Judicial proceedings. Theory of everything Nizhny Novgorod Regional Court

A44-1939/2014

FOURTEENTH ARBITRATION CASE
COURT OF APPEAL
st. Batyushkova, 12, Vologda, 160001
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P O S T A N O V L E N I E

The operative part of the resolution was announced on December 25, 2014 .
The resolution was issued in full on January 12, 2015.

The Fourteenth Arbitration Court of Appeal, composed of presiding officer N.V. Murakhina, judges N.N. Osokina. and Pestereva O.Yu.
when keeping the minutes by the secretary of the court session Mazaletskaya O.O.,
having considered in open court the appeal of the limited liability company "Cetelem Bank" against the decision of the Arbitration Court Novgorod region dated October 9, 2014 in case No. A44-1939/2014 (judge I.G. Larina),

u st a n o v i l:

Limited liability company "Cetelem Bank" (TIN 6452010742, OGRN 1027739664260; location: 125040, Moscow, Pravdy street, building 26; hereinafter referred to as the bank, LLC "Cetelem Bank") appealed to the Arbitration Court of the Novgorod Region with an application to the Office of the Federal service for supervision in the field of protection of consumer rights and human well-being in the Novgorod region (TIN 5321101433, OGRN 1055300903833; location: 173015, Velikiy Novgorod, Germana street, building 14; hereinafter referred to as the department) on declaring illegal and canceling the order to eliminate the identified violations from 03/19/2014 No. 49/ZPP.
By the decision of the Arbitration Court of the Novgorod Region dated October 9, 2014 in case No. A44-1939/2014, the stated claims were denied.
The bank did not agree with the judicial act and filed an appeal in which it asked the court's decision to be overturned. In support of the complaint, he points out that the order dated March 19, 2014 No. 49/ZPP is illegal, since the standard forms of agreements on the provision of targeted consumer loans for the purchase of a car vehicle, agreements on the provision of loans for urgent needs, as well as the General conditions for the issuance and servicing of credit products of Cetelem Bank LLC, which were in force at the time of its issuance, have lost force and are not applied by the bank when concluding agreements in connection with the entry into force of the Federal Law of December 21, 2013 No. 353-FZ “On Consumer Credit (Loan)” (hereinafter referred to as Law No. 353-FZ, Law on Consumer Credit).
The department did not provide a response to the appeal.
The persons participating in the case were duly notified of the time and place of consideration of the appeal; representatives were not sent to the court; therefore, the case was considered in their absence in accordance with Articles 123, 156, 266 of the Arbitration Procedure Code Russian Federation(hereinafter referred to as the APC of the Russian Federation).
Having examined the evidence in the case, checked the legality and validity of the court's decision, and examined the arguments of the complaint, the appellate court finds no grounds for satisfying it.
As follows from the case materials, the department, on the basis of order No. 49 dated January 29, 2014, carried out a scheduled inspection of the activities of the Novgorod Representative Office of Cetelem Bank LLC in order to ensure the protection of consumer rights and compliance with mandatory requirements for goods (work, services), based on the results of which an act was drawn up inspection dated March 19, 2014 No. 49, which reflected that Cetelem Bank LLC violated the requirements of the Law of the Russian Federation dated February 7, 1992 No. 2300-1 “On the Protection of Consumer Rights” (hereinafter referred to as Law No. 2300-1, Law on the Protection of Rights consumers), expressed in the inclusion in standard forms of agreements on the provision of targeted consumer loans for the purchase of a vehicle, on the provision of a loan for urgent needs, in the General Conditions for the Issue and Servicing of Credit Products of Cetelem Bank LLC, as well as in agreements with specific consumers of the bank’s services , conditions that infringe on the rights of consumers, expressed in providing the bank with the opportunity to directly write off funds from the accounts of a client - an individual.
In connection with the identified violations, on March 19, 2014, the bank was issued an order No. 49/ZPP to eliminate the identified violations by April 19, 2014, by excluding from the specified standard forms of agreements and the General conditions for the issuance and servicing of credit products of Cetelem Bank LLC, those conditions which infringe the rights of consumers in comparison with the rules established by laws or other legal acts of the Russian Federation.
In addition, on March 19, 2014, a protocol on an administrative offense was drawn up against the bank, and on April 18, 2014, Resolution No. 449 was issued, by which the bank was held liable under Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation, in the form of a fine of 10,000 rubles.
Having disagreed with the issued order, the bank challenged it in court.
According to Part 4 of Article 200 of the Arbitration Procedure Code of the Russian Federation, when considering cases challenging non-normative legal acts, decisions and actions (inaction) government agencies, local government bodies, other bodies, officials, the arbitration court, in a court hearing, checks the contested act or its individual provisions, contested decisions and actions (inaction) and establishes their compliance with the law or other normative legal act, establishes the authority of the body or person, who adopted the contested act, decision or committed contested actions (inaction), and also establishes whether the contested act, decision and actions (inaction) violate the rights and legitimate interests of the applicant in the field of business and other economic activity.
