The amount of full early repayment - how to find out the balance of the loan debt? The Supreme Court clarified that to pay earlier is the principal debt on the loan or interest on fines We undertake to repay the song after the principal amount is closed
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How legal is it that when the loan is repaid, the funds are directed first to pay interest on fines and penalties, and only then to pay off the principal debt? Two instances, sifting through the issue of compliance of the terms of the agreement with the legislation, came to contradictory conclusions. The Supreme Court had to settle the dispute. He reminded banks that interest rates vary.
The bank took the excess
Olga Dar'ina * signed a loan agreement with VSB LLC. Under the terms of the agreement, the creditor provided her with 170,000 rubles. at 14.75% per annum, and it had to be returned in monthly payments of at least 7085 rubles. Darina paid off the loan and interest on the loan ahead of schedule, but according to her calculations, she overpaid 1187 rubles to the bank. The woman decided: the violation of her rights was caused by the fact that the contract contains conditions that violate her consumer rights. In particular, according to the terms of the agreement, the date of repayment of the loan, payment of interest, fines and penalties was the date of receipt of the money at the cashier's office or on Darina's account at the VSB (clause 2.4.2. Of the agreement). If there was an overdue debt, then the money paid to repay it, if there was not enough money, was sent first to pay off fines and penalties, interest, and then - the main debt on the loan (clause 4.2 of the agreement). Because of this, when Darina did not pay the entire amount, the percentage for using in cash increased and amounted to 45% per annum of the amount of debt on the loan instead of the agreed 14.5%, which led to an overpayment
In a claim sent to the Kirovsky District Court of Samara (case No. 2-2729 / 2016 ~ M-1777/2016), she insisted that the conditions determining the moment of fulfillment of obligations and establishing the priority repayment of claims for fines and forfeits over other requirements should be recognized invalid because they violate consumer rights. And she demanded the overpaid money, respectively, to be returned.
Different courts - different opinions
The first instance declared both contested terms of the agreement invalid and obliged the bank to recalculate the amounts paid. The Rajsud proceeded from the fact that the term of the contract concerning the maturity date was contrary to the provisions of Art. 37 of the Law on the Protection of Consumer Rights, according to which the date of the fulfillment of obligations is the date of depositing money to the bank or paying agent.
As for the provisions of the agreement on the priority repayment of fines and penalties over other obligations of the borrower, they, according to the court, contradict the provisions of Art. 319 GK. "Under the interest repaid earlier than the principal amount of the debt, interest is accepted for the use of funds payable under a monetary obligation, in particular interest for the use of the amount of a loan, credit, advance payment, prepayment, etc. Interest provided for by Article 395 of the Code for non-performance or late execution monetary obligation, are repaid after the principal amount ", - the court referred to clause 11 of the resolution of the Plenum of the Armed Forces No. 13 and Plenum of the Supreme Arbitration Court No. 14" On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds. "
However, the Judicial Collegium for Civil Cases of the Samara Regional Court, where the bank challenged the decision, refused to satisfy Darina's demands (case No. 33-11193 / 2016). In the appeal, it was decided that the change by the parties to the agreement of the order of repayment of claims for a monetary obligation, established by Art. 319 of the Civil Code, does not contradict the law and does not infringe on the rights of the consumer. The plaintiff voluntarily entered into a loan agreement on the proposed conditions, with which she was familiarized and which she undertook to comply with, indicated in the regional court.
Percents to percent differ
In the Supreme Court, where the case ended up, the regional court's position was not supported. The speech in this case is not about the freedom of contract, which the appeal spoke about, the court concluded. "The provisions of Art. 319 of the Civil Code of the Russian Federation, establishing the order of repayment of claims under a monetary obligation, can be changed by agreement of the parties, however, such an agreement may change the order of repayment of only those claims that are named in this legal norm," the Supreme Court noted. In Darina's case, we are talking about requirements that are not specified in the law - in particular, about fines and penalties.
