Solution: refused to satisfy the requirement. Ulyanovsk Regional Court - Judicial Act of the Court's decision on credit contracts of the Bank Trust
Circumstances: the plaintiff refers to the fact that the contract was concluded, the defendant does not fulfill its obligations under the contract.
We draw your attention to the fact that this decision could be appealed in the court of the highest instance and canceled
Belgorod Regional Court
The judicial board on civil cases of the Belgorod Regional Court as part of:
Motilkova Presidency V.I.
Judges Lyachovskaya L.I., Efimova D.A.
Under Secretary B.
Considered in open court a civil case under the claim of the Public Joint Stock Company National Bank "Trust" to K. On the recovery of debt under the loan agreement
According to the appeal K.
On the decision of the Staroscolsky City Court of the Belgorod Region of April 3, 2017.
Having heard the report of the judge Efimova D.A., Judicial Collegium
installed:
PJSC NB "Trust" appealed to the court with a claim to K. On the recovery of debt on the loan agreement, pointing out to substantiate the requirements for the fact that on the basis of the defendant's statement 12.12.2011, the agreement N 2035229517 was concluded between them and the Bank, according to which the respondent was opened Bank account, issued a settlement card n validity of 36 months with a limit of the permitted overdraft 23299 rubles. With the condition of payment of 51.10% per annum for the use of credit funds. Referring to the cases allowed by the borrower of late and insufficient payment of payments to the repayment of debt and pay interest, the plaintiff requested to recover from K. Debt in the amount of 91157.18 rubles, of which: 31123.93 rubles. - the amount of the principal debt; 60033.25 rub. - interest for the use of the loan.
The representative of the plaintiff did not appear at the hearing, presented a petition for the consideration of the case in his absence.
The defendant K. at the hearing did not recognize the lawsuit, referred to the claimant of the statute of limitation, indicating that the limitation period must be calculated since May 2013, since the latter payment received 10.04.2013, asked to apply the effects of such a term.
By the decision of the Staroscolsky City Court of the Belgorod region from 03.04.2017 with K. in favor of PJSC NB "Trust" debt paid for a loan agreement N 2035229517 in the amount of 91157.18 rubles, as well as the cost of paying state duty in the amount of 2935 rubles.
In the appeal of K., referring to the violation by the court when making a decision of the norms of material law, the inconsistency of the conclusions of the court circumstances of the case, indicating that the court missed the limitation period, since he made the last payment on 10.04.2013, the plaintiff's violation was to know In the period after May 2013, in view of which at the time of appealing to the court, the limitation period on demand for the recovery of the last payment expired, unreasonably rejected the petition for the application of the consequences of his passage, asks the court decision to cancel, to take a new decision on refusal to satisfy the requirements.
The court of appeal to the parties notified about the time and place of the court session in a timely and properly, did not appear, the reasons for the failure did not report.
Checking the legality of the judicial act according to the rules of Part 1 and 2 Art. 327.1 Code of Civil Procedure of the Russian Federation within the arguments set out in the appeal, in the absence of grounds for entering the limits of the arguments, the judicial board believes that the appealed judicial act on the basis of Art. 330 Code of Civil Procedure of the Russian Federation is subject to cancellation on the following grounds.
By virtue of the provisions of Part 1 of Art. 195, part 4 Art. 198 Code Code of the Russian Federation and clarifications of the Plenum of the Supreme Court of the Russian Federation, set out in paragraph 1 - 4 of the decisions of December 19, 2003 No. 23 "On the court decision", the decision should be legitimate and reasonable, adopted with the exact compliance with the norms of procedural law and in full According to the norms of substantive law, which are subject to applied to this legal relationship, when important facts have been confirmed by the court under investigative and admissible evidence, or circumstances that do not need to be proof and when the solution contains exhaustive conclusions of the court arising from the established facts.
The applicable judicial act does not fully comply with the provisions of the legislation.
The court of first instance is established and not disputed by the parties that 25.10.2011 Between PJSC NB "Trust" and K. on the basis of the statement of the latter was concluded by a loan agreement N 01-276150 on the provision of a loan in the amount of 47230.58 rubles. For a period of 38 months with a condition of returning a loan with equal annuity payments. The dispute regarding the fulfillment of obligations under this loan agreement is absent.
In the same statement of the defendant (LD 15) contained a proposal to conclude a second agreement on the provision of an international settlement bank card with a limit of a permitted overdraft under the conditions specified in the application, as well as in the "Terms of providing and servicing international settlement bank cards with a permitted limit Overdraft "(hereinafter - conditions on the map) and in" Tariffs on the international settlement bank card NB "TRAC" (OJSC) with a limit of the permitted overdraft "(hereinafter referred to as the map tariffs). Such conditions and tariffs are represented by the Bank in the case file (ld 14 - 27).
According to paragraph 2.1, such a contract is considered to be concluded after receiving the Bank's notification client to establish an overdraft limit from the moment the bank card is activated by the client. The corresponding actions were produced by the parties 12.12.2011.
K. From 12/12/2011 used by the bank provided by credit funds to pay for purchases and receiving cash, which follows from the statement of the movement of funds on the card account (LD 9-11).
Circumstances of the Parties to the Second Treaty, which PJSC TRAST assigned N 20352,9517, containing the conditions for the claimant of a loan in the form of Overdraft K., the parties are not disputed, confirmed by the evidence submitted to the case
From the calculation presented by the claimant at the time of appeal to the court, the debt of K. on the principal debt was 31123.93 rubles, on the payment of interest for the use of the loan - 60033.25 rubles.
According to the documents submitted by the Bank, established by K. Overdraft Limit under Agreement No. 2035229517 amounted to 23299 rubles. The plaintiff, despite the presentation of the claim for the recovery of the principal debt in the amount of 31123.93 rubles, exceeding the overdraft limit, the procedure for an increase in such a limit in the procedure established by the procedure is not referred to and evidence of such an increase.
The interest rate for the use of credit funds under the Agreement is 0.14% per day, and when repaying the loan during the grace period of 55 days - 0%, which is reflected in the tariffs on the map.
According to clause 5.10 The conditions according to the loan repayment card should be carried out by monthly paying the minimum repayment amount during the payment period, which follows the calculated period (ld 24).
The concepts of the "minimum amount of repayment", the "settlement period" and "payment period" are shown in section 1 conditions on the map (LD 22 - 23).
According to the conditions, the estimated period is the monthly period, the beginning of which is determined by the date of activation of the map by the client, and the end - the previous date of the day of activation of the next month map. Each subsequent billing period begins with the date following after the expiration date of the previous estimated period, and ends in the number of the next month preceding the day.
The payment period is also the monthly period following the end date of the settlement period.
The minimum repayment amount, as follows from this section, is lower from two amounts, the first of which is the amount of debt, and the second is the largest of the following values: calculated in accordance with the rates of the minimum payment or the sum of super-luminous debt, unpaid percent on the date of overdue payments , overdue principal and boards or minimum minimum payments set by tariffs.
In accordance with Art. 196 of the Civil Code of the Russian Federation, the total limitation period is set in three years.
For obligations with a certain period of execution, the current limitation period begins at the end of the execution period (paragraph 2 of Art. 200 of the Civil Code of the Russian Federation).
