Trust judgment of interest for the use of a loan. Trust Bank sued

COURT DOCUMENTS

Decision 2-2205/2010 on the claim of the National Bank "TRUST" (open joint-stock company) against Sapegin P.V. on debt collection under a loan agreement, interest, penalties

Case No. 2-2205/2010

DECISION IN ABSENTIA

In the name of the Russian Federation

Chelyabinsk

“Data” Metallurgical District Court of Chelyabinsk, consisting of:

presiding judge Tulskaya I.A.,

under secretary E.M. Fotteler,

having considered in open court a civil case brought by the national bank "TRUST" (open joint-stock company) against Sapegin P.V. on debt collection under a loan agreement, interest, penalties,

INSTALLED:

National Bank TRUST (open joint stock company) filed a lawsuit against P.V. Sapegin. on the collection of debt on the loan, interest, penalties, in total in the amount of ... rub., as well as state duty in the amount of ... rub., paid when filing a statement of claim.

In support of his claims, the plaintiff indicated that Sapegin P.V. x 20xx a loan was provided in the amount of ... rub. The loan is repaid monthly in equal payments of ... rub. However, the defendant, in violation of the terms of the contract, does not fulfill his obligations to repay the loan, which is why a debt has arisen.

The representative of the National Bank "TRUST" did not appear at the court hearing; he was duly notified of the time and place of the consideration of the case. He submitted an application to consider the case without their participation, they do not object to the consideration of the case in absentia proceedings (case file 49).

Defendant Sapegin P.V. did not appear at the court hearing, was duly notified of the time and place of the consideration of the case (case file 46). He did not provide evidence confirming the validity of the reason for failure to appear at the court hearing.

The court, having examined the written materials of the case, comes to the following.

In accordance with paragraph 1 of Art. 428 of the Civil Code of the Russian Federation, an agreement of adhesion is recognized as an agreement, the terms of which are determined by one of the parties in forms or other standard forms and could be accepted by the other party only by accession to the proposed agreement as a whole.

In accordance with Art. Art. 819, 820 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 in paragraph 1 of this chapter 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. The loan agreement must be concluded in writing.

In accordance with paragraph 2 of Art. 811 of the Civil Code of the Russian Federation, if the loan agreement provides for the return of the loan in parts (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 return of the entire remaining loan amount along with the interest due.

According to 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 and other legal acts. Unilateral refusal to fulfill an obligation and unilateral change of its terms are not allowed.

At the court hearing it was established that on the year xx.xx.20xx the National Bank TRUST provided Sapegin P.V. loan based on an application in the amount of ... rub. for a period of 36 months at 15% per annum (case sheet 13-20).

The monthly payment is determined in the amount of ... rub., which also includes a fee for settlement services in the amount of ... rub. (ld. 13, 23). Moreover, during the first six months the defendant only had to pay a commission in the amount of ... rub.

National Bank "TRUST", in pursuance of the agreement, transferred funds to the defendant's account in the amount of ... rub. However, Sapegin V.P. does not fulfill its obligations to repay the loan, which is confirmed by statements of the loan account and calculation of the debt (case sheet 9-12).

According to clause 9.15 of the Conditions for the provision and servicing of loans for urgent needs, the TRUST National Bank, in the event of a client’s failure to comply with the requirements under the agreement, has the right to charge penalties in the amount established by the Tariffs (case sheets 8, 19).

In accordance with clause 9.10 of these conditions, the bank has the right to demand from the client early fulfillment of obligations under the agreement, including by issuing demands, in the event of a violation by the client of its obligations under the agreement (case sheet 18-19).

The plaintiff asks to recover from Sapegin P.V. debt as of xx.xx.20xx on the principal debt in the amount of ... rub., interest for using the loan for the period from xx.xx.20xx to xx.xx.20xx years - ... rub., commission for cash settlement services - ... rub., fee for missed payments - ... rub., interest on overdue debt - ... rub. The court considers it possible to partially satisfy the stated requirements on the following grounds.

According to the statement of Sapegin P.V. and payment schedule, the defendant pays the bank a monthly commission for cash management services during the first six months from the date of the loan in the amount of ... rub. and subsequently in the amount of ... rub. monthly.

In accordance with clause 1 of Article 16 of the Law of the Russian Federation “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.

