Appealing the bank's action to court. Sample application to appeal the bank's actions to the court. If the court decision has already entered into force

How to appeal the bank’s actions in returning a writ of execution to collect wages from a bankrupt enterprise?

Answer

THE BANK'S ACTIONS CAN BE CHALLENGED

S. BESPALOVA

Our organization has several founders, one of whom is a director. His powers have expired. Disagreements arose between the founders regarding the extension of the director's powers. The time has come to transfer salaries to employees, and the bank refuses to accept payment orders, demanding from us a protocol on the extension of the director’s powers or the appointment of a new one. Does the bank have the right on this basis to refuse to carry out a banking transaction related to the transfer of wages?

I. Khrunko, Vologda

Legal entities have the right, at their own discretion, to freely dispose of their own funds, including an account opened in a bank (Part 2 of Article 209 of the Civil Code of the Russian Federation).

Restriction of the client's rights to dispose of funds in the account is not permitted, with the exception of seizing funds in the account or suspending operations on the account in cases provided for by law.

At the same time, the rights of persons carrying out orders on behalf of the client for the transfer and withdrawal of funds from the account are certified by the client by submitting to the bank the documents provided for by law, the banking rules established in accordance with it and the bank account agreement.

The banking service agreement specifies the procedure and deadlines for submitting documents confirming authority (extension of authority). As a rule, this period is several days before the end of the term of office in accordance with Instruction N 153-I and is prescribed in the banking rules of each bank. Based on this, the bank has the right to refuse to accept documents drawn up in violation of the requirements of banking rules. The bank is not responsible for damage caused to the client if the termination of the powers of the persons was not timely confirmed by the client. The conditions for opening accounts should not contradict banking rules (instructions of the Central Bank, federal laws). The Bank has the right to agree on or announce those conditions that it considers important (priority, fundamental) when carrying out its activities related to the provision of services and making a profit.

Typically, bank rules on opening, closing and re-registration of bank accounts contain a condition that the bank does not accept settlement documents (on paper and in electronic form) for execution if there is conflicting information about the powers of officials entitled to dispose of funds , located on the account.

In order for the bank to execute instructions from a client - a legal entity, a special card is issued with samples of the company's seal and signatures of persons authorized to give instructions to the bank. In accordance with clause 7.11 of Bank of Russia Instruction No. 153-I dated May 30, 2014 “On opening and closing bank accounts, deposit accounts, deposit accounts” (hereinafter referred to as Instruction No. 153-I) in case of early termination (suspension ) the powers of the client’s governing bodies in accordance with the legislation of the Russian Federation, the client submits a new card.

Submission of a new card to the bank must be accompanied by the simultaneous submission of documents confirming the authority of the persons indicated on the card to manage funds in the account, as well as documents identifying the person(s) authorized to sign.

To certify a new card at the bank in accordance with clause 7.11 of Instruction N 153-I, documents confirming the authority of the new manager will be required. Such documents, in accordance with business customs, are: passport of the person appointed by the manager; protocol (decision) of the highest management body of a commercial organization on the appointment of a manager; order of the manager on taking office and appointing a person responsible for accounting.

Thus, the bank has the right to refuse to carry out banking operations if the legal entity has not confirmed the extension or termination of the powers of the executive body. But there is judicial practice when the bank’s actions were recognized as unlawful.

Thus, the FAS UO in Resolution dated 06/04/2009 N F09-3530/09-S5 in case N A07-11172/2008-G-SIZ ruled that the expiration of the term of office of the sole executive body is not a basis for refusing to accept payment documents signed by him , if the corresponding changes have not been made to the bank card. FAS DO in Resolution dated 02/20/2009 N F03-6385/2008 in case N A73-4128/2008 concluded that the execution of a payment document signed by the sole executive body, in respect of which the bank was notified by the company's participants about the decision to remove positions, is not a basis for holding the bank liable, since the corresponding changes were not made to the bank card and the specified decision was subsequently declared invalid.

Our company provides assistance in writing coursework and dissertations, as well as master's theses on the subject of Banking Law, we invite you to use our services. All work is guaranteed.

Recently, this issue worries every able-bodied person who has decided on consumer, mortgage and car loans.

But is the forced collection process as scary as debt management officers make it out to us? The law is often on the side of the decent payer. Actions related to legal disputes are described below.

How is loan debt collection carried out?