Credit organizations insist in their standard forms of contracts that penalties are paid in the first place. Sometimes they even try to justify that at the same time Art. 319 of the Civil Code of the Russian Federation is not violated, because the sequence provided for in it is not affected, and fines are paid out of turn, etc. Such tricks are ineffective, and the RF Armed Forces once again emphasized this. The norm of art. 319 of the Civil Code of the Russian Federation is dispositive, but only within the limits of its disposition - you can change the order of repayment of only those claims that are indicated in it. In terms of the volume of the disposition, this is an imperative norm, that is, it is impossible to expand the list of requirements in relation to which priority is established. Sanctions and others not specified in the disposition of Art. 319 of the Civil Code of the Russian Federation, claims are settled in the last turn, and this does not depend on the nature of the relationship (consumer or business) -.
The court also clarified the issue concerning the procedure for paying interest. According to Art. 319 of the Civil Code, a payment that is insufficient to fulfill the monetary obligation in full, in the absence of another agreement, first of all pays off the creditor's costs for obtaining the performance, then interest, and in the rest - the principal amount of the debt, the board recalled. "Based on the meaning of the given legal norm, the interest referred to in it means interest that is payment for the use of funds (for example, Articles 317.1, 809, 823 of the Civil Code Russian Federation). Interest, which is a measure of civil liability, including fines and penalties, to those specified in Art. 319 4 of the Civil Code of the Russian Federation, interest does not apply and is paid off after the amount of the principal debt ", - supported the Supreme Court in determining the position of the first instance.
"The RF Armed Forces have unequivocally clarified that fines and penalties are not among the percent payable according to the rules of Article 319 of the Civil Code of the Russian Federation. It should be noted that in fact the RF Armed Forces duplicated the position of the RF Supreme Arbitration Court, set forth in several resolutions of the Presidium of the RF Supreme Arbitration Court and information letter No. 141. However, a similar legal position of the Supreme Arbitration Court of the Russian Federation for the purposes of resolving commercial disputes is more controversial, while this position of the Supreme Court of the Russian Federation for the purpose of protecting consumer rights looks much more justified "- Oksana Peters, Managing Partner, Tilling Peters Law Firm
In addition, the determination of the Supreme Court says that the appellate explanation does not motivate disagreement with the conclusions of the first instance on the invalidity of clause 2.4.2. loan agreement. "Such a ground for cancellation is rarely found in the acts of the cassation instance, but is often indicated by lawyers in cassation complaints, and, therefore, not in vain," he said Dmitry Shniger, lawyer at Khrenov & Partners Law Firm.
The board canceled the appeal decision, and sent the case for a new consideration to the Samara Regional Court (the case has not yet been considered).
* - the names and surnames of the parties to the dispute were changed by the revision
Often we pay off the loan and simultaneously save money to completely close the loan. Then the question arises, how much we owe the bank now and whether the accumulated money will be enough to pay off the loan in full. This figure is called the total early repayment or the balance of the loan debt. You need to know it at least approximately in order to understand how much you need to close your loan?
You can find out the amount of this amount in several places. Let's see how to do this using the example of Sberbank.
Option 1 - Correct and Slow
The most accurate information can be provided to you by hot line bank or bank branch. To contact the hotline, you need to know the number of the loan agreement, prepare your passport data. Well, you will have to wait if the hotline is very busy. This is especially true for large banks. You may not wait for the operator's answer.
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The option of contacting a bank branch is also rather slow. The branch may be far from you, there may be a lot of people, it may not work computer program... In general - if you have time, go to the department.
Option 2 - Fast and accurate
The second option is to use the internet bank. You just need to go to the Internet bank. And use the menu item early repayment. In the case of a loan in Sberbank - select in the menu Sberbank Online - Loans-> early repayment. Next, you will see the early repayment amount.
You can also carry out the operation there. But this works well for Sberbank, while other banks do not. Therefore, we go to option 3
Option 3 - We count ourselves
If your bank does not have a good Internet bank that shows all the necessary information on the loan, or you have not connected an online bank, you can calculate it yourself. From the side financial literacy this will be the most correct option. To calculate, you need an up-to-date payment schedule.