In accordance with Article 40 of the Law on the Protection of Consumer Rights, state control and supervision over compliance with laws and other regulatory legal acts of the Russian Federation governing relations in the field of consumer rights protection is carried out by the authorized federal executive body for control (supervision) in the field of consumer rights protection ( its territorial bodies), as well as other federal executive authorities (their territorial bodies) exercising control and supervision functions in the field of protection of consumer rights and safety of goods (works, services), in the manner determined by the Government of the Russian Federation.
The Regulations on the Federal Service for Supervision of Consumer Rights Protection and Human Welfare, approved by Decree of the Government of the Russian Federation dated June 30, 2004 No. 322, functions related to the implementation of supervision and control over compliance with the mandatory requirements of the legislation of the Russian Federation, including in the field of protection of rights consumers (clause 5 of the Regulations), are assigned to Federal service on supervision in the field of consumer rights protection and human well-being.
Clause 1 of Part 1 of Article 17 of the Federal Law of December 26, 2008 No. 294-FZ “On the Protection of Rights legal entities and individual entrepreneurs in the exercise of state control (supervision) and municipal control" (hereinafter - Law No. 294-FZ) provides for the obligation of officials of the state control (supervision) body, municipal control body who conducted the inspection, within the powers provided for by the legislation of the Russian Federation, issue an order to carry out measures to prevent harm to life, health of people, harm to animals, plants, environment, state security, property of individuals and legal entities, state or municipal property, prevention of emergency situations natural and technogenic nature, as well as other events provided for by federal laws.
Consequently, the contested order was issued by the department within its powers.
According to Article 9 of the Federal Law of January 26, 1996 No. 15-FZ “On the entry into force of Part Two of the Civil Code of the Russian Federation”, paragraph 1 of Article 1 of the Law on the Protection of Consumer Rights, relations with the participation of consumers are regulated by the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) , the Law on the Protection of Consumer Rights, other federal laws and other regulatory legal acts of the Russian Federation adopted in accordance with them.
By virtue of paragraph 1 of Article 16 of 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 protection are declared invalid.
In paragraph 4 of Article 421 of the Civil Code of the Russian Federation, the terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422).
According to paragraph 1 of Article 422 of this Code, the contract must comply with the rules obligatory for the parties established by law and other legal acts (imperative norms) in force at the time of its conclusion.
In accordance with paragraph 1 of Article 845 of the Civil Code of the Russian Federation, under a bank account agreement, the bank undertakes to accept and credit funds received to the account opened for the client (account owner), carry out the client’s orders to transfer and withdraw the corresponding amounts from the account and carry out other operations on the account.
The bank can use the funds available in the account, guaranteeing the client’s right to freely dispose of these funds (clause 2 of Article 845 of this Code).
By virtue of paragraph 3 of Article 845 of the said Code, the bank does not have the right to determine and control the direction of use of the client’s funds and establish other restrictions on his right to dispose of funds at his own discretion, not provided for by law or the bank account agreement.
In accordance with Article 854 of the Civil Code of the Russian Federation, funds are written off from the account by the bank on the basis of the client’s order.
According to Article 858 of the said Code, restriction of the client’s rights to dispose of the funds in the account is not allowed, with the exception of seizing the funds in the account or suspending operations on the account in cases provided for by law.
According to clause 3.1 of the Regulations of the Central Bank of the Russian Federation dated August 31, 1998 No. 54-P “On the procedure for the provision (placement) of funds by credit institutions and their return (repayment)” (hereinafter referred to as Regulation No. 54-P), the repayment (return) of funds placed by the bank funds and payment of interest on them is carried out by transferring funds from the accounts of client-borrowers - individuals on the basis of their written orders, transferring funds of client-borrowers - individuals through communications authorities or other credit organizations, the latter depositing cash into the cash desk of the creditor bank on the basis of a cash receipt order, as well as deductions from amounts due for wages to borrower clients who are employees of the creditor bank (according to their applications or on the basis of an agreement).
Thus, the return of funds placed by the bank and the payment of interest on them are made at the active will of the borrower, be it a payment order in the case of non-cash payments, or a written order, transfer, deposit of cash to the bank's cash desk - in other cases. Thus, Regulation No. 54-P also does not provide for the possibility of direct debiting of funds from the client’s account by the bank.
The appeal board rejects the bank’s argument that current legislation, in particular Federal Law dated June 27, 2011 No. 161-FZ “On the National Payment System” (hereinafter referred to as Law No. 161-FZ) and the Bank of Russia Regulations “On the rules for transferring funds » dated June 19, 2012 No. 383-P, it is possible to obtain the payer’s acceptance in advance, since in in this case provided for in the standard forms of agreements on the provision of a targeted consumer loan for the purchase of a vehicle, on the provision of a loan for urgent needs, the General conditions for the issuance and servicing of credit products of Cetelem Bank LLC, the client’s consent to write off funds from the account without additional acceptance does not fall under the criteria of “in advance this acceptance."
