REPUBLIC OF BASHKORTOSTAN

CASSATION DETERMINATION

case No. 33- 10780

Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan, consisting of:

presiding Cherchag S.V.

judges Naushirbanova Z.A.

Tazetdinova G.A.

under secretary Abadovskaya T.Yu.

considered in open court in the city of Ufa, Republic of Bashkortostan, a civil case based on a cassation appeal by a representative of Tinkoff Bank. Credit systems" Litueva A.A. on the decision of the Ordzhonikidze District Court of the city of Ufa of the Republic of Bashkortostan dated May 4, 2011, which decided:

Claims of Musina E.V. to Bank "Tinkoff.Credit Systems" to invalidate the loan agreement, partially satisfy compensation for moral damage.

Invalidate the loan agreement dated ... year between Musina E.V. and Tinkoff. Credit Systems" (CJSC).

To recover from Tinkoff.Credit Systems (CJSC) in favor of Musina E.V. for compensation for moral damage... rubles.

To collect from Tinkoff.Credit Systems (CJSC) a fine to the state in the amount of... from the amount collected in favor of the consumer in the amount of... rubles.

To collect from Tinkoff.Credit Systems (CJSC) a state duty in the amount of ... rubles.

Having heard the report of the judge of the Supreme Court of the Republic of Bashkortostan Z.A. Naushirbanova, the judicial panel

U S T A N O V I L A:

Musina E.V. filed a claim against Tinkoff.Credit Systems Bank for invalidation of the loan agreement and compensation for moral damage. The claim was motivated by the fact that in ... the year she received an advertising brochure and a card by mail, which was offered to be activated, by filling out the attached application form for a credit card, she sent it to the bank. From Tinkoff Bank. Credit systems" she received a notification letter informing her that she had become the owner of a credit card with an available limit of ... rubles, which she could activate by phone, with a subsequent return of money at ... per annum. The plaintiff withdrew from the card at the end of May and in ... the year ... rubles. Due to the loss of her job and the serious illness of her child, she was unable to return the amount of money in a timely manner, which she immediately reported to Tinkoff Bank. She also asked to recalculate the interest due and justify the amount of the fine that the bank charged her. All letters to the Bank - ... year, ... year, ... year were left unanswered. To repay the loan debt, she deposited funds in the bank ... rubles, however, in ... years. a letter was sent to her place of work, which contained information that she had a loan debt. In response to a request to restructure the debt, the bank sent her a letter to repay the debt in the amount of ... rubles. The plaintiff believes that the terms of the agreement with the defendant are invalid, since the loan agreement was not concluded in writing, in addition, the amount of the commission was unreasonably established, which is contrary to the requirements of the law, the loan agreement cannot contain conditions for the payment of a fine. Amounts were also withheld for services - mobile banking, insurance protection program - which she refused, indicating this in the questionnaire. The plaintiff asked to invalidate the loan agreement and to compensate for the moral damage caused in the amount of ... rubles.

Disagreeing with the decision, a representative of Tinkoff Bank. Credit Systems" Lituev A.A. appeals it in cassation and asks to cancel it, citing its illegality.

Having checked the case materials in full on the basis of Part 2 of Article 347 of the Code of Civil Procedure of the Russian Federation, having listened to E.V. Musina, and having discussed the arguments of the cassation appeal, the judicial panel finds the court decision subject to cancellation on the following grounds.

In accordance with clause 2, part 1, article 362 of the Code of Civil Procedure of the Russian Federation, the basis for canceling a court decision in cassation is the lack of proof of the circumstances established by the court of first instance that are relevant to the case.

The court decision must be legal and justified (Part 1 of Article 195 of the Code of Civil Procedure of the Russian Federation).

A decision is legal when it is made in strict compliance with the norms of procedural law and in full compliance with the norms of substantive law that are subject to application to a given legal relationship.

In accordance with paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 23 of December 19, 2003 “On a judicial decision,” a decision is justified when the facts that are significant for the case are confirmed by evidence examined by the court that meets the requirements of the law on their relevance and admissibility, as well as when it contains exhaustive conclusions of the court arising from the established facts.

The appealed court decision does not meet these requirements and is subject to cancellation based on the following.

Based on Article 309 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 and other legal acts.

According to clause 1 of Article 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 of money received and pay interest on it.

The court established and is clear from the case materials that between Musina E.V. and OJSC Bank Tinkoff Credit Systems entered into a lending agreement based on an application form for a consumer card.

The questionnaire contains a statement from E.V. Musin. (ld.14), indicated that she understands and agrees that the acceptance of her offer to provide her with a loan will be the crediting of the loan amount to the current account. She confirmed her agreement with the general conditions for issuing a Consumer card, opening and crediting a consumer card account (overdraft) at OJSC Bank Tinkoff Credit Systems and undertakes to comply with them.