In assessing the arguments of the complaint about the improper application by the court of the consequences of the term of the limitation period, the judicial board comes from the parties the obligation of the borrower provided for by the terms of the contract by paying the minimum repayment amount during the payment period.
At the calculation of the debt drawn up by the plaintiff on the basis of the data reflected in the discharge of funds on the card account, it follows that from 04/11/2013 K. does not fulfill credit obligations.
Since overdraft in the amount of 29094,93 rubles. It originated on the defendant map no later than 04/11/2013, the return of debt and overdraft payments under the terms of the bank should have been made no later than 05/13/2013, from 05/14/2013 the current limitation period begins on the obligation of overdraft and interest for the use of them. Consequently, the last day of the limitation period was 13.05.2016.
This statement of claim was filed in court 01.02.2017. Earlier, the bank addressed the world court with a statement about the issuance of a court order, namely 25.11.2016, that is, also beyond the established Art. 196 and paragraph 2 of Art. 200 Civil Code of the Russian Federation.
As clarified in the para. 2 p. 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 29.09.2015 N 43 "On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation", according to paragraph 1 of Art. 207 of the Civil Code of the Russian Federation with the expiration of the statute of limitations on the general demand is considered to be the estimated limitation period and for additional requirements.
Thus, the limitation period on demand for the recovery of interest for the use of overdraft on the day of filing the claim also has expired.
According to Art. 199 Civil Code of the Russian Federation, the expiration of the statue of the limitation, the application of which is stated by the part in the dispute, is the basis for the decision of the decision to refuse a lawsuit. If it is established that the party in the case missed the limitation period and does not have good reasons for the restoration of this period for the plaintiff - an individual, then in the presence of an appropriate person on the expiration of the limitation period, the court has the right to refuse to satisfy the requirement for these reasons, without Studies of other circumstances of the case (paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 29.09.2015 N 43).
Since the plaintiff came to court with the passage of the statute of limitation, the application of which was declared the defendant, and did not provide evidence of respect for the reasons for his pass, to satisfy the stated requirements should be denied.
Payments, mistakenly credited to C. Bank 20.11.2014, 01/27/2015, 25.02.2015, 03/27/2015, and subsequently written off from this account, do not prove the defendant of actions testifying to recognition of debt, since these operations are committed in addition to its Will, and do not affect the calculation of the limitation period.
On the same grounds do not affect the calculation of the limitation period and the circumstances of the reflection in the statement on the personal account for the period from 12.12.2011 to 01/20/2017 payment 25.12.2013 fines in the amount of 390 rubles, 690 rubles, 890 rubles, since the bank Independently written off these funds on account of payments in violation of the conditions of the tariff plan, including without receipt of funds for a special card account (paragraph 10), providing these amounts to the overdraft account with an excess of the limit, while an increase in such a limit in the procedure established by the contract The bank does not refer to evidence of such an increase.
In civil law, the presumption is operating, according to which the participants of civil legal relations should be used in conscientious and reasonable, showing the necessary degree of caringness and diligence (Article 401 of the Civil Code of the Russian Federation), and not allow the abuse of the right (Article 10 of the Civil Code of the Russian Federation). In practical terms, this means that, the burden of the negative consequences of the fact that the right holder did not take advantage of the right properly, he himself bears.
Under such circumstances, the decision of the court is subject to cancellation with the adoption of a new decision on refusal to satisfy the claim of PJSC "Trust" to K. on the recovery of debt under the loan agreement.
Guided by Art. Art. 328 - 330 Code of Civil Procedure of the Russian Federation, Judicial College
DECISION
Name of the Russian Federation
07/09/2015 Oktyabrsky District Court of Samara as part:
presiding Judge Kurmaeva A.H.,
with the secretary of the court session Tregub U.V.,
having considered in open court a civil case No. ... on the claim of the National Bank "Trust" (JSC) to B.D. A., B. E. N. On the recovery of debt,
Installed:
OJSC NB "Trust" appealed to the court with the specified statement, referring to the fact that the date with the defendant B.D. A. The loan agreement was concluded No. 03-900-7158. The Credit under the Agreement was provided on the conditions contained in the general conditions of providing and servicing loans, conditions on the computational card, tariffs. In a statement, the defendant agreed that his offer to the conclusion of the contract were the actions of the creditor for the opening of the account to him, and tariffs, conditions and payment schedules are an integral part of the application and contract. The bank fulfilled its obligations. According to the conditions, the loan is considered submitted at the date of reflection of the amount of the operation produced at the expense of funds provided by the Bank for the Client's account. From the date of concluding a contract, the client arises obligations to pay fines, commissions, repayment of debt. In ensuring the execution by the borrower obligations to repay the loan provided and the payment of interest by the Bank were concluded contracts of guarantee with B. E. N. in violation of the conditions, the defendant shies away from the fulfillment of the obligations assumed on the planned repayment of current debt. Asks the court to recover solidarly with b .d. A., B. E. N. In favor of NB "Trust" the amount of debt in the amount of *** RUB., And also in equal parts of the cost of payment of state duty ***
At the hearing, a representative of the National Bank "Trust" (JSC) - G. A. I., acting by proxy No. ... from 10/31/2014, the stated requirements supported on the grounds set out in the lawsuit, asks to satisfy in full.
Representative defendants B.D. A., B. E. N. - A. L. M., acting by attorney No. 12-5266, 12-5265 dated December 19, 2014, at the court hearing the claims recognized in part of the recovery from the defendants of the principal debt and interest for Loan, the amount of interest on overdue debt and payments for payments requested to reduce to *** rubles, take into account the heavy material situation, B. E. N. is currently in maternity leave for child care.
After listening to the parties, having studied the materials of the case, the court considers the claims to be satisfied on the following grounds.
The court found that the date of the National Bank "Trust" (OAO) and B.D. A.I concluded a loan agreement No. 03-900-7158, according to which the lender pledged to provide a borrower with funds in the amount and on the conditions provided for by this loan agreement, and the borrower pledged to return the loan received, pay interest for the use of the loan and fulfill other obligations provided for by credit contract in full. The loan size amounted to *** rubles., Interest rate for using a loan of 29% per annum. The loan period of the loan is 60 months from the date following the date of granting a loan.
In accordance with Art. 196 of the Civil Code of the Russian Federation, the total limitation period is three years from the day, determined in accordance with Article 200 of this Code.
In accordance with Part 2 of Art. The 200 Civil Code of the Russian Federation for obligations with a certain period of execution The current of the limitation period begins at the end of the execution period.
From paragraph 1.3. The loan agreement concluded between the Bank and B.D. A. It follows that the loan return period is 60 months from the date following the credit date.
Thus, the deadline for the fulfillment of obligations under this contract is defined until October 28, 2016, therefore, the limitation period expires 28.10.2019, it follows from the case file that the claimant sent the claim to the court on 29.05.2015, i.e. Without missing deadline.
In accordance with Art. 819 of the Civil Code of the Russian Federation, under the loan agreement, the bank or other credit organization (creditor) provides a borrower in the amount and on the conditions provided for by the Treaty, and the borrower undertakes to return the amount of money and pay interest on it.