In addition, paragraph 2 of Article 854 of the Civil Code of the Russian Federation stipulates that, without the client’s order, debiting funds on the account is permitted by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client.
According to clause 2.9.1 of the Bank of Russia Regulation “On the rules for transferring funds” dated June 19, 2012 No. 383-P, this acceptance by the payer can be given in advance in an agreement between the payer’s bank and the payer and (or) in the form of a separate message or document, in including a statement of advance given acceptance drawn up by the payer in electronic form or on paper, indicating the amount of acceptance or the procedure for determining it, information about the recipient of funds who has the right to submit orders to the payer’s bank account, about the payer’s obligation and the main agreement, including in cases provided for by federal law, an indication of the possibility (impossibility ) partial execution of the order, as well as other information. This acceptance must be given in advance before presenting the order of the recipient of the funds. This acceptance may be given in advance in relation to one or more bank accounts of the payer, one or more recipients of funds, one or more orders of the recipient of funds.
From the above it follows that the specified terms of contracts do not fall under the criteria of “pre-given acceptance”, since they do not contain the amount of acceptance or the procedure for determining it, information about the recipient of funds who has the right to submit orders to the payer’s bank account, about the payer’s obligation and the main agreement, in including in cases provided for by federal law, indicating the possibility (impossibility) of partial execution of the order, as well as information about the payer’s bank accounts in respect of which acceptance has been given in advance.
In accordance with Article 310 of the Civil Code of the Russian Federation, unilateral refusal to fulfill an obligation and unilateral change of its conditions are not allowed, except in cases provided for by law.
According to civil law (Chapter 42 of the Civil Code of the Russian Federation), the borrower has an obligation to repay the loan early at the request of the lender only in certain cases which include the following:
if the borrower violates the deadline established for the return of the next loan amount, if the loan agreement provides for the return of the loan in parts (clause 2 of Article 811 of the Civil Code of the Russian Federation);
if the borrower fails to fulfill the obligations stipulated by the loan agreement to ensure the repayment of the loan amount, if the collateral is lost or its conditions deteriorate due to circumstances for which the lender is not responsible (Article 813 of the Civil Code of the Russian Federation);
in case of failure by the borrower to comply with the terms of the loan agreement on the intended use of the loan amount, in case of violation of the obligation to ensure that the lender can exercise control over the intended use of the loan amount (Article 814 of the Civil Code of the Russian Federation).
In all other cases not specified by law, the lender has no right to demand early repayment of the loan. The specified condition of the contract infringes on the rights of consumers in connection with the bank’s expansion of the cases of early loan repayment listed in the law.
Thus, the inclusion in the standard forms of agreements on the provision of a targeted consumer loan for the purchase of a vehicle, on the provision of a loan for urgent needs, in the General conditions for the issuance and servicing of credit products of Cetelem Bank LLC, of conditions on the possibility of direct debiting by the bank of funds from the client’s accounts - an individual is rightfully recognized by the defendant as violating consumer rights.
The bank has not provided evidence of the inconsistency of the contested order with the requirements of the law and the violation of its rights and interests in the field of business activity by this non-normative legal act.
Consequently, there are no grounds for invalidating the contested order.
In addition, the legality of the order is also confirmed by the decision of the Moscow Arbitration Court dated June 16, 2014 in case A40-56702/2014, which entered into legal force, which confirmed the legality of bringing the bank to administrative responsibility for committing the above violations, as well as conducting an inspection against it .
In the appeal, the applicant points out that the order dated March 19, 2014 No. 49/ZPP is illegal, since the standard forms of the above disputed agreements, as well as the General Conditions for the Issue and Servicing of Credit Products of Cetelem Bank LLC, which were in force at the time of its issuance, have lost force and are not applied by the bank when concluding agreements due to the entry into force of the Law on Consumer Credit on July 1, 2014.
This argument must be rejected, since evidence of non-use of the current disputed standard agreements and the General Conditions for the Issue and Servicing of Credit Products of Cetelem Bank LLC was not presented in the case materials. In addition, this circumstance could not influence the legality of the contested order, since at the time of its issuance the violations specified in it took place, which is confirmed by the case materials, in this regard, the order dated March 19, 2014 No. 49/ZPP is legal.
Under the above circumstances, the appellate court found that the decision of the arbitration court of first instance was made upon full clarification of the circumstances of the case, violations of the rules of substantive and procedural law were not established, and there were no grounds for satisfying the appeal and canceling the appealed judicial act.
Guided by Articles 269, 271 of the Arbitration Procedural Code of the Russian Federation, the Fourteenth Arbitration Court of Appeal

