What can warm you up on a Saturday evening besides strong drinks?

A good story of the triumph of good over evil.

Below is the story of the lost court case by Tinkoff Bank, the decision of which came into force on December 15, 2015, i.e. there will be no more appeals.

This is not about the sensational story with investors, but about turning off the remote banking services…

A few words about my experience

A year ago then Tinkoff Credit Systems They put a pig under my Christmas tree exactly on December 31st: they blocked the debit card of my wife and two brothers.

Remote banking services (Internet banking) have been blocked. It stuck, as I read in the then, 400k.

The bank offered (did you eat fish soup?) to fly to Moscow (from Krasnoyarsk!) and receive cash in the only office throughout Russia.

I still withdrew the money after complaints using a free interbank service upon written application, but the bank, firstly, strictly forbade contacting me with any questions. hotline, they say, all issues are resolved only through a personal visit to the bank’s office, and, secondly, the hands of the Security Council reached out to Corn with credit limit from TKS, to the Yandex-Money card (issuer - TKS), even to the electronic wallet “Tinkoff Mobile Wallet”.

According to the court decision, Tinkoff Bank is obliged to make changes to the Terms of Comprehensive Services. To date, the bank has not complied with the court decision, has not connected the Internet bank, limiting my remote servicing.

He did not make changes to the Criminal Code; illegal clauses of the Criminal Code continue to operate. In such circumstances, the court's decision will be sent bailiffs performers for enforcement.

From significant comments from banki.ru:

To submit an application for appeal – one month from the date of production of the final decision (+ 5 days). A month has passed a long time ago. So the bank’s wishes for his appeal are just wishes.

Since the default judgment was not canceled, it means that the court found the bank’s arguments about its cancellation ridiculous. […]
The bank missed the deadline for the appeal - it was August 18 + 7 days + 1 month - i.e. The bank could file an appeal against the decision no later than September 25, 2015.
And the bank will not be able to restore the missed deadline accurately, i.e. he received the decision and saw it, which is also confirmed by filing an application for its cancellation. […]
In this case, the bank agreement is considered void, because it was proven in court that it does not comply with either the Law of the Russian Federation or the legislation of the Russian Federation =) And with its behavior (regarding failure to comply with a court decision), the bank disgraces itself =)

Below is the text of the court decision (minus one page). three photos.

Judgment

Absentee decision
In the name Russian Federation
August 11, 2015

Dzerzhinsky District Court of Perm, consisting of: presiding judge M.A. Meledina, with secretary E.S. Burdina,

having considered in open court a civil case on the claim of Sergei Viktorovich Gornostaev against Tinkoff Bank JSC for the protection of consumer rights,

installed:

The plaintiff filed a lawsuit seeking recognition of the actions of Tinkoff Bank JSC to restrict remote maintenance, disabling Internet banking is illegal and violates consumer rights financial services, the defendant’s obligation to connect the Internet banking service, recognizing clauses 4.5, 4.6, 4.7 of the Terms of Comprehensive Banking Services of JSC Tinkoff Bank as illegal and violating the rights of consumers of financial services.

The stated requirements are motivated by the fact that on April 13, 2015, a universal agreement was concluded between the plaintiff and AOTinkoff Bank, the components of which are: an application form, terms of banking services, tariffs.

Within the framework of the universal agreement, agreement No. 5009368753 settlement was concluded debit card, card account No. 40817810100000645913 was opened, as of April 14, 2015, the amount of funds on the card account is 43,379.95 rubles. On April 14, 2015, JSC Tinkoff Bank unilaterally suspended remote servicing under the public universal agreement, disabled the Internet bank, limited electronic payment services in the Internet bank, limited the receipt of information, submission of orders, and opening of deposits under the universal agreement in the Internet bank.

The defendant invited the plaintiff to submit orders for a card account, a deposit agreement, a universal agreement with a visit to the bank’s office in Moscow. The bank motivated these actions by the fact that the plaintiff assessed the quality of the services provided by the bank extremely low, leaving reviews on the bank’s website, ordering certificates confirming the conclusion of agreements by the bank for each agreement.

These actions of Tinkoff Bank JSC are illegal and violate the rights of the consumer of financial services under a public contract. The bank has a single bank office in Moscow; all banking activities are carried out remotely, via the Internet; the bank does not have offices in Perm. In addition, the plaintiff believes that the provisions of clauses 4.5, 4.6, 4.7 of the Terms of Comprehensive Banking Services of JSC Tinkoff Bank violate consumer rights and contradict current legislation.

The plaintiff did not appear at the court hearing, submitted a statement with a request to consider the case without his participation, and insists on the claims.

The defendant's representative did not appear at the court hearing, was duly notified of the date of the court hearing, which is confirmed by information about the delivery of the postal item, did not present any objections to the stated demands, and did not ask to postpone the hearing.

Thus, the court recognizes the reason for the defendant’s failure to appear as disrespectful, and considers it possible to consider the case at this appearance, in the absence of the defendant, in absentia proceedings.

According to Part 1 of Art. 452 Civil Code In the Russian Federation, an agreement to amend or terminate a contract is made in the same form as the contract, unless otherwise follows from the law, other legal acts, contract or customs.

From the analysis of legal norms it follows that the Civil Code of the Russian Federation, the Law of the Russian Federation “On the Protection of Consumer Rights” and other federal laws do not provide for the right of a bank to unilaterally change the terms of an agreement concluded with citizen consumers.