According to the terms of the provision of loans, the Bank has the right to refuse to fulfill the obligation to provide a loan or part of it, as well as to require the borrower of early execution of obligations under the loan agreement (early loan refund), as well as compensation for damages caused by the Bank, due to non-fulfillment or improper execution by the Borrower of Regulations Credit Agreement and these Terms, or non-fulfillment / improper fulfillment of obligations by third parties with which the Bank has concluded contracts to provide the obligations of the borrower, or deterioration in the quality of providing the obligations of the borrower, in cases provided for by these Terms.
In accordance with Art. 307 of the Civil Code of the Russian Federation due to obligations one person (debtor) is obliged to make a certain effect in favor of another person (creditor), somehow: transfer property, to work, pay money, etc., or refrain from a certain action, and the lender has The right to demand the fulfillment of his duty from the debtor.
According to Art. 309 of the Civil Code of the Russian Federation, the debtor's commitment must be shared properly in accordance with the conditions of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with the customs of business turnover or other commonly imposed requirements.
Article 819 of the Civil Code establishes that under the loan agreement, the bank or other credit institution (creditor) undertakes to provide cash (credit) borrower in the amount and on the conditions provided for by the Treaty, and the borrower undertakes to return the money received and pay interest on it, to relations According to the loan agreement, the rules provided for by paragraph 1 of Chapter 42 of the Civil Code of the Russian Federation are applied, unless otherwise provided by the rules of paragraph 2 and does not follow from the creature of the loan agreement.
Part 1 Art. The 810 Civil Code of the Russian Federation determines that the borrower is obliged to return the lender the resulting loan amount on time, and in the manner that are provided for by the loan agreement.
According to Part 2 of Art. 811 of the Civil Code, if the loan agreement is provided for the return of a loan in parts (by installments), then with a borrower violating the period established to return the next part of the loan, the lender is entitled to demand the early return of the next part of the loan, the lender is entitled to demand the early return of the entire remaining loan amount together with accounted for interest.
According to Art. 363 of the Civil Code of the Russian Federation with the default or improper execution by the debtor, the guarantor or debtor respond to the lender jointly. The guarantor responds to the lender in the same amount, as well as the debtor, including the payment of interest, reimbursement of legal costs to recover the debt and other losses of the creditor caused by the non-fulfillment or improper fulfillment of the obligation to the debtor.
In accordance with Article 323 of the Civil Code of the Russian Federation, with the joint duty of debtors, the lender has the right to demand execution both from all debtors together and from any of them individually, moreover, both fully and in terms of debt.
The lender, who did not receive full satisfaction from one of the solidarial debtors, has the right to demand the discharged from the rest of the solidarial debtors.
Solidarity debtors remain obliged until the obligation is fully fulfilled.
From the materials of the case, it follows that in ensuring the fulfillment of the obligations of the borrower under the loan agreement No. ... from 10/28/2011, the date of the Date was concluded by the contract of guarantee No. ... from B. E. N.
Under the terms of the contracts of the guarantee No. ... from 10/28/2011, the guarantor B. E. N. assumed the obligation to respond to the lender for execution of B.D. A. (Borrower) of his obligations under the loan agreement No. ... from 10/28/2011, which includes a loan refund, pay interest for the use of the loan, payment of penalties, boards and commissions, as well as other obligations of the borrower under the loan agreement.
By virtue of paragraph 3.1 of the loan agreement, the loan is considered granted at the date of credit credit to the borrower's account, and the borrower has an obligation to pay the appropriate interest for the use of loan and other commissions and fees provided for by the TRAST Tariffs.
According to an account on account No. ... B.D. A. Credit in the amount of *** rub. He was granted by the plaintiff by transferring to the specified account of the sum of money.
The court found that the obligations undertaken by the loan agreement B.D. A. Do not execute.
NB Trust OJSC to the defendants sent the requirements for the early fulfillment of obligations under the loan agreement, the answer to which was not received.
According to the settlement of debt as of the date of the debt debt of the borrower, B.D. A. The Bank is ***, including:
main debt in the amount of ***.;
interest for using a loan in the amount of ***
percentages for overdue debt - ***
payment for paying payment- ***
At the hearing, the representative of the defendants asks in accordance with the provisions of Art. 333 of the Civil Code of the Russian Federation reduce the amount of payments for paying payments and interest on overdue debt, taking into account the financial position of the defendants.
According to the legal position of the Constitutional Court of the Russian Federation, formed in the implementation of the constitutional and legal interpretation of Article 333 of the Civil Code of the Russian Federation (definition from Date N 263-O), Article 330 of the Civil Code of the Russian Federation, the monetary amount determined by law or the treaty, which the debtor is obliged to pay the lender in the event of non-fulfillment or Inappropriate fulfillment of the obligation, in particular in case of delay in execution.
According to the part of the first Article 333 of the Civil Code of the Russian Federation, if the penalty to be paid is clearly disproportionated by the consequences of a violation of the obligation, the court has the right to reduce the penalty.
Thus, civil law provides for a penalty as a method for ensuring the fulfillment of obligations and the measures of property responsibility for their non-fulfillment or improper performance, and the right to reduce the penalty is provided to the court in order to eliminate the obvious disproportion to the consequences of a violation of obligations.
The court believes that the payment for passing payments, as well as interest on overdue debt, is one of the types of penalties, given the financial situation of the defendants, the Court considers it possible to reduce them, namely, payment for passing payments with ***
Based on the foregoing, taking into account the partial recognition of the claim, the Court considers the claimant's informed and subject to partial satisfaction to recover from the defendant the amount of debt on the loan agreement, which consists of: the amount of the principal debt - ***
In accordance with the requirements of Part 1 of Art. 98 Code of Civil Procedure of the Russian Federation, from the defendants in equal shares in favor of the plaintiff shall be recovered by the amount of state duty in proportion to the size of the claims satisfied with the court in the amount of ***
Guided by Art. 194-199 Code of Civil Procedure of the Russian Federation,
I DECIDED:
The claim of NB "Trust" is partially satisfied.
To recover solidarily with b .d. A., B. E. N. In favor of NB "Trust" Debt on the loan agreement, namely: the amount of the principal debt - ***
To recover in equal shares with bd A., B. E. N. In favor of NB "Trust" the amount of state duty in the amount of ***
The decision can be appealed to the Samara Regional Court through the Oktyabrsky District Court address within a month from the date of adoption in the final form.
DECISION
Name of the Russian Federation
Pavlovo-Posal City Court of the Moscow Region As part of: President Ryakina S.E., with the secretary of Parshenkova N.I., with the participation of the plaintiff Kartseva O.A., Representative of the plaintiff Kartseva A.A., representative of OJSC National Bank Trust "Ivnik E.P., examined in open court a civil case No. 2-645 / 2013 on the claim of Kartseva Oksana Anatolyevna to OJSC National Bank Trust on the protection of consumer rights,
Installed:
Kartseva O.A. Indicates that 07.07.2012. Between it and OJSC "National Bank" Trust "concluded agreement number for the amount of rubles. The obligatory condition for issuing a loan under the contract was the one-time payment of the Commission for credit credit to the Client's account, which was 5,990 rubles. As part of this loan, two cards were issued: Map 1 - No. 3 (p. 3 of the Agreement) and a card 2-No. (p. 4 of the Treaties).