For an individual who has violated obligations under an agreement with a bank or organization, an approximate plan for the development of events awaits:

1. Systematic telephone calls from bank employees.
2. Letters in electronic form demanding repayment of debt(s) ahead of schedule.
3. Litigation, the basis of which is precisely loan agreement.
4. Seizure and inventory of personal property by bailiffs.
5. Deductions from salary. By law, up to 50% can be forcibly deducted from the official salary (“net salary”).

What to do and what to do if you have a subpoena for non-payment of a loan

To say: “Don’t panic and hope for the best” means simply to laugh at a person... First of all, you need find out the exact date and time of the trial.

In no case should you contact the bank upon receipt of a summons, pay debts in full, as well as dubious, sometimes not entirely adequate fines.

A lawsuit, alas, cannot be avoided, but trying to challenge part of the debt, interest or fines is the most important thing. The fact is that the credit institution collects a whole list from the individual.

Here is a sample list:

1. The principal or balance thereof.
2. A certain amount for use, called interest.
3. A fine in the form of an inflated interest rate for late payments, both for the principal debt and for the overdue one.
4. Penalty or fine for the entire debt.

You cannot skip a meeting, even if its outcome is clear in advance. Of course, the courts recognize most of the banks’ demands, but it is imperative to take part.

How to win a lawsuit over a bank loan

The likelihood that a judge will cancel all obligations under a debt to a credit institution is zero. So what do we mean by winning a court case? We are talking about the abolition of unfair fines and inflated interest rates. The main debt will have to be repaid somehow.

In practice, the debtor, before his contract reaches trial, is “overgrown” with new amounts, interest and fines. It is very possible that they will add the same amount to the loan, breaking it down into previously unclear fines and inflated interest. This is what they sum up: either win or lose.

Under no circumstances should you remain silent, because it is easier for everyone except you or your organization.

Advice! If you are not confident in your abilities, you should contact a credit lawyer. A professional examines similar cases in theory and practice every day. The lawyer will give a sober assessment of the situation.

To achieve a result from a court hearing, you still need to:

1. Prepare in advance documents confirming the objective reasons for the delay. People lose their jobs every minute, go into the army seasonally, and are unexpectedly sent for treatment. Anything that can be supported by a legal document will count. For example, an extract from the accounting department about a reduction in the official salary will be useful in the process.
2. Statement about . For a decent, good client there is always an alternative approach. If there is no money for the promised monthly payment, then they offer debt restructuring from the very beginning. The main thing is that there is confirmation on paper that the person tried not to make matters worse, but was refused. This document will also help during the trial.
3. . We are talking about the help of a third-party credit institution. Responsible, non-conflict borrowers always take the easy route, calling on other banks for help. But the court will not have a positive effect if you organize the appearance of refinancing or restructuring. Judges deal with similar methods every day and, of course, immediately determine the further behavior of the debtor.

You can win the case or at least get rid of some of the unfair interest only by dealing with the original cause of the debt. What “let you down” before the bank is an argument in court, the main thing is submission, as well as the presence of the correct documents and the absence of malicious intent.

How to challenge a court decision under a loan agreement

You can appeal a court decision if:

1. The process did not take place at your place of registration.
2. There was no notice of an exact trial date.
3. The result of the court decision was determined without your presence, but there was no time for the court for a good reason (treatment, business trip, hospitalization, etc.).
4. Illegal bank demands.
5. Error of the judge or judicial commission.

This list is quite narrow from the point of view of jurisprudence; it must be confirmed and justified on an individual basis.

A second court hearing or an appeal of the first act is not an individual whim, but a legal right of a citizen. The cost of fees to challenge a court decision is as follows:

1. Complaint (appeal or cassation) – 100 rubles.
2. Supervisory complaint – 200 rub.
3. Application to cancel the decision of the arbitration court - 1500 rub.

To challenge, you need to focus on the following:

• the correctness of the final calculation of the debt;
• whether you were charged a commission in the process of payments or issuance of funds;
• the value of your property from the bank’s point of view;
• a penalty presented with a statement of claim;

The most common litigation is due to penalties. Moreover, the banks willingly reduce the amount and several times, because the representative of the credit institution declares in 9 cases out of 10 an illegally inflated amount of interest on interest.

Since 2010, borrowers have been prohibited from using compound interest on loans in contracts; their use in the direct and indirect sense is excluded.

Also, for late mortgage payments, the bank does not have the right to demand early repayment in court if the payer has suffered a salary reduction or dismissal.