From the Regulations “On the rules of accounting in credit institutions located on the territory of the Russian Federation”, approved by the Bank of Russia on March 26, 2007 No. 302-P, it follows that the condition for the provision and repayment of a loan (creditor obligation of the bank) is the opening and maintenance by the bank of a loan accounts.

Loan accounts are not bank accounts and are used to reflect in the bank’s balance sheet the formation and repayment of loan debt, that is, operations to provide borrowers and return them with funds (loans) in accordance with concluded loan agreements.

Thus, the bank’s actions to open, maintain a loan account, and provide cash and settlement services are not an independent banking service.

The specified type of commission is not provided for by the norms of the Civil Code of the Russian Federation, the Law of the Russian Federation “On the Protection of Consumer Rights”, other federal laws and other regulatory legal acts of the Russian Federation. Therefore, the Bank’s actions to charge a fee for maintaining a loan, penalties for late payment of the fee in relation to clause 1 of Art. 16 of the Law of the Russian Federation “On the Protection of Consumer Rights” infringes on the rights of consumers established by law.

Under such circumstances, the court considers that the commission in the amount of ... rub. not subject to recovery from Sapegin P.V. in full.

In addition, as follows from the calculations presented by the plaintiff, Sapegin P.V. During the period of validity of the loan agreement, a commission was paid for settlement and cash services in the amount of ... rub. (case sheet 9). The court believes that the specified amount should be included in the repayment of the principal debt on the loan, in connection with which it is by this amount that it is necessary to reduce the amount of the principal debt to be recovered from P.V. Sapegin, which will amount to ... rub.

The remaining amounts, namely interest on the loan in the amount of ... rub., fee for skipping payments in the amount of ... rub. and interest on overdue debt in the amount of ... rub. Subject to recovery from the defendant in full.

The calculation of the amounts collected, presented by the National Bank "TRUST", was verified by the court and is correct. The defendant did not present any other calculation of the debt, nor did it present evidence confirming the absence of debt.

Thus, finally from Sapegin P.V. in favor of the National Bank "TRUST" the debt on the principal debt is subject to collection in the amount of ... rub., interest for using the loan - ... rub., fee for missed payments - .... rub. and interest on overdue principal debt – ... rub.

In accordance with Art. 98 of the Code of Civil Procedure of the Russian Federation, the court awards the party in whose favor the court decision to compensate, on the other hand, the legal costs incurred in the case in proportion to the satisfied claims.

The fact that the plaintiff paid a state fee in the amount of ... rub. confirmed by payment order No. ... dated xx.xx.20xx (case file 3). Thus, in favor of the plaintiff, the paid state duty in the amount of ... rubles is subject to recovery from the defendant. in proportion to the requirements satisfied.

Based on the above, guided by art. Art. 194-198 Code of Civil Procedure of the Russian Federation, court

DECIDED:

The claims of the National Bank "TRUST" (open joint stock company) are partially satisfied.

Collect from Sapegin P.V. in favor of the National Bank "TRUST" (open joint-stock company) the amount of the principal debt in the amount of ... rub., interest for using the loan (as of xx.xx.20xx) in the amount of ... rub., fee for missed payments (as of xx.xx.20xx year) - ... rub., interest on overdue debt (as of xx.xx.20xx year) - ... rub., state duty in the amount of ... rub., total to collect ... rub. 43 kopecks

The National Bank "TRUST" (open joint stock company) shall refuse to satisfy the rest of the claims.

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 in cassation within 10 days after the expiration of the deadline for the defendants to file an application to cancel this court decision, and if such an application is filed, within ten days from the date of the court’s decision to refuse satisfaction statements.

Do you think you are Russian? Were you born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is wrong.

Are you actually Russian, Ukrainian or Belarusian? But do you think that you are a Jew?

Game? Wrong word. The correct word is “imprinting”.

The newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living creatures with vision.

Newborns in the USSR saw their mother for a minimum of feeding time during the first few days, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. The technique is wild in its essence and effectiveness.

Throughout your childhood, you wondered why you lived surrounded by strangers. The rare Jews on your way could do whatever they wanted with you, because you were drawn to them, and pushed others away. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It’s difficult to understand; the instinct took shape when you were still very far from being able to formulate it. From that moment, no words or details were preserved. Only facial features remained in the depths of memory. Those traits that you consider to be your own.