03.12.2012 Kartzva O. A. appealed to the call center to clarify the amounts on early repayment of the loan on two bank cards 1 and 2. The operator called it the amounts for early repayment and the date that the amount of the amount applies, namely: on the map 1- amount was rub. Cop., On the card 2- The amount of early repayment was rub. Cop., Repayment period until December 24, 2013
12/04/2012 At the cash office of the operating office "Paveletsky" city of Moscow, located at the address: Moscow, ul. Gross, d. 11/19, Kartseva O.A. Fully paid the specified cash. After payment, she turned to the employee of the bank Evgeny, who issued Kartseva O.A. Application form on the closure of the account of the map 2. It also passed both bank cards.
December 27, 2012 Kartseva O.A. He came to the same branch of the bank, where he made a full repayment of funds on bank cards, where he learned that she had a debt of 235 rubles. To the question when this debt could have been formed, the Bank's employees did not respond. On the same day, Kartseva O.A. He wrote a statement about his disagreement with this deduction.
By email, she received an answer from the bank, according to which Kartseva O.A. should have paid for no rub. 11 cop., And rub. 28 cop. As indicated in the response, this amount consisted of the following payments: rub. 87 kopecks. - main debt; rub. 41 kopecks - interest for the use of the loan; 390 rubles. - Fine for paying the minimum monthly payment.
Kartseva O.A. did not agree with this amount of the fine, because The period of its accrual was not indicated, for what payment it is accrued and why the bank did not notify it on the presence of a fine.
December 27, 2012 Kartseva O.A. A certificate was issued about the closure of the loan agreement No. of July 23, 2012, in which it was stated that as of December 27, 2012. She has no debt, the loan agreement is closed. However, to the present time on Mobile Phone Cartseva O.A. SMS comes reports about its debt to the bank, which grows and today amounts to the amount of 1315 rubles. 14 cop. Kartseva O.A. He appealed to the bank's call center with the question of which debt is we talking about, the bank replied that she does not pay for a monthly minimum payment, so the bank charges the fines that at that time amounted to the amount of 1315 rubles. 14 cop.
The form of an application for the provision of a loan for urgent needs is provided in the form of a form developed by NB "Trust", which eliminates any influence of the consumer Kartseva O.A. To determining the terms of the contract.
The loan agreement was concluded on the conditions established by the bank, to make any changes to the contract, Kartseva O.A. There was no possibility.
The indicated provisions of the loan agreement, providing for the conditions for the payment of the Commission for the enrollment of funds to the Client's account, contained burdensome conditions for the borrower of an individual, which, based on reasonably understood interests, would not be adopted by Kartseva O.A., if she has the opportunity to participate in determining the terms of the contract.
The norms of the Civil Code of the Russian Federation, the provision of a loan to a physical person is not addressed to the opening of a settlement or other account of the borrower and does not entail the automatic conclusion of a bank account agreement.
The cash enrollment fee is in fact an additional interest rate - which the borrower must pay.
According to Kartseva O.A. The Bank is obliged when concluding loan agreements to bring to the attention of the borrower on a language accessible to understanding, all the necessary and reliable information about the cost of services and their properties.
Conditions of the loan agreement on payment of the Commission's borrower for the settlement service, as well as the Commission for the enrollment of funds to the account violate its rights.
With their actions, the bank caused Kartseva O.A. Moral suffering, because So far requires money from her, which she has already paid for and returns to her overpaid money. She is experiencing in the current situation, experiencing moral suffering.
Kartseva O.A. Requests the court: admit paragraph 1.16. loan agreement No. dated July 23, 2012 The recovery of the Commission for the enrollment of funds received from the client (one-time) invalid. Recognized by her consent, received by OJSC National Bank Trust, on the application - questionnaire to enter into an agreement on the issuance of a bank card service dated July 23, 2012. Close the accounts of Kartseva O.A., which were opened in the branches of the Bank "National Bank" Trust " ; To recover from OJSC National Bank Trust in favor of the client amount of the Commission for credit credit to the Client's account in the amount of 5990 rubles; illegally retained cash in the amount of 154 rubles. 83 kopecks, interest for the use of other people's money in the amount of 327 rubles. 20 cop., Compensation of moral damage in the amount of 10,000 rubles; payment of legal expenses in the amount of 30,000 rubles; Payment for drawing up a claim in the amount of 4800 rubles, payment of notarial services in the amount of 1,300 rubles., To recover in its favor a fine of fifty percent of the amount awarded by the court in favor of the consumer.
At the court hearing the plaintiff Kartseva O.A. Supported the stated requirements.
Representative of the defendant OJSC National Bank Trust Ivnik E.P. presented a review, the claim did not recognize, explained that the bank did not violate the rights of consumer Kartseva O.A. The representative of the defendant could not explain why Bank 27.12.2012. Kartseva O.A. A certificate was issued about the closure of the loan agreement No. of July 23, 2012, in which it was stated that as of December 27, 2012. Debt in Kartseva O.A. absent, the loan agreement is closed.
Having heard the plaintiff, the representative of the defendant, checking the materials of the case, the court finds that the claims are reasonable and are subject to satisfaction partially on the following grounds:
In accordance with 4.1 Art. 56 Code of Civil Procedure of the Russian Federation Each Party must prove the circumstances to which it refers to both on the basis of its requirements and objections, unless otherwise provided by federal law.
The court found that 07.07.2012. Between OJSC "National Bank" Trust "and Kartseva O.A. Credit agreement was concluded for the amount of RUB. The obligatory condition for issuing a loan under the contract was the one-time payment of the Commission for credit credit to the Client's account, which was 5,990 rubles. As part of this loan, Kartseva O.A. Two maps were issued: Map 1 - no (p. 3 of the Treaty) and Map 2 - No. 4 of the Treaty).
All bank documents are signed only by Kartseva O.A. There are no prints of the bank and signature.
December 27, 2012 Kartseva O.A. A certificate was issued about the closure of the loan agreement No. of July 23, 2012, where it is indicated that as of December 27, 2012. There is no arrears in her bank, the loan agreement is closed.
According to the calculation of the debt on the credit card as of 05/14/2013. The accumulated debt interest for the use of the loan is 235 rubles. 14 cop. The representative of OJSC National Bank Trust was unable to clarify the court why the bank did not transfer funds to their repayment from cash paid by Kartseva O.A. on repayment of the loan.
By virtue of Art. 421 Civil Code of the Russian Federation Citizens and legal entities are free in concluding a contract. The terms of the contract are determined at the discretion of the parties, except when the content of the relevant condition is prescribed by law or other legal acts.
In accordance with Art. 422 Civil Code of the Russian Federation The contract must comply with the rules mandatory for the parties established by law and other legal acts (imperative law) in force at the time of its conclusion.
According to Art. 16 of the Law of the Russian Federation of 07.02.1992 No. 2300-1 "On Consumer Protection", the terms of the contract, infringement of the consumer in comparison with the rules established by the laws or other legal acts of the Russian Federation in the field of consumer protection, are invalid. It is prohibited to determine the acquisition of some goods (works, services) with the obligatory acquisition of other goods (works, services), which took place in relation to the borrower (plaintiff). Losses caused to consumers as a result of a violation of his right to free choice of goods (works, services) are reimbursed by the Seller (performer) in full.
