"Loan Account Fee": how to deal with it?
Many of the readers of this article took loans. As a rule, few people study in detail all the conditions of the loan agreement, which banks are very willing to use. However, reading the entire contract, including written in small print, is very useful. For example, you can calculate how much you will overpay for the use of credit (meaning - in fact), and for what. Or find out what sanctions will be applied to you, if suddenly something goes wrong. And in some contracts, among other services, you can notice a kind of "commission for maintaining a loan account." That's what it is, we'll talk now.
“ Account ” in accounting refers to a set of records reflecting the movement of funds belonging to one person or possessing some other common features. When concluding a loan agreement, the bank opens a current account, in other words, it makes a record in its database, which reflects how much money it loaned to the client, and how much of this amount the client has withdrawn from the account. But there is one more nuance here.
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From the school course in physics, we know the laws of conservation of matter and energy, according to which neither matter nor energy can arise from anything. These are the so-called "conservation laws." In banking and accounting, everything is exactly the same: if there is an account on which money appeared, then there must be an account from which they “left” - such is the law of saving money. Therefore, a separate account is established in a bank for a loan agreement, it is called “ loanable ”. The money with which the bank credits the client is written off from it. And here the fun begins.
Who was the first to think of taking extra money for the very existence of such an account is now difficult to establish. But the bad example turned out to be contagious, and most other banks began to do this. That is, the amount of monthly payments on a loan also includes a fee for the fact that there is an additional entry in the banking database about this additional account. All this is called the “commission for servicing the loan account”, although what this “service” consists in is not entirely clear ...
True, if you get a good grasp of not only the contract, but also the text of the Civil Code, it turns out that this “commission” simply does not correspond to it. Article 779 of the Civil Code defines the concept of “ services ”: “Under the contract for the provision of paid services, the contractor undertakes to provide services on the instructions of the customer (to perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.” That is, “service” is performance of certain actions or implementation of certain activities. Paying for what the bank made a record in its databases and called it “loan account” cannot be “pay for the service”. A standard loan agreement, the rules about which are also contained in the Civil Code of the Russian Federation, does not know about any “loan account”: it only provides for the provision of funds and the payment of interest by the borrower.
How the bank takes into account the movement of money, and what accounts at the same time it gets is an internal business of the bank. In fact, the “loan account service fee” has one task: to reduce the “apparent” interest rate on a loan, that is, the very figure that is written in large print on advertising posters and leaflets. “Loan Account Charge” is one of those “hidden” payments that a borrower discovers (and pays), usually after he has entered into an agreement. Of course, this amount can be included in the interest on the use of credit, however, with a large number of advertising posters will not look so attractive.
Thus, no legitimate reason for the existence of such a commission is simply impossible to find. It can serve as a classic example of the terms of a contract infringing the rights of the consumer. Such conditions are prohibited by Article 16 of the Law "On Protection of Consumer Rights".
Of course, such a relatively honest method of taking money did not pass by the controlling authorities in the person of Rospotrebnadzor and the prosecutor's office. The fight against additional commissions on loans has been going on for several years, and banks are gradually removing them from contracts. True, not all: some prefer to rename the “commission” into something else, for example, “ loan maintenance fee ”, “ settlement service ”, and the like.
One of the first processes brought to the Presidium of the Supreme Arbitration Court was the suit of the Perm branch of Sberbank, appealing the decision to prosecute under article 14.8 of the Administrative Code. It provides for liability for the inclusion in the contract of conditions that infringe the rights of consumers: this is how the local branch of Consumers Supervision qualified the condition on the “loan account commission”. The bank decided to appeal this decision - with mixed success. At first the Perm Regional Arbitration Court ruled that the prosecution was legal. Then the two appellate courts took the opposite position, and the decision was overturned. However, when it came to the Supreme Arbitration Court, he again declared the prosecution lawful and upheld the decision of the first instance.
