Is the bank's commission for joining the insurance program legal? Bank commission for transferring loan insurance Bank commission for connecting to the insurance program
10.05.2017 15:01:30
When receiving a consumer loan from MKB, the borrower is invited to join the collective insurance agreement for borrowers. Payment for connection and insurance premium is made from the loan amount. Everything would be fine, and insurance of the borrower is a useful thing, but the bank, and there are quite a lot of such reviews here, questions arise about the legality of charging a fee for joining the insurance agreement, about the amount of the fee and about its non-refundability. In 2016, I turned out to be one of these insured borrowers. I did not use the loan for long - about 3 months, I repaid it ahead of schedule. For almost a year I have been corresponding with MKB regarding the connection fee, but I have not received answers to the following important questions: 1. The bank confirmed that it was it that provided the service for connection to the insurance contract, but did not answer who the recipient of the fee is. for joining, which is just over 9% of the loan amount! Dear representatives of the bank, to whom were the 2 payments ultimately intended: connection service fee and VAT on the specified fee? MKB Bank, Insurance Company or a third party (which one specifically (this is not visible in the account statement and in MKB-Online)? 2. The bank informed that the service of joining the insurance contract consists of including me in the register of insured persons. The bank confirmed, that the service was provided in full on the same day, that I signed the application for insurance. But the Bank did not explain what list of transactions is included in the register, whether the list of transactions is fixed, regulated and whether it depends on the loan amount. Also, the bank did not explain how does a service provided within one day correlate with its cost exceeding 100,000 rubles. Dear representatives of the ICB, does the procedure for inclusion in the register of insured persons depend on the loan amount? Why is the connection fee (inclusion in the register) directly proportional to the loan amount? Have you been involved in did the Bank provide the service to third parties, or was the service provided on its own?What is the regulatory (limit) period for providing the service for joining the insurance contract? 3. Is the connection service a banking service? What type (kind) of services does it belong to? 4. For what reason is the fee for joining an insurance contract non-refundable? What risks does the Bank bear and what costs does it compensate for? As of today, MKB representatives have not given a response to a similar request on the Banki.Ru portal dated 05/03/17. I hope to receive answers from the Bank within this portal.
Bank representative's response
15.05.2017 17:51:18
Dear Alexander!
Based on your request, we consider it necessary to note the following.
The Bank provides various consumer lending programs: with the ability for the borrower to choose loan terms without insurance and with insurance against accidents and illnesses.
Each borrower is given a choice of loan terms: with or without insurance against accidents and illnesses, since insurance is not a prerequisite for granting a loan.
The Bank's responses to your previous requests set out in detail the Bank's position on the issues of refund of the insurance premium and fee for joining the insurance contract.
For additional clarification, please contact the Bank branch directly.
Hope for your understanding.
Sincerely,
Quality Control Department
Response from the editors of the ARB website
Dear Alexander, Your complaint has been sent to the bank.
Alexander
Unfortunately, it is not possible to treat the current situation with understanding. I did not receive answers to my questions directly in three bank branches and during official correspondence.
Perhaps I can contact a specific specialist or manager?
We request the editors of the ARB website to assist in resolving the issue.
Alexander
Yesterday I was in one of the MKB branches, they explained to me that the bank has now abandoned the practice of paying for joining an insurance contract. Currently, the Bank works with the Insurance Company under an agency scheme.
It seems like it turns out that the Bank recognized the scheme with a fee for joining the insurance contract as incorrect.
Let me remind you of my situation in a nutshell:
When applying for a consumer loan, I informed that I planned to repay the loan ahead of schedule. I separately clarified whether the insurance fee would be recalculated for early repayment, to which I received an affirmative answer.
As a result, I used the loan for just under 4 months, and the fee for joining the insurance contract was written off at the rate of 5 years (60 months), which the Bank confirmed in its response. Overpayment 15 times.
I again appeal to representatives of the Bank and the editors of the site with a request to assist in resolving my issue.
In financial practice, an approach has been developed according to which, when providing loans, banks do not have the right to independently insure the risks of borrowers. However, this does not prevent banks from concluding insurance contracts on their own behalf in the interests and with the voluntary consent of borrowers. This approach has been approved by the courts, as expressly stated in clause 4.4 of the Review of Judicial Practice in Civil Cases Related to the Resolution of Disputes over the Fulfillment of Credit Obligations.
As for the bank commission for connecting to the insurance program, judicial practice is very ambiguous.
Arguments against charging fees
A number of courts, recognizing the commission as illegal, argue that the bank charges borrowers a fee for actions that it must already perform as part of an agreement with the insurance company, and by its legal nature this fee is hidden interest.
In addition to the listed arguments in favor of the invalidity of the commission terms, the courts pointed out that the contested provisions of the loan agreement are fictitious and their purpose is to hide the higher amount of interest under the agreement.
Some courts justify their decisions by arguing that including a fee for joining an insurance program is an illegal imposition on the consumer borrower of costs associated with the bank's activities.
For example, in 2014, the courts largely regarded the said commission as provided for in paragraph 1 of Art. 10 of the Civil Code of the Russian Federation, actions to exercise civil rights solely with the intention of causing harm to another person, actions to circumvent the law for an unlawful purpose, as well as other deliberately dishonest exercise of civil rights (abuse of law).
In particular, the Moscow City Court in one of the cases, among other grounds for declaring the commission illegal, noted the following. Article 10 of the Civil Code of the Russian Federation limits the principle of freedom of contract in a situation where the terms of the transaction clearly go beyond the possible interests of the client, and their cost is so inflated that it does not objectively correspond to the volume and complexity of the actions actually performed that are subject to payment. As the court indicated, the insurance company receives a certain amount for including the borrower in the insurance relationship, which is associated with the emergence of a new complex set of mutual obligations and related services. At the same time, the bank, whose role is reduced to only minor related services, expressed in the simple receipt and transmission of information about the client, receives an amount hundreds of times higher than the premium for the insurance itself. In such a situation, the fact of the bank's dishonesty becomes obvious and directly follows from the actual circumstances of the case.
Similar conclusions can be seen in the judicial acts of the Sverdlovsk Regional Court, which takes the most consistent position in recognizing such commissions as illegal.
The judicial practice we described refers to 2014–2015, however, in 2016 we encounter similar conclusions. The Resolution of the Ninth Arbitration Court of Appeal dated December 12, 2016 No. 09AP-57447/2016 in case No. A40-176144/16 states that the obligation to pay the insurance premium arises from the policyholder (bank) to the insurance organization. The insured person has no property obligations either to the insurance organization or to the policyholder. The bank client agrees or refuses to become an insured person. Thus, the condition of the program about the client’s obligation to pay a fee for connecting to the insurance program (insurance premium) does not comply with the Civil Code of the Russian Federation and Art. 16 of Law No. 2300-1, since the bank (policyholder) does not have the right to charge a fee from the client (insured person). In addition, the law does not provide for the possibility of a bank organizing the participation of citizens in the insurance program and charging fees for connecting to the insurance program. The fact that the bank, when developing the insurance program, called the fee charged to the client a fee “for connecting to the insurance program” does not change the essence of the fees charged, since the Civil Code of the Russian Federation does not provide for such a civil transaction (service).
The Resolution of the Fourth Arbitration Court of Appeal dated June 28, 2018 No. 04AP-2893/2018 in case No. A19-3102/2018 contains the following conclusion. Since a credit organization is prohibited from engaging in production, trade, and insurance activities (Article 5 of Law No. 395-1), the possibility of a bank organizing the participation of citizens in the insurance program and charging fees for connecting to the insurance program is not provided for by law. As we see, the arbitration court expressed a similar conclusion in June 2018. Similar conclusions were formulated by many other courts in the same year.
Arguments for charging fees
As if countering the arguments of other courts, the Moscow Arbitration Court, guided by the same rule of law, makes a diametrically opposite decision. In accordance with Art. 5 of Law No. 395-1, a bank as a credit organization, as a general rule, has the right to carry out any transactions not prohibited by Russian legislation. The bank does not have the right to engage in only three types of activities: production, trade, insurance. The specified provisions of Art. 5 of Law No. 395-1 suggest that the bank has the right to engage in any activity except production, trade and insurance.