Litigation regarding Tinkoff Bank - how to win the case and get rid of the bank

I have read and agree with the tariffs of OJSC Bank Tinkoff Credit Systems for individuals. The application form contains the signature of the borrower E.V. Musina, ... year E.V. Musina. activated the card.

From the above it follows that, having filled out an application form for the issuance of a bank card and a receipt for receipt of the card, Musina E.V. entered into an agreement with the defendant in accordance with Article 428 of the Civil Code of the Russian Federation.

According to Article 432 of 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.

The contract is concluded through the submission of an offer by one of the parties and its acceptance by the other party.

Having joined the Rules, filling out an application form for issuing a bank card and a receipt for receiving the card, Musina E.V. entered into an agreement with the defendant.

As follows from clause 4.3 of the Rules (case file 10), for identification purposes the plaintiff is provided with a PIN - a code that is analogous to the plaintiff’s handwritten signature when he performs transactions using the card (clause 3 of Article 847 of the Civil Code of the Russian Federation). Transactions made on the card using the PIN code are recognized as carried out by the plaintiff and cannot be challenged by her. A correctly entered PIN code, in accordance with clause 4.3 of the Rules, is an order for the Bank to write off the transaction amount from the plaintiff’s account.

The plaintiff also undertook, in accordance with the Terms, to pay the bank commissions in accordance with the current Tariffs, which follows from the application for the issuance of a credit card, which she personally signed.

In accordance with clause 4.7 of the Rules (case file 7), the plaintiff undertook to pay all commissions and fees provided for in the Tariffs. Payment of commissions and fees is carried out at the expense of the plaintiff’s own funds.

In accordance with clause 2.8 of the General Conditions, which is also reflected in the application form for the issuance of a bank card, the Tariffs applied under the Agreement may be changed by other tariffs in accordance with these general conditions (including unilaterally by the Bank), while such tariffs (which change the previous ones) begin to be applied under the contract from the date of the corresponding change. The bank notifies clients of changes in tariffs no less than 30 calendar days before the date on which the changes come into force by sending an information letter, including by email and/or posting the relevant information in the account statement, as well as on the website bank in the “Internet Banking” section.

The panel of judges recognizes that the specified notification procedure was followed by the bank, therefore the change in the interest rate and the procedure for determining it occurred in accordance with the terms of the agreement and the requirements of the legislation of the Russian Federation in force during the specified period of time.

The client's participation in the insurance protection program, according to which his credit debt to the bank is insured, is carried out only at the request of the client. The plaintiff’s application form does not contain consent to participate in the insurance protection program, as evidenced by the mark in the corresponding column of the application form.

In accordance with clause 9.1 of the General Conditions, the client can use the bank’s telephone customer service to obtain information, connect or disconnect services and/or carry out transactions. The plaintiff received monthly invoice statements under the agreement, which indicated the collection of fees for the SMS-Bank service. The plaintiff had the opportunity to refuse this service, but did not refuse.

Thus, the judicial panel comes to the conclusion that an agreement was reached between the parties on all the essential terms of the contract, since by virtue of Art. 850 of the Civil Code of the Russian Federation in cases where, in accordance with the bank account agreement, the bank makes payments from the account, despite the lack of funds (crediting the account), the bank is considered to have provided the client with the corresponding amount from the date of such payment.

The court found that the plaintiff herself does not deny it, indicating in the statement of claim that the credit card was activated and debit transactions were carried out with the loan amount provided, which is confirmed by the account statement. (ld. 18,19,20)

In conjunction with Articles 819, 809-811 of the Civil Code of the Russian Federation, the borrower is obliged to return to the lender the received loan amount on time and in the manner prescribed by the loan agreement.

Since the court decision on the claim of Musina E.V. to Bank Tinkoff. Credit Systems” was issued in violation of substantive law, then, according to clause 4, part 1, article 362 of the Code of Civil Procedure of the Russian Federation, it is subject to cancellation.

Based on the fact that all the circumstances in the case have been established and the collection of additional evidence is not required, the judicial panel considers making a new decision in the case to refuse to satisfy the claims of Musina E.V.

Guided by Article 361 of the Code of Civil Procedure of the Russian Federation, the judicial panel

DEFINED:

Decision of the Ordzhonikidze District Court of Ufa, Republic of Belarus dated May 4, 2011. cancel and make a new decision.

In the claim of Musina E.V. to Bank Tinkoff. Credit Systems" to invalidate the loan agreement..., compensation for moral damage - to refuse.

Chairman: Cherchaga S.V.

Judges: Tazetdinova G.A.

Naushirbanova Z.A.

Tinkoff Bank

System and observer

Let's define a system as an object whose existence is beyond doubt.

An observer of a system is an object that is not part of the system it observes, that is, it determines its existence through factors independent of the system.