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.

<данные изъяты>

Case No. 2-58/2018

In the name of the Russian Federation

Kansk City Court of the Krasnoyarsk Territory composed of:

presiding judge Teplyakova K.G.,

under secretary T.V. Romanova,

having considered in open court a civil case on the claim of the Public Joint Stock Company National Bank "TRUST" to Gelvikh TN for the collection of debt under the loan agreement, legal costs and counterclaims of Gelvikh TN to PJSC National Bank "Trust" for the protection of consumer rights,

INSTALLED:

PJSC National Bank "TRUST" filed a claim in court against T.N. Gelvikh. for the collection of debt under the loan agreement and legal expenses, motivating their demands by the fact that on 04/03/2008 between the plaintiff and Gelvikh T.N. a loan agreement No. 068-R-026408 was concluded in offer-acceptance form, under the terms of which a loan was issued with an overdraft limit of 15,000 rubles, a term of use of 113 months, an interest rate of 23.00% per annum. The bank fulfilled its obligations. The acceptance of the Borrower's offer to enter into an agreement was the Bank's actions to open a bank account No. 40817810338062011087. In violation of the terms of the agreement, the defendant does not undertake and continues to evade the fulfillment of its obligations regarding the planned repayment of the current debt. The debt, excluding the fine for missed payments, for the period from 04/03/2008 to 09/24/2017 amounted to 58,841 rubles. 57 kopecks, including the amount of the principal debt - 13,646 rubles. 72 kopecks; commission - 17,560 rub. 90 kopecks; interest for using the loan - 27,633 rubles. 95 kop. In this connection, the plaintiff asks to recover from Gelvikh T.N. the amount of debt on the loan in the amount of 58,841 rubles. 57 kopecks, the cost of paying state duty in the amount of 1,965 rubles.

Gelvikh T.N., represented by representative Plyushchikova N.V., in turn filed a counterclaim for termination of the loan agreement No. 068-R-026408 dated April 3, 2008, recognizing the illegal accrued commission for maintaining a loan account in the amount RUB 17,560 90 kopecks, invalidation of the clause on the accrual of fines for late payment, application of the provisions of Art. 333 of the Civil Code of the Russian Federation, motivating his demands by the fact that in the terms of the agreement and the submitted account statement there are discrepancies in the calculation of fines for late payments, since the statement indicates a fine of 800 rubles, and according to the terms of the agreement - 500 rubles, asks to recognize the clause the agreement on the accrual of fines for late payment is invalid in order to deprive the bank of the right to apply in the future with a demand for the collection of a fine. The agreement does not indicate the validity period of the loan; there are discrepancies in the specified date. The last payment by the defendant was made on November 10, 2008; the bank did not make any claims regarding the debt, since for 9 years the creditor did not take measures to reduce its losses, and believes that the court has the right to reduce the amount of the debtor’s liability. Objects to the collection of a commission in the amount of 17,560 rubles. 90 kopecks, since this requirement is illegal. He also believes that the plaintiff missed the statute of limitations, since the bank’s right of claim arose in February 2009.

The representative of the plaintiff PJSC National Bank "TRUST" did not appear at the court hearing; he requested, according to the text of the statement of claim, to consider the case in his absence; written explanations and a response to the counterclaims were submitted, according to which the date of conclusion of the loan agreement is the date of activation and receipt of the credit card on May 14. 2008, the statement of claim indicated an incorrect date, also indicates that the overdraft limit is 15,000 rubles, the loan period is 113 months, since the defendant activated the card, she confirms that she has familiarized herself with the bank’s tariffs and the conditions for the card. As part of the agreement, the defendant repeatedly used funds in the amount of the permitted overdraft limit. The tariff plan provides for fines for missing the minimum payment of 300 rubles. for the second time in a row and 500 rubles. for the third time in a row, with which also Gelvikh T.N. was familiarized. The final deadline for the fulfillment of all obligations under the agreement has not been determined; on the date of filing the claim, the period for using the loan was 113 months, the agreement is valid and there is a debt under it.

Defendant Gelvikh T.N. did not appear at the court hearing, was duly notified of the time and place of the hearing of the case by registered mail.