The schedule will be relevant if you took it
- In the internet bank of your fin. organization
- In add. office after the last early repayment
- Calculated manually or using a special calculator. Implemented on our site. You just need to indicate the correct parameters of the loan and get a valid payment schedule.
From the schedule, you can determine how much you need to pay in order to fully repay the loan ahead of schedule?
Let's look at an example and consider a payment schedule 
This is a typical VTB24 bank payment schedule. Sberbank will have a similar schedule, only there will be no "First payment - interest" value.
Let's say we want to fully repay the loan ahead of schedule in the period from 10-10-2011 to 10-11-2011, let's say on the date of October 20, 2011. The question is, how much money do we need for this?
Formula for calculating full early repayment
Sum full repayment= Nearest every month. payment + the balance of the debt in the next month. payment
- Monthly payment highlighted orange, it is 11987.15.
- The nearest date every month. payment is 10-11-2011. Remaining debt on this date 730327.57 - flagged green.
Let's calculate the required amount:
Full repayment amount = 11987.15 + 730327.57 = 742314.72
You need to write an application and deposit this amount into the account so that the bank will completely cover your debt ahead of schedule. And not a penny less.
On the offensive next date every month. payment, the bank deducts the next payment from your account, and then subtracts the remaining amount from the debt amount. The next payment will be zero and the loan can be closed.
You must know. If you deposit the amount, less than 742314.72, then the bank will most likely not close the loan. The money will remain in the account and will be used to make future monthly payments. Those. full advance will not happen
Four basic rules for full early repayment
There are 4 things to understand when repaying a loan in full ahead of schedule.
- Rule 1. You need to understand that the amount to full early repayment is not fixed. It will depend on the date of early repayment. For example, the amount for full early repayment from 10.10.2011 - 10.11.2011 will be one, and between 10.11.2011 - 10.11.2012 there will be another - smaller.
- Rule 2. If you have had delinquencies on the loan and if they are, then you will not be able to calculate using the specified formula. You need to add to the amount for the complete closure of the loan. The bank will first write off the delay from the payments you made, and then it will try to repay the loan in full, if there is enough money
- Rule 3. Changes in rates, partial early repayments affect the amount to be repaid in full. These actions change the monthly payment and the balance of the loan body. And the full amount of the early term also depends on these data.
- Rule 4. Remember the fees and terms of transfers. If you deposit money by transfer, then remember that they have a deadline. Bank transfer, as well as a transfer from card to card can take up to 3 business days. When depositing money through various terminals, commissions may be taken on the payment amount. Therefore, full early repayment in this way is not advisable
The change in the loan body over time can be seen in the following graph. 
As you can see from the graph, over time, your debt to the bank decreases. And this is the amount to be paid in full
Finally
It's easier to figure out how to find out about the amount of full early repayment yourself once. This will save you time on going to the bank. However, you need to understand that if you count yourself, then this is a reference value. It is needed to understand how much money you need to earn and accumulate to completely close the loan.
I have a loan debt. I was at the bank today and took an account statement on all payments made. First of all, out of 10 thousand, eight were spent on interest and only two thousand on the principal debt. Last week I deposited one thousand, and it went to pay off the fines. I read that first of all payments should go to pay off the principal debt, then interest and only then fines. Please tell me this is so, or I misunderstood something, and why almost the entire amount of the monthly payment is spent on interest, because you can pay all your life, money goes down the drain.
Answer
Hello Arina.
In accordance with Article 319 of the Civil Code of the Russian Federation, if in loan agreement not specified otherwise, then the amount of the payment made shall first pay off the interest, and in the remaining part, the principal amount of the debt. As for the penalty, the contract cannot establish its primary repayment, such an agreement will be null and void. However, you can pay off the forfeit voluntarily, and the bank has the right to demand its repayment through the court before the principal is paid ( Information mail Of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 20, 2010 N 141 "On some issues of the application of the provisions of Article 319 of the Civil Code of the Russian Federation"). Thus, the interest is paid off first, then the principal debt, and only then the forfeit.