The observer, from the point of view of the system, is a source of chaos - both control actions and the consequences of observational measurements that do not have a cause-and-effect relationship with the system.

An internal observer is an object potentially accessible to the system in relation to which inversion of observation and control channels is possible.

An external observer is an object, even potentially unattainable for the system, located beyond the system’s event horizon (spatial and temporal).

Hypothesis No. 1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can occur, for example, with the help of “gravitational radiation” penetrating the universe from all sides from the outside. The cross section of the capture of “gravitational radiation” is proportional to the mass of the object, and the projection of the “shadow” from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of the objects and inversely proportional to the distance between them, which determines the density of the “shadow”.

The capture of “gravitational radiation” by an object increases its chaos and is perceived by us as the passage of time. An object opaque to “gravitational radiation”, the capture cross section of which is larger than its geometric size, looks like a black hole inside the universe.

Hypothesis No. 2. Inner Observer

It is possible that our universe is observing itself. For example, using pairs of quantum entangled particles separated in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, reaching its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means that there is no capture cross section on the trajectories of objects that is large enough to absorb these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

An outside observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an “external observer,” will slow down exactly twice - the shadow of the black hole will block exactly half of the possible trajectories of “gravitational radiation.” If the determining factor is the “internal observer,” then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

It is also possible that these hypotheses can be combined in one proportion or another.

A loan today is an opportunity to quickly solve your financial problems. But at the same time, many people do not think about the fact that credit obligations entail necessary monthly payments, which some people often cannot make on an ongoing basis. Although there are not many, there are still borrowers who took out loans and, without paying them for many reasons, became overgrown with debt obligations. Therefore, we will analyze information about the legality of such actions and what to do in such cases using the example of Tinkoff Bank.

What is dangerous and what will happen if you don’t pay?

When drawing up a loan agreement, you, as a borrower, must clearly understand each of its clauses. Often, its pages clearly describe all the actions of a banking institution in the event of a delay in payments to its client. So what does the lending finance company do against defaulters?

Let's consider what will happen if you don't pay the Tinkoff loan. The bank’s policy on the issue of credit debtors is quite strict, and it can be divided into two main areas of work:

Bank employees work directly with such clients. During this period, when a debt appears, the amount of debt increases due to the accrual of interest and penalties for each day of delay. In addition, the borrower will be harassed by call center operators with phone calls reminding them of non-payment of the loan and the need to repay all debts. A number of other tools may be used, for example, the use of internal collectors who make calls and can send written notices of debt obligations not only to the borrower, but also to his place of work in order to undermine the level of a person’s authority. After a certain time, data about the defaulter is transferred to specialized collection agencies, which also work with the defaulter.
Trial. After all attempts and with numerous notifications to the client about the accumulated amount of debt in case of non-payment, the financial organization makes a decision to transfer the documents to the courts to consider the issue of forced repayment of the debt.

If you do not pay the loan to Tinkoff Bank, and the debt on it increases to amounts of more than 250 thousand rubles, then a criminal case may be opened against the borrower. But it will be quite difficult to prove malicious non-payment. And if the case goes to court, then very serious sanctions may be imposed on the borrower, including a ban on traveling to another country and deprivation of collateral.

First steps if you have a debt to a credit institution

As soon as debts appear, you need to take action and take measures that will help stop or slow down the growth of debt. Here are a few ways to avoid paying a Tinkoff loan legally.

First of all, contact the credit institution directly. Explain the situation you have and ask for a deferment or more lenient contractual terms. Many banking organizations make concessions to the client, since competition in the financial market is quite tough and every client counts. You will receive 100% approval for a loan deferment if your financial difficulties are temporary. Tinkoff Bank will definitely ask you for documentary evidence of your insolvency for this period, and you need to prepare for this.

In addition, financial institutions take into account the reputation of the borrower. If you have previously made payments on the loan on time, and your credit history does not have any black spots, then you also increase your chances of a positive decision on your request.

What concessions can they offer you:

short-term deferment of payments (from a week to two);
long-term deferment of payment of bills without accrual of penalties or fines (up to several months);
reduction in payment amounts.

Do not forget that by agreeing to the last point, the duration of the agreement with the lender automatically increases, since the amount is distributed over a longer period, due to which the monthly amount of loan payments is reduced.

Many Internet pages are full of messages like “I am not paying the Tinkoff loan, having filed for bankruptcy and proven my insolvency in court.” But You should not blindly believe such statements. Even if the borrower proves his insolvency in court, this does not in any way exempt him from paying his debts. The court will simply find other ways to repay the debt to the financial structure. For example, often such an appeal to the court ends with the sale of existing property or forced deductions of funds from the borrower’s salary. Therefore, this process is not beneficial in all situations and will lead to the desired result.

This approach to resolving the issue can be used by those who do not have official work or property that can be taken by bailiffs. But here, too, everything depends on the prevailing circumstances.

