Collect from ZAO Raiffeisenbank in favor of N. and G. compensation for non-pecuniary damage and the cost of paying the state fee in favor of each.

The rest of the decision of the Meshchansky District Court of Moscow is left unchanged.

Hello!

Yes, you can sue for moral damages from the bank and collection agency(if collectors also call).

Judicial practice is available.

APPEALS DETERMINATION

Judicial Collegium for Civil Cases of the Tomsk Regional Court consisting of:

presiding Sinyakova T.P.,

judges Neber Y.A., Radikevich M.A.,

under the secretary Chernova S.V.

considered in an open court session in the city of Tomsk the case on the claim of Vyatkin A.P. joint-stock company"Vostochny Express Bank", to the limited liability company "Credit Collection Group" on imposing the obligation to stop processing personal data and exclude illegally obtained personal data from information system with the direction of the relevant written notice, compensation for moral damage, recovery of court costs

on the appeal of Vyatkin A.P. against the decision of the Seversky City Court of the Tomsk Region dated August 25, 2014.

After hearing the report of the judge Radikevich M.A., the explanations of Vyatkin A.P., who supported the complaint, the judicial board

installed:

Vyatkin A.P. filed a lawsuit against Vostochny Express Bank Open Joint Stock Company (hereinafter referred to as OJSC CB Vostochny Express Bank), Credit Collection Group Limited Liability Company (hereinafter referred to as Credit Collection Group LLC) on imposing the obligation to stop processing personal data, compensation for moral damage.

In support of his claims, he indicated that for 2 years his cell phone received calls and SMS messages demanding to pay off the debt. The callers introduced themselves as employees of LLC "Credit Collection Group" and informed him about the alleged debt on a loan to OJSC CB "Vostochny Express Bank". In addition, the SMS messages against him and his relatives contained clear threats.

Any loan agreement between Vyatkin A.P. and OJSC CB "Vostochny Express Bank" was not concluded.

In the course of an audit conducted by the Russian Ministry of Internal Affairs for ZATO Seversk, Tomsk Region, it turned out that on November 17, 2010, his son’s wife from his first marriage, V., entered into a loan agreement with OJSC CB Vostochny Express Bank and, at the request of the bank, left his phone number as an additional contact, giving his last name, first name and patronymic. Currently, V. does not properly fulfill his obligations under the loan agreement.

He believes that OJSC CB Vostochny Express Bank and LLC Credit Collection Group, having received his personal data, processed them without his consent in violation of paragraphs. 1 p. 1 art. 6 of the Federal Law "On Personal Data".

As a result of the illegal processing of his personal data by the defendants, he suffered non-pecuniary damage, which he estimates at /__/ rub.

Based on the foregoing, the plaintiff asked the court: to oblige OJSC CB Vostochny Express Bank to stop processing his personal data (last name, first name, patronymic and contact phone number), exclude his illegally obtained personal data from the information system and send him a corresponding written notice; oblige Credit Collection Group LLC to stop processing his personal data (last name, first name, patronymic and contact phone number), exclude his illegally obtained personal data from the information system and send him a corresponding written notice; collect in his favor for /__/ rub. as compensation for non-pecuniary damage from each of the defendants.

The court session was held in the absence of representatives of OAO CB Vostochny Express Bank, OOO Credit Collection Group.

At the hearing the plaintiff Vyatkin A.P. and his representative Tikhonov B.L. The stated claims were supported in full.

The court ruled a decision, which, on the basis of paragraph 2 of the decision of the Plenum of the Supreme Court Russian Federation dated 12/20/1994 No. 10 "Some issues of application of legislation on compensation for moral damage", art. 2, 3 "On personal data", the claims of Vyatkina A.P. left unsatisfied.

Disagreeing with the decision of the trial court, Vyatkin A.P. filed an appeal, which asks the decision of the court of first instance to cancel, take a new decision to meet the stated requirements.

In support of the complaint indicates that when deciding, the court of first instance incorrectly applied the substantive law. Refusing to satisfy the stated requirements, the court of first instance considered that the rights of the plaintiff were not violated, since the information provided by the defendants in SMS messages does not contain either the name, patronymic, or address of the place of residence of the person, nor the year, month, date and place of birth, family, social, property status, education, profession, income, as well as other information by which it is possible to identify a specific person. However, within the meaning of the Law “On Personal Data”, the processing of personal data is understood not only as their distribution, and therefore the court’s conclusions to the contrary are unfounded.

