Bank loan overdue debt forfeit. What to do if the bank charges interest illegally. Penalty Reduction Process

Usually, few people think about the stability of their financial position and its prospects. As a result, many are unable to cope with the credit load and the loan payments are delayed.

The second problem is that few people read the loan agreement in detail. Therefore, loan delays are not perceived as something terrible: “ah, think, I was two days overdue. In the end, I paid! " Even despite the fact that the payment was eventually paid, the delay probably led to penalties and an increase in the amount of debt.

In accordance with the Civil Code of the Russian Federation, the penalty consists of two components:

• Penalty for the fact of forfeit. The fine can be either one-time or imposed every time it is overdue (which is usually done);
• Penalty added for each day of delay. Usually this is some percentage of the debt;

Either a fine or a penalty can be charged. Each bank chooses for itself which option suits it.

What penalties do banks apply for delays?

Now, from theory to practice. What fines are actually applied by our banks?

• A fixed amount of the fine (for example, a fine of 500 rubles for each delay);
• Increasing fine (for example, for the first delay 500 rubles, for the second and third - 1000, the next - 1500);
• Penalty on the payment amount (for example, a monthly payment of 5 thousand, and the penalty is 10%. The total penalty is 500 rubles);
• Penalty on the amount of debt (for example, the remaining debt is 47 thousand rubles, a fine of 1%. The total fine is 470 rubles);

The first and second options are most often encountered when working with credit cards in most banks (Russian Standard, Tinkoff, Home Credit, etc.). The third and fourth option is often found with a mortgage, car loan or consumer loan.

Consequences of delay in some banks

To complete the picture, I publish penalties for delays that are in effect in a number of banks (information may not be relevant for all loans of a particular bank):

Alfa Bank

2% of the payment amount for each day of delay

Home Credit

This bank allows credit card payments to be overdue up to 15 days. After that, a fine of 300 rubles is charged. On the 25th day, a fine of 500 rubles is added, after 10 days - another 800 rubles. On day 60 and in subsequent months, the fine is 800 rubles. For consumer loans from the 10th day, a penalty of 1% of the debt amount is charged for each day.

Credit Europe Bank

Penalty 15% of the monthly payment, at least 300 rubles.

Opening

Penalty 0.5% of the monthly payment for each day of delay.

Russian standard

First delay - 300 rubles
The second - 500 rubles
Third - 1000 rubles
Fourth - 2000 rubles

Sberbank

Penalty for each day of delay in the amount of 0.5% of the amount of the delayed payment.

Summarizing

These are the penalties for delays in our banks. It is not hard to imagine that by skipping “just” a couple of monthly payments, you can greatly increase the amount of debt to the bank. For example, you have a loan from Sberbank with a monthly payment of 14,000 rubles. You are 14 days overdue in payment, therefore you will have to pay a penalty: 0.5% of the amount 14,000 \u003d 70 rubles per day. For 14 days, the penalty will be 980 rubles.

In total, having overdue the payment by 14 days, you owe the bank 980 rubles more. In addition, recently, due to frequent delays, many banks practice termination of the agreement and the requirement to repay the loan ahead of schedule.

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In the ______________ district court of __________

From the defendant:

in a civil case on the claim of OJSC "________" to _____________________ on debt collection under a loan agreement
Petition

OJSC "____________" appealed to the ____________ district court of ______ with a statement of claim to me - ________________________ on debt collection under the Loan Agreement No. ______ dated ___________, concluded between ____________ and OJSC "____________" (hereinafter the Agreement), in the amount of ______________ rubles __ kopecks, as well as the cost of paying the state duty in the amount of ____________________ rubles __ kopecks.
In support of the claim, the plaintiff provided the calculation of the debt under the Agreement:
Principal amount of debt - ___________________ rubles __ kopecks;
Accrued interest for the use of funds - __________________ rubles __ kopecks;
Accrued penalties - ___________________ rubles __ kopecks.
In accordance with the terms of the Agreement, I was granted a loan in the amount of ________________ rubles. The interest rate on the loan was __ (_______________)% per annum. The term for using the loan is __ months.
According to clause 2.9 of the Agreement, the minimum monthly payment is _______________ rubles. This amount includes a part of the loan, interest accrued for the use of the loan, commission for the operational maintenance of the loan account.
According to p.

Consequences of a delay in loan payment.