The Constitutional Court of the Russian Federation in the decision of 23.02.1999 No. 4-P indicated that a citizen in legal relations with the bank is a cost-in-law and needs special protection of its rights, which entails the need to limit the freedom of the Credit Organization (Bank).
According to Part 1 of Art. 428 of the Civil Code of the Russian Accessory Treaty of Accession recognizes the contract, the conditions of which are determined by one of the parties in formulars or other standard forms and could be taken by the other Party not otherwise as through joining the proposed contract as a whole.
The form of a statement on the provision of a loan for urgent needs is provided in the form of a form developed by NB "Trust", which eliminates any influence of Kartseva O.A. To determining the terms of the contract. The loan agreement was concluded on the conditions established by the defendant, to make any changes to the contract, it could not.
These provisions of the Credit Agreement, providing for the terms for payment of the Commission for enrolling funds to the Client's account, contain burdensome conditions for the borrower of an individual, which, based on reasonablely understood interests, would not be adopted by Kartseva O.A., if she has the opportunity to participate in determining the terms of the contract.
Civil Code Conditions The provision of a loan to the physical person is not dependent on the opening of the settlement or other account of the borrower and does not entail the automatic conclusion of the bank account agreement.
According to Art. 30 of the Federal Law of 02.12.1990. № 395-1 "On banks and banking activities", the opening of a bank account is the right, not the responsibility of citizens.
In accordance with paragraph 1 of Art. 819 of the Civil Code of the Russian Federation of the Credit Treaty fee is to pay interest on the loan amount. Data interest is a bank board for a set of actions committed when issuing a loan and its repayment by the borrower should cover both its costs and include the bank's income on this operation.
Also norms of Art. 807, 809 of the Civil Code of the Russian Federation do not contain the concept of "credit enrollment, settlement service", in accordance with Art. The 819 Civil Code of the RF Actions on the provision and maintenance of the loan are the responsibility of the Bank under the loan agreement.
The provision of the Central Bank of the Russian Federation of August 31, 1998 No. 54-P "On the procedure for providing credit institutions with funds and their return (repayment), no additional services are not provided for any additional services when issuing a loan and its repayment by the borrower, as not There is an opening and maintenance of the special account of the borrower.
Thus, the cash enrollment fee is in fact an additional interest rate that the borrower must pay.
In accordance with Art. 9 of the Federal Law of 01/26/1996 No. 15-FZ "On the introduction of part of the secondary Civil Code of the Russian Federation" in cases where one of the parties is a citizen using a citizen who acquires, ordered, or having the intention to acquire or order goods (works, services for Personal household needs, such a citizen enjoys the rights of the parties in the obligation in accordance with the Civil Code of the Russian Federation, as well as the rights granted to the consumer with the Law of the Russian Federation "On the Protection of Consumer Rights" and published in accordance with other legal acts.
According to paragraph 1 of PP. "D", paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17 "On the consideration by the courts of cases on disputes on the protection of consumer rights" in the consideration of civil cases: the courts should be borne in mind that the relationship is one of whose Parties is a citizen, Using, acquiring, ordered, or having intended to acquire or order goods (works, services) exclusively for family, home, household and other needs that are not related to the implementation of entrepreneurship, and the other is an organization (manufacturer, performer, seller, importer), carrying out the provision of services that are regulated by the Civil Code of the Russian Federation. Law of the Russian Federation of 07.02.1992 №2300-1 "On the protection of consumer rights", other federal laws and those adopted in accordance with them in other regulatory legal acts of the Russian Federation.
In accordance with Art. The 16th Law of the Russian Federation "On Protection of Consumer Rights" is prohibited to determine the acquisition of some goods (works, services) with the obligatory acquisition of other goods (works, services).
However, according to Art. 10 of the same law, the Contractor must submit the necessary and reliable information about the services provided in a timely manner. This information in a visual and accessible form is brought to the attention of the consumer when concluding services on the provision of services in the methods adopted in individual service sectors. In h. 4 tbsp. 12 of the law it is indicated that the absence of a consumer special knowledge is supposed. Consequently, the borrower due to the lack of special knowledge in the field of banking legislation, cannot know about the legitimacy or illegality of certain conditions of credit contracts. In accordance with Part 3 of Art. 10 of the Civil Code of the Russian Federation, the intelligence of actions and voluntary participants in civil legal relations are assumed.
It follows from this that the bank was obliged when concluding loan agreements to bring to the attention of the borrower in an accessible form, all the necessary and reliable information about the cost of services and their properties - but this did not. The court found that in the case of bank documents, information on tariffs and conditions are printed in small font, which makes it difficult to read and perception.
By virtue of paragraph 1 of Art. 16 of the Law of the Russian Federation "On the Protection of Consumer Rights" Terms of Agreement, infringement of consumer rights compared with the rules established by laws or other legal acts of the Russian Federation in the field of consumer protection, are invalid.
The norms of the Civil Code of the Russian Federation, the Federal Law "On Banks and Banking Activities", other regulatory legal acts The possibility of charging fees in the form of a commission for crediting funds in the provision of a loan to individuals is not provided for, therefore the terms of the loan agreement on payment of the Commission for the calculated Service contradicts the provisions of Art. 16 of the Law of the Russian Federation "On the Protection of Consumer Rights".
According to the provision of Art. 168 of the Civil Code of the Russian Federation The deal that does not comply with the requirements of the law or other legal acts is negligible if the law does not establish that such an arbitrary deal or does not provide for other impacts of violations.
Conditions of loan agreements on payment of the Commission for settlement services, as well as the Commission for enrollment of funds to the Client's account, violate the consumer rights established by law and by virtue of Articles 168. 180 of the Civil Code of the Russian Federation, paragraph 1 of Article 16 of the Russian Law "On Consumer Rights Protection" and are invalid (insignificant).
In accordance with the provisions of Art. 395 Civil Code of the Russian Federation, paragraph 2 of Art. 1107 of the Civil Code of the Russian Federation is subject to interest interest for the use of other people's funds from the time when the acquirer learned or should have learn about finding unpertured or saving money.
Interest for the illegal use of the defendant with funds of the borrower on a loan agreement No. from 23.07.2012. Make up 327 rubles. 20 kopecks. According to the calculation of interest presented by the plaintiff (calculation of the amount of the debt is carried out, taking into account the legal position set forth in the decision of the Presidium of the BAS RF No. 5451/09 of September 22, 2009): The amount of debt 5 999 rubles. 0 cop., Including VAT 0% 0 Rub. 0 cop. The period of delay from July 23, 2012 to 03/20/2013: 238 (days). Refinancing rate: 8.25%. Interest Total for the period \u003d (5999) * 238 * 8.25 / 36000 \u003d 327 rubles. 20 cop
By virtue of Art. 15 of the law "On the Protection of Consumer Rights" Moral harm caused to the consumer due to a violation by the manufacturer (the Contractor, an authorized organization) of the consumer's rights provided for by laws and legal acts of the Russian Federation, regulating relations in the field of consumer protection, is subject to compensation for harm in the presence of its fault. The amount of moral damage compensation is determined by the court and does not depend on the amount of compensation for property harm. Moral damage compensation is carried out independently of the compensation of property harm and losses incurred by the consumer.