What to do if...

Notification not received by debtor

According to the law, decisions cannot be made without confirmation of service of the summons. It happens that the defendant does not notice the summons. The recipient is often simply absent from his place of registration for a long time. It is in this case that the court decision with the bank will not be valid.

The man missed the trial and the hearing took place without him

In practice, this situation is called absenteeism. The trial only proceeds if the summons is accepted. And the defendant is indeed informed, but does not intend to attend. This attitude is, of course, understandable, but if there is even a small part of doubt about the honesty of the credit institution, then the absentee option for the defendant is a foregone conclusion.

If suddenly the absentee hearing took place without the knowledge of the defendant, then this changes the situation. It is necessary to appeal the result in court. And you need to act very quickly, within 9 working days. As a rule, the first court is a formal meeting of the two parties, where representatives of the bank and the debtor discuss further actions.

There is no physical opportunity to go to court at the allotted time

Everyone is human, so you can ask for a rescheduling in advance and politely. But you need a good reason, for example, illness, death of a loved one, temporary incapacity of the defendant, etc.

No money for a lawyer

But there is time for free consultations, studying codes and articles on the Internet. Representatives or assistants in court, namely their presence, is not a mandatory process when it comes to overdue consumer loans. There is no need for professional support in a simple matter, if only because it is not beneficial to anyone.

On the other hand, since the beginning of 2015, amendments have been adopted to the Federal legislation, where private.

This action is called “personal bankruptcy”. The term is determined by the following criteria: debt of more than 500 thousand rubles, delay of more than 3 years. You can declare bankruptcy on your own; you can also be officially declared bankrupt by the court.

It is at this stage that individuals and legal entities can hire a professional lawyer or lawyer. “Profitable” bankruptcy is possible because each debt situation is individual.

For a certain amount of money (from 10 thousand rubles), lawyers will draw up the necessary package of documents to present the debtor as a decent borrower.

A representative goes to court.

You can send a representative to the meeting only with a notarized power of attorney. Moreover, if the defendant doubts his own abilities, it is better to spend money on a lawyer, because there are no lawyers in civil cases. Article 48 and 49. Code of Civil Procedure of the Russian Federation.

To sum it up

If the court is on your side, and fines are excluded, then the main debt cannot be canceled. Everyone will have to pay what they promised. Also, in court it is impossible to oblige a credit institution to reconsider the terms of the agreement.

What if the bank won the lawsuit?

In the video below, lawyer Sergei Panasyuk tells what to do if the bank wins in court.

Recently, the consideration of legal disputes regarding claims of banks against their debtors is one of the most common categories of civil cases. Many citizens do not know how and do not want to live within their means; they take out loans without calculating in advance whether they have the financial capacity to pay them off. There are citizens who seem to have calculated everything, but did not foresee that they would suddenly be fired from their jobs, or their wages would be sharply reduced, or that they would end up in the hospital for a long time as a result of illness or an accident. There are not very attentive citizens who forget the date of making the next payment, as a result of which their debt to the bank grows due to the accrual of penalties.

Banks and other credit institutions, when issuing consumer loans to citizens, count on the conscientiousness of borrowers, that is, on the timely return of funds received by them. But the number of those who do not refuse to pay, but do not pay, is increasing every day. Each defaulter has his own reasons, motives and explanations for his behavior. Yes, every person has emergency circumstances, but at the same time, conscientious citizens turn to their creditors, who almost always meet such people halfway, providing either credit holidays or debt restructuring, thereby reducing the borrower’s credit burden.

But no less of the debtors are citizens who simply avoid communicating with representatives of bank credit departments and do not respond to telephone calls or written complaints. And then the bank goes to court demanding early repayment of the loan.

When considering cases of this category, courts are primarily guided by the fact that obligations must be fulfilled.

Important! That is, malicious debtors cannot count on a reduction in the amount of debt, especially if they avoid appearing in court.

Having received a court decision, the debtor rarely agrees with it, and is almost always ready to appeal it to a higher authority. One of the absolute grounds for reversing a court decision is consideration of the case in the absence of evidence in the case materials of proper notification of the defendant to the debtor. But the joy of reversing the decision does not last long, since the appellate court makes its decision on the case, which, as a rule, satisfies the bank’s claim to the same extent as the court hearing the case at first instance.