The methods presented above on how not to pay Tinkoff Bank are a legal solution to the issue that has arisen. But it is worth noting that not every client of this financial institution who is in arrears and comes asking for a deferment will be met halfway. Therefore, experts recommend that if force majeure circumstances occur, immediately contact the bank branch and solve the problem. This increases the chances.

Don’t forget that Tinkoff is a bank that has proven itself in the financial market and is firmly on its feet. It provides a variety of products to its customers in both deposit and lending matters. But when debts arise on a loan, this organization solves the problem by force and constant pressure, and makes little compromise with the defaulter. Therefore, you should take out a loan product with 100% confidence in your solvency, and if certain difficulties arise, do not delay and contact bank employees with requests for help, or to ease the requirements due to temporary financial difficulties.

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, both one and the other party may act as a defendant. 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 or other usual infrastructure. There is only one office - the head office and all issues are resolved either there, or over the telephone 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 issues, or difficult life situations, avoid mandatory loan payments. 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, without reason, refuse to repay the debt, without presenting any documents confirming his difficult 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 illegal.

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 receipt). 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 of the interest rate, and therefore the yield on 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, a financial institution lost a court case 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 banks, different regulatory methods can be used. 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.

Tatiana Frolova

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Applying for a loan is easy, but repaying the debt may cause problems. It is important for clients to know what to do if the bank files a lawsuit, and how to sue Tinkoff Bank themselves in order to reduce the amount of debt or not repay it at all.

Tinkoff actually sues clients who have committed long delays. But the bank is in no hurry to file a claim, since penalties are established for each day of delay, and it is beneficial for it to increase the amount of overpayment.

Fact! The borrower can avoid litigation if he gives timely notice of financial difficulties. When there are truly good reasons, the debt can be restructured.

If you do not take any steps to reach an agreement with Tinkoff Bank, the case will be transferred first to specialists in working with short-term debt (up to 30 days of overdue), and then to collectors. If their actions do not produce results, the dispute is resolved by the court.

The period within which a claim will be filed is determined individually and depends on many factors, including whether the person gets in touch and whether he has paid at least one minimum payment.

By law, a claim can be filed as early as the next day of delay, but in practice, litigation usually begins no earlier than a year later.

What to do if Tinkoff Bank sues?

Usually, upon receiving a pre-trial claim or subpoena, people become confused. You can solve the problem in 2 ways:

On one's own.
With the help of a lawyer.

If problems with debt payment arose due to financial difficulties, there may not be money to pay for a lawyer. In this case, you need to independently prepare evidence confirming the deterioration of your financial situation, for example:

salary certificate;
a copy of the work book confirming the loss of work.

Deterioration in health must be confirmed by certificates from a medical institution.

Important! According to Art. 451 of the Civil Code, a contract can be terminated if a person’s circumstances have changed significantly, for example, he has become disabled or has been ill for a long time.

Checks and receipts submitted to the court will confirm that the debtor fulfilled his duties in good faith, but stopped paying for reasons beyond his control.

With appropriate evidence, the amount of debt can be reduced by an amount from 5% to 95%.

Only a psychiatric examination will help to completely relieve oneself of obligations, which will prove that at the time of signing the agreement the borrower did not control his actions (for example, he was under the influence of passion or suffered from an exacerbation of mental illness). It is worth turning to this kind of examination only when there is a real precedent. Manipulations and lies will be detected by doctors, and in addition to the fact that the debt will not decrease, the person’s reputation before the court will be damaged.

Actions of the debtor upon receipt of a letter from the magistrate

The court order is issued according to a simplified procedure. There is no full hearing of the case and summoning of the parties. According to Art. 126 of the Civil Procedure Code, the judge may issue an order 5 days from the date of receipt of the application.

It is important to know! The order can be contested within 10 days. Otherwise, the document will be sent to the bailiffs for execution. In legal force, an order is equivalent to a writ of execution.

Bailiffs can seize property or make deductions from wages.

Necessary actions upon receipt of an order:

keep the envelope to confirm the date of receipt of the document;
urgently appeal the order.

In the event of a dispute with Tinkoff, objections are submitted to the magistrate who issued the order. If the court is located in another city, objections can be sent by mail. You can view addresses using the State Automated Information System “Justice” service.

How can a client file a claim?

If a controversial case cannot be resolved amicably, it is necessary to prepare a lawsuit. The following must be attached to the application:

account statements;
debt repayment schedule;
other financial documents proving the bank’s guilt.

The claim can be submitted personally to specialists of the court office or sent by registered mail with notification. The claim should state the subject of the claim, for example, write that the bank has violated the terms of the contract and is demanding payment of a larger amount than required.

Tinkoff courts judgments in favor of the debtor. Positive court decisions with Tinkoff Bank