With their actions, the bank caused Kartseva O.A. Moral suffering, expressed in experiences due to the current situation, to date, the Bank requires funds that she paid for and does not return overpaid money, sends an SMS message to its mobile phone.
In accordance with Art. 151 of the Civil Code of the Russian Federation, if the citizen caused moral damage (physical or moral suffering) actions that violate his personal non-property rights, or encroaching other intangible benefits for citizen, as well as in other cases provided for by law, the Court may assign the court to the violator of the duty of monetary compensation of the specified harm.
In accordance with Art. 1101 of the Civil Code of the Russian Federation, in determining the amount of non-pecuniary damage compensation, the court takes into account: the nature of the victims of physical and moral suffering, the degree of guilt of the damage caused the factual circumstances under which the harm was caused by the individual characteristics of the victim, as well as rationality and justice. Therefore, taking into account rationality and adequacy, the court reduces the amount of polluted moral damage to 5,000 rubles. 00 cop.
In accordance with paragraph 6 of Art. 13 of the Law of the Russian Federation "On the Protection of Consumer Rights" with the court of consumer requirements established by law, the court charges from the manufacturer (performer, seller authorized organization) for non-compliance with the voluntary order to meet the requirements of the consumer a fine of fifty percent of the amount awarded by the court in favor of consumer, which is 5,736 rubles. 01 cop.
In accordance with Article 98 of the Civil Procedure Code of the Russian Federation, the party, in favor of which the court decision was held, the court awards to compensate on the other hand all court costs incurred on the case.
The costs of the claimant for legal services amounted to: drawing up a claim - 4,800 rubles.
In accordance with Art. 100 Code of Civil Procedure of the Russian Federation Party, in favor of which the court decision was held, the court awards on the other hand the cost of payment of services of the representative within reasonable limits.
According to the contract of instructions No. 85 / 19-03-13 of 03/19/2013. Costs for representation in court - 30,000 rubles. subject to recovery partially in the amount of 15,000 rubles. Taking into account the complexity of the case and the number of court sessions.
Notarial services for drawing up attorney to represent interests
Court - 1300 rubles. subject to recovery in full.
In accordance with Art. 98 Code of Civil Procedure of the Russian Federation from the defendant to the local budget revenue
Recovery of state duty costs in the amount of 688 rubles. 32 kopecks
Based on the above, guided by Article 194-198 Code of Civil Procedure of the Russian Federation, court
I decided:
The claims of Kartseva Oksana Anatolevna to the open joint-stock company "National Bank" Trust "on the protection of consumer's rights to satisfy partially.
Recognize paragraph 1.16. loan agreement No. dated July 23, 2012 On the recovery of the Commission for crediting funds to the client's account (at the same time) invalid.
Recognize withdrawn by the consent of the Cardsene Oksana Anatolyevna, obtained by National Bank Trust OJSC on the application-questionnaire to conclude a contract for the issue and maintenance of a bank card dated July 23, 2012.
Close the accounts of Cardsery Oksana Anatolyevna, which were opened in the branches of the Bank of OJSC National Bank Trust.
To recover from OJSC "National Bank" Trust "in favor of Carazian Oksana Anatolyevna the amount of the Commission for credit credit funds to the Client's account of 5,990 (five thousand nine hundred and ninety) rubles.
To recover from JSC "National Bank" Trust "in favor of Kartseva Oksana Anatolyevna, illegally retained cash in the amount of 154 (one hundred and fifty four) rubles 83 kopecks.
To recover from OJSC National Bank Trust in favor of Kartseva Oksana Anatolyevna interest for the use of other people's money in the amount of 327 (three hundred twenty seven) rubles 20 kopecks.
To recover from OJSC National Bank "Trust" in favor of Kartseva Oksana Anatolyevna Compensation of moral damage in the amount of 5,000 (five thousand) rubles 00 kopecks.
To recover from OJSC National Bank "Trust" in favor of Karzanova Oksana Anatolevna a fine of fifty percent of the amount awarded by the court in favor of the consumer in the amount of 5,736 rubles 01 kopecks.
To recover from OJSC National Bank Trust in favor of Cardsery Oksana Anatolevna payment for notarial services in the amount of 1300 (one thousand three hundred rubles.
To recover from OJSC National Bank Trust in favor of Cardsery Oksana Anatolyevna pay for legal services in the amount of 15,000 (fifteen thousand) rubles.
To recover from OJSC National Bank Trust in favor of Cardsery Oksana Anatolyevna payment for drawing up a claim in the amount of 4800 (four thousand eight hundred) rubles.
In the rest of the claims of Kartseva Oksana Anatolyevna refuse.
To recover from OJSC National Bank Trust in favor of the local budget state duty in the amount of 688 rubles 32 kopecks.
The decision may be appealed by the parties on appeal to the Moscow Regional Court, through the court he adopted during the month.
Presiding: S.E. Ryakin
<данные изъяты>
Case number 2-58 / 2018
Name of the Russian Federation
Kansky city court of the Krasnoyarsk Territory in the composition:
chairman of the Judge Teplyakova K.G.,
with the secretary of Romanova T.V.,
having considered in open court a civil case on the statement of claim of a public joint-stock company National Bank "Trust" to Gelvich TN on the recovery of debt under the loan agreement, court costs and on the oncoming claims of Gelvich TN to PJSC NB "Trust" on the protection of consumer rights,
Installed:
PJSC NB "Trust" appealed to the court with a claim to Gelvich T.N. On the recovery of debt under the loan agreement and court costs, motivating its demands by the fact that 03.04.2008 between the plaintiff and Gelvich T.N. Credit agreement was concluded No. 068-P-026408 in offers-acceptable form, under the terms of which a loan was issued with a overdraft limit of 15,000 rubles, the use of 113 months, the interest rate is 23.00% per annum. The bank fulfilled its obligations. The acceptance of the borrower's offer of the borrower on the conclusion of the Agreement of the Bank to open a bank account No. 40817810338062011087. In violation of the conditions under the contract, the defendant does not undertake and continues to shy away from the execution of obligations assumed on the planned repayment of current debt. Debt excluding a fine for passing payments for the period from 04/03/2008 to 24.09.2017 amounted to 58,841 rubles. 57 cop., Including the amount of the principal debt - 13,646 rubles. 72 cop.; Commission - 17 560 rubles. 90 cop.; interest for the use of the loan - 27,633 rubles. 95 kopecks. In this connection, the plaintiff asks to recover with Gelvich T.N. The amount of debt on the loan in the amount of 58,841 rubles. 57 kopecks, costs for payment of state duty in the amount of 1,965 rubles.