The list of activities permitted for the bank is open. This means that the bank has the right to engage in activities that are not even provided for by law. From the systematic interpretation of the provisions of this article, it follows that other transactions of credit organizations mean all transactions that are not directly prohibited for credit organizations as legal entities and are not related to their production, trade and insurance activities.
The service provided by the bank for connecting to the insurance program is an independent financial service of the bank, different from the insurance service. The service provided by the bank cannot be considered as an insurance service, since neither by its nature nor by its essence it is such. By its legal nature, joining an insurance program represents the conclusion of an agreement that is not directly named in the Civil Code of the Russian Federation and the possibility of concluding which is directly provided for by the Civil Code of the Russian Federation.
Under such an agreement, the bank provides the borrower with a range of services in various areas:
- develops and coordinates insurance conditions with the insurance company;
- provides advice to the borrower regarding insurance conditions;
- collects, processes and transmits information about the borrower to the insurance company;
- determines the borrower's compliance with the requirements of the insurance program;
- interacts with the insurance company when paying the insurance premium and when making insurance payments.
In 2016, we came across another judicial act, which stated that the service of connecting to the insurance program with the charging of a commission is provided by the bank only if the borrower has expressed his intention to participate in the insurance program and confirmed in a statement that his consent to connect to the insurance program is not a prerequisite for issuing a loan. Services for joining the insurance program (consulting on the terms of the program, collecting, processing and technical support of information about the client related to the organization and distribution of the terms of the insurance contract to the client, consulting and documentary support in the settlement of insurance cases) and the insurance itself are independent paid services.
In February 2017, the Supreme Court of the Russian Federation, in Ruling No. 74-KG16-35 dated February 21, 2017, formed a position in favor of the legality of the bank commission for connecting to the insurance program. Thus, a loan agreement was concluded between citizen P. and the bank. At its conclusion, the plaintiff signed an application for life, health and involuntary loss of job insurance. The fee for connecting to the program was 87,890 rubles. for the entire loan period and was withheld by the bank from the loan funds provided, an insurance premium in the amount of 22,633 rubles. 77 kop. transferred to the insurance company.
It follows from the statement that citizen P. is familiar with and agrees that for connecting to the insurance program the bank charges her a fee in accordance with the bank’s tariffs, consisting of a commission for connecting to the program and compensation for the bank’s expenses for paying insurance premiums to the insurer.
During the consideration of the case, the bank indicated that when concluding an insurance agreement for the borrower and determining the fee for connecting to the insurance program, it acted on behalf of the borrower. This service is paid due to the provisions of clause 3 of Art. 423, art. 972 of the Civil Code of the Russian Federation, handwritten signatures in the insurance application confirm that the plaintiff consciously and voluntarily assumed obligations, including paying the bank a fee for the provision of services for concluding an insurance contract.
The plaintiff insisted that she was not provided with reliable and complete information about the components of the fee for inclusion in the insurance program, the actual amount of the insurance premium and bank commission, the services provided for the amount charged, the tariffs determining the amount of the fee, and the conditions for its formation. The Supreme Court of the Russian Federation countered that the service provided by the bank is indivisible, the formula for calculating the fee for connecting to the insurance program is contained in the application for insurance, the plaintiff agreed with the cost of the service, which was reflected in her hand-signing this application. In this case, the bank was not paid an insurance premium, since the credit institution is not an insurance company, but the cost of the service, which included compensation for the bank’s expenses for paying the insurance premium.
The position of the Bank of Russia also supports the legality of the fee for connecting to insurance services. For example, in Letter No. 15-3-6/4804, the regulator actually agrees that when providing banking services, a credit institution has the right to offer clients to participate in various insurance programs, which are carried out in accordance with the agreement concluded by the bank and the insurance company. For the provision of this service to clients, they are charged a fee established by the bank. Participation in this program is voluntary, does not affect the relationship between the parties under the loan agreement and does not determine the possibility of its conclusion. The client has the right to refuse to participate in the program at any time.
In 2017, some experts also began to speak out in favor of the legality of fees for connecting to insurance programs and organizing the conclusion of an insurance contract. For example, A. Bychkov notes the following. The borrower can either enter into an insurance contract himself or give consent for the bank to prepare the necessary package of documents. To do this, in the application for accession to the terms of banking services, he must check the appropriate boxes and put his signature. The application columns contain information that he agrees to join insurance programs.
The bank is obliged to provide the borrower with complete and reliable information in advance about all services provided to him in accordance with Art. 8–10 of Law No. 2300-1. In particular, before connecting the borrower to an insurance program, the bank must disclose to him information about the list of insurance companies, types of insured risks, the period of insurance protection, the amount of the insurance premium and its commission, the deadline for their payment and other insurance conditions. The bank's commission for organizing the connection of the insurance program may not be charged as a separate payment. It can be taken into account as part of the total amount, which will also include the insurance premium to be transferred by the bank to the insurance company.
Moreover, the law does not even exclude the possibility of the bank deducting the amount of the insurance premium and its commission for connecting the insurance program directly from the amount of loan funds to be issued to the borrower. The main thing is that the bank does not impose an additional insurance service on the borrower and discloses to him all the information about this service. In this case, the borrower will have the opportunity to correctly choose the services he is interested in, and the bank will have no risk of challenging the imposed contractual terms in accordance with Art. 16 of Law No. 2300-1.
Consequences of a borrower’s refusal to voluntarily insure
So, we see that the issue of the legality of the bank commission for connecting to the insurance program has not yet been resolved. The situation is aggravated by the fact that, in accordance with Directive No. 3854-U, the borrower has the right to refuse voluntary insurance within 14 calendar days from the date of conclusion of the contract. The paid insurance premium must be returned by the insurer to the policyholder in full.
From the point of view of a number of courts, the refusal of the policyholder to cancel the insurance contract in the manner prescribed by Directive No. 3854-U within a normatively defined 14-day period entails the right to a refund of not only the insurance premium, but also the bank commission for connecting to the insurance program.
Let us quote the relevant judicial acts:
- “Instruction No. 3854-U is applicable to all legal insurance relations, regardless of the form in which it arose: as part of joining a collective insurance contract or when concluding an individual insurance contract. Otherwise, it would be contrary to the principle of equality of participants in civil legal relations (Article 1 of the Civil Code of the Russian Federation)”;
- “The plaintiff exercised the right to refuse to join the collective insurance program within five working days from the date of signing the application and has the right to demand the return of the paid insurance premium, in connection with which the court of first instance came to a reasonable conclusion to satisfy the demands for recovery of both the amount of the insurance premium and and commissions for connecting to the collective insurance program”;
- “The objections of the bank representative that at the time of the client’s refusal the service to connect to the insurance program had been provided do not have legal significance. The establishment of an unconditional obligation to return the amount of the insurance premium to the policyholder in case of refusal of voluntary insurance within the period provided for by Directive No. 3854-U does not provide the bank with grounds to retain the amount of the commission, since in this case it was received for performing actions that did not lead to results , for the occurrence of which the consumer paid the appropriate fee."
Links:
. Approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2013.
. Appeal ruling of the Omsk Regional Court dated 05/07/2014 in case No. 33-2960/14.
. Appeal rulings of the Supreme Court of the Chuvash Republic dated 08/07/2013 in case No. 33-2795/2013, Sverdlovsk Regional Court dated 03/12/2013 No. 33-3009/2013.
. Appeal ruling of the Sverdlovsk Regional Court dated July 2, 2014 in case No. 33-8440/2014.
. Appeal ruling of the Krasnoyarsk Regional Court dated July 23, 2014 in case No. 33-7044/2014, B-33.
. Appeal rulings of the Moscow City Court dated August 12, 2014 in case No. 33-29669, Sverdlovsk Regional Court dated January 10, 2014 in case No. 33-103/2014.
. Kozlov M., Zhukova T. Issues of legality of the commission for connecting to the insurance program // Banking Review. Application "BankNadzor". 2015. No. 1. P. 53–56.
. Law of the Russian Federation dated 02/07/1992 No. 2300-1 “On the protection of consumer rights.”
. Federal Law of December 2, 1990 No. 395-1 “On Banks and Banking Activities.”
. Decision of the Arbitration Court of the Sverdlovsk Region dated 03/19/2018 in case No. A60-50567/2017, Resolution of the Seventeenth Arbitration Court of Appeal dated 05/03/2018 No. 17AP-2401/2018-AK.