2.6 of the Agreement, the commission for maintaining the loan account is charged in the amount of ___% of the loan amount. The specified commission was ___ rubles per month.
By virtue of clause 2.7 of the Agreement, the penalty for the delay in making the annuity payment is ___% of the amount of the delayed payment for each calendar month of delay.
In accordance with clause 2.8 of the Agreement, the forfeit for non-fulfillment of the Bank's request for early repayment of all monetary obligations under the Agreement is __% for each day of delay for the amount of all monetary obligations under the Agreement, excluding the accrued penalties.
As of _________, I paid the principal amount of - ________________ rubles __ kopecks.
At the conclusion of the Agreement, I had sufficient income to fulfill the obligation.
However, since ____, due to a difficult financial situation, a sharp decrease in income, I was not able to monthly and on time to deposit funds to repay the loan and interest in accordance with the specified Agreement.
According to Art. 330 of the Civil Code of the Russian Federation in the event of non-fulfillment or improper fulfillment of an obligation, including in case of delay in fulfillment, the debtor is obliged to pay the creditor the penalty stipulated by law or contract.
By virtue of Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty.
In this situation, the penalty demanded by the Claimant in the amount of ____________ ruble __ kopeck is clearly disproportionate to the consequences of the violation of the obligation.
It should also be noted that the Claimant did not use the opportunity provided by the law to meet the debt obligations in a timely manner. Due to the impossibility of fulfilling the obligation, the transfer of funds towards repayment of the loan debt was terminated in ____, however, OJSC ____________ filed a statement of claim with the court only in ____. This circumstance led to an increase in the amount of debt, including increase in the amount of the penalty.
Therefore, in this case, there are grounds for reducing the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation.
According to Part 1 of Art. 203 of the Code of Civil Procedure of the Russian Federation, the court that considered the case, based on the statements of the persons participating in the case, the bailiff, or on the basis of the property status of the parties or other circumstances, has the right to postpone or defer the execution of the court decision, change the method and procedure for its execution.
My husband - _____________ passed away _________. Death certificate ____ No. _________ dated _________.
Our family's only source of income was the earnings of our deceased spouse.
Due to the death of my spouse, I am currently left without a livelihood. My mother is dependent on me - _____________, ____ year of birth. and son - _____________________.
Consequently, my financial situation does not allow me to timely fulfill my obligation to pay the loan.
Thus, there are grounds for reducing the penalty for failure to comply with the terms of the Loan Agreement No. ________ dated __________, concluded between ___________ and OJSC "___________", as well as for the installment plan for the execution of the court decision.

Based on the foregoing, guided by Art. 333, 203 of the Civil Code of the Russian Federation

ASK THE COURT:

1. To reduce the amount of the forfeit for non-fulfillment of obligations under the Credit Agreement No. _______ dated ________, concluded between ________________ and OJSC "________________".
2. Provide me - ___________________________ by installments for the execution of the court decision for a period of __ months.

Application:
1. Copy of death certificate _______________

________________

" ____ " _______________ of the year

The legality of the collection by banks under loan agreements of increased interest for the use of a loan in case of violation of the deadline for repayment of the loan, as well as high penalties for late fulfillment of the obligation to return the loan and interest for using it

Shcherbinin Sergei Sergeevich

Specialist in civil, constitutional law, as well as in systems analysis of legislation. Candidate of Legal Sciences.

Was born on January 26, 1975 in Moscow. In 1997 he graduated from the Faculty of Law of the Moscow State University. M.V. Lomonosov.

Author of the Commentary on the Law on Export Control (2002), Commentary on the Law on Investment Activity in the Russian Federation in the Form of Capital Investments (2002), co-author of the Commentary on the new Law on State and Municipal Unitary Enterprises (2003), as well as articles in scientific collections , legal and economic journals.

In the practice of credit relations, cases of establishment of increased interest rates for using a loan in loan agreements in case of violation of the deadline for repayment of the loan are common.

Along with an increase in interest for the use of a loan, such agreements, as a rule, impose a penalty for late payment of current interest for the use of a loan.

In the practice of arbitration courts, issues were resolved about the legal nature of the increased interest for the use of a loan and about the legality of collecting a penalty in the amount specified in the loan agreement.

In one of the disputes under the loan agreement, it was established that the borrower was charged for violation of his obligations to repay the loan in foreign currency of the following interest:

increased interest for violation of the deadline for repayment of the loan in the amount of 25% per annum instead of 20% for using the loan within the term of using it;

penalties for late payment of current interest for using a loan in the amount of 0.07% of the amount not received for each day of delay, which is equal to 25.55% per annum.

In the arbitration practice, the following position has developed regarding the legality of collecting from the borrower increased interest and penalties in the amount established in the loan agreement.

According to p.

15 Resolutions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14, as well as Resolutions of the FAS of the North Caucasus District of January 10, 2006 in case N F08-6393 / 2005 and the FAS of the Ural District of On April 24, 1998, in case N F09-292 / 98-GK, in cases where the loan agreement stipulates an increase in the amount of interest due to the delay in payment of the debt, the rate by which the loan fee was increased should be considered a different amount of interest established by the contract in accordance with paragraph 1 of Art. 395 of the Civil Code of the Russian Federation.