The provisions of clause 4.5 of the conditions for comprehensive banking services at Tinkoff Credit Systems» The bank (CJSC) actually grants the bank the right to unilaterally change the terms of the agreement, thereby the bank deprives the consumer of the opportunity to receive information about the service in the manner provided for in Art. 10 of the Law of the Russian Federation “On the Protection of Consumer Rights”. Thus, the bank’s inclusion in the contract of a condition on the possibility of unilateral changes to the contract contradicts the norms of civil law and infringes established by law consumer rights.

According to clause 4.6 of the conditions, the client agrees that the bank is not responsible for failures and refusals in remote servicing associated with disruptions in the operation of communication equipment and/or communication networks, and losses incurred in this regard.

This paragraph contradicts Art. 309, 310 of the Civil Code of the Russian Federation, according to which obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law and other legal acts, unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed.

By including this clause in the terms of comprehensive banking services at Tinkoff Credit Systems Bank (CJSC), the bank refuses to properly fulfill its obligations under the agreement, which also infringes on the consumer’s rights established by law.

Clause 4.7 of the conditions stipulates that the bank has the right to refuse to accept orders from a client through remote servicing to carry out transactions on a card account or deposit account. In such cases, the bank accepts only duly executed settlement documents on paper.

In accordance with Article 845 of the Civil Code of the Russian Federation, under a bank account agreement, the bank undertakes to accept and credit funds received to the account opened for the client (account owner), cash, carry out client orders to transfer and withdraw appropriate amounts from the account and carry out other operations on the account. The bank can use the funds available in the account, guaranteeing the client’s right to freely dispose of these funds.

According to the rules of Article 849 of the Civil Code of the Russian Federation, the bank is obliged, by order of the client, to issue or transfer the client’s funds from the account no later than the day following the day the bank receives the corresponding payment document, unless other deadlines are provided for by law issued in accordance with it banking rules or a bank account agreement.

Article 858 of the Civil Code of the Russian Federation stipulates that restrictions on the client’s rights to dispose of funds in the account are not permitted, with the exception of the seizure of funds in the account or suspension of operations on the account in cases provided by law.

Based on the above, the provisions of clause 4.7 of the conditions for comprehensive banking services at Tinkoff Credit Systems Bank (CJSC) contradict the norms of current legislation, since refusal to a client to accept orders through remote servicing to conduct transactions on a card account or deposit account is a restriction of the client’s rights to disposal of funds in the account, which is not allowed by virtue of Art. 858 of the Civil Code of the Russian Federation.

Thus, the plaintiff, by virtue of Art. 56 of the Civil Procedure Code of the Russian Federation provided sufficient evidence to support the stated requirements, in connection with which, the requirements of Gornostaev S.V. recognition as illegal and violating the rights of consumers of financial services, clauses 4.5, 4.6, 4.7 of the Terms of Comprehensive Banking Services of JSC Tinkoff Bank are justified and subject to satisfaction.

Due to the fact that clauses 4.5, 4.6, 4.7 of the Terms of Comprehensive Banking Services of JSC Tinkoff Bank contradict the current legislation and were declared invalid by the court, the plaintiff’s demands to recognize the actions of JSC Tinkoff Bank to limit remote services, disable the Internet bank as illegal and in violation of consumer rights financial services, as well as the obligation of Tinkoff Bank JSC to connect the Internet banking service are subject to satisfaction.

In accordance with Part 1 of Article 103 of the Civil Procedure Code of the Russian Federation, a state fee is subject to recovery from the defendant, from which the plaintiff was exempted when filing this claim, in the amount of 300 rubles.

Guided by Art. 194-198, 233 of the Civil Procedure Code of the Russian Federation

Claims of Sergei Viktorovich Gornostaev to satisfy.

Declare illegal and violative of consumer rights financial services clauses 4.5, 4.6, 4.7 of the conditions for comprehensive banking services at Tinkoff Credit Systems Bank (CJSC).

Recognize the actions of Tinkoff Credit Systems Bank (CJSC) to limit remote servicing and disable Internet banking in relation to Sergei Viktorovich Gornostaev illegal and promoting the rights of consumers of financial services.

Oblige Tinkoff Credit Systems Bank (CJSC) to activate the service Internet banking in relation to Sergei Viktorovich Gornostaev.

Collect with Tinkoff Credit Systems Bank (CJSC) to the income of the corresponding budget state fee in the amount of 300 rubles.

The defendant has the right to file with the court that made the default decision an application to cancel this court decision within seven days from the date of delivery of a copy of this decision.

A court decision in absentia may also be appealed by the parties on appeal within a month after the expiration of the deadline for the defendant to file an application to cancel this court decision, and if such an application is filed, within a month from the date of the court’s decision to refuse this application. .

Judge – M.A. Meledina

Kristina Frolova

It's time to figure out how to prepare yourself statement of claim- the document on the basis of which the trial will begin.

What was the dispute about?

Alexander Petrovich allowed his nephew Vasya to live in his apartment. Later Vasya had a wife and children. When Alexander Petrovich realized that his nephew was in it for the long haul, they agreed that Vasya would pay 15,000 R a month - half of the normal rental price. For a year, the nephew never paid.

At first, Alexander Petrovich wanted to throw his nephew out the door, but then he decided to act wisely.

There was no written agreement, so Alexander Petrovich kept all the correspondence with his nephew and took from the notary a protocol for examining the correspondence so that it would become evidence of the existence of the agreement.

Then Alexander Petrovich sent Vasya an official complaint and achieved an agreement on the procedure for repaying the debt, so that if his nephew failed to pay again, he could go to court with the necessary piece of paper. According to this agreement, Vasya’s debt amounted to 237,849.14 R along with the penalty.