. Resolution of the Sixth Arbitration Court of Appeal dated May 24, 2017 No. 06AP-2056/2017 in case No. A04-355/2017.
. Letter of the Bank of Russia dated September 29, 2008 No. 15-3-6/4804.
. Does the bank have the right to charge the borrower a fee for connecting to insurance programs and organize the conclusion of an insurance contract? // SPS “ConsultantPlus”, 2017. Expert consultation No. 168440.
. Directive of the Bank of Russia dated November 20, 2015 No. 3854-U “On the minimum (standard) requirements for the conditions and procedure for the implementation of certain types of voluntary insurance.”
. Appeal ruling of the Sverdlovsk Regional Court dated March 28, 2018 in case No. 33-5849/2018.
. Appeal ruling of the Perm Regional Court dated February 21, 2018 in case No. 33-1785/2018.
. Appeal ruling of the Sverdlovsk Regional Court dated February 28, 2018 in case No. 33-2808/2018.
Plaintiff: Individual, representative of the plaintiff lawyerMUS PROTECTION(by proxy)
Respondent: Bank
First instance decision: The claim is satisfied in full. To collect from the bank a fee for connecting a loan in the amount of 125 thousand rubles, legal costs of 17 thousand rubles, compensation for moral damage in the amount of 20 thousand rubles.
The bank appealed the decision of the court of first instance. According to the ruling of the Moscow City Court, the decision of the Simonovsky District Courtleft unchanged and the appeal was not satisfied.
Brief summary of the matter:Citizen A applied to the bank for a loan in the amount of 300 thousand rubles for personal needs. That's how life works that there are times when money is urgently needed. The bank agreed to provide a loan, but the necessary condition for receiving loan became the bank's requirement that citizen A sign up for a certain service, namely life insurance in case of disability, incapacity, or illnessetc., and the amount just for connecting this “option” turned out to be huge, that is, almost a third of the loaned amount (125 thousand rubles just for connection). The manager's explanations were unclear, not clear,
The woman was verbally explained that this amount is included in the cost of the loan, but the percentage will simply be higher, not 17%, but 27%. Due to the fact that the citizen urgently needed money, she was forced to agree without checking what exactly the payment was for such a large amount. When she, afterAfter receiving the money, she came home and studied the documents in detail, it turned out that her overpayment for the service (connection to insurance programs) amounted to 125 thousand rubles, and immediately turned to a lawyer. Together with a lawyer, it was drawn up and a claim was sent to the bank, based on the circumstances that the bank’s actions are not legal, and the overpaid amount must be returned. However, the bank refused to return the amount and the client repaid the entire loan amount that the bank provided to her ahead of schedule. After the bank ignored this claim, lawyerCitizen A filed a lawsuit. The court satisfied the plaintiff's demands in full and decided to recover from the bank the imposed service (commission), expenses incurred for the representative's services and moral damages.
Lawyer M.V. Novikov comments: When signing documents for issuing a loan, you should be extremely careful, do not listen to the arguments of the credit manager and take into account that words will not be put into action later. It is better to read the loan agreement when no one is distracting you. The best way is to take it home and familiarize yourself with it at your leisure, without rushing. If you have any questions during the review, ask them to the credit manager at the meeting. If the essence of the manager’s answers differs from the terms of the loan agreement, or some paragraphs of the agreement are not completely clear to you, be sure to consult a lawyer so as not to waste your nerves and money in the future by going to court. It is also worth remembering that contract terms that contradict current legislation may be declared invalid in court. In this particular case, even the fact that the citizen could refuse the service of connecting to insurance but did not refuse, resulted in a violation of the law on the protection of consumer rights in the form of imposing an additional service on her (..The application form for connecting additional services contains an indication that the client may not activate additional services, i.e. the issuance of a loan is not conditional on the purchase of additional services."). It is prohibited to condition the acquisition of some goods (works, services) on the mandatory acquisition of other goods (works, services).
The service of connecting to the Insurance Program itself significantly increases the loan amount, which is disadvantageous for the borrower, since the interest rate set by the bank is charged on the entire loan amount (including the commission amount), which increases the amount of loan payments.
The court rightfully recognized and the higher authority agreed with the following conclusions that such insurance and lending for his insurance are beyond the interests of the client as a consumer who asked the bank to issue him a loan in the amount of 300,000 rubles. in cash, even with his formal consent to insure his life and health in the interests of the bank.
DECISION In the name of the Russian Federation
Simonovsky District Court of Moscow composed of: presiding federal judge Zakharova O.N., with secretary Atapina D.Yu.,
having considered in open court civil case No. X on the claim of A against CB Renaissance Capital LLC for termination of obligations,
INSTALLED:
Citizen A filed a lawsuit against CB Renaissance Capital LLC for termination of obligations and moral damages, citing the fact that in March 2012. she urgently needed money and 08/15/2011 She 03/30/2012. applied to the defendant for a loan in the amount of 300,000 rubles. They explained to her on the spot that the loan would only be issued upon registration of production. The cost of the service for connecting to the insurance program was 125,280 rubles. The specified amount was debited from her account. She was not familiar with the rules or the insurance policy. The defendant refused to accept the money received back from her the next day after the conclusion of the contract, where she applied, after carefully reading its terms. The contract was fulfilled by her in full. Considers the bank's actions to connect to insurance programs to be unlawful. Taking into account the updated claims dated 2012.2012, she asks the court to recognize her as having fulfilled the terms of the loan agreement dated March 30, 2012. to repay a loan in the amount of RUB 300,000. and interest for the period of actual use of the loan in the amount of 9209.59 rubles; and the agreement to join the insurance program 1 dated 14/14/2007. and stop their action. He also asks the court to recover from the defendant all costs incurred, including 17,768 rubles. for payment of legal assistance services and expenses for payment of representative services.
The plaintiff and her representative by proxy lawyer MUS PROTECTION At the court hearing, the claims, as the arguments set out in the statement of claim, were supported and asked to be satisfied.
The representative of the defendant, by proxy B., objected to the satisfaction of the claim at the court hearing, based on the arguments set out in the objections to the statement of claim.
The third party, Renaissance Insurance Group LLC, did not appear at the court hearing, but was duly notified of the appearance in court.
The court, having heard the parties and examined the written materials of the case, comes to the following conclusion.
The court found that on March 30, 2012. between A and CB Renaissance Capital (LLC) a loan agreement No. 11016805_____ was concluded (case sheet 7-10).
In accordance with section 4 of the loan agreement, the bank provides the client with the service “Connect to the insurance program” under the loan agreement. The bank enters into an insurance agreement with the insurance company Renaissance Insurance Group LLC regarding the life and health of the client as a borrower under a loan agreement, the insurance risks under which are death as a result of an accident or illness and disability of groups 1 and 2 (with disability of 2- y or 3rd degree) as a result of an accident or illness (insurance contract 1), on the conditions provided below, as well as in the Conditions, Tariffs and rules of voluntary insurance against accidents and illnesses of the Insurance Company with
taking into account the insurance contract 1 between the insurance company and the bank, which are an integral part of the contract (insurance program).
The client is obliged to pay the bank a commission for connecting to Insurance Program 1 in accordance with the terms of the loan agreement.
The client appoints the bank as a beneficiary under insurance agreement 1 upon the occurrence of any insured event in the amount of the insured amount, but not more than the amount of the total debt under the loan agreement.
According to the terms of the contract, the plaintiff must pay a fee for connecting to the insurance program.
The total loan amount, including the fee for connecting to insurance program 1 under the loan agreement, amounted to 125,280 rubles. which is confirmed by a personal account statement. The loan term is 48 months, the tariff plan is simply 24.9 25%, the total cost of the loan is 27.91% per annum.
Clause 6.2.1 of the General Conditions for Providing Loans and Issuing Bank Cards to Individuals, which are an integral part of the agreement, stipulates that the “Connect to the Insurance Program” service is provided to clients who have expressed their intention to participate in the Insurance Program in the Questionnaire, Agreement, or written application of the client. The service is considered provided by the bank after the technical transfer of information about the client to the insurance company.