Thus, the increased interest for the use of the loan (in the dispute under consideration, 5% per annum of the loan amount) are not qualified in arbitration practice in accordance with their literal meaning specified in the loan agreement, but are interpreted as a penalty for violation of the terms of the borrower's fulfillment of his obligation to repay the loan and interest for using the loan.

In accordance with the generally accepted interpretation, a forfeit is one of the ways to ensure the fulfillment of obligations, a means of reimbursing the creditor's losses caused by the debtor's violation of his obligations.

It should be borne in mind that the interest charged by the lender for the amount of money provided to the borrower also compensates in a certain part for the consequences caused by the defendant's violation of its obligations.

Thus, if the agreement provides for a sufficiently high amount of interest for the use of the loan (for example, 20% per annum, as in the dispute under consideration), the collection of penalties, along with interest for the use of the loan, is clearly disproportionate to the consequences of the violation of obligations by the borrower.

In accordance with paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14, if determined in accordance with Art. 395 of the Code, the amount (rate) of interest paid in case of non-fulfillment or delay in the fulfillment of a monetary obligation is clearly disproportionate to the consequences of a delay in the fulfillment of a monetary obligation, the court, given the compensatory nature of interest, in relation to Art. 333 of the Civil Code of the Russian Federation has the right to reduce the rate of interest charged in connection with the delay in the fulfillment of a monetary obligation.

When applying Art. 333 of the Civil Code of the Russian Federation, the courts take into account the compensatory nature of the forfeit, the period of delay in the fulfillment of contractual obligations, as well as the absence of any evidence that the plaintiff has negative consequences arising from the defendant's improper performance of obligations. At the same time, according to clause 4 of the Review of the practice of application by arbitration courts of Art. 333 of the Civil Code of the Russian Federation (annex to the information letter of the Supreme Arbitration Court of the Russian Federation of July 14, 1997 N 17), the criteria for establishing the disproportionate penalty in each specific case may be: excessively high percentage of the penalty; significant excess of the forfeit amount of the amount of possible losses caused by the violation of obligations; duration of default, etc.

Taking into account these circumstances, when calculating the penalty, the courts, as a rule, apply the refinancing rate of the Central Bank of the Russian Federation, which is currently 10% per annum (telegram of the Central Bank of the Russian Federation of June 18, 2007 N 1839-U).

In accordance with the Resolution of the Federal Antimonopoly Service of the North Caucasus District of August 31, 2005 in case No. F08-3302 / 2005, the decision of the Moscow Arbitration Court of November 6, 2007 No.

Delay in payment of a loan: how to reduce the amount of fines and penalties?

in case А40-40628 / 07-29-377 (entered into legal force), the high percentage of forfeit, the absence in the case materials of evidence confirming that the plaintiff has losses commensurate with the accrued forfeit, gives grounds for its reduction close to the amount of interest on loans from commercial banks. The interest of commercial banks on loans is a reflection of the minimum amount of losses incurred by the plaintiff in connection with the failure of the defendant to fulfill its contractual obligations.

Currently, the average interest rate of Russian credit institutions on loans in US dollars is 9%<1>.

Thus, if there are grounds for reducing the liability of the borrower and in accordance with Art. 333 of the Civil Code of the Russian Federation, the amount of interest charged from the borrower in connection with the delay in the execution of the loan agreement can be reduced from 5% per annum of the loan amount and 25.55% per annum of the interest for using the loan, as in the case under consideration, as a result of up to 9% annual cumulative.

1.

Decision No. 2-2053 / 2017 2-2053 / 2017 ~ M-1941/2017 M-1941/2017 dated December 30, 2017 in case No. 2-2053 / 2017

Sovetsky District Court of Tomsk (Tomsk Region) - Civil

... the meeting, the defendant did not recognize the claim, on the grounds set out in the objection to the statement of claim, further explaining that he had paid the loan, asked to reduce the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation. Based on Art. 167 Code of Civil Procedure of the Russian Federation, the case is considered in the absence of the plaintiff, duly notified of the time and place of the court session. Having heard the defendant, having studied the case materials, ...

2.

Decision No. 2-13730 / 2017 2-13730 / 2017 ~ M-12183/2017 M-12183/2017 dated December 30, 2017 in case No. 2-13730 / 2017

Dzerzhinsky District Court of Volgograd (Volgograd Region) - Civil and Administrative

… I fully supported the requirements. The representative of the defendant PJSC IC "Rosgosstrakh" FULL NAME7 asked to satisfy the claim, if the claim is satisfied, reduce the amount of the penalty by virtue of Art. 333 of the Tax Code of the Russian Federation. Having heard the representatives of the parties, having examined the written evidence available in the case materials, the court considers the claims to be subject to partial satisfaction. In the present case, the court established. DD.MM.YYYY ...