Indicates that the court of first instance did not assess the fact that the personal data of Vyatkina A.P. were transferred to OJSC CB Vostochny Express Bank LLC Credit Collection Group, which indicates a violation of the rights of the plaintiff provided for by law. In addition, Vyatkin A.P. did not express his consent to the processing of personal data, which also indicates a violation of the provisions of the Law "On Personal Data".

He believes that by refusing to satisfy his claims, the court violated the plaintiff's right to judicial protection, and therefore the decision of the court of first instance should be canceled.

Judicial Board on the basis of Part 1, Part 3 found it possible to consider the case in the absence of representatives of the defendants duly notified of the time and place of the hearing.

Having studied the materials of the case, discussed the arguments of the appeal, having checked the legality and validity of the decision of the court of first instance according to the rules of part 1, the panel of judges believes that the decision made by the court does not meet the requirements of part 1, which stipulates that the court decision must be lawful and justified.

As explained, the decision is legal when it is made in strict observance of the rules of procedural law and in full compliance with the rules of substantive law that are subject to application to this legal relationship, or is based on the application, where necessary, of the analogy of the law or the analogy of law (part 4, part 3).

According to Part 1 of Article 23 of the Constitution of the Russian Federation, everyone has the right to privacy, personal and family secrets, protection of their honor and good name.

Collection, storage, use and dissemination of information about the private life of a person without his consent is not allowed. State authorities and local self-government bodies, their officials are obliged to provide everyone with the opportunity to familiarize themselves with documents and materials that directly affect their rights and freedoms, unless otherwise provided by law ().

By virtue of Article 17 (Part 3) of the Constitution of the Russian Federation, the exercise of human and civil rights and freedoms must not violate the rights and freedoms of other persons.

In accordance with Part 3 of Article 55 of the Constitution of the Russian Federation, the rights and freedoms of a person and a citizen may be limited by federal law only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state.

In the development of these constitutional provisions, in order to ensure the protection of the rights and freedoms of a person and a citizen in the processing of his personal data, including the protection of the rights to privacy, personal and family secrets, the Federal Law of July 27, 2006 N 152-ФЗ "On Personal Data" (hereinafter referred to as the Law "On Personal Data") was adopted, which regulates relations related to the processing of personal data carried out federal authorities state authorities, state authorities of the constituent entities of the Russian Federation, other state bodies, local government bodies, municipal bodies that are not part of the system of local government bodies, legal entities, individuals (Part 1 of Article 1, Article 2 of the Law "On Personal Data").

This Law defines the principles and conditions for the processing of personal data, the rights of the subject of personal data, the rights and obligations of other participants in legal relations regulated by this law.

According to Article 3 of the Law "On Personal Data", personal data is any information relating to an individual identified or determined on the basis of such information (subject of personal data). By virtue of part 1 of article 9 of the said Law, the subject of personal data decides to provide his personal data and consents to their processing by his own will and in his interest, except for the cases provided for by part 2 of this article.

According to part 1 of Article 6 of the Law "On Personal Data", the processing of personal data by the operator is allowed with the consent of the subjects of personal data.

The Court of First Instance established and follows from the materials of the case that the plaintiff was not in a contractual relationship with OJSC CB Vostochny Express Bank and LLC Credit Collection Group, was neither a borrower nor a guarantor under a loan agreement. Information about the plaintiff's telephone number, his last name, first name, and patronymic were provided by V. to OAO Vostochny Express Bank, who is the wife of the plaintiff's son, in the application for a loan.

The materials of the case do not contain evidence of the plaintiff's consent to the processing of his personal data, nor do they contain evidence of the existence of other conditions for the legality of the processing of personal data specified in Article 6 of the said Law.

In refusing to satisfy the claim, the court proceeded from the fact that the plaintiff did not prove the processing of his personal data (last name, first name, patronymic and telephone number) in the information system.