The defendant asks the court to refuse to satisfy the claims, citing the fact that the plaintiff expressed a desire to join the insurance program by signing the appropriate insurance application and selecting paragraph 2 in the application for connecting additional services, containing the condition of consent to be insured under a voluntary accident insurance agreement cases and illnesses concluded by CB Renaissance Capital (LLC) with the insurance company Renaissance Insurance Group LLC in relation to life and health as a borrower under a loan agreement, the insurance risks under which are death due to an accident or illness and disability 1 and 2 groups as a result of an accident or illness and appointing CB Renaissance Capital (LLC) as the beneficiary under the specified insurance contract upon the occurrence of any insured event. The application form for connecting additional services contains an indication that the client may not activate additional services, i.e. the issuance of a loan is not subject to the purchase of additional services.
The plaintiff, in turn, claims that the imposed service in this case was the issuance of a loan to pay a fee for connecting to the insurance program.
According to Article 819 of the Civil Code of the Russian Federation, under a loan agreement, the Bank undertakes to provide the borrower with funds (loan) in the amount and on the terms stipulated by the agreement, and the borrower, in turn, undertakes to return the amount of money received and pay interest on it.
According to Part 1 of Art. 927 of the Civil Code of the Russian Federation, insurance is carried out on the basis of property or personal insurance contracts concluded by a citizen or legal entity (policyholder) with an insurance organization (insurer).
In accordance with paragraph 1 of Art. 934 of the Civil Code of the Russian Federation, under a personal insurance contract, one party (the insurer) undertakes, for a fee stipulated by the contract (insurance premium) paid by the other party (the policyholder), to pay a lump sum or pay periodically the amount stipulated by the contract (the insurance amount) in the event of harm to the life and health of the policyholder himself. or another citizen (insured person) named in the contract, when he reaches a certain age or when another event (insured event) provided for in the contract occurs in his life. The right to receive the insurance amount belongs to the person in whose favor the contract was concluded.
In accordance with Art. 16 of the Law of the Russian Federation “On the Protection of Consumer Rights, 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 protection of consumer rights, are recognized as invalid. If, as a result of the execution of a contract that infringes on the rights of consumers, losses also arise, they are subject to compensation by the manufacturer (performer, seller) in full.
It is prohibited to condition the acquisition of some goods (works, services) on the mandatory acquisition of other goods (works, services).
As can be seen from the case materials, A applied to the bank for a loan in the amount of 300,000 rubles in cash.
In accordance with clause 1.2. and art. 4 of the Loan Agreement, the total loan amount, including the fee for connecting to the insurance program 1, amounted to 425 2S 0 rub., i.e. loan in the amount of RUB 125,280. to pay the commission is included in the total loan amount with interest accrued on it under the terms of the loan agreement. At the same time, the plaintiff was given 300,000 rubles, and the commission for connecting to the insurance service was 125,280 rubles. debited from the client's account before the loan is issued.
By signing a statement of consent to join the insurance program. She didn’t ask for a loan to pay for joining the insurance program.
The foregoing allows us to come to the conclusion that the issuance of this loan in the amount of a commission of 125,280 rubles. is determined only by the client’s desire to connect to the insurance service. A loan for insurance is provided regardless of the client’s wishes in the absence of the opportunity to refuse a loan for connection to the insurance program and to include the commission for this service in the total amount of the loan for interest calculation.
The court also takes into account that, in violation of the provisions of Art. 12 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the documents offered to the client for signing do not contain any information about what constitutes the amount of the commission paid for connecting to the insurance service, or about the conditions of life and health insurance.
The service provided for by the terms of the loan agreement for the bank to connect the client to the life and health insurance program at Renaissance Insurance Group LLC cannot be fully an independent service, the choice of which is possible at the will of the policyholder. The insurance conditions are determined by the insurance contract, but the client of CB Renaissance Capital, who has agreed to connect to the insurance service and pays the commission, is deprived of the opportunity to influence the insurance conditions.
The service of connecting to the Insurance Program itself significantly increases the loan amount, which is disadvantageous for the borrower, since the interest rate set by the bank is charged on the entire loan amount (including the commission amount), which increases the amount of loan payments.
It should be recognized that such insurance and lending for this insurance are beyond the interests of A as a consumer who asked the bank to issue him a loan in the amount of 300,000 rubles. in cash, even with his formal consent to insure his life and health in the interests of the bank.
This conclusion is also confirmed by A.’s claim dated 04/07/2012. to the bank with a statement of refusal to fulfill the Agreement regarding connection to the insurance program.
A controversial condition of the loan agreement (Article 4) in the absence of the borrower being able to obtain a loan in the amount of 300,000 rubles. without receiving an additional loan to pay for connection to the insurance service in the amount of 125,280 rubles, should be regarded as imposing additional responsibilities on the borrower, which infringes on his rights as a consumer and contradicts the provisions of Art. 16 of the Law of the Russian Federation "On the protection of consumer rights. ,
Taking into account the above, the judicial panel comes to the conclusion that the provisions of 4 of Agreement N 11016805393 FROM 30 Myrtle 2012 between CB Renaissance Capital (LLC) and A should be declared invalid.
In accordance with Article 16K of the Civil Code of the Russian Federation, a transaction that does not comply with the requirements of the law and other legal acts is void unless the law establishes that such a transaction is contestable or does not provide for other consequences of the violation.
According to paragraph 1 of Art. 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment of its completion.
The court found that A fulfilled her obligations under the loan agreement No. 11016805___ dated March 30, 2012, concluded between her and CB Renaissance Capital (LLC), transferring the amount of 309,209 rubles to pay off the loan. 05/14/2012, taking into account interest for using the loan, and therefore the court finds the claims regarding the recognition of the contract as fulfilled are subject to satisfaction.
Under the above circumstances, guided by Articles 98 and 100 of the Code of Civil Procedure of the Russian Federation, the court finds it possible to recover from the defendant in favor of the plaintiff legal costs in the amount of 17,768 rubles.
Considering the above and guided by Art. Art. 194-198 Code of Civil Procedure of the Russian Federation, court
Recognize the obligations under the loan agreement No. 1101680____ concluded between A and CB Renaissance Capital LLC as fulfilled.
To recover legal costs in the amount of RUB 17,768 from LLC CB Renaissance Capital in favor of A. (seventeen thousand seven hundred sixty-eight rubles) In addition, taking into account the moral suffering of the plaintiff, to collect compensation in his favor in the amount of 20,000 (twenty thousand) rubles.
The decision can be appealed to the Moscow City Court within one month from the date the court decision was made.
Federal Judge
Similar cases have been won in the Moscow region, in particular in the city of Zheleznodorozhny.
It is no secret that banks actively make money by “selling” additional services to their clients. Life insurance, disability insurance, insurance of property and other risks are some of the most common sources of additional income for banks.
For some insurance policies issued when issuing a loan, the bank's profitability in the form of agent fees reaches 90% of the policy cost! It is quite obvious that banks do not want to lose such a “feeding trough”.
With the entry into force of “Instruction of the Bank of Russia dated November 20, 2015 N 3854-U “On the minimum (standard) requirements for the conditions and procedure for the implementation of certain types of voluntary insurance” (with amendments and additions dated June 1, 2016, August 21, 2017 G.)". Citizens were given the opportunity to refuse imposed insurance by writing a corresponding application for refusal of insurance and sending it to the address of the insurance company and/or bank within the period established by the “cooling period” - from 01/01/2018, this period is 14 calendar days.
Many banks and insurance companies began to look for loopholes and in every possible way interfere with the legal right of citizens to return the insurance premium:
- Banks are silent about the very possibility of refusing insurance, or they intimidate you with various mythical horror stories, for example (the bank will demand that you close the loan early, will blacklist you, and will not lend you in the future).
- Banks can also “motivate” clients not to refuse the concluded insurance contract by sometimes citing “pseudo-arguments” about the possibility of returning part of the insurance premium if the loan is repaid early (although this option is not always available). They are intimidated by increasing the percentage of the loan rate (although in most cases, even an increase in the percentage of the loan rate will be more beneficial to the client than the fact of maintaining a valid insurance policy).
- Insurance companies come up with their own procedures for refusing insurance, which are difficult for citizens to understand (they ask you to provide written consent from the bank, bring other documents, etc.) - you should remember that such “requests” are unreasonable and you can remind the Insurer about this by adding the corresponding phrase in the application for refusal of insurance (Instruction of the Bank of Russia dated November 20, 2015 N 3854-U does not provide for the possibility of the Insurer establishing requirements for the form and additional documents necessary for refusal of insurance). An application from a citizen in free form is enough!