3.

Resolution No. 44Г-24/2018 4G-387/2018 4G-4600/2017 dated December 29, 2017 in case No. 2-359 / 2017

Samara Regional Court (Samara Region) - Civil and Administrative

… Voluntarily satisfying the consumer's claims, a fine of fifty percent of the amount awarded by the court in favor of the consumer. By collecting in favor of the plaintiff, taking into account the provisions of Art. 333 of the Civil Code of the Russian Federation, a penalty in the amount of 9.000 rubles, a fine in the amount of 7.000 rubles, the court proceeded from the fact that the plaintiff's claims for the return of the value of the goods in a voluntary ...

4.

Decision No. 2-748 / 2017 2-748 / 2017 ~ M-717/2017 M-717/2017 dated December 29, 2017 in case No. 2-748 / 2017

Anninsky District Court (Voronezh Region) - Civil and Administrative

… In the amount of 1% in the amount of rubles, the amount of the penalty was rubles. The court of general jurisdiction recognized these claims of the victim as justified, but, on the basis of Article 333 of the Civil Code of the Russian Federation, reduced the amount of the penalty to the amount of rubles. The victim came to the conclusion that he has the right to claim against the defendant to recover a penalty for ...

5.

Decision No. 2-4447 / 2017 2-4447 / 2017 ~ M-3843/2017 M-3843/2017 dated December 29, 2017 in case No. 2-4447 / 2017

Zheleznodorozhny District Court of Novosibirsk (Novosibirsk Region) - Civil and Administrative

… Attention to the duration of the defendant's failure to fulfill its obligations to pay monthly payments, as well as the amount of the unfulfilled obligation, the court finds no reason to reduce the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation is lower than the amount to which it was reduced by the plaintiff on his own initiative. The court considers that this amount of the forfeit in these circumstances is proportionate to the consequences of the defendant's failure to fulfill its obligations. ...

6.

Decision No. 2-21614 / 2017 2-21614 / 2017 ~ M-19594/2017 M-19594/2017 dated December 29, 2017 in case No. 2-21614 / 2017

Pervomaisky District Court of Krasnodar (Krasnodar Territory) - Civil and Administrative

... the plaintiff's calculations the forfeit for the late execution by the defendant of the obligations of the insurance payment is 221340 rubles. The calculation presented at the hearing is not contested. By virtue of the provisions of Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty. The court, taking into account the request of the defendant to reduce the amount of the penalty, considers it possible ...

7.

Decision No. 2-3857 / 2017 2-3857 / 2017 ~ M-3879/2017 M-3879/2017 dated December 29, 2017

Loan fines

in case No. 2-3857 / 2017

Sovetsky District Court of Vladikavkaz (Republic of North Ossetia-Alania) - Civil and Administrative

... the insurance indemnity is increased for reasons beyond the control of the respondent. She asked to refuse to satisfy the claim in full, and if the claim was satisfied, apply Art. 333 of the Civil Code of the Russian Federation and reduce the amount of the penalty due to its disproportion. She also filed a petition for the appointment of a forensic assessment, asking the experts to determine the actual value ...

8.

Decision No. 2-6424 / 2017 2-6424 / 2017 ~ M-6131/2017 M-6131/2017 dated December 29, 2017 in case No. 2-6424 / 2017

Sovetsky District Court of Ufa (Republic of Bashkortostan) - Civil and Administrative

… On the recovery of a fine from the defendant in favor of the plaintiff in the amount of 20 615 RUB. (41 230 rubles * 50%). The grounds for reducing the amount of the fine in accordance with Art. 333 of the Civil Code of the Russian Federation, the court does not see, since a reduction in the amount of the fine is possible only in exceptional cases when the subject fine is clearly not proportionate to the consequences of the violation of the obligation, which in the case under consideration ...

9.

Decision No. 2-725 / 2017 2-725 / 2017 ~ M-907/2017 M-907/2017 dated December 29, 2017 in case No. 2-725 / 2017

Kormilovsky District Court (Omsk Region) - Civil and Administrative

... and payment of interest in the amount of 120% per annum of the amount of the overdue payment for each calendar day of delay, which is reflected in the calculation of the debt. According to Part 1 of Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty. If the obligation is violated by a person engaged in entrepreneurial activity, the court has the right to reduce the penalty upon ...

10.

Decision No. 2-14355 / 2017 2-14355 / 2017 ~ M-16557/2017 M-16557/2017 dated December 29, 2017 in case No. 2-14355 / 2017

Leninsky District Court of Krasnodar (Krasnodar Territory) - Civil and Administrative

... to a claim for payment of a penalty, the creditor is not obliged to prove the damage caused to him. Given that the insurance company did not make the payment, the court considers it necessary to take into account the provisions of Art. 333 of the Civil Code of the Russian Federation, reducing the amount of the forfeit declared by the plaintiff and recovering from the insurance company a forfeit in the amount of 10,000 rubles. According to Article 151 of the Civil Code of the Russian Federation, if a citizen is morally ...

