Banks should prepare to claims of non-payers

In November, the Supreme Arbitration Court (IAC) published on its website a newsletter with a new interpretation of Article 319 of the Civil Code, which determines the allocation of funds for payment of the overdue loan. In particular, the courts recommended for resolving the dispute between the bank and the borrower to direct payments first to the last payment of interest and principal, and then extinguish the debts of the fines. Now, tribunals will have to consider a letter to YOU, making its decision in favor of hard-core evaders. According to the managing partner of law firm "Legal Duvernoy," Yegor Noskov, YOU solution is logical, since the number of banks are unfairly writing off interest and debt borrowers: "The contracts amount of penalties too high, and all payments to the debtors account for the payment of interest, while their debts not reduced. " The absolute slavery. "Bought on credit home appliances worth 27 thousand rubles for the year and a half with payment of the debt each month for two thousand rubles - tells the borrower in one of the forums. - Due to financial difficulties I could not pay for eight months on the loan, after which the debt has exceeded 47 thousand rubles. I was in absolute slavery? "Similar stories told in different versions, you can find many. Common to them one - after the delay and charging penalties to borrowers did not have current cash flow to pay the fine and move to a new repayment schedule. As a rule, all the money went to penalties. Meanwhile, the new delay accrue new fines, and all repeated. After the borrowers stopped paying on the debts, and some have disappeared altogether, the banks appealed to the court for enforcement. The problem was the interpretation by the courts and the banks of the order of payment of the debt recorded in the Civil Code. "The amount of payment made, for lack of money obligation in full, in the absence of agreement settles above all costs the lender to obtain performance, then - interest and in the remaining part - the principal amount of Debt" - reads Article 319 of the Civil Code. Banks usually charge a penalty attributed to "cost the lender to obtain compliance" and "interest", referring to the percentage of unauthorized use of funds. Courts also often in this agree with them in their decisions. In this regard, it is an order of payment was recorded by many banks in the loan agreements, which created additional problems for debtors overdue repayment of debt. "Judicial practice in cases involving the recovery of debts from the borrowers was neodnoobraznoy and contradictory" - says Oleg Zaitsev, Senior Advisor to manage the private law of the Supreme Arbitration Court. According to him, despite the fact that before higher courts have explained that under Article 319 percent in the GC refers only to interest on the loan, rather than percentages for non-monetary liabilities (described in Article 395 of CC), the arbitration courts were questions. Obviously, after writing all of these questions YOU will be removed. "The agreement provides that in the performance of a monetary obligation by the debtor does not fully claim for payment of penalties, interest, under Article 395 of the Code, or other obligations related to violation of the requirements previously redeemed requirements mentioned in article 319 of the Code, contrary to the purposes of this paper is null and void, "- said in a letter to YOU. And further: "If the lender improperly applied the provisions of Article 319 of the Civil Code, the debtor, in particular, may declare the appropriate objection in the court's consideration of the claim the lender." YOU are not a decree. "This information letter you will not change the order of collection of debts, and only gives his interpretation and guidance on the application of the norms contained in the Civil Code. Of course, these recommendations will be performed by lower courts as mandatory, "- says Anna Ladanova, head of legal department of the Bank of BPA. However, what is necessary for the courts, is not so for the bankers. According to Egor Noskov, banks are not obliged to consider a new recommendation. Especially because many of them penalties are good source of steady income. According to CB, on October 1 this year the volume of overdue loans reached 286.5 billion natural persons rubles. In this case, as indicated by the chief of analytical department of the Bank's corporate finance Maxim Osadchy, the amount of fines, penalties and forfeits cumulative throughout the banking system reached 54.1 billion rubles. Since repayment of arrears, you must first pay the fine was not surprising that its level only increases from month to month, despite the improvement in incomes. Law-abiding unscrupulous debtors who pay fines, leaving banks themselves, and the debts of those who ceased making payments, sell to collectors. In 2010, banks sold to debt collection agencies 101 995 000 000 rubles, which is almost three times more than in 2009. This collectors also channel funds to repay the principal at least. Little consolation for borrowers is that the new fines are not charged collectors. "Accrual of penalties and interest on credit agreements for which a claim has passed to us as a new lender, suspended. We are developing special programs that include restructuring of the debt forgiveness or part thereof for certain categories of debtors "- says Olga Medvedev, director of business development company" FASP ". According to her, after the publication of a letter YOU will change only if the banks in the loan agreement will revise the order of debits for repayment of debt in the pretrial order. So far, everything remains the same. "At the time of such cancellation of the order provides for payment of initial interest and penalties, and then to the principal amount of Debt" - threw up his hands Medvedev. Indeed, not all bankers are based on the letter in a hurry to change YOU conditions in loan agreements. "There is a federal law" On Banks and Banking "," to which the Bank. If we had a briefing letter from the Central Bank, which is a regulator of the banking market, we would certainly have taken it into account ", - says predpravleniya AB" Finance Bank "Ilya Morozov. On the other hand, some banks have been working on the new scheme before the publication of letters to YOU. "We have long made a compromise with clients. If we wait on the customers' payment of penalties, we can not even wait for the payment of debt ", - says Igor Kirillov predpravleniya BaltinvestBank. "If a borrower's debt of 1 million rubles, and the client is willing to pay 100 thousand per month RUR Interest and debt, the bank will prefer them," - said the benefits of the new order of the Regional Deputy Director General of the dealing center Maxim Freiman. Smaller vessels will not. Most banks will change the order of payments to another headache. According to Anna Ladanovoy, with the adoption of the recommendations of the EAC from unscrupulous borrowers will be another opportunity to challenge the claims of creditors to collect fines and penalties that will result in delays in judicial proceedings. Any conflict and ambiguity in the interpretation of the law can always be used as a ground for challenging transactions, thereby delaying trials for months "- explains the lawyer. Finally, in his words, the borrower may file a counterclaim on the recognition of non-concluded or void loan agreement. "A letter will cause difficulty: to increase the number of cases in courts and increase the load on them" - one of the experts agreed IC "Rating". According to him, if earlier borrowers were aware that the order of payment of the debt is registered in the contract, it is now, though it can appeal to the courts in the hope that they will take their side, given the new recommendations. It is not excluded that the banks will make changes in their contracts to avoid losing cases in court, but it will be reflected already in all borrowers, because lenders raise interest rates, putting them to new risks. On the other hand, the struggle for the introduction of new rules is just beginning. And far from clear that courts fail to take the part of borrowers. "Based on the fact that it is only a recommendation, and the lobbying ability of banks are often superior to the borrowers, courts have interpreted very loosely in this situation, the law," - says the analyst of CJSC Investment Company "Energocapital" Basil Koposov.