However, some banks and insurance companies have gone further and come up with “correct insurance products”, which, in their opinion, should not be subject to the instructions of the Central Bank.
Various forms and variations of collective insurance contracts, which are actively used even by such reputable banks as VTB and Sberbank, have become a serious obstacle for citizens who want to return money for imposed insurance. The essence of their use by banks is that the Bank acts as the Insured (and not the client, as when concluding personal insurance contracts), the client is only the insured person.
Refusal of the collective insurance agreement by VTB Bank - ruling of the Supreme Court of the Russian Federation
The Supreme Court of the Russian Federation in case No. 49-КГ17-24 issued a DECISION dated October 31, 2017. In which he considered the complaint of the head of Fort-Yust in defense of the interests of G.V. Islamova about the refusal of claims against the bank PJSC VTB Bank to be satisfied.
Read the full text of the above-mentioned Ruling of the Supreme Court of the Russian Federation.
Below we will describe excerpts and points from the Ruling of the Supreme Court of the Russian Federation that we find interesting:
Between Islamova G.V. and the Bank entered into a consumer loan agreement, during the execution of which the client signed an application for participation in the voluntary collective insurance program for individuals. This collective agreement was concluded between the Bank and the Insured (MSK Insurance Group JSC).
The fee for participation in the Insurance Program amounted to 35,235 rubles, including the Bank’s commission for connecting to the Insurance Program in the amount of 12,919.50 rubles. and an insurance premium in the amount of 22,315.50 rubles. (clause 2.5 of the Application).
According to paragraph 5 of the Application, the borrower has the right to refuse to participate in the Insurance Program at any time by submitting a corresponding written application to any division of the Bank. In case of refusal to participate in the Insurance Program, the fee for participation in the Insurance Program is not refunded.
During the five-day cooling-off period established at that time, the bank client contacted the bank with an application to cancel insurance and return the insurance premium - which she was denied.
The courts of first and appellate instances rejected the claims...
From the Ruling of the Supreme Court of the Russian Federation it follows that it is impossible to agree with the court decisions of the appellate court for the following reasons:
- The court found that, turning to the Bank with a request to invalidate paragraph 5 of the Application, Islamova G.V. as an insured person, indicated that the named clause, which does not allow the refund of fees for participation in the Insurance Program, contradicts the Directive of the Bank of the Russian Federation dated November 20, 2015 No. 3854-U “On the minimum (standard) requirements for the conditions and procedure for the implementation of certain types of voluntary insurance" (hereinafter referred to as the Directive of the Central Bank of the Russian Federation).
- All voluntary insurance contracts concluded with individuals after the entry into force of the Directive of the Central Bank of the Russian Federation must comply with the above requirements, providing for the right of the policyholder - an individual, within five working days from the date of conclusion of the voluntary insurance contract to refuse it with a full refund of the insurance premium , if by the time of cancellation the insurance contract has not begun to operate, and if the contract has begun to operate, then minus the amount of the insurance premium proportional to the duration of the voluntary insurance contract that has begun.
Also unfounded are the arguments of the appellate court that the Directive of the Central Bank of the Russian Federation is not applicable to controversial legal relations, since it establishes minimum (standard) requirements for the conditions and procedure for the implementation of insurance in relation to policyholders - individuals, while the policyholder under the collective insurance agreement was legal entity - Bank.
Due to joining the Insurance Program with the borrower paying the appropriate fee, the insured is the borrower’s property interest, and therefore, the insured under this agreement is the borrower himself (*and not the Bank!).
Since the borrower in this case is an individual, he is subject to the above Directive of the Central Bank of the Russian Federation, which provides for the right of such an insurer within five working days ( *from 01/01/2018 14 calendar days) refuse the concluded voluntary insurance contract...
The court’s conclusion that failure to include in the collective insurance contract the condition stipulated by the Directive of the Central Bank of the Russian Federation on the return of fees for participation in the Insurance Program in the event of refusal to participate in the Insurance Program does not infringe on the rights of the consumer was also unlawful.
Thus, the condition of the contract that does not allow the refund of the fee for participation in the Insurance Program provided for by the Directive of the Central Bank of the Russian Federation in the event of the borrower’s refusal to participate in such a program, is in this part void, since it does not correspond to the act containing the norms of civil law, mandatory for the parties when concluding and execution of public contracts.
What needs to be done to return the insurance premium under collective insurance contracts
Searching for the truth by running through the courts is a thankless task and, if possible, should be avoided.
After receiving the loan, within the period established by the “cooling off period” (14 calendar days), you must submit a written application to the Insurer (and the Bank) to cancel the concluded insurance contract and return the insurance premium. However, in this statement, in addition to standard wording, excerpts and references to positive judicial practice should be used, for example: the above ruling of the Supreme Court of the Russian Federation in case No. 49-KG17-24 of October 31, 2017.
The submitted application for waiver of insurance with attachments should be properly completed and registered (for example: you can send by Russian post a “valuable letter with an inventory of the attachment.” At the post office you will be given a check with a Track number for tracking, and the inventory of the attachment serves as a document confirming the list of documents sent in a letter).
The bank/insurance company, in case of refusal to return the money, will have to provide a reasoned response to your application. And in this case, you will be able to apply to the court to protect your rights, you will be able to attract lawyers to protect your legitimate interests, the costs of which will subsequently (if the claims are satisfied) will also be borne by the bank.
You can go to court within 3 years (the statute of limitations), so there is no need to rush here, because Most likely, in the near future, many more positive judicial practices will be developed that can also be used.
PJSC Sberbank, Along with individual insurance, it resorts to the use of collective insurance. But Sberbank, at present, does not create obstacles and is ready to return the “insurance fee” if you apply for a refund within 14 days.
We discussed the question of how to return loan insurance from Sberbank in a separate article.
Sovcombank insurance waiver - waiver of group (collective) insurance
For those who were included in the voluntary financial and insurance protection program for borrowers of PJSC Sovcombank, we provide a sample application for exclusion from the number of insured persons and the return of the paid insurance premium.
At PJSC Sovcombank
From: Ivanov Ivan Ivanovich
Contact phone: 912 345 67 89
STATEMENT
On January 15, 2018, I was included in the voluntary financial and insurance protection program for borrowers and became an insured person under the Voluntary Group (Collective) Insurance Agreement (No. 100711/SOVKOM-P dated 06/10/11 MetLife JSC - Insurer; Policy No. 150000000 dated 01/15/18 AlfaStrakhovanie OJSC - Insurer) in connection with the conclusion of consumer loan agreement No. 150000000 dated 01/15/2018. between Ivanov Ivan Ivanovich and PJSC Sovcombank. I hereby declare my refusal of insurance services and ask to be excluded from the number of insured persons from the date of receipt of the application, returning the paid insurance premium to the following details:
Bank name: Sberbank of Russia
BIC Bank: 044525225
Corr. bank account: 30101810400000000225
Recipient's account: 40817810000000000000
Full name of Recipient: Ivanov Ivan Ivanovich
I confirm that from the date of conclusion of the Agreement no events having signs of an insured event occurred, no insurance payments were made.
“Instruction of the Bank of Russia dated November 20, 2015 N 3854-U “On minimum (standard) requirements for the conditions and procedure for the implementation of certain types of voluntary insurance” (as amended and supplemented from June 1, 2016, August 21, 2017)” establishes a “cooling off period” of 14 calendar days.
While considering my application I ask you to take into account the arguments from the ruling of the Supreme Court of the Russian Federation dated October 31, 2017 Case No. 49-KG17-24, in particular:
- “The arguments of the appellate court that the Directive of the Central Bank of the Russian Federation is not applicable to controversial legal relations are also unfounded, since it establishes minimum (standard) requirements for the conditions and procedure for the implementation of insurance in relation to insurers - individuals, while the insured under a collective agreement insurance was a legal entity - the Bank."
- “due to joining the Insurance Program with the borrower paying the appropriate fee, the borrower’s property interest is insured, and therefore, the borrower himself is the insured under this agreement. Since the borrower in this case is an individual, the above Directive of the Central Bank of the Russian Federation applies to him..."
- “The court’s conclusion that failure to include in the collective insurance contract the condition stipulated by the Directive of the Central Bank of the Russian Federation on the return of fees for participation in the Insurance Program in case of refusal to participate in the Insurance Program does not infringe on the rights of the consumer,” was also unlawful.”