Accounting for penalties under a loan agreement

I.V. Bashkirova, expert of the Legal Consulting Service GARANT

The organization paid the penalties stipulated by the loan agreement for the late repayment of the principal debt.

Interest on the loan.

Can these expenses be taken into account for income tax purposes? If so, in what order?

In accordance with paragraph 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers to the ownership of the other party (the borrower) money or other things defined by generic characteristics, and the borrower undertakes to return the same amount of money (loan amount) or an equal amount to the lender other things he received of the same kind and quality.

By virtue of paragraph 1 of Article 810 of the Civil Code of the Russian Federation, the borrower is obliged to return the received loan amount to the lender on time and in the manner stipulated by the loan agreement.

As a measure of responsibility for violation of contractual obligations, the loan agreement may provide for the payment by the debtor to the creditor of a forfeit (fine, penalty) in accordance with Article 330 of the Civil Code of the Russian Federation. The specified article stipulates that a forfeit, a fine, a penalty interest is a sum of money determined by a law or a contract, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of an obligation, in particular, in case of delay in fulfillment. The penalty can be paid (reimbursed) voluntarily or collected in court.

The amount of the forfeit is accounted for as part of the non-operating expenses accepted for tax purposes on the basis of subparagraph 13 of paragraph 1 of article 265 of the Tax Code of the Russian Federation.

In this case, the basis for classifying the forfeit as expenses on the accrual basis is the recognition of this debt by the debtor or the entry into force of the corresponding court decision.

In accordance with subparagraph 8 of paragraph 7 of Article 272 of the Tax Code of the Russian Federation, the date of recognition of expenses in the accrual method for expenses in the form of fines, penalties and (or) other sanctions for violation of contractual or debt obligations, as well as in the form of compensation for losses (damage) is the date their recognition as a debtor or the date of entry into force of a court decision.

According to clause 1 of article 252 of the Tax Code of the Russian Federation, expenses must be justified and documented. Reasonable costs are understood as economically justified costs, the assessment of which is expressed in monetary terms.

Documented expenses are understood as expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation, or by documents drawn up in accordance with the customs of business turnover used in a foreign state on the territory of which the corresponding expenses were incurred, and (or) documents indirectly confirming the incurred costs. Any expenses are recognized as expenses provided that they are incurred for the implementation of activities aimed at generating income.

The basis for recognizing non-operating expenses may be documents indicating that the organization agrees to pay the penalty in full or in the amount, based on the terms of the concluded contract.

These documents include:

• an agreement providing for the payment of sanctions;
• bilateral act;
• a letter from the debtor, an agreement or other document confirming the fact of a breach of an obligation, allowing to determine the amount of the amount recognized by the debtor.

According to the specialists of the Ministry of Finance of Russia, the fact that the debtor has recognized the obligation to pay the amount of the forfeit (fine, penalty) is both the actual payment to the creditor and the written confirmation expressing the willingness to pay the forfeit (see letters dated 25.05.2012 No. 03-03- 06/1/272, dated 29.11.2011 No. 03-03-06 / 1/786). The same opinion is shared by specialists of the Federal Tax Service of Russia for Moscow in a letter dated 18.03.2008 No. 20-12 / 025119.

At the same time, one should take into account the position of specialists of the Federal Tax Service of Russia, according to which payment orders for the payment of penalties by themselves do not indicate the recognition of these sanctions by the organization and to recognize the forfeit as part of non-operating expenses, a document is required confirming the recognition of the penalty by the debtor, for example, the written consent of the debtor to pay the debt in the specified size (see letter dated 26.06.2009 No. 3-2-09 / 121).

Thus, in order to avoid disputes with the inspecting authorities, in order to recognize the amount of the forfeit stipulated by the loan agreement as part of non-operating expenses for tax purposes, in addition to the payment order, it is necessary to have the documentary consent of the borrowing organization to pay the forfeit in the prescribed amount, for example, an agreement or bilateral act.

Alexey Dudin

You need an organization //

How to reduce fines and penalties on an overdue loan

If you are late in payment of the loan, you can be sure that for violation of the terms of payment the bank will charge you a penalty. Fines and penaltiesprovided by the loan agreement, usually high enough... Concerning, the penalty charged by the bank sometimes becomes comparable to the amount of debt itself... So, for example, if you have delayed the repayment of a consumer loan in the amount of 50,000 rubles for three consecutive months, then with a penalty of 0.5% for each day of delay, the amount of the forfeit charged by the bank will be 22,500 rubles. In the same situation, if there is a fine (and not a penalty) in the loan agreement for missing a monthly payment in the amount of 10% of the outstanding loan amount, the amount of the penalty will be 15,000 rubles. The longer the delay is or the higher the amount of the forfeit stipulated by the loan agreement, the more tangible the financial losses of the debtor will be.