Representative of the defendant (plaintiff on counterclaims) Plyushchikova N.V. objected to the satisfaction of the claims of PJSC National Bank "Trust", supported the counterclaims in full, explaining that the defendant did not receive a final statement from the bank indicating the full amount of the debt, if the card expires, the agreement is terminated after 35 days, the bank deliberately contributed to the increase debt, the commission for maintaining a loan account is an additional service and this account is not a bank account within the meaning of the Civil Code of the Russian Federation. He also believes that the plaintiff missed the statute of limitations. In this connection, he asks to reduce the amount of liability under Art. 333 of the Civil Code of the Russian Federation in accordance with Art. 404 of the Civil Code of the Russian Federation, recognize the fee for servicing a loan account in the amount of 17,560 rubles as illegal and uncollectible. 90 kopecks, apply the consequences of missing the limitation period.

The court, taking into account the written consent of the plaintiff’s representative, the defendant’s representative N.V. Plyushchikova, considers it possible to consider the case in the absence of the parties who failed to appear.

The court, having heard the representative of the defendant N.V. Plyushchikova, having examined the written materials of the case, considers that the claims of PJSC National Bank "Trust" are subject to partial satisfaction, the counterclaims of T.N. Gelvikh. are also subject to partial satisfaction on the following grounds.

In accordance with Art. 307 of the Civil Code of the Russian Federation, by virtue of an obligation, one person (debtor) is obliged to perform certain actions in favor of another person (creditor), such as: transfer property, perform work, pay money, etc., the creditor has the right to demand that the debtor fulfill his obligation .

According to Art. 309-310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly and 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 obligations and unilateral changes in its terms are not allowed.

By virtue of Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, the bank (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.

In accordance with Part 2 of Art. 811 of the Civil Code of the Russian Federation, if the loan agreement provides for the return of the loan in parts, 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 return of the entire remaining loan amount along with the interest due.

In accordance with Art. 450 of the Civil Code of the Russian Federation, at the request of one of the parties, the contract may be changed or terminated by a court decision in the event of a significant violation of the contract by the other party. A violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is significantly deprived of what it had the right to count on when concluding the contract.

Based on Part 1 of Art. 329 of the Civil Code of the Russian Federation, the fulfillment of obligations can be ensured by a penalty, that is, a sum of money determined by law or contract that the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of the obligation, in particular, in case of delay in performance (Part 1 of Article 330 of the Civil Code of the Russian Federation).

According to Art. 404 of the Civil Code of the Russian Federation, if non-fulfillment or improper fulfillment of an obligation occurred through the fault of both parties, the court accordingly reduces the amount of liability of the debtor. The court also has the right to reduce the amount of liability of the debtor if the creditor intentionally or negligently contributed to an increase in the amount of losses caused by non-performance or improper performance, or did not take reasonable measures to reduce them.

As established at the court hearing, on May 14, 2008, between the plaintiff and Gelvikh T.N. a loan agreement No. 068-R-026408 was concluded in offer-acceptance form, under the terms of which a loan was issued with an overdraft limit of 15,000 rubles, a tenure of 113 months, an interest rate of 23.00% per annum, which is confirmed by an application for a loan (l pp. 18-21), personal account statement (pp. 8).

At the same time, the fact that the defendant received this loan was not disputed. Moreover, the representative of the defendant Plushkova N.V. confirmed that under this agreement the last payment was made by T.N. Gelvikh. 12/22/2008, in connection with which it was stated that the plaintiff missed the statute of limitations.

According to the receipt (case sheet 12) Gelvikh T.N. received the card on May 14, 2008, credit funds were issued on May 29, 2008 in the amount of 10,000 rubles. (case file 8).

In accordance with the terms of the agreement, Gelvikh T.N. accepted the obligation to repay the loan debt, which is confirmed by the application form.

In this connection, Gelvikh T.N. did not fulfill its obligations properly; for the period from April 3, 2008 to September 24, 2017, a principal debt in the amount of RUB 13,646 arose. 72 kopecks, account maintenance fee 17,560 rubles. 90 kopecks; interest on the loan in the amount of RUB 27,633. 95 kopecks, which is confirmed by a personal account statement and debt calculation (case sheet 8, 9-10).

The last payment was made by T.N. Gelvikh. 07/17/2009 in the amount of 100 rubles.