The same short-lived joy awaits the debtor in the case where the bank is issued a court order at his request. Upon objection of the debtor, the court is obliged to cancel the court order. This is where the moral satisfaction of the debtor ends, because the bank addresses its claims through claims proceedings. At the same time, the amount of the state duty collected from the defendant (debtor) when satisfying the claim is doubled, because in writ proceedings the duty is paid by the bank in the amount of 50% of the duty that the plaintiff bank must pay when filing the claim.

It is not very easy to challenge the decision regarding the accrued amount. The amount of the principal debt usually does not raise questions, as does the amount of accrued contractual interest for the use of borrowed funds. The main battlefield is the amount of accrued penalties: penalties (penalties) for late fulfillment of a monetary obligation.

In this part you can fight to reduce them (and significantly reduce them). The fact is that the legislator gives the court the right to reduce the amount of these same fines, but only if the following conditions are simultaneously met:

1. the delay in execution is caused by valid reasons related to the personality of the debtor (his serious illness, for example, or the objective impossibility of quick employment in the event of an unexpected dismissal);
2. the penalty to be collected is clearly disproportionate to the consequences of the violation of the obligation (for example, the amount of the penalty significantly exceeds the amount of the principal debt).

All of the above indicates that if a citizen has already become a debtor to the bank, then he should be a debtor in good faith. Timely fulfillment of obligations will save money, time and nerves. And if the matter comes to court, then you should also weigh the pros and cons: appeal the court decision to collect the debt or fulfill it.

ATTENTION! Due to recent changes in legislation, the information in this article may be out of date! Our lawyer will advise you free of charge - write in the form below.

In this case, it is best to use the time sequence of all events. When writing facts, each of them must have a corresponding date. Also, the description of the situation itself should be as neutral as possible. What does it mean? In no case do you need to tell how unlucky you were in life and how you were offended. The main thing is to indicate events and their confirmation as briefly as possible. In addition, the facts must have their documentary evidence. First of all, this is an agreement between the bank and the citizen. Among other things, there are various certificates, receipts, etc., which indicate payment of sums of money, communication with the bank, debt collectors, etc. The last part contains a petition. It represents a request that is aimed at solving a situation. Thus, the authorized bodies must consider all the facts of the case and decide the issue in relation to the correctness of one of the parties.

Where and how to write a complaint about unlawful actions of bank employees

Also, in addition to this, you also need to write the name of the employee who will be authorized to review the case. For example, if the application is sent to the address of the Central Bank, its head will become an official.

Attention

It is clear that he himself will not understand your case, but will forward the complaint to one of the employees of this structure. But, nevertheless, it is to him that the initial appeal should go.

Info

Immediately after this data we write the name of the citizen who is seeking help. In addition to initials, you also need to indicate your mobile phone number and residential address.

Important

Such statements are necessary to be able to establish contact with the person. Now in the center is the name of the application - a complaint to the bank.

Bank trial: David versus Goliath?

The fact is that this body has much fewer capabilities than the prosecutor. Therefore, it is better to immediately go to the last mentioned body, since the effectiveness of this appeal is much higher.

Sample complaint against the bank's actions Now let's move on to the actual preparation of the document. It does not have a specific form to fill out, regardless of which authority you contact.

Therefore, you will need to write a complaint against the bank on your own, using special instructions and samples. In addition, applications to various authorities are drawn up according to the same scheme.

Therefore, let's consider it in more detail. The upper right corner is intended to indicate the names of the persons who are applying and who must consider the complaint. First, we write the full name of the authority to which the application is being submitted.

Individual entrepreneurship

The fact and basis for opening a case will be the direct appeal of a citizen who witnessed or suffered from such actions. Drawing up a complaint about the activities of a banking organization is a very important process.

It not only helps to restore the violated rights of a citizen who has suffered from the activities of this institution, but also is the basis for ensuring that the situation does not repeat itself in the future. If you remain silent today, then tomorrow someone else will step on the same rake.
Writing an application and submitting it to the relevant authorities is a rather complicated procedure. When taking such a step, it is worth knowing certain nuances. The most basic of them are the form of appeal and the authority that can help. To answer such questions, it is necessary to analyze the regulatory framework.

Application to challenge the actions of the bailiff

And the point here is not in technical problems, but in the bank’s actions themselves, which are often unlawful. In order to resolve the conflict, many citizens are forced to complain about the bank.