Having learned about the accrual of a significant amount of the penalty by the bank, it makes sense to try to reduce it... This is especially true for situations in which the amount of fines and penalties required by the bank is half or more of the loan amount. Moreover, some banks may deliberately postpone the moment of applying, so that there are more fines and penalties.

The possibility of reducing fines and penalties is provided for by law, namelyarticle 333 of the Civil Code of the Russian Federation. According to this article of the Civil Code of the Russian Federation "if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty." When assessing the consequences of the violation of the obligation and the amount of the penalty charged by the creditor, the court may take into account, among other things, circumstances that are not directly related to the consequences of the violation of the obligation (the price of goods, works, services; the amount of the contract, etc.).

The procedure for calculating the forfeit on a loan, liability, repayment terms

This clarification for the courts was made by the Plenum of the Supreme Court of the Russian Federation in paragraph 42 of its joint Resolution with the Plenum of the Supreme Arbitration Court No. 6/8 dated July 01, 1996 "On some issues related to the application of part one of the Civil Code of the Russian Federation."

In the event that the bank has charged a forfeit, but has not yet applied to the court for its collection, you should write a written application to the bank, in which it is necessary to indicate the presence, in your opinion, of a clear disproportionate amount of the forfeit charged by the bank. Also, in a letter to the bank, it is important to offer the bank to reduce the accrued amount of the penalty. It is important to make the letter in two copies, one of which should be sent to the bank's office (or its territorial branch, additional office, etc.) with a mark on the second copy of the receipt of the letter by the bank employee. In the event that a bank employee refuses to make a mark on the second copy, then send your letter to the bank by mail in the form of registered mail with a return receipt and a list of attachments.

If, based on the results of consideration of the letter received, the bank will go to meet you and decide to reduce the penalty, then the agreement reached will need to be recorded in writing. In the event that the bank refuses to reduce the accrued penalty in writing, or leaves your application unanswered, it will be necessary to prepare to resolve the issue of reducing the penalty in court.

In the event that the bank, after calculating the forfeit, applied to the court for its collection, together with the remainder of the outstanding loan debt, then in the framework of the legal process it is necessary to petition the court in writing to reduce the penalty.At the same time, it will be useful to attach to the application your letter to the bank with a request to reduce the penalty, which was left unanswered or unanswered (if you sent it).

To substantiate your petition to reduce the penalty in the text of the petition itself, you should draw the court's attention to:

• absence for the bank of any serious consequences resulting from the existing delay in repayment of the loan. Despite the provisions of Article 330 of the Civil Code of the Russian Federation stating that the penalty is levied for the very fact of a breach of obligations (and the bank does not need to prove the damage caused to him), it is important to note that the amount of the penalty in any case should be reasonable. In the event that the penalty charged by the bank is huge, and no serious negative consequences have arisen from the delay in repayment of the loan, then there is every reason to believe that the amount of the penalty is 0.3%, 0.5%, etc. is clearly disproportionate to the consequences of a breach of obligations;
• the ratio of the forfeit charged by the bank andrefinancing rates Central Bank of the Russian Federation... If the amount of interest charged by the bank is, say, 0.3% for each day of delay, then this will be over 100% in terms of annual interest, while the refinancing rate of the Central Bank of the Russian Federation is several times lower. All this allows us to say that the amount of the penalty required by the bank makes it possible not only to compensate the bank for its losses (if any), but also to receive a noticeable income. In some situations, such income may exceed the bank's benefit from receiving a payment for using the loan. So, for example, a loan on which a debt arose could be issued by the bank at 20% per annum, and the amount of the forfeit calculated by the bank, when converted to an annual percentage, is more than 100%. As a result, it becomes obvious that when collecting debt on a loan (taking into account the accrued interest for using the loan), as well as forfeits for violating the loan repayment period, the bank's income from the received forfeit will be higher than the income from the loan.
• the ratio of the amount of debt outstanding on the loan and the amount of the forfeit charged by the bank... In the event that the amount of debt on the loan is small, and the amount of the forfeit charged by the bank is several times higher than the amount of the debt, then it is worth saying that the collection of the forfeit in fact allows the lender to receive income that significantly exceeds the benefit that was expected for him during the normal execution of the loan agreement ;
• an unreasonably long period of time during which the bank was "dragging out" with an appeal to the court with a claim to collect debt on a loan and a penalty for violating the terms of repayment of the loan. Despite the fact that the bank has the right to go to court at any time within the statutory limitation period, it is worth paying the court's attention to the above circumstance. In addition to this, it is important to note that since the loan agreement provides for a noticeable penalty, and the bank for no apparent reason delayed filing a claim with the court, then, most likely, this is due to the bank's desire to collect not so much the amount of debt as a huge penalty, having received the most from the collection of a forfeit is a significantly larger income than what was provided for in the loan agreement;
• Your difficult financial situation of the debtor, poor health, requiring the cost of treatment, the presence of dependent minors and / or other disabled persons and other similar circumstances.