Arrears on bank loan carries a penalty, the amount of which is prescribed in the contract. And, as a rule, these are considerable sums. The total amount of interest and other sanctions for a month can be the entire size of the loan, which becomes an unbearable burden.
The longer the debt is not repaid, the more expenses will have to be incurred. Below we will consider all the options for writing off loan penalties.
Letter to the bank
You can always contact the department and express your disagreement with large sum accrued interest. It is better to submit the application in writing, registering with the secretary, which will allow you to get an official response in a month. The text must necessarily contain a proposal to reduce fines.
Such paper is made up in 2 copies and brought to the department. One of which is submitted to the bosses or the secretary, and on the second, the bank should be dated and signed.
If credit organization refuses to endorse the petition, you can send it by registered mail. It is better to enclose a list of contents in the envelope. All the nuances of registration can be found in the post office.
When the institution has received the letter, but does not make concessions, it is necessary to wait for a written refusal response. It is with such a document that you can go to court and initiate proceedings.
Litigation
If the case is already in court, then you can always file a petition in the course of the case for writing off penalties and other loan sanctions. If the bank has not yet had time to answer the petition in an official manner, then a copy of the application and a postal notification of receipt can be sent to the court.
It is relevant to reduce or write off fines in cases where their size has grown to half the loan, or even more. There have been cases where credit institutions delayed the moment of filing an application with the court so that the client had more debt.
Thanks to the Civil Code of the Russian Federation, article 333 you can not pay interest on the loan. The law provides for a reduction in the amount of debt in judicial procedure... The rule is triggered when the penalty is “disproportionate to the consequences of the breach of obligation”.
In this case, the authorities consider in the course of the case all the circumstances that are not even directly related to the violation. Even inflation is taken into account, including the rise in prices for food or drugs.
Do not count on the loyalty of the judge. There is no guarantee that, having received a petition from the debtor, he will make a decision in favor of the defendant. As a rule, the refusal is motivated by something, for example, the obvious non-cooperation of the debtor with banking organization... But if the decision is not competent, then it can be appealed.
Ways to write off the penalty
You can get rid of the accrued fines in other ways:
- Launch the bankruptcy process of an individual, which has become possible for Russians since mid-2015. This is a long and expensive process, which also has its negative consequences for the borrower.
- Wait until the expiry of the limitation period, which, according to the decision of the Supreme Arbitration Court of Russia and the Supreme Court, is 3 years after the date of the last payment of the client or his contact with the bank. After three years have passed, creditors will not be able to claim repayment of the debt.
- Transfer of the client's debt to the "hopeless" section. At this stage, it is still possible to agree with the bank, which, if the entire loan amount is paid, can write off the penalty.
- Agree with the collectors. Due to the fact that these companies acquire debts at a 20% discount, there is always a chance to come to an agreement to write off penalties.
It is possible not to pay penalties for debt with a competent approach. To do this, you will have to show your conscientiousness and a desire to pay off the debt.
If the delay has arisen for compelling reasons, the bankers and the judge will always make concessions. Although in some cases, if the loan is more than 500 thousand rubles, you cannot do without the bankruptcy procedure.
An annoying problem is associated with the repayment of the loan in terms of overdue debt. Banks regularly try to collect a penalty from the debtor, no matter how small the payment may be.
Circumstances do not always allow you to pay the full amount on the loan, but a conscientious borrower pays as much as he can. The debtor believes that in this way the case will not go to court, and the loan will gradually be repaid. Banks often think differently and charge a penalty, then deduct the incomplete payment against the payment of the penalty and again award a penalty, because there were not enough funds to pay off the loan body.
With this approach, in order to get rid of the "counter", the borrower must pay off all penalties and late payments at once. The borrower cannot and falls into bondage. The fact is that some courts support creditors, although this is at odds with the higher courts.