Applications:
- Copy of passport (main page + registration);
- Definition of the WSRF (*link to the definition was given above in the text of the article)
- This application must be prepared in 2 copies.
- Date and sign
- Take the kit to the bank branch where the loan was received: - They must accept and give a copy (or a second copy) with a stamp, signature and date of acceptance (if they refuse to accept, ask them to justify their refusal in writing). If something happens, it will be possible to send it by Russian post to the legal address of the bank.
The application must be submitted within 14 CALENDAR days from the date of receipt of the loan.
Waiver of insurance under a collective agreement (video)
The video discusses the information described in the article, and at the end of the video there is a sample application for the return of insurance under the collective agreement of VTB Bank.
Circumstances: The plaintiff indicated that a loan agreement was concluded between her and the bank. As part of the said loan agreement, personal insurance was provided to the plaintiff as a borrower. When concluding a loan agreement, the bank imposed the service of concluding an insurance contract, the insurance contract itself was not issued to her, the bank conditioned the purchase of one service on the purchase of another.
We draw your attention to the fact that this decision could be appealed to a higher court and overturned
OMSK REGIONAL COURT
Chairman: Smirnova K.N.
Judicial panel for civil cases of the Omsk Regional Court consisting of:
Chairman Motrokhov A.B.,
judges of the regional court Astapchuk R.V., Popova E.N.,
with secretary B.,
considered at the court hearing on August 12, 2015
case on appeals from the representative of JSC Joint-Stock Commercial Bank "Bank of Moscow" G., representative of JSC "SG MSK" A.R. on the decision of the Oktyabrsky District Court of the city of Omsk dated June 11, 2015 on the claim of A.S. to OJSC Joint-Stock Commercial Bank "Bank of Moscow" on the protection of consumer rights, which decided:
“The claims of A.S. against the open joint-stock company Joint-Stock Commercial Bank “Bank of Moscow” for the protection of consumer rights are partially satisfied.
To recover from the open joint stock company Joint Stock Commercial Bank "Bank of Moscow" in favor of A.S. commission for connecting to the insurance program under a loan agreement in the amount of<...>; interest on the use of other people's money in the amount of<...>for the period from<...>By<...>compensation for moral damage in the amount<...>, fine<...>; towards reimbursement of legal expenses for the services of a representative<...>
The rest of the claim is denied.
To collect a state duty from the open joint-stock company Joint-Stock Commercial Bank "Bank of Moscow" to the budget of the city of Omsk<...>"
Having heard the report of the judge of the Omsk regional court E.N. Popova, the judicial panel
Installed:
A.S. filed a lawsuit against OJSC Joint-Stock Commercial Bank "Bank of Moscow" for the protection of consumer rights, collection of fees under the insurance contract, interest for the use of other people's funds, compensation for moral damages, and a fine.
In support of the stated requirements, she indicated that between her and the defendant<...>a loan agreement was concluded<...>, under the terms of which she was given a loan in the amount of<...>for a period of<...>at 17.9% per annum. As part of the said loan agreement, personal insurance was carried out for the plaintiff as a borrower at JSC Insurance Group MSK. The fee for connecting to the life and health insurance program for borrowers was<...>The obligations under the loan agreement regarding the transfer of funds towards the above fee were fulfilled by her properly and in full. The loan amount was issued in the amount of<...>, despite the fact that the size indicated<...>The calculation of the full cost of the loan, along with interest, includes the above fee for joining the voluntary collective insurance program. She considers charging a fee for connecting to the insurance program to be illegal and infringing on her rights as a consumer. When concluding a loan agreement, the bank imposed the service of concluding an insurance contract, the insurance contract itself was not issued to her, the bank conditioned the purchase of one service on the purchase of another.
She asked to recover from the defendant the paid fee for connecting to the insurance program under the loan agreement in the amount of<...>, interest on the use of other people's funds in the amount of 4,715,<...>, compensation for moral damage in the amount<...>, a fine for failure to satisfy consumer requirements voluntarily in the amount of<...>, legal costs in the amount<...>
Plaintiff A.S. did not appear at the court hearing, was duly notified of the time and place of consideration of the case, submitted an application for consideration of the case in her absence (ld.<...>).
The representative of the plaintiff, Ya., supported the stated demands in full at the court hearing.
The representative of the defendant OJSC Joint-Stock Commercial Bank "Bank of Moscow" G. did not recognize the claim at the court hearing.
The representative of the third party, JSC Insurance Group MSK, did not appear at the court hearing; he was duly notified of the time and place of the consideration of the case. A response to the statement of claim has been submitted (ld.<...>).
The court made the above decision.
In the appeal, the representative of OJSC Joint-Stock Commercial Bank "Bank of Moscow" G. asks the court's decision to be overturned. Indicates that the plaintiff was informed of the components of the fee for participation in the insurance program. The cost of the service is brought to it in total terms in rubles, which does not contradict the provisions of Art. 8 of the Law of the Russian Federation "On the Protection of Consumer Rights". Also, the court did not take into account the fact that A.S. taking into account her higher education and her leadership position, she could exercise due care and prudence. By concluding an insurance agreement for the borrower and determining the fee for connecting to the insurance program, the bank acted on behalf of the borrower. He considers the court’s conclusion that the amount of the bank’s commission for connecting to the insurance program to be too high to be unfounded. The calculation of the amount of the bank's commission is indicated in the bank's tariffs, information about which is posted on stands in each bank office and in the public domain on the bank's official website. The fact that the plaintiff is familiar with the bank’s tariffs, agrees and joins them, is confirmed by her signed application form for obtaining a consumer loan. The defendant provided the relevant service, but did not receive remuneration for it. Believes that the demands for compensation for moral damage and legal expenses were satisfied by the court unreasonably, requests that the amount of expenses for paying for the services of a representative be reduced to<...>.
In the appeal, the representative of JSC "SG MSK" A.R.V. considers the decision subject to cancellation. Believes that the court’s conclusion that there is no evidence confirming the plaintiff’s consent to the bank providing her with the service of connecting to the insurance program is unfounded and is completely refuted by the evidence collected in the case. OJSC Joint-Stock Commercial Bank "Bank of Moscow" acted solely on the basis of the voluntary expression of the will of the plaintiff in accordance with personally signed by A.S. an application for participation in the collective insurance program, which clearly states that the fee for connecting to the insurance program consists of a commission for connecting to this program and compensation for the bank’s expenses for paying the insurance premium. He believes that charging the plaintiff a fee for connecting to the insurance program as an independent financial service does not contradict the requirements of current legislation. Indicates that the court did not cite in its decision legal norms according to which the bank is obliged to provide the borrower with information about the components of the fee for connecting to the insurance program.
The persons participating in the case were duly notified of the time and place of consideration of the case by the appellate court (ld.<...>).
Having checked the case materials, discussed the arguments of the appeal, heard the representative of the defendant OJSC Joint-Stock Commercial Bank "Bank of Moscow" G., who supported the arguments of the appeal, the representative of JSC "Insurance Group MSK" K., who also supported the arguments of the appeal, the representative of the plaintiff Ya., who objected against the complaints and agreed with the court's decision, the judicial panel does not find those provided for in Art. 330 of the Code of Civil Procedure of the Russian Federation grounds for canceling or changing the appealed decision.
In accordance with Art. 327.1 of the Code of Civil Procedure of the Russian Federation, the appellate court considers the case within the limits of the arguments set out in the appeal, presentation and objections to the complaint, presentation.
Article 927 of the Civil Code of the Russian Federation provides that insurance is carried out on the basis of property or personal insurance contracts concluded by a citizen or legal entity (policyholder) with an insurance organization (insurer).
By virtue of paragraph 1 of Art. 934 of the Civil Code of the Russian Federation, under a personal insurance contract, one party (the insurer) undertakes, for a fee stipulated by the contract (insurance premium) paid by the other party (the policyholder), to pay a lump sum or pay periodically the amount stipulated by the contract (the insurance amount) in the event of harm to the life and health of the policyholder himself. or another citizen (insured person) named in the contract, when he reaches a certain age or when another event (insured event) provided for in the contract occurs in his life. The right to receive the insurance amount belongs to the person in whose favor the contract was concluded.
