The decision of the court on the Tinkoff card. Counterclaim to Tink Bank

SOLUTION

In the name of the Russian Federation

On June 17, 2015, the Sverdlovsk District Court of Irkutsk, composed of: presiding judge Belik S.O. with the secretary of the court session, Sasina V.S., having considered in open court civil case No. 2-2563/15 on the claim of the Closed Joint Stock Company Tinkoff Credit Systems Bank against Ilyina N.A. on collection of debt under a credit card agreement, legal costs,

on the counterclaim of Ilyina N.A. to the Closed Joint Stock Company "Tinkoff Credit Systems" Bank on invalidating the terms of the agreement on the issue and servicing of a credit card regarding connection to the insurance program, on applying the consequences of invalidity of the transaction by reducing the amount of debt and reducing the amount of penalties,

INSTALLED:

The Sverdlovsk District Court of Irkutsk is processing a civil case based on the claim of Tinkoff Credit Systems Bank CJSC (hereinafter also referred to as the Bank) against N.A. Ilina. on collection of debt under a credit card agreement in the total amount of.... rubles, legal costs in the amount of.... rubles. In support of the claim, it is stated that a credit card agreement was concluded between the Bank and the defendant with an initial debt limit of... rubles. The components of the agreement are the Application-Questionnaire, signed by the defendant, Tariffs according to the tariff plan specified in the Application-Questionnaire, General conditions for the issuance and servicing of TCS Bank credit cards and the conditions for comprehensive banking services at TCS Bank. The agreement is concluded by Bann’s acceptance of the offer contained in the Application Form. The moment of conclusion of the agreement is considered the moment of activation of the credit card. The Bank duly fulfilled all obligations provided for by law and agreement. The bank sent monthly invoice statements to the client containing information about transactions made on the credit card, commissions, fees, fines, debt limit, as well as the amount of the minimum payment and the timing of its payment. The defendant was repeatedly late in paying the minimum payment, which violated the terms of the contract (clause of the General Conditions (clause of the General Conditions of the UKBO)). Due to the borrower’s systematic violation of its obligations, the Bank terminated the agreement by issuing a final invoice to the client. The amount indicated in the invoice should have been paid within.... days after the formation of the final invoice, but the defendant did not fulfill this obligation either. At the time of filing the claim, the defendant’s debt to the Bank amounts to .... rubles, of which: .... rubles - the amount of the principal debt; .... rubles – overdue interest; .... ruble – penalty interest; .... rubles – credit card service fee. The Bank asks to recover the indicated amount, as well as the state duty paid when filing the claim in the amount of.... rubles, from the defendant.

Objecting to the claim, defendant Ilyina N.A. filed a counterclaim against Tinkoff Credit Systems Bank CJSC to invalidate the terms of the agreement on the issue and servicing of a credit card, to reduce the amount of debt and reduce the amount of penalties. The counterclaim is supported by the following: She actually entered into a credit card agreement with the Bank, which she activated a year ago. From the documents she received, she believed that the interest rate was....%, so she transferred.... rubles monthly. Later she learned that the interest rate exceeds....%. In addition, she believes that she was illegally connected to the insurance program, despite the fact that she did not give consent to this. Having connected her to the insurance program, the Bank did not provide her with such a service, but systematically received payment for this servant. She believes that the terms of the contract for connection to the Insurance Program were imposed on her, in this point the contract does not comply with the law and is void. The amount.... rubles paid under the invalid terms of the contract is illegally collected and is subject to recalculation. The volume of penalties in the amount of.... rubles is considered too high and believes that it should be reduced to.... rubles in accordance with Art. . In addition, the Bank collected a fine twice.... rubles for the 3rd unpaid payment. Thus, he believes that the amount of total debt should be reduced from.... rubles to.... rubles. In this connection, it requests: to invalidate the terms of the agreement on the issuance of a credit card in terms of collecting payment for participation in the insurance protection program for bank card holders; reduce the amount of total debt from .... rubles to .... rubles by applying recalculation taking into account the amounts of money illegally collected by the Bank from her; reduce penalties in accordance with Art. .

The plaintiff, ZAO Tinkoff Credit Systems Bank, did not send a representative to the court hearing, requesting that the case be considered without the participation of a representative of the Bank. The written objection to the counterclaim states the following. The credit line agreement concluded between the parties refers to mixed agreements and is not just a loan agreement. The credit card was handed over to the client not activated and the defendant had the opportunity to once again familiarize himself with the conditions for issuing and servicing credit cards. In the application form Ilyin N.A. has signed that it is familiar with the current General Conditions and Tariffs, understands them and undertakes to comply with them. I also signed that I agree to conclude an agreement for the issuance and servicing of credit cards in accordance with the General Conditions, tariff plan and application form. Among other things, the defendant was familiarized with the terms of the Credit Card Holder Insurance Program, which she also confirmed with her signature in the application form. The bank, in the invoice statements sent to the defendant, indicated the fee for participation in the Insurance Protection Program and connection to SMS Bank. The defendant did not object to this condition and did not ask to be disconnected from SMS Bank services, and also did not apply to the Bank to exclude her from the insurance program. She filed this demand in court only after the Bank approached her with a claim for debt collection. The bank asks to apply the statute of limitations to the plaintiff’s demands to invalidate the terms of the contract regarding connection to the insurance program. He also asks to refuse the request to apply the consequences of the invalidity of the transaction by reducing the amount of debt and reducing the amount of penalties.