Vasya did not take the agreement seriously. Since April, he simply began paying 15,000 rubles for an apartment. On September 1, Vasya reported that he had found another apartment - he collected his things, his wife and child, and moved out. About the debt for last year Vasya didn’t remember.

Alexander Petrovich was going to court.

Subject and basis of the claim

Any statement of claim consists of a subject and a basis. They distinguish one claim from another and exclude the identity of claims, which is prohibited by law. The same claim cannot be considered in court several times, and one claim cannot have several grounds and subjects at once.

The subject of the claim is what the claim is about. That is, what exactly does the plaintiff want when going to court?

Any claim must be substantiated. The basis of the claim is the circumstances from which the subject of the claim arises. This is why the court should side with the plaintiff.

To draw up a statement of claim, you need to clearly understand what to ask from the court and on what to base this demand.

In the case of Alexander Petrovich, the basis of the claim is the nephew’s failure to repay the debt for the apartment under the debt repayment agreement. When considering a dispute, the court will examine this agreement, and not the lease agreement. The subject of the claim is the collection of debt and penalties under the agreement.

If Vasya, in addition to the debt under the agreement, had continued not to pay the rent, Alexander Petrovich could have gone to court with another claim - to collect the debt under the rental agreement from April to September and with a demand to vacate the apartment.

First - pre-trial claim

Disputes between individuals regarding debt collection do not require mandatory compliance with the claims procedure, unless the agreement states otherwise. That is, before going to court with a claim, it is not necessary to send a claim to the defendant demanding repayment of the debt. But still worth it. This can help avoid going to court: the defendant can pay off the debt, then there will be no need to waste time and nerves on court proceedings.

The claim must contain current requirements, so if the debt has increased or the grounds for the claim have changed, the claim will have to be sent to the defendant again with a valuable letter with a description of the contents and a delivery notification.

The subject and grounds of Alexander Petrovich’s demands have changed - they are based on an agreement to repay the debt, so Alexander Petrovich sent Vasya a new claim:

Now this claim needs to be turned into a statement of claim - supplemented, divided into sections and substantiated.

We have prepared an example of a statement of claim for you. Its structure can be taken as a basis.

Heading of the claim - court and parties

Disputes between individuals are heard by courts of general jurisdiction.

The amount collected by Alexander Petrovich is more than 50,000 RUR, so you need to go to the district court, not the magistrate court. In an agreement to repay the debt, Alexander Petrovich and Vasya decided to consider disputes in Moscow - in the Khamovnichesky Court. We indicate it in the header.

If there were no contractual jurisdiction, we would have to go to the court at the place of residence of the nephew - the Zheleznodorozhny District Court of the city of Penza.

The heading must indicate the plaintiff and the defendant. Since the dispute is between individuals, in addition to the address, it is worth writing down the years of birth of the parties so that there is no confusion. Email and telephone are needed so that the court can notify the parties of the need to appear at the hearing and consider the dispute more quickly:

In the header of the claim, you must immediately indicate its price and the amount of state duty

Please provide the calculation as an attachment to your application.

In the header of the claim, you must immediately indicate its price and the amount of the state duty.

Please provide the calculation as an attachment to your application.

Description of factual circumstances

In this section of the claim, you need to clearly and in detail describe the essence of the dispute. After reading the invoice, the court must understand that the defendant has been behaving badly for a long time and is clearly violating the rights of the plaintiff:

It is better to break the description of facts into subsections, especially if there are many of them. This will make it easier for both you and the court to navigate the dispute

Immediately place the application numbers throughout the text so that you can easily find the necessary evidence

It is better to break the description of facts into subsections, especially if there are many of them. This will make it easier for both you and the court to navigate the dispute.

Immediately place the application numbers throughout the text so that you can easily find the necessary evidence.

Procedural issues

It makes sense to add a section on procedural issues - jurisdiction, jurisdiction and compliance with the claim procedure, especially if the defendant has something to object to.

For example, Vasya could argue that the Khamovnichesky Court cannot consider the dispute because it is registered in Penza. Alexander Petrovich foresaw this and specially devoted several paragraphs of the claim to this - the court will now have no doubts:

Position on the merits of the dispute

This is the main section of the claim, which must clearly describe what violations were committed by the defendant and why the claim should be satisfied. In this section it is necessary to refer to the law and judicial practice:

Don't be afraid to repeat that the defendant is wrong. On the contrary, highlight it

It is better to make the calculation of the penalty as a separate appendix rather than insert it into the text of the claim

Don't be afraid to repeat that the defendant is wrong. Instead, highlight it.

It is better to make the calculation of the penalty as a separate appendix rather than insert it into the text of the claim.

Petition part

In the pleading part of the statement, the plaintiff summarizes all of the above and puts forward demands. They must be clearly formulated, because it is this part of the claim that will be included in the operative part of the decision and in the text of the writ of execution:

Be sure to ask for the penalty to be collected on the day of execution. If the bailiffs execute the decision only after a year, you can count on decent interest

Be sure to ask for the penalty to be collected on the day of execution. If the bailiffs execute the decision only after a year, you can count on decent interest.

Applications

All evidence you refer to must be attached to your claim. There is no need to submit the originals to the court, except for the receipt of payment of the state fee. Submit the remaining documents in the form of notarized copies:

If you attach e-mail correspondence to the claim, obtain from the notary a protocol for examining the e-mail box (Articles 102 and 103 of the Fundamentals of Notary Legislation)

By virtue of the Determination of the Supreme Arbitration Court of the Russian Federation dated April 23, 2010 No. VAS-4481/10, such a protocol is recognized as appropriate evidence

If you attach e-mail correspondence to the claim, obtain from the notary a protocol for examining the e-mail box (Articles 102 and 103 of the Fundamentals of Notary Legislation).

