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LETTER OF THE FEDERAL SERVICE FOR SUPERVISION OF CONSUMER PROTECTION AND WELFARE RIGHTS OF AUGUST 23, 2011 N 01/10790-1-32 "The practice of courts LEGISLATION ON CONSUMER PROTECTION IN THE CHANGING FACE IN CONTRACT (FOR WITH TERRITORIAL by Rospotrebnadzor)"

The Federal Service for Supervision of Consumer Rights Protection and Human Welfare informs its territorial bodies, which the Supreme Arbitration Court of the Russian Federation (hereinafter - SAC), July 14, 2011 The second definition is made to refuse to transfer the case to the Presidium of the Russian Federation associated with cases of illegal inclusion in the contract with the citizens of conditions providing for the assignment of rights of the creditor to a third party, not endowed with the special law on the imprisonment and execution of transactions with consumers.

The first time SAC ruled that this type of September 24, 2009 in the case N A33-8727/2008 in which the parties were joint-stock commercial bank "Soyuz" (Open Joint Stock Company) and the Office of Rospotrebnadzor in the Krasnoyarsk Territory.

JSCB "Soyuz" (OAO) appealed to the tribunal to recognize illegal orders of the Office of Rospotrebnadzor in the Krasnoyarsk Territory of June 23, 2008, 2008 N 2317 in a case concerning an administrative offense as defined by Part 2 of Article 14.8 of the Code of Administrative Offences (hereinafter - the Code of Administrative Offences).

The composition of the offenses imputed territorial body

Rospotrebnadzor named bank, included, among other things, the inclusion of credit agreements with consumers about the terms "credit institution the right to cede all or part of their contractual rights to third parties under the contract, as well as the right to disclosure of necessary to carry out this assignment information about the borrower, loan interest, as well as other information. "

After repeated consideration of the case by arbitration courts of different instances of the Federal Arbitration Court of the Eastern Siberian region has been ordered by May 25, 2009 N A33-8727/2008 - F02-2223/2009 that the decision of the Office of Rospotrebnadzor in the Krasnoyarsk Territory on the appointment of an appropriate administrative penalty to the bank recognized.

At the same time in the court of appeal expressly indicated that included in the loan agreement a condition of assignment of the creditor, if the new creditor is not a bank or credit institution violates the right to agree on the terms in the context of the requirements of paragraph 2 of Article 382 of Civil Code of Russian Federation (hereinafter - Civil Code).

In this regard, "the court, guided by the requirements of Articles 382, 819 of the Civil Code, rightly recognized that the assignment of the bank the right to demand repayment of the loan to third parties could lead to a claim that a citizen - will be transferred to the borrower third parties who are not credit institutions. By virtue of paragraph 1 of Article 819 of the Civil Code funds in the credit can only provide a bank or other credit institution that has a license ".

Disagreed with this decision, JSCB "Soyuz" (JSC) has sent a complaint to the oversight of the RF, which is based on consideration of the arguments of the bank confirmed the validity of the action of the Office of Rospotrebnadzor in the Krasnoyarsk Territory, noting that in the corresponding definition of the September 24, 2009 N VAS-11679/09 that "denying the claim of the courts proceeded from the assumption that the individual items included bank loan contract terms infringe the consumer's statutory rights."

Despite this verdict of the RF in 2010 AKB "Rosbank" refused to follow the rule of the Office of Rospotrebnadzor in the Magadan region on April 16, 2010 N 1588-FS/10 to stop violations of consumers' rights by challenging it in court.

Among the violations identified during the audit at the request of the affected consumers, there have been wrongful inclusion in the credit agreement terms "assignment of claims under the contract to another person." At the same time the Office of Rospotrebnadzor Magadan region particularly noted that by virtue of paragraph 2 of Article 388 of the Civil Code is not permitted without the consent of the debtor's assignment of liability in which the identity of the lender is essential to the debtor. Citizen, having a contractual relationship under the loan agreement with the bank as a subject with the established state procedure relevant special law (confirmed by a license issued by the Bank of Russia) and carrying a priori legal obligations to consumers (Obligations in any legal relationship is always the consumer is not only a "special" by the debtor, but also "shared" by the creditor in the context of the provisions of paragraph 2 of Article 308 of the Civil Code), in the implementation of treaty provisions on assignment of the right to demand a general nature may be be in a relationship with one of the "collection agencies" whose work is not regulated by law, a person unknown to the consumer, including the person who did not initially carrying out activities in the consumer market and are therefore not obliged to comply with the rules established by the legislation consumer protection.

It is obvious that in the event of such circumstances the citizen-consumer is deprived of the legitimate preferences under the Law of the Russian Federation on February 7, 1992 N 2300-1 "On Consumer Rights Protection" (hereinafter - the Law N 2300-1).