Gelvich T.N., represented by the representative of Plychichikov, N.V., in turn, turned with a counter-claim for termination of the loan agreement No. 068-R-026408 dated 03.04.2008, recognizing the illegal accrued commission for maintaining a loan account in the amount of 17 560 rub. 90 kopecks, invalidation of the point on the accrual of fines for the delay, the application of the provisions of Art. 333 of the Civil Code of the Russian Federation, motivating its demands that in the terms of the contract and the submitted discharge from the account there are discrepancies in the accrual of fines for the delay in payments, since the statement indicates a fine of 800 rubles, and under the terms of the contract - 500 rubles, asks to recognize item Agreement on the accrual of fines for the delay is invalid to deprive the Bank of Law to appeal in the future demanding a penalty. The contract does not specify the term of the loan, there are discrepancies in the specified date. The last payment by the defendant was produced 10.11.2008, the bank's debt claims did not prevent the Bank, because within 9 years the lender did not take action relative to the reduction of his losses, it believes that the court has the right to reduce the responsibility of the debtor. Objects against the recovery of the commission in the amount of 17,560 rubles. 90 cop., Since this requirement is illegal. It also believes that the plaintiff missed the limitation period, since the right demand for the bank arose in February 2009
At the hearing, the representative of the plaintiff PJSC NB "Trust" did not appear, requested the text of the claim for the consideration of the case in his absence, written explanations and feedback to the oncoming claims, according to which the date of the conclusion of the loan agreement is the date of activation and receipt of the credit card 14.05. 2008, in the claim, the incorrect date is specified, also indicates that the overdraft limit is 15,000 rubles, the term of the loan is 113 months, since the defendant has activated the card, it confirms that he has familiarized himself with the Tariffs of the Bank, the conditions on the map. Under the contract, the defendant has repeatedly used money in the amount of the permitted overdraft limit. The tariff plan provides fines for skipping the minimum payment of 300 rubles. For the second time in a row and 500 rubles. For the third time in a row, with which Gelvich T.N. was acquainted. The final expiration date of all obligations under the Treaty is not defined, the date of use of the loan was 113 months at the date of the claim, the contract is active and there is indebted.
Respondent Gelvich T.N. At the hearing did not appear, about the time and place of consideration of the case was notified in properly by registered correspondence.
Representative of the defendant (plaintiff at counter-claims) Prtichovova N.V. objected to the satisfaction of the claims of PJSC NB "Trust", the counter demand supported in full, explaining that the final statement from the bank, with an indication of the full amount of the debt, did not receive, in the event of the deadline of the card, the contract is terminated after 35 days, the Bank deliberately contributed to the increase Debt, Commission for maintaining a loan account is an additional service and this account is not a banking in the meaning of the Civil Code of the Russian Federation. It also believes that the plaintiff missed the limitation period. In this connection, asks to reduce the amount of responsibility under Art. 333 of the Civil Code of the Russian Federation in accordance with Art. 404 of the Civil Code of the Russian Federation, to recognize the commission for servicing the loan account in the amount of 17,560 rubles. 90 cop., Apply the consequences of the statute of limitation period.
The court, taking into account the written consent of the representative of the plaintiff, the representative of the defendant Plychichikov N.V., believes it is possible to consider the case in the absence of uncovered parties.
The court hearing the representative of the defendant Plischikov N.V., examining the written materials of the case, believes that the claims of PJSC NB "Trust" are subject to partial satisfaction, counterclaims Gelvich T.N. Also are subject to partial satisfaction on the following grounds.
In accordance with Art. 307 of the Civil Code of the Russian Federation due to the obligations of one person (debtor) is obliged to make certain actions in favor of another person (creditor), somehow: transfer property, to work, pay money, etc., the lender has the right to demand from the debtor of the fulfillment of his duties .
According to Art. 309-310 of the Civil Code of the Russian Federation liabilities should be performed properly and in accordance with the conditions of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with the customs of business turnover or other commonly imposed requirements. One-sided refusal to fulfill obligations and one-sided change of its conditions is not allowed.
By virtue of Art. 819 of the Civil Code of the Russian Federation on the loan agreement Bank (creditor) undertakes to provide cash (credit) borrower in the amount and under the conditions provided for by the contract, and the borrower undertakes to return the amount of money and pay interest on it.
In accordance with Part 2 of Art. 811 of the Civil Code If the loan agreement provides for the return of the loan in parts, then when a borrower is violated, the period established to return the next part of the loan, the lender is entitled to demand the early return of the entire remaining loan amount along with interest due.
In accordance with Art. The 450 Civil Code of the Russian Federation at the request of one of the parties to the contract may be changed or terminated by a court decision with a significant violation of the contract with the other party. A violation of an agreement is significant to be significant, which entails such damage to another side that it is largely deprived of what was entitled to count on the conclusion of the contract.
Based on Part 1 Art. 329 of the Civil Code of the Russian Federation, the fulfillment of obligations may be ensured by a penalty, that is, a monetary amount determined by law or treaty, which the debtor is obliged to pay the creditor in the event of non-fulfillment or improper performance of the obligation, in particular, in the event of a delay in execution (part 1 of Article 330 of the Civil Code of the Russian Federation).
According to Art. 404 of the Civil Code If non-fulfillment or improper fulfillment of the obligation occurred in the fault of both parties, the court respectively reduces the responsibility of the debtor. The court also has the right to reduce the responsibility of the debtor if the lender is intentionally or by negligence contributed to an increase in the amount of damages caused by failure or improper performance, or did not accept reasonable measures to reduce them.
As established at the court hearing, 05/14/2008 between the plaintiff and Gelvich T.N. The loan agreement No. 068-R-026408 was concluded in a proprietary-acceptance form, under the terms of which a loan was issued with an overdraft limit of 15,000 rubles, a period of use of 113 months, a percentage rate of 23.00% per annum, which is confirmed by a statement for the provision of a loan (L .d.18-21), I discard on the personal account (ld8).
At the same time, the fact of obtaining this loan the party of the defendant was not disputed. Moreover, the representative of the defendant Plushikov N.V. confirmed that under this contract the last payment was produced by Gelvich T.N. 12/22/2008, in connection with which, and stated on passing the plaintiff of the statute of limitations.
According to the receipt (ld 12) Gelvich T.N. He received a map of 14.05.2008, the issuance of credit funds was produced on May 29, 2008 in the amount of 10,000 rubles. (ld 8).
In accordance with the terms of the contract Gelvich T.N. I committed to repay the debt on the loan, which is confirmed by the application form.
In connection with that, Gelvich T.N. The commitments made did not fulfill the obligations properly, for the period from 03.04.2008 to 24.09.2017, debt on the principal debt was formed in the amount of 13,646 rubles. 72 cop., Commission for accounting 17 560 rubles. 90 cop.; Interest for the use of a loan in the amount of 27,633 rubles. 95 kopecks, which is confirmed by an extract on the personal account and the calculation of debt (ld 8, 9-10).
The last payment was produced by Gelvich T.N. 07/17/2009 in the amount of 100 rubles.
The court takes into account that at present, the validity period of this contract has not expired, it is valid.
The arguments of the respondent that the duration of the bank card is over in this case the court considers unreasonable, since in accordance with paragraph 2.7, the conditions for providing credit card service (LD 19) a credit card is valid until the last month specified on the map, but the end of the term The actions of the credit card does not mean the end of the term, except for the cases provided for by paragraph 9.5 of the specified conditions. According to paragraph 9.5 of the conditions, the treaty is terminated at the initiative of the Client at any time, subject to the final settlement with the bank. At the same time, the reference of the representative of the defendant to terminate the contract after the expiration of the 35-Tidy period after the end of the Card's expiration refers to the condition of the final calculation of the Client with the Bank (clause 9.5.1.2), and not to terminate the Agreement is unconditional.