At the court hearing, defendant Ilyina N.A. The Bank objected to the claim of Tinkoff Credit Systems CJSC, but supported its counterclaim on the grounds specified in it. Additionally, she explained that she did not agree with the amount of the fine collected in the amount of.... rubles, since this fine was declared by the Bank twice for the period from to and with geometric progression, while it is indicated in the agreement in the amount of....% of the amount debt, which is indicated by the Bank itself as.... ruble. She also objected to the collection of the amount.... rubles - payment for servicing the credit card, since this amount was paid by her in advance, and in the past year her card was blocked, that is, she could not use it. Accordingly, the collection of these amounts was requested to be refused.

Having heard the defendant and examined the materials of the civil case, the court comes to the conclusion that the claim of Tinkoff Credit Systems Bank CJSC was partially satisfied and the counterclaim of N.A. Ilyina was rejected. The court came to this conclusion for the following reasons.

From the evidence presented to the court it is clear that the beginning of the limitation period in this case is determined by the moment the card is activated -. The deadline for applying to court to protect the violated right to declare the terms of the loan agreement void has expired. The statement of claim was filed by the plaintiff in court within a year, that is, after the expiration of the statute of limitations.

According to the Civil Code of the Russian Federation, the limitation period establishes the time limits for judicial protection of the violated rights of a person in his claim and is three years (Articles 195 and 196); the limitation period begins from the day when the person learned or should have learned about the violation of his right; exceptions to this rule are established by this Code and other laws (clause 1 of Article 200).

As an exception to the general rule in relation to claims related to the invalidity of void transactions, the legislator in paragraph 1 of Art. a special rule is provided, according to which the course of the specified period in accordance with these requirements is determined not by a subjective factor - the awareness of the interested party about the violation of his rights - but by objective circumstances characterizing the beginning of the execution of the transaction. Such legal regulation is due to the nature of the relevant transactions as void, which are invalid from the moment they are made, regardless of whether they are recognized as such by the court (clause 1 of Art.), and therefore have no legal force, do not create any rights and obligations for both the parties to the transaction, as well as for third parties.

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

Considering that the plaintiff in the counterclaim missed the statute of limitations on recognizing the terms of the contract as invalid, the court comes to the conclusion that Ilyina N.A. the recognition of the transaction as invalid in part and the application of the consequences of the invalidity of the transaction in the form of offsetting the sums of money paid under the insignificant condition of the contract (recalculation) should be refused.

Discussing the demand of ZAO Tinkoff Credit Systems Bank for the collection of penalties and commissions, the court comes to the following conclusion.

The plaintiff asks to recover from Ilyina N.A. the amount of penalty interest in the amount of.... rubles for amounts not paid on time to repay credit card debt and.... rubles to pay for credit card servicing.

The amount of penalties, according to the Tariffs for credit cards of TKS Bank (appendix to the Order of the year) consists of: .... rubles - a fine for failure to pay the minimum payment for the first time in a row; ....% of the debt amount + .... rubles – for the second time in a row; ....% of the debt amount + .... rubles - for the third or more times in a row.

Taking into account the debt of Ilyina N.A. before the bank, the amount of penalties should be: .... (.... x1% + ....) + 3 .... (.... x2% + ....) = .... ruble.... kopecks.

Accordingly, the plaintiff should be denied the collection of this amount of penalties in the amount of.... rubles.

Also, the plaintiff’s demand for the recovery of the amount .... rubles - payment for servicing the credit card for, cannot be satisfied, since this amount was paid by Ilyina N.A. forward on, and in 2010 her card was blocked, that is, she could not use it.

Thus, the court comes to the conclusion that the claims of Tinkoff Credit Systems Bank CJSC against N.A. Ilyina on collection of debt under a credit card agreement from are subject to partial satisfaction in the amount of.... ruble.... kopecks, of which: .... ruble.... kopecks - the amount of the principal debt, .... rubles... .kopecks - interest, .... ruble.... kopecks - penalties. The claim for recovery of the amount of.... rubles (.... rubles + .... rubles) should be denied.

Any other evidence refuting the conclusions of the court by the parties and their representatives, due to the requirements of Art. Art. , not presented to the court.

DECIDED:

The bank partially satisfied the claims of the Closed Joint Stock Company Tinkoff Credit Systems.

Collect from Ilyina N.A. in favor of the Closed Joint Stock Company "Tinkoff Credit Systems" Bank debt under a credit card agreement from the total amount of .... ruble.... kopecks, of which: .... ruble.... kopecks - the amount of the principal debt, . ... rubles.... kopecks - interest, .... ruble.... kopecks - penalties; legal expenses in the amount of.... rubles.... kopecks. Just collect.... ruble.... kopeck.

The rest of the claims and the petition for recovery of legal costs are rejected.

In satisfying the counterclaim of Ilyina N.A. Closed Joint Stock Company "Tinkoff Credit Systems" Bank to invalidate the terms of the agreement on the issue and servicing of a credit card in terms of connection to the insurance program, to apply the consequences of invalidity of the transaction by reducing the amount of debt and reducing the amount of penalties - refuse.