Simultaneously, the Office of Rospotrebnadzor Magadan region indicated that the conditions practiced JSCB "Rosbank" loan contracts for borrowers - individuals do not provide for selection of a new lender in terms of the presence of his legal status, which guarantees citizens the possibility of saving for an assignment to protect their rights and legitimate interests of both consumers.

In this regard must also be borne in mind that by virtue of related provisions of paragraph 1 of Article 1, paragraph 5 of Article 4 of the Act N 2300-1, correspond with the norms established by paragraph 1 of Article 857 of the Civil Code and Article 26 of the Federal Law of December 2, 1990 N 395-1 "On Banks and Banking Activity" (hereinafter - the Law N 395-1), particularly with regard to the general prohibitions specified in paragraph 4 of Article 421 and Paragraph 1 of Article 422 of the Civil Code, the parties credit agreement may not include in the contract condition, "allowing" a violation of bank secrecy.

In addition, within the meaning of the above standards compliance of banking secrecy is one of the quality criteria of appropriate financial services provided by the bank to the consumer in connection with which an assignment in consumer relations, and if possible, but only in situations where the new creditor is the bank liable as original creditor, quality service the client-consumer, including compliance with bank secrecy.

Thus, the inclusion of bank credit agreement the general condition of the admissibility of assignment (along with the transfer of relevant information relating to the Bank Secrecy Act) to a third party who does not have special legal status, the status of an adequate primary creditor, the rights of consumers are compromised, which is a violation of the requirements stipulated in paragraph 1 of Article 16 of the Act N 2300-1.

As stated in the decision of the arbitral tribunal of the Magadan region on September 30, 2010 on business N A37-944/2010 JSCB "Rosbank" he referred to the current arbitration practice, according to which the assignment of contractual rights to a creditor bank to another bank is seen as legitimate (the assignment of this kind has never been challenged Rospotrebnadzor).

However, the JSCB "Rosbank" and called the trial court, relying on the same judicial practice, in principle, not taking into account peculiarities of consumer relationship (as a legal precedent had been given orders from the Far East 27.08.2007 FAS N F03-A51/07-1/3737, FAS MO on 04/19/2007 N KG-A40/1501-07 from 06/24/2009 N KG-A409/3837-09, FAS deviation from 23.06.2010 N A32-22637/2009, the definition of SAC on 10/11/2007 N 13543/06 and from 12.09.2007 N 9102/07, relating exclusively to disputes between the entities themselves), made illegal the conclusion that the assignment is not limited to any legal requirements , Including the scope and substance of the information thus transmitted.

This erroneous conclusion has been fixed at the stage of cassation against the decision of the Federal Arbitration Court of the Far Eastern District of March 22, 2010 N F03-615/2011 that the actions of the Rospotrebnadzor the Magadan region on the legal qualification of the events found to be justified as a whole. Here in this judgment in the case N A37-944/2010 noted that the "court of appeal can not agree with the conclusions of the court the validity of including the bank loan contract terms to provide information about the borrower to third parties engaged by the bank to recover the debt under the credit agreement and for the support of cession."

The correctness of this position has finally confirmed the aforementioned definition of the RF on July 14, 2011 N VAS-8679/11, which again was just pointed out that according to the interrelated provisions of Article 857 of the Civil Code and Article 26 of the Act N 395-1 "the borrower's right to maintain information about his bank account transactions in this account, as well as information relating directly to the borrower, is a mystery, and the disclosure of this information to third parties not mentioned in the law violates his rights."

A more detailed assessment of the assignment, which resulted in a new lender can be a citizen of "collector" or other person does not have the personality, is given by the arbitral tribunal when considering the application of "Orient Express Bank," challenging the decision of the Office of Rospotrebnadzor in the Leningrad Region on 28 August 2009 . N 61 impose an administrative penalty in the form of an administrative fine for committing an administrative offense as defined by Part 2 of Article 14.8 of the Administrative Code.

In the decision of the arbitration court of St. Petersburg and Leningrad region on January 20, 2010 on business N A56-60582/2009 expressly indicated that "the licensing requirement, as well as the existence of the bank (credit organization) on the side of the lender in the loan agreement applies both to himself the credit agreement, and in all actions, protruding objects commitments to extend credit and its repayment. This statement, in turn, leads to the conclusion that the assignment of the right to demand repayment of the loan and interest entities * sphere contradicts the special banking law requiring licensing of banking operations. Such provisions are inconsistent with paragraph 1 of Article 388 of the Civil Code, under which the assignment of a claim by the creditor to another person be allowed if it is not contrary to law, other legislation or agreement.