  These circumstances may help to convince the court that the violation of the loan repayment terms and the petition to reduce the forfeit amount filed in the course of the court proceedings are due to some objective circumstances and are not a consequence of the debtor's bad faith and / or his desire to "annoy" the creditor;

• etc.

The application for a reduction in the amount of the penalty is not a 100% guarantee that the court will satisfy it. At the same time, it is important to note that if the court refuses to reduce the amount of the penalty without any justification, then the corresponding court decision has the meaning appeal in accordance with the procedure established by law in order to try to achieve a reduction of the forfeit in a higher court.

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Today in Russia, every tenth borrower of credit funds delays in monthly payments. In this regard, banks charge such customers large penalties.

Very often, the initial loan amount is several times less than the forfeit, this is especially clearly seen in microfinance organizations, where a client takes 5 thousand rubles, admits a delay and owes 20 thousand rubles a month later. Let's take a look at how you can reduce loan penalties or even eliminate them.

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Important! Since February 2014, Art. 333 of the Civil Code of the Russian Federation begins work only if the bank agreed to terminate the contract in court under Art. 451 Code of Civil Procedure of the Russian Federation. Or he filed a lawsuit against the debtor on his own.

You took loans from one or several banks, but due to force majeure circumstances and worsened financial situation, you could not pay off on time. Banks in this case reacted very quickly and punished you with the first fine, then began to charge interest and penalties. At one point, you realize that it is almost impossible to get out of the debt trap, and the situation needs to be addressed somehow.

The first thing that a person in such a situation does is most often go to a "qualified" lawyer. Taking money for the consultation, he tells the debtor that he can help him, of course, not for free.

If the client agrees, then he is asked to collect a package of necessary documents, namely:

• account statement (art.);
• 2NDFL certificates;
• work book;
• a certificate from the hospital (if the delay was due to illness), etc.

Then, with all these papers, the lawyer goes to the court office and, by power of attorney on behalf of the client, writes a statement on the basis of Art. 333 of the Civil Code of the Russian Federation, thereby trying to reduce the fines on the loan. In addition, the client can be "split" for additional services, for example, the cancellation of a bank agreement.

All this will cost a decent amount. Average prices of a lawyer in the Russian Federation: consultation - 500 rubles, making a claim to the bank - 2 thousand rubles, representation in court 1 day - 10 thousand rubles, drawing up any agreement or document - 3 thousand rubles. It turns out a decent amount for work that you can do yourself. Moreover, the chances of terminating the agreement with the bank are practically zero.

It's much cheaper to do some of the work yourself:

1. Come to the magistrate's court at your place of residence, or rather, to his office.
2. Write a statement that you disagree with the interest charged by the bank. In connection with the deterioration of the financial condition on the basis of Art. 333 of the Civil Code of the Russian Federation, ask them to be canceled.
3. Provide evidence of why you are not able to pay the debt (labor - if you were fired, 2NDFL - reduced wages, hospital discharge, account statement - if you overpaid for several years, etc.).

In order to correctly draw up a statement, everything must be done according to the model. This sample is displayed on the information stand of any court.

Usually judges meet debtors halfway and reduce fines on a loan, but this is only if evidence is presented that your financial situation has deteriorated or there has been a large overpayment.

Then the amount of the debt is fixed, and the court's decision is transferred to the bailiff service, where the borrower will already pay his debt.

The debtor's property may be seized. It is better to prepare for this in advance. The list of property subject to arrest can be found in this.

Important! If the debtor has no delinquencies yet, but he realizes that in the near future he will not be able to pay more, he needs to contact the bank for restructuring. If he is refused, and they begin to charge fines and interest, only then it is necessary to apply to the court with a petition under Art. 333 Civil Code.

Judicial practice of application of the law

Article 333 of the Civil Code is almost the only way the debtor can reduce the amount of debt. In this regard, jurisprudence has an extensive judicial practice on this issue. Any lawyer will first advise the debtor to exercise the right to apply this law.

It must be understood that the application for the reduction of the forfeit is ONLY an initiative of the borrower. If you do not indicate this item yourself, the court will not reduce the debt. Nobody but you needs it.