By virtue of the Determination of the Supreme Arbitration Court of the Russian Federation dated April 23, 2010 No. VAS-4481/10, such a protocol is recognized as appropriate evidence.

Calculations

According to the law, any calculations must be attached to the claim - penalties, cost of the claim and state duty:

It is more clear to calculate the penalty in the form of a table.

We multiply the amount of debt by the interest and the number of days overdue.

The value of a monetary claim is the sum of all claims.

Remember

Before filing a claim, decide on the subject and basis of the claim, and send a pre-trial claim to the defendant.
Divide the text of the claim into sections: description of facts, procedural issues, position and substantive requirements.
In the operative part of the claim, clearly state your requirements - what you are asking the court to do. You ask for a penalty on the day of execution of the decision.
Attach to the claim notarized copies of the evidence documents to which you refer.
Calculate the penalty, the cost of the claim and the state duty. Complete the calculation as a separate application.
Pay the state fee and file your claim by mail, through the office or electronically on the website sudrf.ru.

In the next article we will talk in detail about judgment and the possibility of appealing it.

Thanks to the user alex-khokhlov, I am pleased to present you with examples of complaints about the bank’s recent actions to reduce the interest rate. You simply download, add your details and submit. This doesn’t take much more time than writing another message in the Tinkoff contributions thread.

1. Write a review on the portal about the bank in the People’s Rating - we don’t want that after all this the bank for ignorant people is very good, customer-oriented and generally in 4th place, given that there have already been complaints from users about the disappearance of their negative reviews, I advise you to take a screenshot it, and also remember a direct link to it in the browser. Attention: if you publish a review WITHOUT A RATING, then it will not be included in the bank’s rating and the bank will supposedly remain one of the most customer-oriented on the portal. Even if you have ALREADY published a review without a rating, simply ask the moderator to change it to one that you think is suitable for the bank. Moderators can remove bad ratings, citing the fact that “according to the rating rules, the content of the stated conditions for the provision of products and services is not taken into account in the level of service.”
Therefore, write to the moderators (you can immediately in the text of the review) that in this case a negative assessment is given because the bank DOES NOT COMPLY with its previously stated conditions for the provision of products and services with which it lured depositors in a difficult time for all banks.
2. Take samples of claims below, add your data and send them to the Central Bank, FAS, RPN (RPN uses the same template as in FAS, change only the heading to INFRINGEMENT OF PORTIONERS' RIGHTS - preferably by mail by registered mail, but, if it’s really broken, then via the Internet. But it’s better not to be lazy and, when passing by the post office, spend 5 minutes sending it; all government agencies respect pieces of paper with a live signature much more.
3. If your wife, mother, son or cat also has an agreement with TKS, we repeat points 1 and 2 on their behalf.

All 3 points are unlikely to take more than 5-10 minutes!!!

I also hasten to inform you that the FAS has already considered a similar case against another and made a decision in favor of the investors. So no need to worry, your path now is the Central Bank, FAS, RPN.

P.S. I highly recommend subscribing to my blog (click one button). In this case, you will be able to learn about new posts on my blog as quickly as possible. And, believe me, there will be a lot of them in the near future. If you have acquaintances or friends with investments in TB, please send them a link to my blog, you can read it even without registering on the portal, because the more complaints there are, the more difficult it is not to pay attention to them. Thank you.

12.01.2016 17:29
24.11.2015 17:44
19.07.2015 18:07
13.07.2015 12:54
06.07.2015 09:00

In particular, it is part of our life. Conflicts that arise between a banking institution and a client are unpleasant, as they are fraught with financial and moral losses. IN controversial situations The defendant can be either one or the other party. Let's consider how to act if Tinkoff Bank sues you or violates the terms of the agreement itself, demanding that you seek justice from Themis. We will also give several examples from existing judicial practice.

Information about Tinkoff Bank

This banking institution was founded in 2006 by Russian businessman Oleg Tinkov and was previously known as Tinkoff Credit Systems (TCS). In January 2015, the company was renamed Tinkoff Bank.

Initially, the bank was created as a remote financial institution similar to the American Capital One and Wells Fargo. Tinkoff Bank's specialization today is plastic cards, so it does not have regional branches, ATMs and other familiar infrastructure. There is only one office - the head office and all issues are resolved either there, or over the phone or online.

In this format, it is not easy for everyone to quickly resolve emerging misunderstandings, problems and difficulties. As a result, borrowers, bank clients and the financial institution itself are forced to go to court to resolve disputes.

The bank may resort to legal proceedings in the event that the client evades fulfilling his obligations and other ways to resolve the problem are ineffective. Most often, difficulties arise in relations with borrowers. Some out of ignorance, out of reluctance to understand complex financial matters, a difficult life situation is avoided mandatory payments on loan. In this case, the bank can act against the client in court.

Litigation is disadvantageous for banking institutions for a number of reasons:

it is necessary to pay for the work of the legal service;
once the trial begins in court, the accrual of penalties for non-payment of contributions is suspended;
the court often makes a decision that obliges the client to pay the amount of the principal debt, without penalties or fines;
if the decision is positive for the bank, the borrower’s debt will be divided into a large number of payments.

Thus, the bank loses time, money, and those financial institutions that have sufficient resources and a well-functioning legal service mainly resort to litigation.