At the same time, the court pointed out that the connection with the plaintiff by telephone number by the defendants' employees, in the court's opinion, does not violate the plaintiff's rights in the context of the norms set forth in the Law "On Personal Data", since the statements set out in SMS messages do not contain personalized and detailed data, neither the name, nor the patronymic, nor the address of the place of residence of the person, nor the year, month, date and place of birth, family, social, property status, education, profession, income, as well as other information by which it is possible to identify a specific person, namely the plaintiff.

No objective and indisputable evidence that the employees of OJSC CB Vostochny Express Bank and LLC Credit Collection Group in any way processed (stored, distributed or disclosed, including to third parties) the personal data of the plaintiff, was also not presented to the court.

These conclusions were made by the court without taking into account the requirements of substantive law.

In accordance with paragraph 2,3 of article 3 of the Law "On Personal Data", the processing of personal data means any action (operation) or a set of actions (operations) performed using automation tools or without using such tools with personal data, including the collection, recording, systematization, accumulation, storage, clarification (updating, changing), extraction, use, transfer (distribution, provision, access), depersonalization, blocking, deletion, destruction of personal data.

Operator - government agency, municipal authority, legal or individual, independently or jointly with other persons organizing and (or) carrying out the processing of personal data, as well as determining the purposes of processing personal data, the composition of personal data to be processed, actions (operations) performed with personal data.

It can be seen from the case file that in the course of repeated checks carried out by law enforcement agencies on the statements of Vyatkin A.P., it was established that the phone number registered in the name of the plaintiff was repeatedly called and SMS sent by employees of Credit Collection Group LLC using the plaintiff's personal data, namely: last name, first name and patronymic, since the phone number and personal data of the plaintiff were indicated in the credit history of V., a client of OJSC CB Vostochny Express Bank.

The defendants did not add any other circumstances and evidence to the contrary was not presented in the case file.

From the response of OJSC CB "Vostochny Express Bank" submitted to the court of appeal, it follows that between OJSC CB "Vostochny Express Bank" and the Limited Liability Company "/__/" on April 26, 2013, an agreement was concluded on the assignment of rights, including under a loan agreement concluded with V. The agent of the Limited Liability Company "/__/" under this agreement is Credit Collection Group LLC. In accordance with this agreement, the original documents under the loan agreement concluded with V. were transferred to the Limited Liability Company "/__/", including. One copy of the assignment agreement was handed over to Credit Collection Group LLC.

Thus, in violation of the above requirements of the law, OJSC CB "Vostochny Express Bank" processed the plaintiff's personal data, namely, including their collection, storage and transfer.

LLC "Credit Collection Group", having received the plaintiff's personal data not from him, without having information about his consent to the processing of his personal data, before the start of data processing (storage and use), in violation of Part 3 of Article 18 of the Law "On Personal Data", did not provide the plaintiff with the necessary information, did not send a notification about the start of processing his personal data. Therefore, Vyatkina A.P. carried out the processing of personal data. illegal.

Evidence to the contrary, in violation of the requirements of Article 56 of the Civil Procedure Code of the Russian Federation, was not presented by the defendants in the case.

According to Article 17 of the Law "On Personal Data", if the subject of personal data believes that the operator is processing his personal data in violation of the requirements of this Federal Law or otherwise violates his rights and freedoms, the subject of personal data has the right to appeal against the actions or inaction of the operator to the authorized body for the protection of the rights of subjects of personal data or in court. The subject of personal data has the right to protect his rights and legitimate interests, including compensation for losses and (or) compensation for moral damage in court.

According to Part 2 of Article 24 of the Law "On Personal Data", moral damage caused to the subject of personal data as a result of violation of his rights, violation of the rules for processing personal data established by this Federal Law, as well as the requirements for the protection of personal data established in accordance with this Federal Law, is subject to compensation in accordance with the legislation of the Russian Federation. Compensation for moral damage is carried out regardless of compensation for property damage and losses incurred by the subject of personal data.

According to paragraph 1 of article 1099 Civil Code Russian Federation, the grounds and amount of compensation to a citizen for moral damage are determined by the rules provided for by Chapter 59 and Article 151 of the Civil Code of the Russian Federation.

In accordance with Art. 151 of the Civil Code of the Russian Federation, if a citizen has been inflicted moral harm (physical or moral suffering) by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.