Debt repayment mechanism
The order of debt repayment is of keen interest to debtors who are able to make payments, but not completely due to the difficult situation. Therefore, it is especially unpleasant when the bank does not want to accept such amounts to pay off the debt, but counts them exclusively in the payment of fines. , we wrote in one of the previous articles.
The debtor should know how the order of incomplete payments is regulated in the civil law and why the creditor is wrong if he transfers them to a penalty.
As a general rule, the Civil Code provides for the procedure for payments based on their effectiveness:
- unsecured loans are paid before secured loans;
- payments on loans with a close maturity are made earlier than on remote loans.
This is how the law promotes the fulfillment of the maximum available obligations. The rest is regulated by special articles and clauses of the contract, if the parties choose other conditions than in the law.
What affects the order of payments
The debt settlement system is regulated by:
- The provisions of the Civil Code, and is also influenced by the clarifications of the Supreme and the Supreme Arbitration court in letters and decisions: Art. 319, 395, 809 of the Civil Code of the Russian Federation;
- By the Resolutions of the Plenums RF Armed Forces N 13 and RF Supreme Arbitration Court N 14 of 08.10.1998 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds."
- Letter from the Presidium The Supreme Arbitration Court of the Russian Federation dated 20.10.2010 No. 141 “On some issues of the application of the provisions of Art. 319 of the Civil Code of the Russian Federation ".
The Civil Code of the Russian Federation has an understatement regarding the procedure for paying penalty interest on a loan, which has led to repeated clarifications.
Art. 319 regulates the normal sequence of payment of the loan, including the loan interest. The principal interest is charged on the original loan and becomes a fixed amount.
The problem lies in the lack of a clear legal formulation of what percentages Art. 319. But it says that interest is paid before the main debt. Until now, even the explanations of the Supreme Arbitration Court of the Russian Federation cannot convince individual creditors and the courts that this is not a penalty interest. So the bank credits payments to the penalty account, if it is not stopped.
Art. 395 concerns penalties, and creditors should be guided by it, according to the Presidium of the Supreme Arbitration Court of the Russian Federation. Then the penalty interest is paid after the principal.
Also Art. 395 has an important provision on the prohibition of " compound interest”, That is, the creditor does not have the right to charge interest on interest, increasing the penalty again and again.
The concept of loan interest is given in Art. 809, but Art. 319 remains ambiguous, prompting the high courts to formally clarify the procedure.
In what order is it legal to pay off debt
In the final form, with incomplete payments of debt, taking into account Article 319 of the Civil Code of the Russian Federation and the interpretation of the Armed Forces and the Supreme Arbitration Court of the Russian Federation, the order of payments is as follows:
- Costs on the fulfillment of a loan obligation;
- Loan interest calculated when taking a loan;
- Principal amount a loan;
- Penalty interest in the form of interest and fines.
As you can see, the bank should not credit incomplete payments the debtor only on account of the forfeit. The penalty always comes last in the distribution.
The court recognizes other actions of the creditor unlawful. An agreement prescribing to pay a penalty first is declared null and void.
The court is always obliged to check the debtor's statement about the bank's violation of the procedure for crediting payments. Ignoring this point leads to a change in the decision at a higher authority.
In judicial practice, there are also enough situations when the appeal of illegal settlements remains unaddressed. Sometimes the courts consider freedom of contract (Art. 421) above the conditions of Art. 319, which says "unless otherwise specified by the contract."
It must be understood that Art. 319 contains an exhaustive list of payments that can be swapped:
- the bank's costs for the execution of the loan;
- interest on the principal loan;
- the original loan amount.
If the contract says, they change. No penalty payments are included here. However, creditors often try to take their interests into account at the beginning, drawing up an illegitimate contract.
Art. 319 regulates the normal sequence of loan repayment.
Opportunities in order to pay off debt
Opportunities don't always bring something good to a situation. Likewise, in the fulfillment of obligations, unexpected items of expenditure may appear.
The debtor, like the creditor, looks for options convenient for himself in the law and uses them until the court intervenes in the case. Violation of the debt repayment framework established by the Supreme Arbitration Court in the agreement is beneficial to the borrower. However, competent debt repayment by the bank makes the debtor suffer even greater losses.