The court takes into account that at present the validity of this agreement has not expired, it is valid.

The court considers the arguments of the defendant's representative that the validity period of the bank card has expired in this case to be unfounded, since according to clause 2.7 of the Terms of Service for Credit Cards (case sheet 19), the credit card is valid until the last month indicated on the card, but the expiration date The validity of a credit card does not mean the end of the term, except in cases provided for in clause 9.5 of these conditions. According to clause 9.5 of the Terms, the contract is terminated at the client’s initiative at any time, subject to final settlement with the bank. At the same time, the reference of the defendant’s representative to termination of the contract after the expiration of the 35-day period after the expiration of the card refers to the condition of the client’s final settlement with the bank (clause 9.5.1.2), and not to unconditional termination of the contract.

The plaintiff filed a claim with the court on 10/09/2017 (case file 28).

On the day the plaintiff filed a claim, the amount of the principal debt was 13,646 rubles. 72 kopecks, which is confirmed by the plaintiff’s calculation, which the court found to be arithmetically correct. In this connection, the principal debt in the specified amount is subject to recovery from the defendant in full; there are no grounds for applying the statute of limitations to the claim for collection of the principal debt.

In this case, the court takes into account that the defendant’s failure to comply with Gelvikh T.N. of its obligations was not the fault of the bank, the bank did not contribute to the increase in the said debt, since Gelvikh T.N. accepted the obligation to pay the principal debt on time, but violated the terms of repayment of funds.

At the same time, the court believes that the statute of limitations is subject to application to the presented interest debt on the following grounds.

According to Art. 196 of the Civil Code of the Russian Federation, the general limitation period is established at three years.

Based on Part 1 of Art. 200 of the Civil Code of the Russian Federation, the limitation period begins from the day when the person learned or should have learned about the violation of his right.

By virtue of Part 2 of Art. 199 of the Civil Code of the Russian Federation, the limitation period is applied by the court only upon the application of a party to the dispute made before the court makes a decision. The expiration of the limitation period, the application of which is declared by a party to the dispute, is the basis for the court to make a decision to reject the claim.

According to paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 1995 No. 2/1, a statement by a party to a dispute on the application of the limitation period is grounds for refusal of the claim, provided that it was made at any stage of the process before the decision was made by the court of first instance and the missed deadline was confirmed by the case materials.

According to paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated September 29, 2015 N 43 (as amended on February 7, 2017) “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period”, within the meaning of paragraph 1 of Article 200 of the Civil Code RF, the limitation period for a claim arising from a violation by one party of a contract of the terms of payment for goods (works, services) in parts begins in relation to each individual part. The limitation period for claims for overdue time payments (interest for the use of borrowed funds, rent, etc.) is calculated separately for each overdue payment.

Taking into account the fact that the statute of limitations for the claimed interest expired on 01/03/2012 (taking into account the previously considered application for the issuance of a court order), then in this part the stated claims cannot be satisfied.

The missed limitation period was announced by the representative of the defendant N.V. Plyushchikova, that is, the proper person, the statement was made before the decision was made, the missed period was confirmed by the case materials.

The court takes into account that neither in the statement of claim, nor in the written evidence attached to it, the plaintiff explains the reason for missing the appeal to the court, does not indicate what circumstances caused it to be missed, and no petition was filed to restore the deadline for going to court.

The court considers the demands of Gelvikh T.N. to be unfounded. on termination of the loan agreement, since at the request of one of the parties the agreement can be changed or terminated by a court decision only in the event of a significant violation of the agreement by the other party; in other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement (clauses 1, 2 of Article 450 of the Civil Code of the Russian Federation).

A significant change in circumstances is the basis for its modification or termination, unless otherwise provided by the contract or follows from its essence (clause 1 of Article 451 of the Civil Code of the Russian Federation). A change in circumstances is considered significant if the conditions contained in the list given in paragraph 2 of Art. 451 of the Civil Code of the Russian Federation and indicating the priority of protecting the stability of the fulfillment of contractual obligations.

The court, based on the fact that no significant violation of the terms of the agreement on the part of the bank was established during the trial, considers it necessary to refuse to satisfy the plaintiff’s demands for termination of the agreement for the provision of credit funds.