When determining the amount of compensation for non-pecuniary damage, the court takes into account the degree of guilt of the offender and other noteworthy circumstances. The court must also take into account the degree of physical and mental suffering associated with the individual characteristics of the person harmed. provides that compensation for non-pecuniary damage is carried out in monetary form. The amount of compensation for moral damage is determined by the court, depending on the nature of the physical and moral suffering caused to the victim, as well as the degree of guilt of the tortfeasor in cases where guilt is the basis for compensation for harm. When determining the amount of compensation for harm, the requirements of reasonableness and fairness must be taken into account. The nature of physical and moral suffering is assessed by the court, taking into account the actual circumstances under which the moral harm was inflicted, and the individual characteristics of the victim.

In accordance with paragraph 2, moral harm is understood as moral or physical suffering caused by actions (inaction) that encroach on non-material benefits belonging to a citizen from birth or by virtue of the law, including privacy, personal and family secrets.

Since the defendants process the plaintiff's personal data in violation of the requirements of the law, their actions violated the plaintiff's rights to protect his personal data, this circumstance is the basis for recovering moral damages from them.

In determining the amount of compensation for non-pecuniary damage to be recovered from each of the defendants, the judicial collegium takes into account the specific circumstances of the case, the amount and nature of the suffering caused to the plaintiff, the degree of fault of the defendants, the scope of violations on the part of JSC CB "East Express Bank", the volume and duration of violations on the part of Credit Collection Group LLC, the judicial collegium considers it appropriate to the nature of the experiences suffered by the plaintiff related to the illegal processing of his personal data, the requirements of reasonableness and fairness to determine the amount of recovery of moral compensation with JSC CB "Vostochny Express Bank" - /__/ rubles, with LLC "Credit Collection Group" - /__/ rubles.

By virtue of Part 3 of Article 21 of the Law "On Personal Data", in the event that illegal processing of personal data is detected by the operator or a person acting on behalf of the operator, the operator, within a period not exceeding three working days from the date of this discovery, is obliged to stop the illegal processing of personal data or ensure the termination of the illegal processing of personal data by a person acting on behalf of the operator.

Evidence of the fulfillment by the defendants of such requirements of the law was not presented in the case, despite the fact that copies of the statement of claim by Vyatkin A.P. were sent to the defendants, they were also notified by the court of first and appeal instances of the time and place of the court sessions, the court of appeal sent court requests to the defendants.

Under such circumstances, the claims Vyatkina A.P. on imposing the obligation to stop the processing of personal data and exclude illegally obtained personal data from the information system with the direction of the corresponding written notification are also subject to satisfaction.

In view of the foregoing, the decision is subject to cancellation with the adoption of a new decision on the partial satisfaction of the claims of Vyatkina A.P.

Guided by paragraph 2,, judicial board

determined:

the decision of the Seversky city court of the Tomsk region of August 25, 2014 to cancel. Adopt a new decision, with which the claim of Vyatkin A.P. is partially satisfied.

To oblige OJSC CB "Vostochny Express Bank" and LLC "Credit Collection Group" to stop processing personal data of Vyatkin A.P., exclude his personal data from the information system and send Vyatkin A.P. appropriate written notice.

To recover in favor of Vyatkin A.P. compensation for moral damages from OJSC CB Vostochny Express Bank in the amount of /__/ rubles, from LLC Credit Collection Group - /__/ rubles, as well as the costs of paying the state fee in the amount of 200 rubles, that is, 100 rubles from each.

presiding

An important precedent decision was made in Orenburg by the regional court. He ordered the bank to pay compensation for non-pecuniary damage to a client who was tortured by collectors with threatening calls and letters.

It all started with the fact that a citizen came to the district court of Orenburg with a lawsuit against big bank. She asked the financial institution to compensate her for moral damage from the transfer of her personal data to collectors.

The plaintiff explained that she had entered into a loan agreement with the bank for 100,000 rubles and, upon receiving the loan, agreed to transfer the rights and obligations under the agreement to third parties. She did not give her consent to the transfer of her personal data to anyone.

Due to everyday problems, she overdue the payment on the loan. And the threats from the collection office began. Moreover, they called and sent SMS not only to the plaintiff's mobile, but also to her relatives.