Tinkoff Bank rarely resorts to such a solution to the issue. The possibility of going to court depends not so much on the amount of debt, but on the length of the period during which there were no payments on the loan. Employees of the financial institution first work with the borrower and try to convince him to resume payments. If the client makes contact and also provides objective evidence of his insolvency, he may be offered a review of the loan repayment terms, that is, restructuring.

But sometimes negotiations with the borrower drag on for weeks or even months. At the same time, the client may persistently avoid contact with the bank, oppose any offers and refuse to repay the debt without any reason, without presenting any documents confirming his difficult situation. financial situation. But even in this case, Tinkoff will not necessarily go to court.

Note! Sometimes the bank reserves the opportunity to contact a third party to resolve the problem and transfers to the collection agency the right to collect the debt on a commission or in its entirety.

If Tinkoff Bank sues you, be sure to take part in the consideration of the dispute, since the failure of the defendant to appear negatively affects the court’s attitude towards the defendant, which may affect the severity of the final decision.

Often clients file a claim against Tinkoff in court, wanting for one reason or another to recognize its actions as unlawful.

The reasons for disputes with the bank are:

unilateral change in the terms of the transaction;
delays in transferring funds;
decrease in profitability on deposits before the expiration of the contract;
other.

To go to court, you must draw up an application and submit it to your place of registration. If consumer rights have been violated, such a claim is not subject to state duty.

Important! The borrower can sue only if the terms of the lender’s agreement violate the law - the civil code or the Law on Consumer Rights.

A statement of claim against Tinkoff Bank, if all other possibilities for resolving the dispute have been exhausted, must be carefully prepared. To do this, you can contact specialists or prepare all the paperwork yourself.

A statement of claim is drawn up independently using a template or with the help of a lawyer and sent to the court by registered mail (required with acknowledgment of delivery). After some time, usually from two weeks to a month, a subpoena arrives.

In some cases, a lawsuit may be brought by a group of people and supported by various influential organizations. For example, in August 2015, clients of Tinkoff Bank filed a lawsuit with the Khoroshevsky District Court of Moscow due to a unilateral reduction in the interest rate, and, therefore, profitability bank deposits from 16-18% to 13%.

This statement was supported by the Consumer Protection Society. The financial institution was forced to change the conditions and stated that for deposits opened before July 1, 2015, i.e., before the interest rate changed, the rate specified in the original agreement continues to apply.

There is another example of a successful resolution in court of a conflict situation between a client and Tinkoff Bank. In December 2015 financial institution The trial was lost in the city of Perm. The plaintiff was a Tinkoff client, who was blocked from accessing cards and Internet banking without explanation, having been asked to fly to Moscow to the only office in the country to receive money in cash.

Throughout the year, there was litigation regarding violation of the requirements of the Law “On the Protection of Consumer Rights” under contracts with financial and credit institutions, which resulted in a decision by the Dzerzhinsky District Court of the city of Perm, recognizing the violation of the client’s rights and the illegality of three points of the Terms of Comprehensive Services.

In controversial situations arising between banking services, you can use different ways regulation. But if the only option seems to be to go to court, then there is no need to be afraid to defend your rights. As the experience and practice of those who have gone through litigation show, it is possible and necessary to fight for justice and the possibility of compensation for damage in the legal field.

Decision dated November 6, 2015

In case No. 2-831/2015

Accepted Gorky District Court (Omsk Region)