Judicial practice on the application of Art. 819, 820, 821, 822, 823 Civil Code of the Russian Federation

Reduction of penalties

Judicial practice on the application of Art. 333 Civil Code of the Russian Federation

Under insurance contracts

Judicial practice on the application of Art. 934, 935, 937 Civil Code of the Russian Federation

Remote servicing often leads to various conflicts between the bank and its clients. Sometimes this ends in litigation.

In what cases should you go to court? How to file a claim? What actions should be taken in order to win a dispute with a credit institution? This article will help you understand all these issues.

Reasons for appeal

Banking legal relations are an area of activity where quite often controversial situations and misunderstandings arise between the client and the credit institution. At the same time, everything is complicated by the lack of regional branches (as in the case of Tinkoff Bank), where the problem could be resolved through personal contact. Thus, having failed to achieve the truth peacefully, the client is forced to go to court.

In accordance with paragraph 1 of Article 3 of the Code of Civil Procedure of the Russian Federation, every person has the right to go to court to protect their legal rights and interests.

The most common grounds for which clients begin legal proceedings against Tinkoff Bank include:

The bank’s request to repay the debt on a loan that has already been closed;
Writing off funds from a card without the knowledge of its holder;
Refusal to provide a statement of the amount of debt to the bank;
Writing off a commission, the presence of which the client was not notified in advance;
Due to the fault of the bank, personal data was transferred to third parties;
Unilateral change in the terms of the contract;
Writing down individual provisions of the contract in small print;
Illegal assessment of fines and penalties, etc.

Credit card problems

Today, many citizens actively use Tinkoff Bank credit cards. This option is very convenient, as it allows you to borrow the missing amount of money at any time. At the same time, when using credit cards, clients often encounter a number of difficulties that sometimes have to be resolved through the courts.

So, after analyzing the complaints of Tinkoff Bank clients The following are the most common problems associated with the use of credit cards::

The bank’s requirement to repay a loan that was taken out as a result of fraudulent actions (for example, when a personal account was hacked);
Exceeding the limit on a credit card and, as a result, charging a fine. Moreover, the client often overspends on the loan as a result of paying additional commissions and payments that no one notified him about;
Card blocking without explanation.

What to do if you have debt?

Going to court if you have a loan debt is a fairly common situation. The reasons for this may be:

Unreasonably inflated interest rates on a loan;
Refusal of the bank to carry out debt restructuring (in case the borrower loses solvency);
Changes in lending conditions not provided for in the agreement, etc.

Filing a claim in court if there is a debt will make sense if the borrower is firmly convinced of the legality of his claims and can also prove it. Otherwise, you won’t be able to win a lawsuit with Tinkoff Bank.

More likely, the plaintiff is unlikely to be able to avoid paying off the debt. However, if you competently defend your positions, there is a chance to achieve a change in the terms of the loan in your favor (for example, defer the loan payment for a certain time, reduce the amount of the penalty, etc.).

How to file a claim?

Having evidence of illegal actions on the part of the bank, as well as having made unsuccessful attempts to solve the problem peacefully, you can safely go to court. Usually at this stage citizens have many questions - what to do, where to start?

So, you need to follow the following instructions.

Step 1– first you need to decide which judicial body to submit your claim to.

As a rule, these issues are dealt with by a court of general jurisdiction. However, quite often in an agreement with a client, banks stipulate a condition under which any disputes must be resolved through arbitration. In this case, you will have to file a claim with this authority.

A distinctive feature of the decision made by the arbitration court is the absence of the possibility of challenging it. The exception is the grounds specified in paragraph 4 of Article 233 of the Arbitration Procedure Code of the Russian Federation.

Step 2– then you should begin to draw up a statement of claim, in which you must briefly and clearly describe the essence of the case, indicate the violations committed by the credit institution with reference to the relevant provisions of the law, and also correctly state the claim.

Step 3– at this stage you should collect the necessary documents:

Passport.
Loan agreement.
Papers confirming the existence of attempts to resolve the problem peacefully.
Evidence of violations committed by the bank, etc.

Step 4– the statement of claim along with the documents, as well as a receipt for payment of the state duty, must be taken to court.

The issue of accepting the claim for trial will be decided by the judge within 5 days from the date of filing the application (Article 133 of the Code of Civil Procedure of the Russian Federation). After this period, the applicant will be notified of the decision.

Instructions to win a dispute

Having started litigation with a bank, many citizens are interested in the question of whether there is a certain action plan, following which it will be possible to achieve satisfaction of their claims in court.

There is no algorithm of actions with which you can be guaranteed to win a lawsuit with a bank. However, in order to increase your chances of winning, It is recommended to adhere to the following tips:

In court you should actively defend your legal rights and interests. As practice shows, persons who take a passive position usually lose the case with the bank;
It is necessary to enlist the support of a competent and experienced specialist. You can hire a private lawyer to prepare for the hearing;
Claims made against the bank must be reasoned and also have an evidence base;
It is recommended that you first study the practice of conducting such cases, read the rules of conduct in court, and also familiarize yourself with the relevant legislative acts.

Where else should you complain?

Quite often, the bank does not want to cooperate in resolving the dispute that has arisen. In this case, clients have a question - where to complain, besides the judicial authorities?