The plaintiff appealed to the court with a claim 09.10.2017 (ld 28).
On the day of appeal to the plaintiff with claims, the amount of the principal debt is 13,646 rubles. 72 kopecks, which is confirmed by the calculation of the plaintiff, which the court is recognized as arithmeticly correct. In this connection, the principal debt in the indicated amount is subject to recovery from the respondent in full, grounds for the application of the limitation period for the requirement for the recovery of the principal debt is not available.
At the same time, the court takes into account that failure to respond to Gelvich T.N. His obligations did not occur in the fault of the bank, the bank did not contribute to the increase in the specified debt, since Gelvich T.N. He assumed the obligation to pay the principal debt within the prescribed period, but violated the change in the return of funds.
At the same time, the Court considers that it is subject to applying a limitation period for preventable debt on interest on the following grounds.
According to Art. 196 Civil Code of the Russian Federation The total limitation period is established in three years.
Based on Part 1 Art. The 200 Civil Code of the Russian Federation within the limitation period begins from the day when the person learned or should have learn about violating his right.
By virtue of Part 2 of Art. 199 Civil Code of the Russian Federation, the limitation is applied by the court only at the request of the parties in the dispute made before the decision by the court. The expiration of the limitation period, the application of which is stated by the part in the dispute, is the basis for the court to make a decision on a refusal of a claim.
According to paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, the Plenum of the Supreme Court of the Russian Federation of 28.02.1995 No. 2/1, the statement of the parties to the dispute on the application of the limitation period is the basis for the failure of the lawsuit, provided that it is done at any stage of the process before The decision of the court of first instance and the passage of the specified period is confirmed by the case materials.
According to paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 09.29.2015 No. 43 (Ed. Dated 07.02.2017) "On some issues related to the application of the norms of the Civil Code of the Russian Federation on the limitation", within a sense of paragraph 1 of Article 200 of the GC The RF for the statute of limitations on the claim arising from the violation of one party to the contract for the payment of goods (works, services) in parts, begins with respect to each individual part. The statute of limitations on the claims on expired time-based payments (interest for the use of borrowed funds, rent, etc.) is calculated separately for each overdue payment.
Taking into account the fact that the limitation period under the declared interest has expired on January 03, 2012 (taking into account the previously considered statement on the issuance of a court order), then in this part the stated requirements are not subject to satisfaction.
The missing limitation period was announced by the representative of the defendant Plychichikov N.V., that is, the appropriate person, the statement was made before the decision was made, the passage of the specified period was confirmed by the case materials.
The court, it takes into account that neither in the claim, nor written evidence applied to him, the plaintiff does not explain the reason for the passage of appeal to the court, does not indicate which circumstances were the reason for his passage, the application for the restoration of the term for appeal to the court was not declared.
The court believes unreasonable requirements of Gelvich T.N. on termination of the loan agreement, because, at the request of one of the parties, the contract may be changed or terminated by the court decision only with a significant violation of the contract by the other party; In other cases provided for in the Civil Code of the Russian Federation, other laws or treaty (paragraphs 1, 2, Article 450 of the Civil Code of the Russian Federation).
A significant change in circumstances is the basis for its change or termination, unless otherwise provided by the contract or does not follow from its being (paragraph 1 of Art. 451 of the Civil Code of the Russian Federation). Change of circumstances is recognized as significant while the conditions contained in the list shown in paragraph 2 of Art. 451 of the Civil Code of the Russian Federation and testifying to prioritize the stability of the fulfillment of contractual obligations.
The court, based on the fact that a significant violation of the terms of the contract by the Bank during the trial is not established, it is necessary to refuse to satisfy the claims of the claimant on the termination of the contract for the provision of credit funds.
Refusing to satisfy the requirements of the claimant to terminate the contract, the Court comes to the conclusion that the Credit Terms of the Credit Treaty were fulfilled, the plaintiff was provided, the plaintiff expressed his intention to conclude a loan agreement, enjoyed by the Bank for cash with funds, which suggests that the bank is properly Perforced commitments.
The court also does not see the grounds for meeting the requirements of Gelvich T.N. About recognition not by invalidation of the penalties' accrual claim, since the tariff plan, the conditions, the questionnaire clearly, are detrimental, full and available for reading the terms of the loan, about tariffs (including fines) and their size . These conditions were agreed by the parties, the loan agreement was signed by a borrower (Gelvich T.N.). Thus, before the conclusion of the contract of Gelvich T.N. All information on the full cost of the loan was provided, and all the terms of the loan agreement are clarified.
At the same time, the Court considers that the commission for maintaining a loan account in the amount of 17,560 rubles 90 kopecks, since the inclusion of the plaintiff's claim to pay the commission for the opening and the introduction of a loan account is illegal, this service is imposed, By virtue of the requirements of Art. 16 of the Law of the Russian Federation "On Protection of Consumer Rights", the provisions of the contract for recovery from Gelvich T.N. This amount is subject to cancellation, because by virtue of the law, the placement of funds raised by the Bank in the form of loans is carried out by bank organizations on their own behalf and at their own expense. Making a borrower of funds as a commission for making money does not indicate the interest of the plaintiff in the use of this account, because by virtue of Art. 819 of the Civil Code of the Russian Federation The essence of legal relations on the loan agreement for the borrower is to obtain a loan and execution of the responsibility for the return of the loan amount and accrued interest, with the action sufficient to fulfill the obligations of the borrower, is the timely transfer of a certain part of funds received as a loan and interest him lender. Thus, the mechanism of accounting received from the borrower of funds is beyond the action of the borrower on the loan agreement and does not represent interest to him, and therefore, payment for the title action cannot be naked on the borrower, as a person who consumes the relevant service.
In accordance with paragraph 1 of Art. 98 Code of Civil Procedure of the Russian Federation, the Party, in favor of which the court decision was held, the court awards to compensate on the other hand all the court costs incurred in the case, and therefore, in favor of the plaintiff PJSC NB "Trust" from the defendant is also subject to recovery of the amount of state duty in the amount of 545 rub. 87 kopecks, that is, proportionally satisfied with the requirements.
Based on the above and guided by Article. 194-199 Code of Civil Procedure of the Russian Federation,
The claims of PJSC National Bank "Trust" to Gelvich TN on recovery of debt under the loan agreement, court costs - to satisfy partially.
To recover from Gelvich TN in favor of PJSC National Bank "Trust" the amount of debt in the amount of 13,646 rubles. 72 kopecks, expenses for payment of state duty in the amount of 545 rubles. 87 kopecks.
In the rest of the claims to refuse.
Counter claims Gelvich TN in terms of recognition of the illegal commission for servicing the loan account to satisfy.
Recognize the conditions of paragraph 2 of the Tariff Plan "Client", obliging a borrower to pay the defendant Commission for the calculated service of the account invalid by virtue of neglost.
In the rest of the oncoming claims, Helivich tNF refuse.
The decision may be appealed to the Krasnoyarsk Regional Court in the Kansky City Court within a month from the date of adoption in the final form.