Thus, the court, guided by the requirements of Articles 382, ??819 of the Civil Code, said a statement included in the conditions of the possibility of concessions to the bank the right to demand repayment of the loan to third parties could lead to the fact that a claim to the citizen, the borrower will be transferred to third parties who are not credit institutions ".

The validity of this conclusion is confirmed by the decision of the Federal Arbitration Court of the Northwest District from April 28, 2010, which cited the lower court decision in the case N A56-60582/2009 recognized. In this case the appeal court found it necessary to emphasize the fact that "within the meaning of Article 819 of the Civil Code funds in the credit can only provide a bank or other credit organization (which has a license), so that a claim may be transferred only to subjects of banking ".

Thus, we can infer the presence of the consolidated position of the arbitration courts in the apparent absence of the so-called "collectors" of legitimate opportunities to engage with consumers in a relationship, which require special legal status, as well as the impact of already formed judicial practice in the more recent cases dealt with by arbitration courts.

In particular, the decision of the Office of Rospotrebnadzor in the city of St. Petersburg May 19, 2011 N YU78-00-03-0098 assigned to the appropriate administrative penalty under Part 2 of Article 14.8 of the Administrative Code to the bank-offender in the face of JSC Bank "Soviet" for including them in the Loan Agreement, among other things, the terms of the "right" bank "assign, transfer or otherwise dispose of its rights and obligations under the agreement, pass any information about the borrower to third parties. "

The decision of the arbitration court of St. Petersburg and Leningrad region on July 29, 2011, rendered in the case N A56-36105/2011 in connection with the defense of JSC Bank "Soviet" specified decision Rospotrebnadzor territorial authority, the judicial authority expressed quite clearly:

"Paragraph 1 of Article 819 of the Civil Code has a special personality of the creditor. Cash loans can only provide a bank or other credit organization (which has a license).

When a transaction involving the assignment of the right to claim the rights and obligations of the lender in full go to the new lender. Accordingly, the mandatory requirements for the legal lender on the loan agreement the terms of third parties, which can be right to claim a concession is limited.

Licensing requirement, as well as the presence of the bank (credit organization) on the side of the lender in the loan agreement applies both to himself the credit agreement, and all actions, objects protruding commitments to extend credit and its repayment.

This statement, in turn, leads to the conclusion that the assignment of contractual rights to actors * sphere contradicts the special banking law requiring licensing of banking operations.

Such provisions are inconsistent with paragraph 1 of Article 388 of the Civil Code, under which the assignment of a claim by the creditor to another person shall be permitted unless it is against the law, other legislation or agreement.

Thus, the court, guided by Articles 382, 819 of the Civil Code, said a statement included in the condition of the possibility of concessions to the bank the right to demand repayment of the loan to third parties could lead to the fact that a claim to the citizen, the borrower will be transferred to third parties who are not credit organizations. A similar position is set out in the resolution of the FAS NWB April 28, 2010 on business N A56-60582/2009.

By virtue of paragraph 2 of Article 857 of the Civil Code Bank guarantees the confidentiality of bank accounts and bank deposit account transactions and client information. The information constituting banking secrecy can only be provided by clients or their representatives, as well as presented to the credit bureau on the grounds and in the manner provided by law. Public authorities and officials such information may be provided only in cases and manner provided by law.

In accordance with Article 26 of the Act N 395-1 credit institution, the Bank of Russia, the organization that carries out the functions of mandatory deposit insurance, guarantee secrecy of transactions, accounts and deposits of its customers and correspondents. All employees of the credit institution required to maintain secrecy about the operations, accounts and deposits of its clients and correspondents, as well as other information set by the credit institution, if not inconsistent with federal law.

Specified rate determined the amount of information provided and installed the persons to whom credit organizations and banks can provide information on accounts and deposits of physical persons. At the same law establishes liability for disclosure of the bank (ie, transfer to other persons) of the said information component by virtue of Article 857 of the Civil Code of bank secrecy.

It follows that the law stipulates the right of the borrower to maintain information about his bank account transactions in this account, as well as information relating directly to the borrower, in secret and the disclosure of such information to third parties not mentioned in the law violates his rights.

In addition, as stated in ruling of the Constitutional Court of the Russian Federation from February 23, 1999 N = 4-P "on the Constitutionality of the second part of Article 29 of the Federal Law of February 3, 1996" On Banks and Banking Activity " in response to complaints from citizens O. Veselyashkinoy, A. Veselyashkina and NP Lazarenko citizen is economically weak side and in need of special protection of their rights, which implies the need to limit the freedom of contract to the other side, ie for banks.