If the bank does not react in any way to the violation identified by the client, then You can contact such authorities as:

The Central Bank of the Russian Federation is a special public legal institution, one of the main functions of which is supervision over the activities of credit institutions.
Rospotrebnadzor is an executive body of government responsible for issues related to the protection of consumer rights. Controls a variety of industries (trade, manufacturing sector, banking industry, etc.).

Upon receipt of a complaint, the institutions listed above will have to conduct an investigation.

Case practice

There are several examples of legal proceedings in which Tinkoff Bank was the defendant:

Example 1. In 2015, the bank's depositors filed a lawsuit in the Khoroshevsky District Court of Moscow. The main reason was the unreasonable reduction in interest on deposits (from 18% to 13%). This application was submitted by a group of people with the support of the Society for the Protection of Consumer Rights.
As a result, the case was won and Tinkoff Bank had to revise interest rates towards their increase.

Example 2. In 2015, Tinkoff Bank lost a trial in Perm. An application to the court was filed by one of the clients, whose cards were blocked without explanation. At the same time, to return his money, he had to go to the head office of Tinkoff, located in Moscow.
The proceedings in this case lasted about a year, as a result of which the court found that the bank had violated the client’s rights.

Useful video

Conclusion

Undoubtedly, sometimes the actions of the bank are indeed unlawful. In this case, the client has every right to protect his legal rights by filing a lawsuit. However, as practice shows, almost 80% of conflict situations arise as a result of an inattentive study of the terms of the agreement concluded with the bank, as well as citizens’ ignorance of some of its terms.

Tinkoff Bank has been well known among Russian citizens for about 10 years. This banking institution was founded in 2006 by entrepreneur Oleg Tinkov, then it was called Tinkoff Credit Systems (TCS). TKS was renamed into Tinkoff Bank in 2015.

The bank initially positioned itself as a credit organization carrying out its financial activities in the virtual space of the Internet. Now it specializes almost entirely in the distribution of plastic credit cards; it does not have regional branches, its own ATMs or other paraphernalia usual for banks. All issues are resolved by phone or online through the head office.

Because of this method of conducting banking activities, many users of Tinkoff credit cards have a reasonable question. How to seek help in restoring violated rights in court against Tinkoff Bank and other banks in the country?

Grounds for going to court

Tinkoff Bank, like any financial institution, is not immune from errors and operational failures, which can cause serious problems for clients and plastic card holders.

The vast majority of claims against banks are filed for the following reasons:

the bank puts forward demands for repayment of debt for an already closed loan;
funds were debited from the card without any legal reason;
it is impossible to obtain a statement of debt to the bank (this is sometimes done to artificially increase the amount of debt);
a commission or other payment was debited from the bank account, about which the client was not notified in advance;
the client’s personal information fell into the hands of third parties due to the fault of the bank;
The bank unilaterally changed the terms of the loan agreement.

Procedure and filing a claim

Filing a lawsuit in case of violation of rights is not the only possible scenario. Before this, you should always try to negotiate with the bank peacefully, collecting all possible evidence of the company’s illegal actions and presenting evidence of your innocence.

If nothing happens, you can file a complaint with the Central Bank of the Russian Federation or write a complaint to Rospotrebnadzor. These government organizations will be required to conduct an inspection of the bank and issue it an order to eliminate violations if they are found.

When other options to solve the problem have failed, all that remains is to report the violation of rights to the court. To do this, you must correctly draw up a statement of claim.

The rules for its compilation are described in. It is best to seek help in writing it from a lawyer, this will significantly increase the chances of a successful solution to the problem.

A lawsuit against Tinkoff Bank must indicate:

full name of the judicial authority;
personal data of the plaintiff (full name, permanent registration address) and data of the defendant (name of the bank, its legal address, full name of the manager);
a detailed statement of the essence of the case, the reasons and consequences of the bank’s violation of the applicant’s legal rights, references to the regulations that were violated;
a specific request to the court (claims) and their justification;
list of attachments (documents that confirm the plaintiff’s position);
signature of the applicant and date of filing the application with the court.

List of documents for filing a claim

The statement of claim is filed either through the court office, or through an authorized representative, or by Russian mail with acknowledgment of delivery. You will need to submit as many copies of the claim as there are parties involved in the case. In addition to the claim, you will need to attach to it:

documents confirming attempts to peacefully resolve the conflict (pre-trial claim, response to it from the bank);
agreement for the provision of credit services;
copy of the passport;
any documents and their copies that prove a violation of the plaintiff’s rights and can serve as evidence in the case under consideration;
power of attorney (if a trusted person will defend the applicant’s rights);
calculation of monetary compensation for a bank’s violation of consumer rights (principal amount, moral damages, penalties, compensation for lawyer’s services, etc.).

If the bank is the plaintiff

Can the bank itself go to court against its client? Not only can it, but very often it does so. This almost always concerns late loan payments.

Before this, he can try for 6-12 months to resolve the matter with the client peacefully, offer, or give a deferment. If this does not work out and the debt grows, then it will almost certainly be transferred to the court or a collection agency.

However, banks are in no hurry to sue their clients. There are many reasons for this:

During the judicial debate, accrual is suspended;
Conducting a case in court requires additional costs for a lawyer. If a bank practices frequent filing of lawsuits against its clients, rather than seeking peaceful solutions to conflicts, then it is required to maintain an entire legal department;
Even if the court decides in favor of the bank (which happens in almost 90% of cases), the borrower will pay the debt in installments according to the court verdict, in proportion to his level of income. This is not profitable for the bank;
The court often grants defendants' requests to cancel fines, penalties, interest and other additional payments accrued by the bank. Sometimes a decision is made to return insurance payments to the borrower, and he may be given a deferment for the payment of the principal debt.