The Gorky District Court of the Omsk Region, composed of the presiding judge Lobov N.A., with the secretary of the court session Kulishova M.V., having considered on November 6, 2015 in open court in the village. Gorkovskoye, Omsk Region, civil case based on the claim of the Tinkoff Bank joint-stock company against V.A. Zheliba. on the collection of debt under the loan agreement, as well as on the counterclaim of Zhelib V.A. To joint stock company Tinkoff Bank on challenging the terms loan agreement, collection of money,
Installed:
A representative of Tinkoff Bank JSC filed a lawsuit against V.A. Zheliba. on debt collection under a loan agreement. In support of the claim it is stated that DD.MM.YYYY, on the basis of the application-questionnaire of Zhelib V.A. between JSC Tinkoff Bank and Zheliba V.A. Agreement No. was concluded on the issue and servicing of credit cards with a limit. The defendant, in accordance with the terms of the loan agreement, accepted the obligation to pay interest on the use of the loan, as well as commissions, and to return the loan to the bank within the terms stipulated in the loan agreement. The tariff rate for the loan is agreed upon by the parties in the Tariffs for tariff plan, General conditions for issuing and servicing credit cards. However, the defendant fulfilled its obligations under the loan agreement improperly, namely, the defendant repeatedly delayed payment minimum payment how the terms of the loan agreement were violated (clause 5.6 General conditions). Due to systematic violation on the part of Zhelib V.A. terms of the loan agreement On February 26, 2015, the bank terminated the loan agreement by issuing a final invoice to the defendant. As of the date of sending the claim to the court, the debt of Zhelib V.A. before the bank amounted., of which. - amount of overdue principal debt, . - amount of overdue interest, . - penalties for unpaid amounts to repay credit card debt on time in accordance with the loan agreement. The plaintiff also claimed the recovery of legal costs for payment of the state fee when filing a claim in court in the amount of.
The plaintiff’s representative did not appear at the court hearing; he was duly notified of the time and place of the court hearing; he asked for the case to be considered in his absence.
Defendant Zheliba V.A. did not appear at the court hearing, was duly notified of the time and place of the court hearing. At the same time, Zheliba V.A. declared counterclaims to Tinkoff Bank JSC.
In support of the counterclaim of Zhelib V.A. it is stated that, in violation of the requirements of the Civil Code of the Russian Federation, the bank illegally withheld a commission for the issuance of cash in the amount on which interest should be accrued in accordance with the Civil Code of the Russian Federation in the amount. The provision of the loan agreement regarding the charging of a commission for the issuance of cash should be declared invalid.
Referring to the Civil Code of the Russian Federation, Zheliba V.A. indicated in the claim that the penalty accrued by the bank was in the amount. is disproportionate to the breach of obligation.
In addition, the bank unlawfully, without acceptance, withheld a penalty in the amount of..., which is subject to return, and interest should be charged on the specified amount in accordance with the Civil Code of the Russian Federation in the amount.
The plaintiff in the counterclaim claimed the illegal imposition of services for concluding an insurance contract when receiving a loan, as a result of the illegal collection of insurance fees in the amount, which are subject to recovery from the bank with interest accrual in accordance with the Civil Code of the Russian Federation in the amount.
In the opinion of the counter-plaintiff, the bank also unlawfully imposed the terms of the contract for the provision of SMS messaging services, the payment for which is in the amount of interest in accordance with the Civil Code of the Russian Federation in the amount. subject to recovery from the defendant.
The counter-plaintiff, with reference to the norm of the Civil Code of the Russian Federation, disputes the condition of the loan agreement on the order of write-off of money to repay the loan in the period from DD.MM.YYYY to DD.MM.YYYY.
In connection with the bank's violations of the requirements of the legislation on the protection of consumer rights, the counter-plaintiff asked to recover compensation for moral damages in the amount from the bank.
Based on the above Zhelib V.A. requested:
- terminate loan agreement No.
- recognize as illegal the terms of the loan agreement contained in clause 11 of the Tariffs for credit cards, p.p. 3.4.6, 3.7.2, 7.3.4 of the General Conditions of the Credit Card Agreement No.,
- oblige the bank to recalculate previously received payments to pay off the loan in accordance with the Civil Code of the Russian Federation,
- recover from the bank in favor of Zhelib V.A. commission for issuing cash in the amount., interest in accordance with the Civil Code of the Russian Federation in the amount.; withheld penalty in the amount of..., interest in accordance with the Civil Code of the Russian Federation in the amount of 799 .; insurance fee in the amount of., interest in accordance with the Civil Code of the Russian Federation in the amount of .; fee for SMS messaging services in the amount. with interest in accordance with the Civil Code of the Russian Federation in the amount of.; compensation for moral damage in the amount.
Having listened to the representative of the defendant, examined the written materials of the case, and assessed the evidence presented according to the rules of the Code of Civil Procedure of the Russian Federation, the judge comes to the following conclusion.
From the loan agreement No. dated DD.MM.YYYY and the statement of Zhelib V.A. it follows that between JSC Tinkoff Bank (formerly Tinkoff Credit Systems Bank (CJSC)) and Zheliba V.A. a credit agreement was concluded for the issue and servicing of a credit card with a limit. The defendant received the credit card and subsequently activated it.
Accordingly, the demand of the counterclaim of Zhelib V.A. to terminate the loan agreement must be rejected as unfounded, while the judge proceeds from the fact that the invalidity of part of the agreement does not entail the invalidity of the entire agreement.
At the same time, Zheliba V.A. with information about full cost loan was reviewed before concluding the loan agreement, as follows from the application form. In accordance with the extract under contract number No. addressed to Zhelib V.A., the defendant used the funds provided to him DD.MM.YYYY.
The court also found that the borrower Zheliba V.A. fulfilled the terms of the loan agreement improperly, since since September 2014 the loan has not been paid, as follows from the extract under agreement No. (the last payment on the loan is dated 08/28/2014). Moreover, until August 28, 2014, on the part of Zhelib V.A. There were also violations of obligations under the loan agreement, expressed in late payment of the loan and interest for the use of funds, as well as in making payments in an amount less than a certain amount established in the loan agreement.
These circumstances, as well as the amount of debt to the defendant bank according to the Code of Civil Procedure of the Russian Federation, have not been refuted.