According to the Presidium of the Supreme Arbitration Court, charging a fee “for servicing a loan” is illegal, since it is not provided for by the Civil Code of the Russian Federation. It cannot be considered as an independent service: “In accordance with clause 1 of Article 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization undertakes to provide monetary funds (credit) to the borrower in the amount and under the conditions stipulated by the agreement, and the borrower undertakes to return the received amount of money and pay interest for it. The Provision “On the Rules of Accounting in Credit Institutions Located in the Territory of the Russian Federation” (approved by the Bank of Russia on March 26, 2007 No. 302-P) implies that the condition for granting and repaying a loan (a bank's payables) is opening and maintaining a loan account . Loan accounts are not bank accounts and are used to reflect on the balance sheet of the bank of education and to pay off loan debts, that is, operations to provide borrowers and return money (loans) in accordance with the loan agreements. Thus, the actions of a bank in opening and maintaining a loan account cannot be qualified as an independent banking service. ”
In addition, when reviewing the claim, it turned out that the ill-fated “commission” was imposed in the letter of the Central Bank of the Russian Federation No. 78-T “On the application of Clause 5.1 of the Bank of Russia Regulation No. 254-P dated March 26, 2004” and its inclusion in the agreement is considered as something for granted. However, it did not become an obstacle to declaring it illegal: “The appeal courts and cassation instances referred to the letter on the application of clause 5.1 of the Bank of Russia Regulation (valid at the time of the loan agreement), according to which charging fees for opening, maintaining loan accounts Included in the calculation of the effective interest rate for servicing a loan is unfounded. This type of commission is not provided for by the norms of the Civil Code of the Russian Federation, the Law on Consumer Protection, other federal laws and other regulatory legal acts of the Russian Federation. The letter on the application of clause 5.1 of the Bank of Russia Regulation does not apply to other regulatory legal acts of the Russian Federation. ”
According to a similar scheme, another case was developed, the decision of the Consumer Supervision was not Sberbank, but the Russian Development Bank, which was likewise prosecuted under Article 14.8 of the Administrative Code. The reason is the same: “the service of opening and maintaining a loan account”, for which the bank forced the client to pay, and some other conditions that restrict the rights of the consumer included in the contract. The position of the Presidium of the Supreme Court of Arbitration remained unchanged: the “loan account” is not an independent service, and it is unacceptable to charge any payments for it.
Another example of such a case is the statement of Vostochny Express Bank OJSC, which was held responsible for including in the loan agreement the terms of payment for “opening a bank account”, which is enforced upon concluding an agreement. As we see, the “commission” can be disguised under different names, however, the result is the same: the courts come to the conclusion that it is illegal. On the ground, various consumer organizations have already developed a method of filing lawsuits to the court, demanding that the relevant terms and conditions of the contract be declared illegal, and some can help this completely free of charge. Much attention is paid to this issue and bodies of Rospotrebnadzor.
Income-expense
“ Account ” in accounting refers to a set of records reflecting the movement of funds belonging to one person or possessing some other common features. When concluding a loan agreement, the bank opens a current account, in other words, it makes a record in its database, which reflects how much money it loaned to the client, and how much of this amount the client has withdrawn from the account. But there is one more nuance here.
')
From the school course in physics, we know the laws of conservation of matter and energy, according to which neither matter nor energy can arise from anything. These are the so-called "conservation laws." In banking and accounting, everything is exactly the same: if there is an account on which money appeared, then there must be an account from which they “left” - such is the law of saving money. Therefore, a separate account is established in a bank for a loan agreement, it is called “ loanable ”. The money with which the bank credits the client is written off from it. And here the fun begins.
Who was the first to think of taking extra money for the very existence of such an account is now difficult to establish. But the bad example turned out to be contagious, and most other banks began to do this. That is, the amount of monthly payments on a loan also includes a fee for the fact that there is an additional entry in the banking database about this additional account. All this is called the “commission for servicing the loan account”, although what this “service” consists in is not entirely clear ...
True, if you get a good grasp of not only the contract, but also the text of the Civil Code, it turns out that this “commission” simply does not correspond to it. Article 779 of the Civil Code defines the concept of “ services ”: “Under the contract for the provision of paid services, the contractor undertakes to provide services on the instructions of the customer (to perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.” That is, “service” is performance of certain actions or implementation of certain activities. Paying for what the bank made a record in its databases and called it “loan account” cannot be “pay for the service”. A standard loan agreement, the rules about which are also contained in the Civil Code of the Russian Federation, does not know about any “loan account”: it only provides for the provision of funds and the payment of interest by the borrower.
How the bank takes into account the movement of money, and what accounts at the same time it gets is an internal business of the bank. In fact, the “loan account service fee” has one task: to reduce the “apparent” interest rate on a loan, that is, the very figure that is written in large print on advertising posters and leaflets. “Loan Account Charge” is one of those “hidden” payments that a borrower discovers (and pays), usually after he has entered into an agreement. Of course, this amount can be included in the interest on the use of credit, however, with a large number of advertising posters will not look so attractive.