According to paragraph 2 of Art. 934 of the Civil Code of the Russian Federation, a personal insurance contract in favor of a person who is not an insured person, including in favor of an insured who is not an insured person, can be concluded only with the written consent of the insured person.
Based on the provisions of paragraph 1 of Article 16 of the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights” (hereinafter referred to as the Law 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.
Clause 2 of Art. 16 of the Law on the Protection of Consumer Rights, it is prohibited to condition the purchase of some goods (works, services) on the mandatory purchase of other goods (works, services).
Determined that<...>between A.S. and OJSC Joint-Stock Commercial Bank "Bank of Moscow" entered into a loan agreement<...>, according to which A.S. A consumer loan "Cash loan" was provided in the amount of<...>for a period of<...>at 17.9% per annum.
On the same day A.S. signed an application for participation in the collective insurance program, in which she agreed to participate in the Voluntary Collective Insurance Program for individuals who are borrowers on loans from Bank of Moscow OJSC, operating under a collective insurance agreement against job loss, accidents and illnesses of loan borrowers N<...>from<...>, concluded between OJSC Joint-Stock Commercial Bank "Bank of Moscow" and OJSC "MSK Insurance Group"; asked to be included in the list of insured persons for insurance risks: death, disability, temporary disability. The beneficiary under the insurance program upon the occurrence of insured events “death” and “disability” is the bank in the amount of the balance of debt under the loan agreement as of the date of the insured event; the insured - in the amount of the positive difference between the insurance payment and the balance of debt under the loan agreement; for the risk of “temporary disability” and “loss of work” the beneficiary is the insured.
With the said statement of A.S. confirmed that she joins the insurance program voluntarily, at her own request, was notified that insurance is not a prerequisite for concluding an agreement on the provision of a consumer loan by the bank, that the fee for participation in the Insurance Program consists of a bank commission and compensation for the bank’s expenses for paying for insurance premium, which for the entire insurance period is<...>
From the plaintiff's account statement it appears that<...> <...>credited to the account of A.S. and on the same day a sum of money in the amount of<...>written off by the bank as “VAT received, commission for connecting to the collective insurance program “Financial Protection” (<...>); compensation of bank expenses for paying the insurance premium of an insured consumer loan borrower (<...>); commission for connecting to the collective insurance program "Financial Protection", excluding VAT (<...>)"; Also<...>the borrower actually received loan funds in the amount of<...>, account balance -<...>(ld.<...>).
Thus, a monetary amount of<...>included in the loan amount, interest was accrued on it for use, which also follows from the loan payment schedule (ld.<...>).
<...>A.S. applied to the bank to refuse to participate in the insurance program for the credit product "Cash Loan" N<...>and return of funds - fees debited from the account for participation in the Insurance Program with<...>according to clause 5 of the application for participation in the collective insurance program.
From the bank's response to the plaintiff dated<...>it follows that the bank refused to return the fee for participation in the insurance program, indicating that by applying for participation in the collective insurance program, the plaintiff confirmed joining the Insurance Program, which she did voluntarily and is not a condition for concluding an agreement on the provision of a consumer loan by the bank; refusal to participate in the insurance program can be declared by the insured at any time by submitting an appropriate written application, while the fee for participation in the insurance program paid before submitting the application for refusal to participate in the insurance program to the bank is not refunded (clause 5 of the application) . It was also explained to the plaintiff that when the loan is repaid (on schedule, partially or in full ahead of schedule), the insurance period and the insured amount remain unchanged, providing her with a high level of insurance protection for the insured risks.
When going to court with the stated demands, the plaintiff, referring to the provisions of Art. 16 of the Law of the Russian Federation “On the Protection of Consumer Rights”, indicated the imposition of insurance services by the bank, as well as the failure to communicate to the borrower information about the amount of the commission paid to the bank for the provision of services for connecting to the Insurance Program.
Refusing to satisfy claims regarding the return of the paid insurance premium in the amount of<...>, the court, having established the fact of transfer by OJSC Joint-Stock Commercial Bank "Bank of Moscow" to the insurer - OJSC "SG MSK" for the insured A.S. insurance premium in the specified amount, proceeded from the fact that the loan agreement did not contain conditions for compulsory life and health insurance of the borrower, the loan product was approved to the plaintiff without insurance conditions, which is confirmed by the conclusion of the loan agreement, and the insurance service was provided by the bank with the consent of the borrower. In this case, concluding an insurance contract was one of the ways to ensure the fulfillment of obligations, while ensuring the fulfillment of obligations in the form of life and health insurance is a condition that does not contradict current legislation.
The court's conclusions about the voluntary detention of A.S. insurance contracts are correct and consistent with the evidence available in the case materials.
In this part, the court decision is not appealed, and therefore is not the subject of review by the appellate court.
Satisfying the stated demands for recovery in favor of the plaintiff of the amount of commission withheld by the bank for connecting to the Insurance Program, the court of first instance, comparing the amount of the one-time fee withheld by the bank (<...>) with the amount of funds sent to the insurer, and determining the remaining difference in funds received by OJSC Joint-Stock Commercial Bank "Bank of Moscow" (<...>), proceeded from the fact that the bank did not provide the consumer with complete and reliable information about the purchased service, in particular, information was not provided on the amount of the insurance premium and the amount of payment to the bank for connecting to the insurance service.
The panel of judges considers these conclusions of the court of first instance to be correct, since they are based on the norms of substantive law and correspond to the actual circumstances of the case, established on the basis of the evidence presented by the parties, which was assessed by the court according to the rules of Art. 67 Code of Civil Procedure of the Russian Federation.
Rejecting the arguments of the complaint of the defendant OJSC Joint-Stock Commercial Bank "Bank of Moscow" to provide the plaintiff with all the necessary information about what the fee for participation in the Insurance Program includes; that information about the cost of the service was communicated to the plaintiff in total terms in rubles, which does not contradict the provisions of Art. 8 of the Law of the Russian Federation "On the Protection of Consumer Rights", the judicial panel proceeds from the following.
According to Art. 8 of the Law of the Russian Federation of February 7, 1992 N 2300-1 “On the Protection of Consumer Rights”, the consumer has the right to demand the provision of necessary and reliable information about the manufacturer (performer, seller), its mode of operation and the goods (work, services) sold by it. The information specified in paragraph 1 of this article is brought to the attention of consumers in a clear and accessible form when concluding a contract.
In accordance with paragraph 1 of Art. 10 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the contractor is obliged to promptly provide the consumer with the necessary and reliable information about services, ensuring the possibility of their correct choice. Information about services must necessarily contain the price in rubles and the conditions for purchasing services.
By virtue of paragraph 1 of Art. 12 of the said Law, if the consumer is not given the opportunity to immediately receive information about the product (work, service) upon concluding a contract, he has the right to demand from the seller (performer) compensation for losses caused by unjustified avoidance of concluding the contract, and if the contract is concluded, to refuse within a reasonable time its execution and demand the return of the amount paid for the goods and compensation for other losses.
It follows from the case materials that, in accordance with the application for participation in the Collective Insurance Program, the fee for connecting to the Insurance Program consists of the bank’s commission for connecting the client to the Insurance Program and compensation of the bank’s expenses for paying the insurance premium to the insurer. However, the fee for participation in the Insurance Program (<...>) is given without indicating what part (amount) of it is the insurance premium itself and what amount the plaintiff pays directly for the bank’s services for connecting to the Insurance Program.
In accordance with Part 1 of Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law.
According to the explanations contained in paragraph 28 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2012 No. 17 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights”, when resolving consumer claims, it is necessary to take into account that the burden of proof of circumstances exonerating from liability for non-fulfillment or improper fulfillment of the obligation lies with the seller (manufacturer, performer, authorized organization or authorized individual entrepreneur, importer).
The defendant provides evidence of communicating to the plaintiff information about the cost of services of the insurance company (<...>) and bank intermediary services (<...>) did not present. Such evidence was not presented to the appellate court either. At the same time, the documents presented in the case file do not allow us to differentiate between the amount of the fee transferred to the insurance company for connecting to the Voluntary Insurance Program and the fee charged by the bank for the provision of the service.
At the same time, the judicial panel takes into account that the bank’s commission for connecting to the Insurance Program is more than 6 times higher than the amount of the insurance premium paid to the insurer. Amount of the disputed commission -<...>amounts to a significant amount and increases the loan amount, which is disadvantageous for the borrower.