Debt repayment is associated not only with the payment of debt, interest and penalties, but also with such an item as the costs of the creditor. They can be far from small.
Is it possible to pay only the main debt
The controversial point with the payment procedure is complicated by the fact that the corresponding norms in the Civil Code of the Russian Federation are dispositive in nature. That is, they must be changed according to the terms of the contract. Dispositiveness of Art. 319 is confirmed in clause 2 of the Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 20.10.2010 No. 141.
From this federal courts make the wrong conclusions and take the side of the banks, which first fill in the forfeit, if this is taken into account by the contract. The Supreme Arbitration Court overturns such decisions one by one, explaining that the conditions of Art. 319 does not apply to the penalties of Art. 395.
Does this position of the Supreme Arbitration Court of the Russian Federation mean that the debtor can ignore the penalty interest and return the original loan for as long as he wants? No.
In the Resolution on the next controversial case dated 02.03.2010 No. 7171/09, the Presidium of the Supreme Arbitration Court of the Russian Federation indicates that for violation of the terms of the contract (delay in payments), the creditor may demand a forfeit through the court.
That is, incomplete payments of the debtor cannot be counted against the forfeit account. However, it is possible to collect a forfeit through the court. And this will entail the usual consequences with the seizure of property, if necessary.
The message of the Presidium of the Supreme Arbitration Court of the Russian Federation with Letter No. 141 dated 20.10.2010 also states that changing the procedure for repaying a debt cannot be one-sided. Although in practice there is a situation where the debtor can already in payment document specify the purpose of payment what you see fit. And the bank usually takes into account the wishes of the debtor, and the Supreme Arbitration Court of the Russian Federation accepts it as a custom.
It turns out that the debtor can only pay the principal debt for the time being, while the bank has enough patience. As soon as the bank goes to court, not only the accumulated penalty will be written off from the debtor, but also the legal costs.
What is the "lender's cost of executing a loan"
For a long time, only measures aimed at issuing loans were considered the costs of banks to fulfill obligations. In its Letter dated 20.10.2010 No. 141, the Presidium of the Supreme Arbitration Court of the Russian Federation expressed a different opinion.
The costs, according to the Supreme Arbitration Court, include the funds spent on compulsory execution loan agreement:
- aimed at litigation, including fees;
- used for the sale of the property pledged by the debtor;
- potentially even spent on collection activities.
The most voluminous item of such costs may be the costs of organizing auctions in order to sell mortgage property... During periods economic downturn new housing is losing its attractiveness, and debtors prefer to sell the pledge. As a result, you will have to spend money on auctions and announcements more than once. Hired specialists may also be needed.
In the rules of Art. 319 of the Civil Code of the Russian Federation, it is this type of debt that is paid primarily in case of incomplete payments from the debtor.
Interest over interest
The desire of creditors to apply to the debtor as many sanctions as possible for lost profits is understandable. It is not for nothing that contracts put especially high interest rates on overdue debt. The borrower is expected to fair execution their obligations.
However, the unjustified collection of penalty interest from the debtor leads to credit slavery. Without the help of the court, it is impossible to prove that the payments were made against the principal debt. Banks continue to accrue interest and credit only for the payment of these penalties, although they must first set off payments in the original interest and the loan amount. Read more about debt collection on a loan.
It is even worse that not all courts interpret the law correctly and violate the rights of borrowers. Thus, the debtor also bears the burden of paying the cost of executing the loan.
Not all courts interpret the law correctly and violate the rights of borrowers.
The situation is seen to be resolvable only at the highest judicial level until clearer wording of the law or sanctions for an attempt at unjustified settlement of debts are developed.
Does the bank require early repayment to the borrower? Watch the video:
Even with the clarifying Letters of the Supreme Arbitration Court, the issue cannot be considered settled, since our legal system allows only conditionally relying on the opinion of the Supreme Arbitration Court and judicial practice... Formally, decisions should be based on a law at the level of the Civil Code, which is contradictory.