You should not count on a deferment of loan payments or their reduction in the absence of objective reasons, such as dismissal from work or serious illness. The court will definitely side with the bank. If you have problems with loan payments, then you should choose an open position in relation to Tinkoff Bank. It is best to contact the employees of this organization with all questions and find out about possible peaceful ways to solve the problem.

When the matter comes to court, it would be a good idea to seek advice from a third-party lawyer who will help you look at the situation from the other side and achieve the most favorable terms for repaying the loan.

Appeal ruling of the Investigative Committee for civil cases of the Altai Regional Court dated June 24, 2015 in case No. 33-5901/2015

Judicial panel for civil cases of the Altai Regional Court consisting of:

presiding Kuznetsova S.V.,

judges Varnavsky V.M. Dmitrieva O.S.,

under the secretary O.V. Gorskaya,

considered in open court a civil case on the appeal of the defendant G.S.A. on the decision of the Rubtsovsky City Court of the Altai Territory dated April 1, 2015

according to the claim of Tinkoff Credit Systems Bank (closed joint stock company) against G.S.A. on collection of debt under the loan agreement, counterclaim G.S.A. to Tinkoff Credit Systems Bank (closed joint stock company) to invalidate the terms of the agreement.

Having heard the report of judge Dmitrieva O.S., the judicial panel

INSTALLED:

Tinkoff Credit Systems Bank (closed joint stock company) filed a claim against G.S.A. on collection of debt under loan agreement N *** from DD.MM.YY in the amount of *** rubles, as well as the amount of paid state duty in the amount of *** rubles.

In support of the requirements, it is stated that DD.MM.YY between Tinkoff Credit Systems Bank (CJSC) and G.S.A. Agreement No. *** was concluded on the issue and servicing of TKS Bank (CJSC) credit cards with an initial credit limit of *** rub. (credit line agreement with a debt limit). In accordance with the agreement G.S.A. accepted the obligation to repay the debt by paying monthly minimum payments in the amount and terms specified in the invoice statement. If the minimum payment is not paid, an appropriate penalty is established. The bank fulfilled its obligations under the agreement properly and provided loans to the defendant in its own name and at its own expense. The defendant repeatedly delayed payment of the minimum payment, thereby violating the terms of the contract. Due to the defendant’s systematic failure to fulfill its obligations under the agreement, DD.MM.GG Bank terminated the agreement with G.S.A. The defendant's debt to the plaintiff amounted to *** rubles, of which: *** rubles. - overdue principal debt; *** rub. - overdue interest; *** rub. - penalty interest for amounts not paid on time in accordance with the agreement to repay credit card debt; *** rub. - credit card service fee. The bank's demand for debt repayment was left unsatisfied.

During the consideration of the case, G.S.A. filed a counterclaim for the protection of consumer rights. to Tinkoff Credit Systems Bank (CJSC), asked to invalidate the terms of the loan agreement N *** dated DD.MM.YY, concluded between it and the bank, according to which the latter includes borrowers in the borrower insurance protection program, and to exclude it from this program .

The counterclaims are motivated by the fact that DD.MM.YY between her and Tinkoff Credit Systems Bank (CJSC) concluded agreement No. *** on the issuance and servicing of a credit card with an initial limit of *** rubles. Simultaneously with the conclusion of the main agreement, the bank forced her to enter into a borrower insurance program. A loan agreement and a bank insurance agreement against life, accidents and illnesses are independent civil obligations. The borrower's obligations under the loan agreement cannot give rise to his obligations to join the borrower insurance protection program, since civil law does not provide for such an obligation for the borrower. The collection of other payments from the borrower, in addition to interest on the loan amount, is not provided for by law. Tinkoff Credit Systems Bank (CJSC) actually made the conclusion of a loan agreement conditional on the mandatory conclusion of an insurance agreement, without specifying the insurance company, thereby depriving it of the right to choose an insurer. The borrower's obligations under the loan agreement cannot lead to his obligations to join the insurance program and reimburse the bank's expenses for paying insurance premiums to the insurer, since civil law does not provide for such an obligation for the borrower. Believes that charging a borrower a fee for inclusion in the borrower insurance protection program is an imposition of life and health insurance services on the consumer, which infringes on the consumer’s rights established by law. Notes that the bank did not provide an alternative to the insurance company when concluding the contract.

By the decision of the Rubtsovsky City Court of the Altai Territory dated April 1, 2015, the claims of Tinkoff Credit Systems Bank (closed joint stock company) for debt collection under the loan agreement were partially satisfied.

With G.S.A. in favor of Tinkoff Credit Systems Bank (closed joint-stock company) the debt under the loan agreement was collected, namely: arrears in payment of the principal debt in the amount of *** rubles, overdue interest on the loan in the amount of *** rubles, penalty interest in the amount of *** rubles, towards reimbursement of legal expenses for payment of the state duty *** rubles, total - *** rubles.

The rest of the claim by Tinkoff Credit Systems Bank (closed joint stock company) was rejected.

In satisfying the counterclaims of G.S.A. to Tinkoff Credit Systems Bank (closed joint stock company) was refused.