Refusing to satisfy the plaintiff’s request to terminate the agreement, the court comes to the conclusion that the Bank fulfilled the terms of the loan agreement, the plaintiff was provided with a loan, the plaintiff expressed his intention to conclude a loan agreement, used the funds provided by the Bank on credit, which indicates that the Bank properly fulfilled his obligations.

Also, the court does not see any grounds for satisfying the requirements of Gelvikh T.N. on recognizing as not invalid the clause of the agreement on the accrual of fines, since the tariff plan, conditions, and questionnaire provided in the case materials clearly, legibly, completely and easily read the terms of the loan amount, tariffs (including fines) and their amount . These conditions were agreed upon by the parties, the loan agreement was signed by the borrower (Gelvikh T.N.). Thus, before the conclusion of the agreement Gelvikh T.N. all information about the full cost of the loan was provided, and all the terms of the loan agreement were explained.

At the same time, the court believes that the fee for maintaining a loan account in the amount of 17,560 rubles. 90 kopecks is not subject to collection, since the inclusion in the plaintiff’s loan agreement of the conditions for paying a commission for opening and introducing a loan account is illegal, this service is imposed, due to the requirements of Art. 16 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the provisions of the agreement on the recovery of the specified amount from Gelvikh T.N.. are subject to cancellation, since by virtue of the law, the placement of funds attracted by the bank in the form of loans is carried out by banking organizations on their own behalf and at their own expense. The borrower's contribution of funds as a commission for receiving funds does not indicate the plaintiff's interest in using this account, since by virtue of Art. 819 of the Civil Code of the Russian Federation, the essence of legal relations under a loan agreement for the borrower is to receive a loan and fulfill the obligation to repay the loan amount and accrued interest, while the action sufficient to fulfill these obligations of the borrower is the timely transfer of a certain part of the funds received as a loan and interest on him to the creditor. Thus, the mechanism for accounting for funds received from the borrower is outside the scope of the borrower’s actions under the loan agreement and is not of interest to him, and therefore, payment for this action cannot be assigned to the borrower as a person consuming the corresponding service.

In accordance with paragraph 1 of Art. 98 of the Code of Civil Procedure of the Russian Federation, the party in whose favor the court decision was made, the court awards the other party to reimburse all legal expenses incurred in the case, in connection with which, in favor of the plaintiff PJSC National Bank "TRUST", the defendant is also subject to recovery of the amount of paid state duty in the amount of 545 rub. 87 kopecks, that is, in proportion to the requirements satisfied.

Based on the above and guided by Articles 194-199 of the Code of Civil Procedure of the Russian Federation,

The claims of PJSC National Bank "TRUST" against Gelvikh TN for the collection of debt under the loan agreement and legal costs are partially satisfied.

To collect from Gelvikh TN in favor of PJSC National Bank TRUST the amount of debt in the amount of 13,646 rubles. 72 kopecks, expenses for paying state duty in the amount of 545 rubles. 87 kopecks

The rest of the claims are rejected.

The counterclaims of Gelvikh TN regarding the recognition of an illegal commission for servicing a loan account are satisfied.

Recognize the conditions of clause 2 of the “Client” tariff plan, obliging the borrower to pay the defendant a commission for settlement servicing of the account, as invalid due to its insignificance.

The rest of the counterclaims from Gelivikh TN will be rejected.

The decision can be appealed to the Krasnoyarsk Regional Court through the Kansk City Court within a month from the date of adoption in final form.

SOLUTION

IN THE NAME OF THE RUSSIAN FEDERATION

07/09/2015 Oktyabrsky District Court of Samara, consisting of:

presiding judge Kurmaeva A.Kh.,

with the secretary of the court session Tregub U.V.,

having considered in open court civil case No.... on the claim of the National Bank "TRUST" (OJSC) against B.D. A., B. E. N. on debt collection,

INSTALLED:

OJSC National Bank "Trust" appealed to the court with the specified application, citing the fact that the date with the defendant B.D. A. A loan agreement No. 03-900-7158 was concluded. The loan under the agreement was provided on the terms contained in the General Conditions for Providing and Servicing Loans, conditions for payment cards, and tariffs. In the application, the defendant agreed that the acceptance of his offer to conclude an agreement is the actions of the Creditor in opening an account for him, and the tariffs, conditions and payment schedule are an integral part of the application and the agreement. The bank fulfilled its obligations. According to the conditions, the loan is considered granted on the date of reflection of the amount of the transaction made using funds provided by the bank on the client’s account. From the date of conclusion of the agreement, the client has obligations to pay fines, commissions, and debt repayment. To ensure that the borrower fulfills his obligations to repay the loan provided and pay interest, the bank entered into surety agreements with B. E. N. In violation of the conditions, the defendant is avoiding fulfilling his obligations to repay the current debt as planned. Asks the court to collect jointly and severally from B.D. A., B. E. N. in favor of OJSC National Bank "Trust" the amount of debt in the amount of *** rubles, as well as in equal parts the cost of paying the state duty ***

At the court hearing, the representative of the National Bank "TRUST" (OJSC) - G. A. I., acting under power of attorney No. ... dated October 31, 2014, supported the stated demands on the grounds set out in the claim, asking to be satisfied in full.

Representative of the defendants B.D. A., B. E. N. - A. L. M., acting under powers of attorney No. 12-5266, 12-5265 dated December 19, 2014, at the court hearing recognized the claims in terms of recovery from the defendants of the principal debt and interest for use loan, the amount of interest on overdue debt and fees for missed payments asked to be reduced to *** rubles, taking into account the difficult financial situation, B.E.N. is currently on maternity leave to care for a child.

Having heard the parties and studied the case materials, the court considers the claims to be satisfied on the following grounds.

The court found that the date of the National Bank "TRUST" (OJSC) and B.D. A. entered into a loan agreement No. 03-900-7158, under which the lender agreed to provide the borrower with funds in the amount and on the terms provided for by this Loan Agreement, and the borrower agreed to repay the loan received, pay interest for using the loan and fulfill other obligations stipulated by the loan agreement in full. The loan amount was *** rubles, the interest rate for using the loan was 29% per annum. The loan repayment period is 60 months from the date following the date of loan provision.

In accordance with Art. 196 of the Civil Code of the Russian Federation, the general limitation period is three years from the date determined in accordance with Article 200 of this Code.

In accordance with Part 2 of Art. 200 of the Civil Code of the Russian Federation for obligations with a certain period of performance, the limitation period begins at the end of the performance period.

From paragraph 1.3. loan agreement concluded between the Bank and B.D. A. it follows that the loan repayment period is 60 months from the date following the date of the loan.

Thus, the deadline for fulfilling obligations under this agreement is determined until 10/28/2016, therefore, the statute of limitations expires on 10/28/2019, from the case materials it follows that the plaintiff sent a statement of claim to the court on 05/29/2015, i.e. without missing the deadline.

In accordance with Art. 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization (lender) provides the borrower with funds 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.

According to the Loan Conditions, the Bank has the right to refuse to fulfill the obligation to provide a Loan or part thereof, and also to demand from the Borrower early fulfillment of obligations under the Loan Agreement (early repayment of the loan), as well as compensation for losses caused to the Bank due to non-fulfillment or improper fulfillment of the provisions by the Borrower of the Loan Agreement and these Terms, or non-fulfillment/improper fulfillment of obligations by third parties with whom the Bank has entered into agreements to secure the Borrower’s obligations, or deterioration in the quality of securing the Borrower’s obligations, in cases provided for by these terms and conditions.

In accordance with Art. 307 of the Civil Code of the Russian Federation, by virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, pay money, etc., or refrain from a certain action, and the creditor has the right to demand from the debtor the fulfillment of his obligation.

According to Art. 309 of the Civil Code of the Russian Federation, the debtor’s 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.

Article 819 of the Civil Code of the Russian Federation establishes that 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, to the relationship under a loan agreement, the rules provided for in paragraph 1 of Chapter 42 of the Civil Code of the Russian Federation are applied, unless otherwise provided by the rules of paragraph 2 and does not follow from the essence of the loan agreement.

Part 1 art. 810 of the Civil Code of the Russian Federation determines that the borrower is obliged to return to the lender the received loan amount on time and in the manner prescribed by the loan agreement.

According to Part 2 of Art. 811 of the Civil Code of the Russian Federation, if the loan agreement provides for the return of the loan in parts (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 return of the next part of the loan, the lender has the right to demand early return of the entire remaining loan amount along with interest due.