In this article we will talk about which authorities you can contact with a complaint. Content:

• Where to complain
• To the bank management
• To Rospotrebnadzor
• To the Antimonopoly Service
• To the prosecutor's office
• To the Central Bank of Russia
• Lawsuit
• Samples

Where to complain Unfortunately, sometimes banking service can hardly be called indicative:

• Non-working ATMs;
• Illegal withdrawal of funds;
• Fees charged for services that should be free;
• Employees who refuse to accept important statements;
• And more.

All this leads to the indignation of citizens, which is formalized in the form of a complaint.

Where can I complain about the bank?

In addition, another popular option is calling parents, family and friends. In this way, they try to return the money by any means and through all possible people. Let's say right away - this is illegal. But this fact needs to be brought to light. The debtor's word alone will not be enough. The prosecutor's office can rely on his information, but as practice shows, this does not lead to anything. Therefore, before contacting the prosecutor, prepare thoroughly. To do this, try to record on a voice recorder all conversations with debt collectors, under no circumstances throw away any written requests from them, etc. Also, another body that can help is law enforcement agencies. But, such an authority is used, as a rule, in cases where employees of the collection department brazenly come to the house, begin to threaten and demand something unknown. In this case, you need to call the police.

Complaint against the actions of banks and other credit organizations

You can file a complaint against the bank even if employees of a collection organization demanded your money back at your door and your neighbors heard about it. Therefore, any deviation from the Law, which also contains an indication that the bank is obliged to adhere to the terms of the bilateral agreement with the client, is grounds for contacting the Central Bank.

Also, another option is to file a complaint against the bank with the prosecutor's office. Basically, such applications are received for activities requiring the return of money.

If we previously considered the responsibilities of the Central Bank in the area that a financial institution unlawfully transferred the rights to communicate with a client to another person, then here it is worth complaining about the method of communication itself. Quite often, banks do not stand on ceremony and do not try to resolve the situation peacefully.
It’s much easier for them to jump straight to threats.
In the event that a bank employee was rude to you and did not perform his duties correctly, you have every right to contact his management. It makes no sense to involve other authorities in such cases.

Such actions should be resorted to only when this procedure does not produce results. What will be needed for this and how to arrange everything correctly? First of all, if you are faced with a situation of incompetence or bad manners of an employee, resolve the issue immediately on the spot.

You shouldn’t delay this and put things off until tomorrow or the day after tomorrow. The faster you come to your senses, the more effective your actions will be.

To do this, you can ask the employee to call the head of the department. Try to resolve any problems verbally. If you cannot or do not want to get out of the situation in this way, file a special complaint addressed to the head of the department where the incident took place.

The second option for resolving issues regarding the activities of banks is to contact the Central Bank of the Russian Federation. Today, this authority is called upon not only to set ruble exchange rates in relation to foreign currencies, but also to generate lists of claims against financial institutions that previously received a banking license and consider them. But, in this case, it is worth understanding that the Central Bank will not be able to consider all categories of cases. The point here is that the activity of this organization is to monitor the fact that Russian banks adhere to the norms of legislation. That is, we can talk exclusively about liability for offenses in the financial sector.
If the conflict is not resolved, you can complain to the prosecutor's office. The prosecutor's office works with violations of the legislation of the Russian Federation.

You can file a complaint against the bank with the prosecutor's office as follows:

• By delivering the application in person;
• Through the Internet reception of the official website of the prosecutor's office. For each region of the Russian Federation there is a separate website of the prosecutor's office.

  The full list can be viewed in the reception area of ​​the Prosecutor General’s Office website in the drop-down menu “Prosecutor’s offices in the constituent entities of the Russian Federation.”

At the Central Bank of Russia, the Central Bank ensures that banks comply with banking laws and regulations of the Central Bank.
Depending on the violation, you can complain about the bank to the following authorities:

• To the head office of the bank that committed the violation;
• To the Central Bank of Russia;
• To Rospotrebnadzor;
• To the Federal Antimonopoly Service (FAS);
• To the prosecutor's office;
• To court.

To the management of the bank Many citizens are trying to resolve the issue peacefully, so they first turn directly to the management of the bank itself. You can do this as follows:

• By calling the hotline that every major bank has;
• By submitting an application to the bank in person. The applicant must have 2 copies of the document: one will remain in the bank, and on the second the receiving person puts a signature, the date of acceptance and gives it to the applicant;
• By sending by registered mail to the main office of the credit institution.