In the appeal, defendant G.S.A. asks the court's decision to be quashed, citing the arguments set out in the counterclaim.

In written objections to the appeal, the plaintiff asks the court's decision to be left unchanged and the appeal to be dismissed.

The parties did not appear at the appellate court, were duly notified of the time and place of the court hearing, no motions were filed to postpone the consideration of the case, and therefore the judicial panel, guided by Art. 167 of the Civil Procedure Code of the Russian Federation, considered the case in the absence of the non-appearing participants in the process.

Having studied the case materials, discussed the arguments of the complaint, checked the legality and validity of the court's decision within the limits of the arguments of the complaint according to the rules of Part 1 of Art. 327.1 of the Civil Procedure Code of the Russian Federation, the judicial panel does not find any grounds to satisfy it.

In accordance with Art. Art. 309, 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with 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.

According to Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization (lender) undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount received and pay interest on it. The rules provided for a loan agreement apply to relations under a loan agreement.

According to the rules of Art. Art. 809, 810, part 2 of Art. 811 of the Civil Code of the Russian Federation, the borrower is obliged to return the received loan amount to the lender on time and in the manner prescribed by the loan agreement, and the lender has the right to receive interest from the borrower on the loan amount in the amount and in the manner provided for by the agreement. 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.

It was established that DD.MM.YY G.S.A. submitted an application (offer) to Tinkoff Credit Systems Bank (CJSC) to receive a Tinkoff Platinum credit card, with a TP 1.0 tariff plan, with a debt limit of *** rubles, indicating at the same time her desire to participate in borrower insurance program.

In the application form G.S.A. confirms that she is fully familiar with the general conditions and tariffs of the bank and undertakes to comply with them.

DD.MM.YY G.S.A. activated the bank card by calling the bank, from that moment between G.S.A. and the bank entered into an agreement N *** for the issue and servicing of credit cards.

Thus, the bank fully fulfilled its obligations under the agreement, which is confirmed by the borrower’s account statement and is not disputed by the defendant, however, the borrower systematically failed to fulfill its obligations, violating the loan repayment schedule, which led to the formation of a debt in the amount of *** rubles.

The defendant did not provide evidence of full fulfillment of the obligation to repay the loan amount or interest for using the loan.

Resolving the dispute on the merits, the court of first instance came to the conclusion about the long-term improper fulfillment by the defendant of the obligations assumed under the loan agreement, and therefore, after checking the calculation of the debt, determining the balance of unfulfilled obligations, it satisfied the stated requirements in part - it collected the amount of the principal debt from the defendant , interest, penalty, while reducing its amount at the request of the defendant.

Since the arguments of the appeal express actual disagreement with the court's decision regarding the refusal to satisfy counterclaims, the judicial panel, in accordance with Art. 327.1 of the Civil Procedure Code of the Russian Federation there are no grounds for verifying the rest of the court decision.

Refusing to satisfy the counterclaims of G.S.A. to Tinkoff Credit Systems Bank (CJSC), the court of first instance proceeded from the fact that the borrower voluntarily agreed to join the insurance program, while the bank’s service is an additional paid service, this method of ensuring the borrower’s fulfillment of loan obligations was not imposed by the defendant , the borrower had the right to refuse insurance.

The panel of judges believes that when resolving a dispute in the disputed part, the court correctly identified the circumstances relevant to the case, gave them a proper legal assessment and made a decision based on a correct assessment of the totality of the evidence presented in the case and the requirements of the substantive law governing the disputed issues that arose legal relations.

According to Art. 934 of the Civil Code of the Russian Federation, under a personal insurance contract, one party (the insurer) undertakes, for a fee stipulated by the contract (insurance premium) paid by the other party (the policyholder), to pay a lump sum or pay periodically the amount stipulated by the contract (insurance amount) in the event of harm to life or health the policyholder himself or another citizen (insured person) named in the contract, when he reaches a certain age or when another event (insured event) stipulated by the contract occurs in his life. The right to receive the insurance amount belongs to the person in whose favor the contract was concluded.

A personal insurance contract is considered concluded in favor of the insured person if another person is not named in the contract as a beneficiary. In the event of the death of a person insured under a contract in which no other beneficiary is named, the heirs of the insured person are recognized as beneficiaries.

A personal insurance contract in favor of a person who is not an insured person, including in favor of a policyholder who is not an insured person, can be concluded only with the written consent of the insured person. In the absence of such consent, the contract may be declared invalid at the claim of the insured person, and in the event of the death of this person, at the claim of his heirs.

In accordance with paragraph 2 of Art. 935 of the Civil Code of the Russian Federation, the obligation to insure one’s life or health cannot be imposed on a citizen by law.

The above legal norms indicate that loan agreements may provide for the borrower's ability to insure his life and health as a way to ensure the fulfillment of obligations, and in this case the bank may be indicated as a beneficiary. At the same time, from paragraph 1 of Art. 422 of the Civil Code of the Russian Federation it follows that the contract must comply with the rules binding on the parties established by law and other legal acts (imperative norms) in force at the time of its conclusion.

Based on the explanations set out in clause 4.4 of the Review of judicial practice in civil cases related to the resolution of disputes regarding the fulfillment of loan obligations, approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation dated May 22, 2013, when providing loans, banks do not have the right to independently insure the risks of borrowers. However, this does not prevent banks from concluding relevant insurance contracts on their own behalf in the interests and with the voluntary consent of borrowers.