According to the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organisation(lender) undertake to provide funds (loan) to the borrower in the amount and on the terms provided for by the agreement, and the borrower undertakes to return the received sum of money and pay interest on it. The rules provided for by the Civil Code of the Russian Federation apply to relations under a loan agreement, unless otherwise provided by the rules of this paragraph and does not follow from the essence of the loan agreement.
By virtue of para. 1 of the Civil Code of the Russian Federation, the borrower is obliged to return the loan amount received to the lender on time and in the manner prescribed by the loan agreement.
In accordance with the Civil Code of the Russian Federation, if the loan agreement provides for the return of the loan in installments (in installments), then if the borrower violates the deadline established for the return of the next part of the loan, the lender has the right to demand early repayment of the entire remaining loan amount along with the interest due.
According to the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements. Unilateral refusal to fulfill an obligation and unilateral change of its terms are not allowed, except in cases provided for by law. Unilateral refusal to fulfill an obligation related to its implementation by the parties entrepreneurial activity, and unilateral changes in the terms of such an obligation are also allowed in cases provided for by the contract, unless otherwise follows from the law or the essence of the obligation.
The credit card account statement and the submitted calculations confirm that the amount of debt of Zheliba V.A. under the loan agreement dated DD.MM.YYYY amounted to., of which. - amount of overdue principal debt, . - amount of overdue interest, . - penalties for unpaid amounts to repay credit card debt on time in accordance with the loan agreement.
Thus, the judge comes to the conclusion that Zhelib V.A. in favor of the plaintiff of the debt under the loan agreement in the specified amount.
In resolving the counterclaims of Zhelib V.A., the judge proceeds from the following.
Having examined the application form signed and sent to V.A. Zheliba. to the bank, the court found that V.A. Zheliba’s refusal to participate in the insurance protection program did not declare, did not express his will regarding insurance accordingly. Moreover, from the content of the application form it follows that Zheliba V.A., without expressing any objection to joining the insurance protection program for bank clients, agreed to participate in the insurance protection program.
total cost participation of Zheliba V.A. in the insurance protection program in the period from December 26, 2012 to February 26, 2015 amounted to.
In accordance with the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law.
Accordingly, Tinkoff Bank JSC was obliged to prove the validity of the property claims, including compliance with the information rights of the borrower as a consumer.
The terms of insurance under the insurance protection program for credit card holders, in conjunction with the Bank's Tariffs for credit cards, provide for the indirect participation of the insured person in legal relations under insurance; The fee for inclusion in the insurance protection program is % of the debt.
As follows from the Insurance Conditions, insurance for holders of credit cards issued by Tinkoff Bank JSC is provided in the event of the following events: death of the insured person as a result of an accident or illness, loss of ability to work with the establishment of a disability group. The beneficiary of the insurance is the client of Tinkoff Bank JSC or his heirs. The insurer in legal insurance relations is TOS OJSC.
Based on the content and purpose of insurance, taking into account the indirect participation of the borrower in legal relations regarding insurance, the insurance actions of Tinkoff Bank JSC are an independent service.
Accordingly, the rules on contracts for paid services (Civil Code of the Russian Federation) are subject to application to the legal relations of the disputing parties.
Thus, by virtue of the rules of the Civil Code of the Russian Federation, the customer is subject to payment only for services actually rendered.
Meanwhile, from the documents submitted by the claimant to the court, the scope of services provided by the lender as part of connecting the borrower to the insurance protection program does not indicate the amount of remuneration of Tinkoff Bank JSC and the procedure for calculating it.
In this regard, having received from Zhelib V.A. actual consent to participate in the insurance protection program, JSC Tinkoff Bank full information about the insurance service (including the amount of the bank’s remuneration) Zheliba V.A. did not provide.
Moreover, the actual fulfillment of the obligation to insure the property interests of Zhelib V.A., financial costs in connection with the provision of services by Tinkoff Bank JSC to connect the borrower to the insurance protection program, the plaintiff in the initial claim has not proven, nor has the fact of compliance with information rights Zheliba V.A. as a consumer.
Since the essential conditions for insuring the borrower’s property risks before Zhelib V.A. were not brought, the court finds information rights the borrower as a consumer of the services provided by Tinkoff Bank JSC were violated, and the condition for the participation of Zhelib V.A. in legal relations regarding insurance that are not agreed upon and have no legal force for the consumer.
Accordingly, the receipt of Tinkoff Bank JSC from Zhelib V.A. money in the amount., without legal grounds for this, is unjust enrichment of the bank, and therefore the specified funds in the amount. according to the Code of Civil Procedure of the Russian Federation, they are subject to recovery from the defendant in a counterclaim in favor of V.A. Zhelib. Along with the specified amount in favor of Zhelib V.A. Interest must be collected for the use of other people's funds in accordance with the Civil Code of the Russian Federation in the amount.
The judge also finds the arguments of V.A. Zhelib justified and worthy of attention. about the non-compliance of the Civil Code of the Russian Federation with the terms of the loan agreement No. on the order of write-off of the amounts of payments made on the loan.
In accordance with the Civil Code of the Russian Federation, the amount of payment made is insufficient for execution monetary obligation in full, in the absence of another agreement, repays, first of all, the creditor's costs of obtaining performance, then interest, and the remaining part - the principal amount of the debt.
However, clause 7.3.4 of the General Conditions for Issuing and Servicing Credit Cards of Tinkoff Bank JSC contains a condition according to which the Bank has the right to change the order of repayment within the debt. This condition loan agreement No. contradicts the requirements of the Civil Code of the Russian Federation, the content of which provides for a strictly defined sequence of repayment of a monetary obligation, which the parties have the right to change by mutual agreement.
Requirement of Zhelib V.A. about challenging clause 3.4.6, 3.7.2 is unfounded, since the General Conditions for Issuing and Servicing Credit Cards of Tinkoff Bank JSC, as well as the Terms of Comprehensive Banking Services at Tinkoff Bank JSC, do not contain these points.