Thus, no legitimate reason for the existence of such a commission is simply impossible to find. It can serve as a classic example of the terms of a contract infringing the rights of the consumer. Such conditions are prohibited by Article 16 of the Law "On Protection of Consumer Rights".
How to fight?
Of course, such a relatively honest method of taking money did not pass by the controlling authorities in the person of Rospotrebnadzor and the prosecutor's office. The fight against additional commissions on loans has been going on for several years, and banks are gradually removing them from contracts. True, not all: some prefer to rename the “commission” into something else, for example, “ loan maintenance fee ”, “ settlement service ”, and the like.
One of the first processes brought to the Presidium of the Supreme Arbitration Court was the suit of the Perm branch of Sberbank, appealing the decision to prosecute under article 14.8 of the Administrative Code. It provides for liability for the inclusion in the contract of conditions that infringe the rights of consumers: this is how the local branch of Consumers Supervision qualified the condition on the “loan account commission”. The bank decided to appeal this decision - with mixed success. At first the Perm Regional Arbitration Court ruled that the prosecution was legal. Then the two appellate courts took the opposite position, and the decision was overturned. However, when it came to the Supreme Arbitration Court, he again declared the prosecution lawful and upheld the decision of the first instance.
According to the Presidium of the Supreme Arbitration Court, charging a fee “for servicing a loan” is illegal, since it is not provided for by the Civil Code of the Russian Federation. It cannot be considered as an independent service: “In accordance with clause 1 of Article 819 of the Civil Code of the Russian Federation, under a loan agreement, a bank or other credit organization undertakes to provide monetary funds (credit) to the borrower in the amount and under the conditions stipulated by the agreement, and the borrower undertakes to return the received amount of money and pay interest for it. The Provision “On the Rules of Accounting in Credit Institutions Located in the Territory of the Russian Federation” (approved by the Bank of Russia on March 26, 2007 No. 302-P) implies that the condition for granting and repaying a loan (a bank's payables) is opening and maintaining a loan account . Loan accounts are not bank accounts and are used to reflect on the balance sheet of the bank of education and to pay off loan debts, that is, operations to provide borrowers and return money (loans) in accordance with the loan agreements. Thus, the actions of a bank in opening and maintaining a loan account cannot be qualified as an independent banking service. ”
In addition, when reviewing the claim, it turned out that the ill-fated “commission” was imposed in the letter of the Central Bank of the Russian Federation No. 78-T “On the application of Clause 5.1 of the Bank of Russia Regulation No. 254-P dated March 26, 2004” and its inclusion in the agreement is considered as something for granted. However, it did not become an obstacle to declaring it illegal: “The appeal courts and cassation instances referred to the letter on the application of clause 5.1 of the Bank of Russia Regulation (valid at the time of the loan agreement), according to which charging fees for opening, maintaining loan accounts Included in the calculation of the effective interest rate for servicing a loan is unfounded. This type of commission is not provided for by the norms of the Civil Code of the Russian Federation, the Law on Consumer Protection, other federal laws and other regulatory legal acts of the Russian Federation. The letter on the application of clause 5.1 of the Bank of Russia Regulation does not apply to other regulatory legal acts of the Russian Federation. ”
According to a similar scheme, another case was developed, the decision of the Consumer Supervision was not Sberbank, but the Russian Development Bank, which was likewise prosecuted under Article 14.8 of the Administrative Code. The reason is the same: “the service of opening and maintaining a loan account”, for which the bank forced the client to pay, and some other conditions that restrict the rights of the consumer included in the contract. The position of the Presidium of the Supreme Court of Arbitration remained unchanged: the “loan account” is not an independent service, and it is unacceptable to charge any payments for it.
Another example of such a case is the statement of Vostochny Express Bank OJSC, which was held responsible for including in the loan agreement the terms of payment for “opening a bank account”, which is enforced upon concluding an agreement. As we see, the “commission” can be disguised under different names, however, the result is the same: the courts come to the conclusion that it is illegal. On the ground, various consumer organizations have already developed a method of filing lawsuits to the court, demanding that the relevant terms and conditions of the contract be declared illegal, and some can help this completely free of charge. Much attention is paid to this issue and bodies of Rospotrebnadzor.
Source: https://habr.com/ru/post/118107/
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