The court, having studied the materials of the case, stated that the bank has no right to disclose personal data of customers to third parties without their consent. As a result, the court exacted compensation for non-pecuniary damage from the bank in favor of the plaintiff and the bank will also pay court expenses plaintiffs.

Such a decision of the court is extremely important. After all, in the country now a lot of citizens are suffering precisely from such actions of banks and collectors, who act in violation of all laws. And far from always knocking out a debt, it's just a waste of nerve cells.

Recall that in St. Petersburg, due to calls from collectors, a schoolgirl jumped out of a window on the 10th floor. Fortunately, the girl survived. Now St. Petersburg investigators are looking for those because of whom she attempted suicide. A well-known cellular company is suspected, which sold its client's debt to collectors.

An 11-year-old girl received a fracture of the base of the skull, a craniocerebral injury, and a chest injury. According to the doctors, she survived by a miracle. Actually this story is creepy. The family rented an apartment. The hostess, renting out housing, warned that they could call from the bank where her son took out a loan.

It turned out that the collectors not only called, but also sent letters demanding to pay off the debt. It is already known that the collectors knew perfectly well that the debtor had not lived in this apartment for a long time. They knew that strangers were filming it, but they continued to mock people.

The calls of collectors were often answered by a girl who was alone at home during the day after school. But even having heard a child's voice in the receiver, the bouncers of debts did not calm down. In general, the child lost his nerve. The girl wrote a note to her parents: "Run, save yourself, we owe them 83 thousand rubles" and jumped from the 10th floor. The whole cynicism of the situation is that the collectors continued to call this apartment and threaten even after the tragedy.

According to preliminary information, the collection service, which arranged a real psychological terror for the family, is located in Moscow. Investigators are looking into who exactly spoke to the child. By law, collectors are prohibited from any negotiations with children. But no one has answered this yet. Collectors are taught that it is best to put pressure on the children and old people of the debtor, to pull the boss at work. They send threatening text messages like "do not leave the house, they left for you."

If this does not work, then they come in person. This is what happened in the Urals. There, a criminal case is being investigated about the murder of a debtor by collectors. In Perm, they are looking for eyewitnesses of a fight that ended in a murder. At the end of September, on one of the streets of the city, representatives of the microfinance organization "Dam money" attacked the debtor Andrey Chernykh and his friend Nikita Palyanov. The debtor and a friend came to a meeting with collectors to discuss the terms of repayment of the loan. But the conversation didn't work. As soon as the young people got out of the car, they were attacked with fists. Nikita was hit with his head on the asphalt, as a result of which he was seriously injured.

Passers-by called an ambulance, but the doctors could not save young man He died in intensive care. The deceased is survived by his wife and two-year-old daughter.

According to the latest information, the police have so far detained one of the attackers. A criminal case was initiated under Part 1 and Part 4 of Art. 111 of the Criminal Code of the Russian Federation (Intentional infliction of grievous bodily harm, negligently resulting in the death of a person). The maximum punishment that awaits the collector is 15 years in prison. They are looking for the second attacker.

Recently, literally a series of suicides has taken place in different regions of the country, which investigators associate precisely with unpaid loans, collectors and banks. But it has not yet been possible to prove a direct link between suicides and calls from collectors in any case. In Russia, a human rights association of anti-collector communities has even started working.

At the end of last year, an amendment to the Criminal Code was submitted for consideration by the State Duma to punish bankers and collectors who drove debtors to suicide. But this idea did not cause enthusiasm among legislators.

Help "RG"

Collectors are not allowed to:

- threaten the debtor with reprisals and imprisonment;
- demand to repay the debt immediately, publicly accuse the debtor of fraud;
- seize the borrower's property without a court decision or if it belongs not only to the debtor, but also to his children or other relatives;
- request data on the salary and other income of the debtor in tax office and other state organizations without the permission of the court or the borrower.

What is considered illegal actions of collectors?

The collector does not introduce himself, does not name his data, does not present his documents at the meeting.
The collector refers to the debtor on "you" or by name, even worse - offends.
Calls after 22:00.
The collector does not have the right to disclose confidential information to third parties - the amount of debt, interest, delay time. (Third parties are not only strangers, but even the wife and parents of the debtor).
The collector is forbidden to call the debtor at work, call his relatives and friends.
It is not allowed for the collector to call and send SMS more than once a day.