According to paragraphs. 1,2 tbsp. 16 of the Law of the Russian Federation dated 02/07/1992 N 2300-1 “On the Protection of Consumer Rights”, the terms of the contract that infringe on the rights of the consumer in comparison with the rules established by laws or other legal acts of the Russian Federation in the field of consumer rights protection are declared invalid. It is prohibited to condition the acquisition of some goods (works, services) on the mandatory acquisition of other goods (works, services).

By virtue of paragraph 1 of Art. 166 of the Civil Code of the Russian Federation (as amended at the time of conclusion of the contract), a transaction is invalid on the grounds established by law, due to its recognition as such by the court (voidable transaction) or regardless of such recognition (void transaction).

According to Art. 168 of the Civil Code of the Russian Federation (as amended in force at the time of the transaction), except for the cases provided for in paragraph 2 of this article or other law, a transaction that violates the requirements of the law or other legal act is voidable, unless it follows from the law that they should be applied other consequences of the violation not related to the invalidity of the transaction.

A transaction that violates the requirements of a law or other legal act and at the same time encroaches on public interests or the rights and legally protected interests of third parties is void unless it follows from the law that such a transaction is contestable or other consequences of the violation not related to the invalidity of the transaction must be applied.

From the case materials it follows that DD.MM.YY G.S.A. applied to the bank with an application in which the corresponding box was not marked with a refusal to participate in the bank’s borrower insurance protection program. This statement was signed by G.S.A., which was not disputed in the court of first instance.

The fact of familiarization with G.S.A. with the terms of the insurance program for credit card holders, confirmed by the signature of G.S.A. in a statement - a questionnaire, which indicates that the defendant agrees to be an insured person, instructs the bank to connect him to the insurance program and withhold a monthly fee in accordance with the bank's tariffs. At the same time, the defendant is familiar with the terms of the agreement, the general conditions for servicing credit cards of Tinkoff Credit Systems Bank (CJSC).

In accordance with the accession to the collective insurance agreement N *** TK from DD.MM.GG, concluded between the bank and the Open Insurance Joint Stock Company "RESO-Garantia", the insurance conditions under the insurance protection program for credit card holders "Tinkoff Credit Systems" Bank ( CJSC), insured under the insurance protection program are bank clients - credit card holders, who at the time of inclusion in the program were no more than 85 years old, who are not disabled people of groups I and II and who did not specifically indicate their disagreement to participate in the application form in the insurance protection program developed and provided by Reso-Garantia Insurance Company for holders of bank credit cards.

In this case, the client can refuse to participate in the program at any time by contacting the bank by phone, and the program in relation to this client ends on the day the account is generated - a statement for the period in which the client refused to participate in the program.

The bank client is independent in choosing and concluding life, health and disability insurance contracts for the bank borrowers in order to secure obligations under the loan agreement with insurance companies at their discretion.

The insurance protection program does not imply and does not provide for activities to limit or create obstacles to competition in the market of insurance and (or) banking (financial) services, providing Reso-Garantia Insurance Company with advantages over other insurers operating in the territory of the Russian Federation . The terms of the loan agreement cannot be interpreted as conditions obliging the bank to directly or indirectly impose on its clients the insurance services of Reso-Garantia Insurance Company.

Thus, the loan agreement concluded between the parties does not allow us to assume that if the borrower refused to join the insurance program, she would be denied a loan.

By concluding an insurance agreement for the borrower and charging a fee for connecting to the insurance program, the bank acted on behalf of the borrower. This service, like any contract, is subject to the provisions of Art. 972 of the Civil Code of the Russian Federation and paragraph 3 of Art. 423 of the Civil Code of the Russian Federation, compensated. In case of unacceptability of the conditions, including connection to the insurance program, the borrower was not limited in his expression of will and had the opportunity to refuse the insurance service.

The borrower's participation in the voluntary insurance program is one of the ways to ensure the fulfillment of the obligation. Ensuring the fulfillment of an obligation in the form of life and health insurance is a condition that does not contradict current legislation and is based on the agreement reached by the parties to the contract.

The defendant's arguments that the inclusion of G.S.A. into the insurance program were imposed by the bank, verified by the court and given a proper assessment. Any evidence that her refusal to join the insurance program or to pay the insurance premium could have resulted in a refusal to conclude a loan agreement, that is, there was an imposition of the purchase of services subject to purchase, prohibited by Article 16 of the Law of the Russian Federation “On the Protection of Consumer Rights” There are no other services in the case materials.

Since the defendant’s arguments do not refute the conclusions of the trial court, the judicial panel does not see any grounds for overturning the court’s decision.

The appeal does not contain any other arguments leading to the cancellation of the decision, and therefore the judicial panel does not find any grounds for satisfying it.

Based on the above and guided by Art. 328, 329 of the Civil Procedure Code of the Russian Federation, judicial panel

DEFINED:

the decision of the Rubtsovsky City Court of the Altai Territory dated April 1, 2015 is left unchanged, the appeal of the defendant G.S.A. - without satisfaction.

Chairman.