Recognizing the claims of Zhelib V.A. about the bank’s violation of the norms of the Civil Code of the Russian Federation, the judge, in accordance with the Civil Code of the Russian Federation, comes to the conclusion that the counterclaim is justified and in terms of the requirement to collect from the bank the unlawfully withheld penalty (fines) in the amount, since fines for the defendant’s violation of loan obligations were levied in violation of the procedure provided for Civil Code of the Russian Federation. Interest is subject to accrual on the specified amount in accordance with the Civil Code of the Russian Federation, the amount of which is:
At the same time, the requirement to impose on the bank the obligation to recalculate received funds in accordance with the Civil Code of the Russian Federation, according to the judge, was not actually formulated by the plaintiff, since it is essentially a requirement of a material nature, however, the amount of this requirement has not been determined, as well as the calculation of the specified requirements.
The bank's imposition on the borrower of the obligation to pay for services to connect the borrower to the insurance protection program in the absence of legal grounds for this, as well as the inclusion in the contract of conditions contrary to the requirements of the Civil Code of the Russian Federation, violates his consumer rights, which, due to the content of the provisions of Art. 15, paragraph 3, art. 16 of the Law of the Russian Federation of February 7, 1992 No. 2300-I “On the Protection of Consumer Rights” is the basis for recovery from Tinkoff Bank JSC in favor of V.A. Zhelib. compensation for moral damage.
In this case, the amount of compensation should be reduced taking into account the requirements of reasonableness and fairness, the actual circumstances of the case, up to.
The arguments of the counterclaim to challenge the terms of the loan agreement concluded between JSC Tinkoff Bank and Zheliba V.A., regarding the illegality of charging a commission for the issuance of cash and payment for SMS-bank services, are rejected by the judge as unfounded.
Based on the Civil Code of the Russian Federation, an agreement is considered concluded if an agreement is reached between the parties, in the form required in appropriate cases, on all the essential terms of the agreement. Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.
Federal Law RF 02.12.1990 No. 395-1 “On banks and banking» provides that the agreement concluded by the bank with the client must indicate interest rates on loans and deposits, cost banking services and the timing of their implementation, the property liability of the parties for violations of the contract, including liability for violation of obligations regarding the timing of payments, as well as the procedure for its termination. In case of lending individual an essential condition is the size of the total cost of the loan.
Having analyzed the content of the application (offer) signed by V.A. Zheliba, the court believes that the borrower was informed that the application form, Tariffs for credit cards and General conditions for the issuance and servicing of credit cards are an integral part of the loan agreement, the borrower with the specified I have read the documents.
The Tariffs for credit cards attached to the case materials contain information about the amount of the commission for issuing cash (% plus.), the commission for annual card maintenance (.), and the fee for the sms-bank service (.).
The fact of receiving a loan from Zheliba V.A. did not dispute, and when establishing the factual circumstances of obtaining a loan, the judge comes to the conclusion that the parties to the transaction agreed on its terms, including the amount of the commission for issuing cash (.), fees for the sms-bank service (.).
In addition, the Regulations on the issuance of bank cards and on transactions performed using payment cards, approved by the Bank of Russia on December 24, 2004 No. 266-P, the receipt of cash is classified as transactions using bank card and it is established that the bank provides credit exclusively in non-cash form, and the Bank's credit card is, first of all, a means of non-cash payment.
Under the stated circumstances, the assignment to Zheliba V.A. the financial obligation to pay for cash withdrawal transactions using a credit card does not contradict the rules of substantive law.
Arguments of the counterclaim of Zhelib V.A. in support of the requirement to apply the Civil Code of the Russian Federation in relation to the penalty accrued by the bank in the amount. the judge rejects it as unfounded, while the judge takes into account the amount of debt of V.A. Zheliba. before the bank, the period of delay in payment of the loan and interest on the loan. In this regard, there are no grounds for invalidating the condition contained in clause 11 of the Credit Card Tariffs in relation to loan agreement No. concluded between Tinkoff Bank JSC and V.A. Zheliba.
Thus, the counterclaim of Zhelib V.A. subject to partial satisfaction.
By virtue of the Code of Civil Procedure of the Russian Federation and the Tax Code of the Russian Federation with Zheliba V.A. in favor of Tinkoff Bank JSC, it is necessary to recover in favor of the plaintiff the legal costs claimed by his representative for payment of the state duty, the amount of which was.
At the same time, a state duty in the amount of for consideration of the claims of Zhelib V.A., since the latter is exempt from paying state duty ()).
Based on the above, guided by the Code of Civil Procedure of the Russian Federation, the court
Decided:
Claims of Tinkoff Bank Joint Stock Company against V.A. Zheliba to satisfy the debt collection under the loan agreement.
Collect from Zhelib V.A. in favor of the joint stock company "Tinkoff Bank" funds under the loan agreement from DD.MM.YYYY No. in the amount., of which. - amount of overdue principal debt, . - amount of overdue interest, . - penalties for unpaid amounts to repay credit card debt on time in accordance with the loan agreement.
Collect from Zhelib V.A. in favor of the joint stock company "Tinkoff Bank" legal costs for payment of state duty in the amount.
Counterclaims of Zheliba V.A. to the joint stock company Tinkoff Bank to challenge the terms of the loan agreement, partially satisfy the recovery of money.
To recover from the joint stock company Tinkoff Bank in favor of Zhelib V.A. unjust enrichment in the form of a withheld penalty in the amount. and interest on the specified amount in accordance with the Civil Code of the Russian Federation in the amount of.; as well as unjust enrichment in the amount of payment for insurance. and interest on the specified amount in accordance with the Civil Code of the Russian Federation in the amount of.
To recover from the joint stock company Tinkoff Bank in favor of Zhelib V.A. compensation for moral damage in the amount.
Declare illegal the condition of the loan agreement No. concluded DD.MM.YYYY between Tinkoff Bank JSC and V.A. Zheliba, contained in clause 7.3.4 of the General Conditions of the Agreement.
The rest of the demands of the counterclaim of Zhelib V.A. leave unsatisfied.
To collect from the Tinkoff Bank joint stock company in favor of the budget of the Gorky municipal district of the Omsk region the state duty in the amount.
The rest of the counterclaims of Zhelib V.A. to the joint stock company Tinkoff Bank to leave without satisfaction.
The decision can be appealed to Omsk regional court within a month from the date of its adoption in final form by filing an appeal through the Gorky District Court of the Omsk Region.
Judge N.A. Lobov
The final decision was made on November 10, 2015