According to Art. 363 of the Civil Code of the Russian Federation, in case of non-fulfillment or improper fulfillment by the debtor of the obligation secured by the guarantee, the guarantor or the debtor is jointly and severally liable to the creditor. The guarantor is liable to the creditor to the same extent as the debtor, including payment of interest, reimbursement of legal costs for debt collection and other losses of the creditor caused by non-fulfillment or improper fulfillment of the obligation by the debtor.

In accordance with Article 323 of the Civil Code of the Russian Federation, in the event of a joint and several obligation of debtors, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, both in full and in part of the debt.

A creditor who has not received full satisfaction from one of the joint and several debtors has the right to demand what was not received from the remaining joint and several debtors.

Joint and several debtors remain obligated until the obligation is fully fulfilled.

From the case materials it follows that in order to ensure the fulfillment of the borrower’s obligations under the loan agreement No.... dated 10/28/2011, the bank entered into a surety agreement No.... with B.E.N.

Under the terms of the surety agreement No.... dated October 28, 2011, the guarantor B.E.N. accepted the obligation to answer to the creditor for the execution of B.D. A. (borrower) of his obligations under the loan agreement No.... dated October 28, 2011, which includes repayment of the loan, payment of interest for using the loan, payment of penalties, fees and commissions, as well as other obligations of the borrower under the loan agreement.

By virtue of clause 3.1 of the loan agreement, the loan is considered granted on the date the loan amount is credited to the borrower’s account, and the borrower has an obligation to pay the appropriate interest for using the loan and other commissions and fees provided for by the tariffs of National Bank Trust.

According to account statement No.... B.D. A. loan in the amount of *** rub. was provided by the plaintiff by transferring a sum of money to the specified account.

The court found that the obligations assumed under the loan agreement by B.D. A. are not fulfilled.

OJSC National Bank "Trust" sent demands to the defendants for early fulfillment of obligations under the loan agreement, to which no response was received.

According to the calculation of the debt as of the date, the debt of the borrower B.D. A. before the Bank is ***., including:

principal debt in the amount of ***.;

interest for using the loan in the amount of ***

interest on overdue debt -***

fee for skipping payments - ***

At the court hearing, the representative of the defendants requests, in accordance with the provisions of Art. 333 of the Civil Code of the Russian Federation to reduce the amount of fees for missed payments and interest on overdue debt, taking into account the financial situation of the defendants.

According to the legal position of the Constitutional Court of the Russian Federation, formed during the implementation of the constitutional and legal interpretation of Article 333 of the Civil Code of the Russian Federation (Definition dated N 263-O), Article 330 of the Civil Code of the Russian Federation recognizes a penalty as the amount of money determined by law or agreement, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper performance of an obligation, in particular in case of delay in performance.

According to the first part of Article 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of violation of the obligation, the court has the right to reduce the penalty.

Thus, civil legislation provides for a penalty as a method of ensuring the fulfillment of obligations and a measure of property liability for their failure to fulfill or improper performance, and the right to reduce the penalty is given to the court in order to eliminate its obvious disproportion to the consequences of violation of obligations.

The court believes that fees for missed payments, as well as interest on overdue debt, are one of the types of penalties; taking into account the financial situation of the defendants, the court believes it is possible to reduce them, namely fees for missed payments from ***

Based on the above, taking into account the partial recognition of the claim, the court considers the plaintiff’s demands to collect from the defendant the amount of debt under the loan agreement, which consists of: the amount of the principal debt - ***

In accordance with the requirements of Part 1 of Art. 98 of the Code of Civil Procedure of the Russian Federation, from the defendants in equal shares in favor of the plaintiff the amount of state duty is subject to recovery in proportion to the size of the claims satisfied by the court in the amount of ***

Guided by Art. Art. 194-199 Code of Civil Procedure of the Russian Federation,

DECIDED:

The claim of OJSC National Bank "TRUST" is partially satisfied.

Collect jointly and severally with B.D. A., B. E. N. in favor of OJSC National Bank "TRUST" debt under the loan agreement, namely: the amount of the principal debt - ***

Collect in equal shares from B.D. A., B. E. N. in favor of OJSC National Bank "TRUST" the amount of state duty in the amount of ***

The decision can be appealed to the Samara Regional Court through the Oktyabrsky District Court within a month from the date of adoption in its final form.