And this can’t help but make us happy, right? 3. The situation with loans issued for business development is completely different, even, I would say, on the contrary. There, in arbitration courts, debtors – entrepreneurs and legal entities – have a much harder time. The essence of the difficulty lies in the fact that the Defendants (the same borrowers and debtors) must themselves prove that the penalty is excessive and disproportionate to the consequences of their violation of the obligation to repay the loan. And this is more difficult, because, you know, good evidence that the court will “like” is not easy to find. Well, I won't go deeper into this topic. Every self-respecting businessman should have acquired a good lawyer long ago, just for such cases. I help ordinary citizens who are already deeply in debt and who simply do not have the money for qualified legal assistance.

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Tinkoff Bank has been well known among Russian citizens for about 10 years.
This banking institution was founded in 2006 by entrepreneur Oleg Tinkov, then it was called Tinkoff Credit Systems (TCS).

TKS was renamed into Tinkoff Bank in 2015.

The bank initially positioned itself as a credit organization carrying out its financial activities in the virtual space of the Internet.

Attention

Now it specializes almost entirely in the distribution of plastic credit cards; it does not have regional branches, its own ATMs or other paraphernalia usual for banks.

All issues are resolved by phone or online through the head office.

Because of this method of conducting banking activities, many users of Tinkoff credit cards have a reasonable question.

An error occurred.

In addition to the claim, you will need to attach to it:

documents confirming attempts to peacefully resolve the conflict (pre-trial claim, response to it from the bank);
agreement for the provision of credit services;
copy of the passport;
any documents and their copies that prove a violation of the plaintiff’s rights and can serve as evidence in the case under consideration;
power of attorney (if a trusted person will defend the applicant’s rights);
calculation of monetary compensation for a bank’s violation of consumer rights (principal amount, moral damages, penalties, compensation for lawyer’s services, etc.).

If the bank is the plaintiff Can the bank itself take legal action against its client? Not only can it, but very often it does so.

This almost always concerns late loan payments.

Case No. 2-3209/2014 ~ m-3575/201

Thus, the law establishes a presumption of causing moral harm to the consumer as a result of violation by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) of consumer rights provided for by laws and other legal acts of the Russian Federation, and therefore, the victim is exempt from the need to prove the fact in court their physical or moral suffering.

This legal position is set out in the Determination of the Constitutional Court of the Russian Federation of October 16, 2001 No. 252-0.

I estimate moral damage at 15,000 rubles. In accordance with Articles 137, 138 of the Code of Civil Procedure of the Russian Federation, the defendant has the right, before the court makes a decision, to file a counterclaim against the plaintiff for joint consideration with the original claim.

A lawsuit with a bank using the example of Tinkoff Bank

The general essence of the procedure A counterclaim is an effective means of protecting the rights and legitimate interests of the defendant, which in the vast majority of cases is used when an attempt is made to recover a certain amount of money from the initial claim.
It is worth noting that with this form of statement of claim, the defendant has the right to present only the same monetary demands to the plaintiff if he wants his application to be considered in one trial.
Often, the obligations and rights of persons that stem from bilateral contracts are considered to be reciprocal, and in particular, this also applies to loan agreements, since such documents, on the one hand, consider the interests of the lender who provides money to the borrower, and on the other hand, the borrower himself, who must return it according to a specific schedule.

Preparing a counterclaim against the bank under a loan agreement

If the debtor avoids paying the debt in every possible way, and no preliminary attempts at agreement have led to the desired result, most modern banking organizations, such as Sberbank, AlfaBank, VTB24 and others, collect due funds through legal proceedings.

But if many people in such situations obediently meet the demands of credit institutions, others try to defend their rights and, despite the fact that they themselves are debtors, find some unfulfilled obligations or unlawful actions of the bank itself, as a result of which they file a counterclaim against it.

However, to do this, you need to know what constitutes a counterclaim against the bank under a loan agreement and in what situations it can be filed.

Examples of judicial "wisdom" and unscrupulousness

Important

In the statement of claim for debt collection under a loan agreement and calculation of the amount of debt (claim price), the bank indicates the amount of debt accrued to the borrower in accordance with the order of debt write-off (repayment of creditor claims) established by the loan agreement, and not the Civil Code of the Russian Federation, commission for provision The loan amount also includes the insurance premium for the entire period, including the unused period.

I do not agree with the claim of OJSC "ALFA-BANK" against me regarding the amount of the debt; I do not deny the fact of the debt to the bank.

I do not recognize the amount of debt due to the fact that the Loan Agreement contains conditions that contradict current legislation, therefore, it should be declared invalid and the amount of the principal debt reduced.

Counterclaim to Tinkoff Bank

The amount collected by the bank from the borrower is 291,759.61 rubles - 62,793.16 rubles (disputed by the counterclaim) = 228,966.45 rubles, the amount of recognized debt. I believe that by the unlawful actions of the defendant in collecting a fee for issuing a loan, I suffered moral harm, which consists of moral suffering expressed in the fact that when concluding a loan agreement, my rights as a consumer of banking services were violated. According to Art. 15 of the Law of the Russian Federation “On the Protection of Consumer Rights”, moral damage caused to the consumer as a result of violation by the manufacturer (performer, seller, authorized organization or authorized individual entrepreneur, importer) of consumer rights provided for by the laws and legal acts of the Russian Federation regulating relations in the field of consumer rights protection is subject to compensation by the causer of harm in the presence of his fault.