p o st a n o v i l:

The decision of the Arbitration Court of the Novgorod Region dated October 9, 2014 in case No. A44-1939/2014 is left unchanged, the appeal of the limited liability company "Cetelem Bank" is not satisfied.
The decision can be appealed to the Arbitration Court Northwestern district within a period not exceeding two months from the date of its adoption.

Presiding	N.V. Murakhina
	N.N. Osokina

NIZHNY NOVGOROD REGIONAL COURT

APPEAL DECISION

The Judicial Collegium for Civil Cases of the Nizhny Novgorod Regional Court, consisting of:

presiding judge Kondakova T.A.,

judges Kochetkova M.V. and Kulaeva E.V.,

when keeping the minutes of the court session by secretary Ignatyev S.V.,

considered in open court the appeal of O.A. Baykova.

on the decision of the Sovetsky District Court of N. Novgorod dated December 11, 2014 in the case of the claim of O.A. Baykova. to Cetelem Bank LLC to invalidate the terms of the agreement, recognize the debt as repaid, the obligation terminated, collect compensation for moral damages, legal expenses, invalidate the accrual of a fine,

after hearing the report of the judge of the Nizhny Novgorod Regional Court Kochetkova M.V., the explanations of the representative Baykova O.A. by proxy Dovbush M.S., judicial panel

INSTALLED:

Baykova O.A. filed a lawsuit with these demands against Cetelem Bank LLC, indicating<…>year entered into an agreement with the defendant to provide a targeted consumer loan for the purchase of a vehicle No.<…>. Clause 7.12 of this agreement provides that the client agrees that all issues, disagreements or claims arising from the agreement with the bank and related to the collection of debt by the bank under the agreement are subject to consideration in court at the location of the bank. The plaintiff believes that the specified condition of the contract is contrary to the law - clause 2 of article 17, clause 1 of article 16 of the Law of the Russian Federation of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights”, since the jurisdiction of disputes arising from contracts is one of the parties which the consumer is established by law and cannot be changed by agreement of the parties. Thus, the provisions of clause 7.12 of the loan agreement are void and on the basis of Art. 168 of the Civil Code of the Russian Federation shall be declared invalid. Besides,<…> <…>year, on the need to provide information and documents, as well as on changing the provisions of clause 7.12 of the agreement regarding the jurisdiction of the dispute under this agreement.<…>year this notification was received by the bank. However, the defendant did not provide a response to this notice.<…>year, the plaintiff re-sent the said notification. Having not received a response to the repeated notification, the plaintiff<…>transferred to the bank for early fulfillment of the obligation to repay the loan under the agreement dated<…>year cash in the amount of<…>. Considering these actions of the defendant to be illegal, the plaintiff, taking into account the amended requirements, asked the court to recognize the terms of clause 7.12 of the agreement on the provision of a targeted consumer loan for the purchase of a vehicle No.<…>from<…>year invalid (void); recognize as repaid the debt to Cetelem Bank LLC under the agreement on the provision of a targeted consumer loan for the purchase of a car from<…>year, and the obligations are terminated, recognize the accrual of a fine in the amount<…>rubles for failure to submit an invalid vehicle title for temporary storage; recover compensation for moral damages from Cetelem Bank LLC in the amount of<…>rubles, legal costs in the amount of<…>rubles

To the court of first instance, plaintiff O.A. Baykova and her representative by proxy Dovbush M.S. did not appear, were notified of the time and place of the hearing of the case.

Representative of the defendant LLC "Cetelem Bank" by proxy Kurmaev D.V. did not admit the claims.

By the decision of the Sovetsky District Court of N. Novgorod dated December 11, 2014, the claims of Baykova O.A. partially satisfied. The terms of clause 7.12 of the agreement on the provision of a targeted consumer loan for the purchase of a car were declared invalid due to the nullity<…>from<…>year.

Cetelem Bank LLC was awarded compensation for moral damage in the amount of<…>rubles, a fine of<…> <…>rubles Cetelem Bank LLC was charged a state duty to the municipal budget in the amount of<…>rubles In the rest of the claims, Baykova O.A. denied.

In the appeal of Baykova O.A. The question was raised about canceling the court decision in the part in which she was refused to satisfy her claims for recognition of the repaid debt to the bank as accepted in violation of the norms of substantive and procedural law.

In its objections to the appeal, Cetelem Bank LLC asks that the court’s decision be left unchanged and the appeal dismissed.

The legality of the decision of the court of first instance was verified by the judicial panel for civil cases of the Nizhny Novgorod Regional Court in the manner established by Chapter 39 of the Civil Procedure Code of the Russian Federation.

By virtue of Part 1 of Article 327.1 of the Civil Procedure Code of the Russian Federation, the appellate court considers the case within the limits of the arguments set out in the appeal.

Having checked the case materials, discussed the arguments of the appeal, objections to the complaint, heard the explanations of the persons who appeared in the case, the judicial panel does not find any grounds for canceling the court decision, since it was decided in accordance with the requirements of the law and the circumstances established in the case.

<…>years between Baykova O.A. and Cetelem Bank LLC entered into an agreement to provide a targeted consumer loan for the purchase of a vehicle No.<…>.

Clause 7.12 of this agreement provides that the client agrees that all issues, disagreements or claims arising from the agreement with the bank and related to the collection of debt by the bank under the agreement are subject to consideration in court at the location of the bank.