The Bank, when providing services for connecting A.S. to the Insurance Program in violation of Art. Art. 8, 10 of the Law of the Russian Federation “On the Protection of Consumer Rights” did not inform the borrower of the amount of the insurance premium in the total amount of the withheld fee, as well as the cost of the bank’s services for providing services for connecting to the Insurance Program, thereby violating her right to receive full information about the service provided .
At the same time, the consumer must have information about the amount of insurance fees when concluding the relevant contract and the amount of the bank’s commission for connecting to the insurance program, as well as the ratio of these amounts, since these data directly affect the consumer’s freedom of expression when choosing the possibility of concluding a credit an agreement without the service of joining an insurance program or with one associated with payment for intermediary services of the bank, the cost of which, compared to the amount of the requested loan and the loan term, is very significant. Moreover, these amounts have different economic natures.
Contrary to the arguments of the defendants' complaints, the court of first instance rightly did not take into account the arguments that information about the amount of the commission for connecting to the insurance program is contained in the tariffs that were brought to the attention of the client, since these tariffs do not contain information about the price of the service in rubles (<...>), but only allow you to establish the formula by which the calculation is made.
At the same time, by virtue of clause 4 of Art. 12 of the Law of the Russian Federation “On the Protection of Consumer Rights”, when considering consumer claims for compensation for losses caused by unreliable or insufficiently complete information about a product (work, service), it is necessary to proceed from the assumption that the consumer does not have special knowledge about the properties and characteristics of the product (work, service) .
According to the legal position set forth in the Resolution of the Constitutional Court of the Russian Federation of February 23, 1999 N 4-P “On the case of verifying the constitutionality of the provisions of part two of Article 29 of the Federal Law of February 3, 1996 N 17-FZ “On Banks and Banking Activities”, citizen is an economically weaker party and needs special protection of its rights.
Taking into account the circumstances of the case, taking into account that the consumer does not have special knowledge in the field of banking legislation, he is an economically weaker and dependent party relative to his counterparty - a legal entity, the judicial panel proceeds from the fact that the plaintiff was deprived of the opportunity to make a correct calculation of the amount commission for connecting to the Insurance Program.
In addition, from the documents presented in the case file, it does not follow that when concluding the loan agreement, the borrower was provided with information in the proper form about what specific services the bank determined its remuneration for.
It should also be noted that according to Federal Law No. 353-FZ of December 21, 2013 “On Consumer Credit (Loan),” which entered into force on July 1, 2014, a consumer credit (loan) agreement consists of general conditions and individual conditions. A consumer credit (loan) agreement may contain elements of other agreements (mixed agreement), if this does not contradict this Federal Law (Part 1, Article 5).
The individual terms of the consumer credit (loan) agreement are agreed upon by the lender and the borrower individually and include, in particular, an indication of the need for the borrower to conclude other agreements required for the conclusion or execution of the consumer credit (loan) agreement, as well as services provided by the lender to the borrower for a fee and necessary for concluding a consumer credit (loan) agreement (if any), their price or the procedure for determining it (if any), as well as confirmation of the borrower’s consent to their provision (clause 9, 15, part 9, article 5).
By virtue of parts 2, 6 art. 7 of Federal Law N 353-FZ if, when providing a consumer credit (loan), the borrower is offered additional services provided by the lender and (or) third parties for a fee, including life and (or) health insurance of the borrower in favor of the lender, as well as other insurable interest borrower, an application for a consumer loan (loan) must be drawn up in the form established by the lender, containing the borrower’s consent to provide such services, including the conclusion of other agreements that the borrower is obliged to conclude in connection with the consumer loan agreement. The lender in the application for a consumer loan (loan) is obliged to indicate the cost of the additional service offered by the lender for a fee and must provide the borrower with the opportunity to agree or refuse to provide him with such an additional service for a fee, including through concluding other agreements that the borrower is obliged to conclude in connection with a consumer credit (loan) agreement.
A consumer loan agreement is considered concluded if agreement is reached between the parties to the agreement on all individual terms of the agreement specified in Part 9 of Article 5 of this Federal Law.
The case materials contain the following Individual terms of the consumer loan agreement “Cash loan” N<...>(ld.<...>), according to clause 15 of which in the column “services provided by the lender to the borrower for a fee and necessary for concluding an agreement, their price or procedure for determining it, as well as the borrower’s consent to provide such services” it is indicated “not applicable”, which, based on provisions of parts 11, 14 art. 5 of Federal Law N 353-FZ, also indicates a violation of the plaintiff’s right to receive reliable information about the service.
Satisfying the claims for the recovery of interest from OJSC Joint-Stock Commercial Bank "Bank of Moscow" for the use of other people's funds, the court, having established that the bank unlawfully received from the borrower a commission for connecting to the insurance program, guided by the provisions of Art. 395 of the Civil Code of the Russian Federation, correctly collected interest from the defendant for the period declared by the plaintiff from<...>By<...>in total<...>
Having established a violation by the bank of the rights of A.S. as a consumer, the court also reasonably recovered compensation for moral damages from the defendant in the amount<...>The amount of compensation for moral damage was determined in accordance with the principles of reasonableness and fairness and does not raise any doubts among the judicial panel.
In connection with the bank’s failure to voluntarily satisfy the plaintiff’s demand for the return of illegally written off funds, the court of first instance, guided by the provisions of clause 6 of Art. 13 of the Law of the Russian Federation "On the Protection of Consumer Rights", correctly collected from the defendant in favor of the plaintiff a fine in the amount of 50 percent of the awarded amount.
Since the claims were partially satisfied by the court, the fact of incurring expenses for paying for the representative’s services was confirmed by the evidence presented, based on the provisions of Art. Art. 98, 100 Code of Civil Procedure of the Russian Federation, the court had grounds for recovery in favor of A.S. expenses incurred by it to pay for the services of a representative as the party in whose favor the decision was made.
At the same time, when determining the amount of recoverable expenses for the services of a representative, the court took into account the complexity of the civil case, the nature of the dispute declared and resolved by the court, and took into account the number of court hearings in the case in the court of first instance, in which representative A.S. participated. - Ya., the amount of work he did, as well as its necessity, effectiveness, and came to a reasonable conclusion about recovery from the bank in favor of A.S. expenses for payment of representative services in the amount<...>
The panel of judges believes that the amount of these expenses is justified.
The arguments contained in the private complaint regarding disagreement with the amount of expenses collected by the court for the representative's services do not in themselves indicate a violation by the court of the principle of reasonableness and fairness.
According to the legal position of the Constitutional Court of the Russian Federation, set out in Resolution No. 382-O-O of July 17, 2007, the court’s obligation to recover the costs of paying for the services of a representative incurred by the person in whose favor the judicial act was adopted from another person participating in the case, within reasonable limits, is one of the legal methods provided for by law, aimed against unreasonably inflating the amount of payment for the services of a representative and thereby implementing the requirement of Article 17 (Part 3) of the Constitution of the Russian Federation, according to which the exercise of human and civil rights and freedoms should not violate the rights and freedom of others. That is why in part one of Art. 100 of the Code of Civil Procedure of the Russian Federation is essentially about the duty of the court to establish a balance between the rights of the persons participating in the case.
Within the meaning of the provisions of Art. 100 of the Code of Civil Procedure of the Russian Federation, the determination of the amount of expenses to be collected for payment for the services of a representative in each specific case is within the competence of the court.
Based on the foregoing, taking into account all the circumstances of the case, as well as the need to maintain a balance of interests of the parties, the court of first instance reduced the amount of recoverable expenses for the services of a representative from<...>before<...>.
Under the circumstances described above, there are no grounds for reducing the amount of costs collected by the court.
The arguments of the defendant's appeal do not contain facts that would have legal significance for the adoption of a judicial act on the merits, would affect the validity and legality of the court decision, or refute the conclusions of the court of first instance, and therefore are recognized by the judicial panel as untenable and cannot serve as a basis for reversal of the court decision.
The appeal of the third party of SG MSK JSC is not subject to satisfaction, since his rights are not violated by this decision.
Violations of substantive and procedural law, entailing the reversal of a court decision in accordance with Art. 330 of the Code of Civil Procedure of the Russian Federation was not allowed.
Guided by Art. Art. 328, 329 Code of Civil Procedure of the Russian Federation, judicial panel