Given that the conditions of the credit agreement in terms of providing information about the borrower to third parties contrary to the above standards and contain no indication that this information is provided to the persons specified in Article 26 of the Act N 395-1 or just a new creditor in connection with the assignment of claims generated, which would apply the provisions of paragraph 2 of Article 385 of the Civil Code, the findings of the administrative authority of a violation of this episode are lawful and justified. A similar position is set out in the decision of the Federal Antimonopoly Service of the Far Eastern district March 22, 2011 F03-615/2011 the case ".

Thus, the judiciary has once again confirmed the legal position of Rospotrebnadzor in the established sphere of activity, in this case, the essence of which is to non-assignment of claims (cession) without a comprehensive assessment of its compliance with the law and / or alter the substance of the original relationships.

However, the Federal Service must state not only the continuation of assignment of claims of creditors - performers paid services " collectors "That is, persons who are not subjects of the law on consumer protection do not have a banking license as a document certifying the special right of a credit institution to be with the citizens in the legal relationship on the basis of contracts for the provision of certain types of financial services (especially it comes to credit agreements), but its extension to other socially significant sectors of the consumer market, particularly in the sphere of housing relations (HCS). In line with the territorial authorities Rospotrebnadzor must be borne in mind the following:

1) the legal qualification of the examples of specific events in the financial services can be applied by analogy in other segments of the consumer market, especially where customer service requires a special right or compliance with the statutory order (for example, in housing management activities at apartment buildings and is not licensed, but the status of "managing organization" by itself is associated with the special order of acquisition of the relevant authority in the context of the requirements of Article 162 of the Housing Code of the Russian Federation);

2) because the suppression of violations of legislation of the Russian Federation shall Rospotrebnadzor (its territorial bodies) only in the manner prescribed by law, the relevant functions within a federal state supervision in the field of consumer protection with regard to inspections and issuing orders, filing lawsuits and statements on the Elimination of economic the subjects and others, as well as the excitement of administrative cases (with the possibility of qualification of offenses detected not only in Part 2 of Article 14.8 of the Administrative Code) must be used exclusively to subjects of the Law N 2300-1, in particular, for performers who resort to dubious "services", "collection agencies" and other "debt collectors" (including individuals) did not initially have a special legal status of the subject of legislation on protection of consumer rights

3) all received by the territorial authorities Rospotrebnadzor facts threats and other unlawful acts permitted by "collectors" against the civilian population of the Russian Federation to immediately direct the appropriate treatment of citizens to law enforcement agencies to identify criminal offenses;

4) The practical results of relevant activities and practice to give maximum publicity through their sites on the Internet, the media, as well as using other resources designed to provide consumer education;

5) should intensify work on the interaction with the executive bodies of subjects of the Russian Federation, local self-government and community organizations on issues of consumer protection, particularly regarding the implementation of programs to improve consumer financial literacy and the development of the population of the Russian Federation sustainable skills of self-defense law.

In order to create uniformity in the enforcement of consumer protection regional agencies of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare must take into account past experience to improve the efficiency of the entire complex of measures on the state Consumer Protection. Documented information about the administrative practices related to the identification and suppression of facts including performers of various kinds of paid services in contracts with consumers the conditions of the assignment that does not meet the requirements of related regulations of the Civil Code and Article 16 of the Act N 2300-1, should be provided to the 30th day of each month at the Office of Consumer Protection, together with a report in response to a letter from the Rospotrebnadzor 11/10/2008 ref. N 01/12725-8-32 in electronic form at Pavlova _ TV @ gsen . ru with simultaneous direction of ascable materials by mail.

 

Appendixes:

1) copy of decision of arbitration court of city of saint Petersburg and

To the Leningrad area from July, 29 2011 g . in business N A56-36105/2011 on 4 l . in 1 ekz.;

2) copy of determination YOU Russian FEDERATION from July, 14 2011 g . N YOU-8679/11 on 4 l . in 1 ekz.;

3) copy of the Federal arbitrazh court of the Far-Eastern district ruling from March, 22 2011 g . N F03-615/2011 on 9 l . in 1 ekz.;

4) copy of decision of arbitration court of the Magadanskoy area from September, 30 2010 g . N A37-944/2010 on 17 l . in 1 ekz.;

5) copy of the Federal arbitrazh court of the North-western district ruling from April, 28 2010 g . in business N A56-60582/2009 on 3 l . in 1 ekz.;

6) copy of decision of arbitration court of city of saint Petersburg and Leningrad area from January, 20, 2010 in business N A56-60582/2009 on 4 l . in 1 ekz.;

7) copy of determination YOU Russian FEDERATION from Septembers, 24, 2009 N YOU-11679/09 on 3 l . in 1 ekz.;

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