In accordance with Part 7 of Art. 29 of the Code of Civil Procedure of the Russian Federation, claims for the protection of consumer rights can also be brought to the court at the place of residence or place of stay of the plaintiff, or at the place of conclusion or place of execution of the contract.

In accordance with paragraph 2 of Art. 17 of the Law of the Russian Federation of February 7, 1992 No. 2300-1 “On the Protection of Consumer Rights”, claims for the protection of consumer rights can be brought to court at the location of the organization, the place of residence or stay of the plaintiff, the place of conclusion or execution of the contract. In this case, the choice between several courts that have jurisdiction over the case belongs to the plaintiff.

Thus, in order to protect the rights of consumers, as the economically weaker party to the contract, the legislator has introduced additional mechanisms of legal protection, including in determining the jurisdiction of civil cases involving them.

The bank’s inclusion in the loan agreement of a provision on the jurisdiction of a dispute in a specific court (in particular at the location of the bank) infringes on the consumer’s rights established by law.

According to Part 1 of Art. 16 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the terms of the contract that infringe on the rights of the consumer in comparison with the rules established by laws or other legal acts of the Russian Federation in the field of protection of consumer rights are declared invalid.

Consequently, clause 7.12 of the loan agreement concluded between the plaintiff and the defendant does not comply with the provisions of the Code of Civil Procedure of the Russian Federation and the Law “On Protection of Consumer Rights”, and therefore, by virtue of Art. 168 of the Civil Code of the Russian Federation is void.

In resolving the stated claims, the court of first instance, having assessed the circumstances established in the case in relation to the above provisions of the law, correctly concluded that the condition of the loan agreement, clause 7.12 of the disputed loan agreement, is invalid by force of law.

The appeal does not contain any arguments challenging these findings of the trial court.

From the case materials it follows that<…>year, by registered mail with a notification and a list of the attachments, the plaintiff sent a notice to the defendant about the early repayment of the loan under the agreement dated<…>year, on the need to provide information and documents, as well as on changing the provisions of clause 7.12 of the agreement regarding the jurisdiction of the dispute under this agreement (case sheets 21-23).

<…>year this notice was received by the defendant.

However, the defendant did not provide a response to this notice.

<…>year, the plaintiff re-sent the specified notification to the bank.

Having not received a response to the repeated notification, the plaintiff<…>transferred to the bank for early fulfillment of the obligation to repay the loan in the amount of<…>.

It has been established that by the date of the next monthly payment (<…>year) the defendant did not credit the entire amount transferred by the plaintiff in the amount of<…>on account of early fulfillment of the obligation to repay the loan under the agreement dated<…>year.

This transfer was not made by the bank due to insufficient funds, since<…>year, the bank charged the plaintiff a fine for failure to provide a title for a vehicle in the amount of<…>rubles

<…>year, the defendant canceled the payment of a fine for failure to provide a title for a vehicle in the amount of<…>rubles (l.d. 185), and<…>year on account of the early execution of Baykova O.A. obligations under the contract credited the deposited funds to her account.

Thus, at the time of the court’s decision, the loan agreement was executed by the parties in full, and the parties’ obligations were terminated.

The court correctly stated that since at the time of the decision the said loan agreement was terminated by its execution, recognition of this loan agreement as executed (terminated) on a certain date will not in itself entail any consequences and will not directly lead to the restoration of the plaintiff’s rights.

Taking into account the grounds of the stated claims and the subject of the dispute under consideration, the arguments of the appeal about the illegal use of funds and the accrual of interest for the period from<…>year to<…>years, do not entail the cancellation of the decision of the court of first instance as unfounded.

Other arguments of the appeal, challenging the court's conclusions on the merits of the dispute considered, also cannot affect the content of the court's decision, the correctness of the court's determination of the rights and obligations of the parties within the framework of the disputed legal relationship, and do not indicate the existence of the provisions provided for in Art. 330 of the Civil Procedure Code of the Russian Federation grounds for the cancellation of a court decision.

Arguments challenging the court's conclusions regarding the satisfaction of the claims of Baykova O.A. the appeal does not contain any demands for the recovery of compensation for moral damages and a fine in her favor, and no demands for the cancellation of the decision in this part.

The court did not allow any violations of substantive and procedural law that led or could lead to an incorrect resolution of this case (including those referred to in the appeal).

Meanwhile, the operative part of the decision does not indicate that the recovery from Cetelem Bank LLC of compensation for moral damages, a fine and expenses for paying for the services of a representative is made in favor of O.A. Baykova.

Within the meaning of the provisions of paragraph 6 of Article 330 of the Civil Procedure Code of the Russian Federation, this circumstance cannot be a basis for changing the decision. The court's decision in this part is subject to clarification.

Based on the above, guided by Articles 328, 329, 330 of the Civil Procedure Code of the Russian Federation, the judicial panel for civil cases of the Nizhny Novgorod Regional Court

DEFINED:

the decision of the Sovetsky District Court of N. Novgorod dated December 11, 2014 is left unchanged, the appeal of O.A. Baykova. - without satisfaction.

To clarify the operative part of the decision of the Sovetsky District Court of N. Novgorod dated December 11, 2014 instead of the words “To recover from Cetelem Bank LLC compensation for moral damage in the amount<…>rubles, a fine of<…>rubles, expenses for payment of representative services in the amount of<…>rubles” indicate “Collect from Cetelem Bank LLC” in favor of O.A. Baykova. compensation for moral damage in the amount<…>rubles, a fine of<…>rubles, expenses for payment of representative services in the amount of<…>rubles."

Presiding judge.

When analyzing the submitted documents, it was established that the individual terms of the agreement with a specific consumer on the provision of a targeted consumer loan for the purchase of a vehicle included conditions that infringed on the rights of the consumer. In the agreement with the consumer Bank, the individual terms of the agreement and the total loan amount include: the amount of the loan to pay the insurance premium under the insurance agreement “GEP-insurance”, concluded between the borrower and the insurance company LLC NORD INSHUANCE (insurance premium - 5,100 rubles), the amount of the loan to pay the cost of the “Road Assistance” service provided to the borrower by LLC NORD INSHUANCE (insurance premium - 8,900 rubles), the amount of the loan to pay the insurance premium under the insurance contract “Protection against the loss of valuables”, concluded between the borrower and the insurance company by NORD INSHUANCE LLC (insurance premium - 2,500 rubles). According to the application for a consumer loan for a vehicle, it follows that the consumer did not want to be insured for the above services precisely in the insurance company specified in the standard form of the contract.

Since the Bank, in the loan agreement concluded with a specific consumer, insurance premiums under insurance contracts are included in the total amount of the loan, that is, paid from borrowed funds, such insurance was caused by the need to conclude a loan agreement, and not by the consumer’s need to receive additional insurance services. The inclusion in a loan agreement of conditions that are actually conditions for obtaining a loan indicates an abuse of freedom of contract.

Based on these violations, Cetelem Bank LLC was brought to administrative liability under Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) in the form of an administrative fine in the amount of 20,000 rubles.

The bank, not agreeing with the decision, appealed to the Moscow Arbitration Court with a statement to challenge it.

The Arbitration Court of the city of Moscow (case No. A40-103347/16) refused to satisfy the stated requirements, motivating its conclusions by the proof by the administrative body of the event and the elements of the offense, the responsibility for the commission of which is provided for in Part 2 of Article 14.8 of the Code of Administrative Offenses of the Russian Federation, as well as compliance with the procedure and deadlines bringing to administrative responsibility.

The Ninth Arbitration Court of Appeal, to which the Bank appealed, upheld the decision of the Moscow Arbitration Court, and the Bank's appeal was not satisfied.

The decision of the Moscow Arbitration Court and the Resolution of the Ninth Arbitration Court of Appeal entered into legal force.

Advice from lawyers:

1. I took out a car loan from Cetelem Bank, wrote a statement about the refusal of life insurance in Sberbank on March 24. How do I know if my insurance has been cancelled?

1.1. Easy: call SB and ask.
Good luck.