The application itself is a template type document. You do not need to have special knowledge to fill out the form. All samples are available on the Internet and can be downloaded for free. Nevertheless, we advise you to study Art. 131 and 132 of the Code of Civil Procedure of the Russian Federation on the correct preparation of documents for the court.

Art. 333 of the Civil Code of the Russian Federation (reduction of the penalty) - a reasonable percentage

The first paragraph of the article tells us that if the penalty is disproportionate to the amount of the debt, it can be reduced. But how to determine this disproportion (reasonable percentage)?

For this, there are a number of ways and meanings that have shown decent results in litigation:

1. The amount of the forfeit must not exceed the amount owed.
2. Rospotrebnadzor can calculate the full debt for you and give recommendations for the judicial system.
3. Independent expert companies with successful legal practice can recalculate the loan, revealing all the discrepancies in the agreement.

Art. 404 of the Civil Code of the Russian Federation

This article works well in conjunction with 333. The creditor's fault can also be proven by experienced lawyers. If this fact is established, then the debt can seriously decrease.

You should not count on complete debt cancellation. This is impossible in principle. But partial satisfaction of the creditor's claims is a common thing for the judicial system.

Outcome

The task of banks is to siphon out as much money as possible from their clients, because, as you know, debts are a serious business. The task of debtors is to know their rights and laws and be able to apply them on their own without unnecessary overpayment, and the simplest thing that can be done is to cancel the fines on the loan.

If you need advice or have any questions on the topic of this article, describe your problem in the comments, or contact the duty lawyer of the site in the form of a pop-up window. We will definitely answer and help you.

Today, few people can imagine life without loans, since interest-free or consumer loans with a small interest rate or a grace period attract the population to use loans. But if yours are persistent late payments, most are serious banks. Moreover, delays close access to, and this is a real opportunity to make the loan less expensive.

But this is not the most offensive and most important thing that can be in this situation. Do not reassure yourself that an unpaid loan will be forgiven.

Banks tightly control the current situation and a penalty is charged for each day, the amount of which is always indicated at the conclusion of the contract. On average, it is 0.1% - 0.5% daily of the amount of delay.

Sometimes, the client simply forgets about the date of payment, if the delay in payment is not more than 5 days, this will not be affected, but the penalty will still have to be paid. If you have a problem that does not allow you to pay a loan, contact the bank with an application. For a longer period, of course, the overpayment will be, but much less than the default interest.

Problems and debts

Delayed loans in banks Sberbank, Home Credit, VTB 24, Alfa Bank, Russian Standard

The laws of the Russian Federation provide banks with few opportunities to ensure the repayment of loans issued. It is extremely difficult to hold the borrower accountable for an unpaid or overdue loan. To a greater extent, this applies to loans without a certificate of income and without collateral.

So, Home Credit Bank notes that in hotel years, consumer loan delinquency reached 28%. Among the banks, leading in the segment of overdue loans, "noted" and, and.

At the initial stage, penalties according to the loan agreement, as well as the requirement of early repayment of the loan, if the delay in payment has reached an average of 3 months, can serve as levers of influence on persistent defaulters at the initial stage.

Each bank has its own security services that deal with arrears. Desperate to collect the debt on its own, the bank can go to a collection agency or to court. Although borrowers always have the opportunity to negotiate with a credit institution and in an amicable way, taking an installment plan to pay off the loan and achieving its restructuring. In the overwhelming majority of cases, banks meet their customers.

Consequences of delay

What can threaten in Banks? It depends on many factors - the type of loan, whether the bank has collateral, the amount of outstanding debt, whether the debtor has any property, or has a loan guarantor, etc. The procedure is usually standard: court, seizure of property, prohibition to travel abroad until the full repayment of the debt under the writ of execution. The most common option is the subsequent forced collection from it.

However, the borrower may be “lucky” if the amount of his debt is very small, say, for a phone or iron purchased on credit. Sometimes it is easier for banks to close their eyes to delays, to bring a client into their own and safely forget about it. Although it is still not worth hoping for such a wonderful relief from the burden of a loan to borrowers.

Circumstances vary. And, at times, even the most accurate in terms of fulfilling credit obligations, citizens fall under. This can happen for a variety of reasons: delayed wages, illness, inattention, an urgent trip, personal problems.

Of course, you need to be prudent, but if it nevertheless happened that the moment was missed and on the date set by the loan agreement, the bank did not receive the required amount of funds, it is worth remembering that any credit institution provides for a penalty for late payment on a loan ...

When do banks charge interest on arrears?

Applying for a loan is often compared to voluntarily throwing a noose around your neck. And so that it does not drag on, you need to connect all your attentiveness and prudence for the entire loan repayment period.

1. First, it is necessary to very carefully study the contract being signed. It explains in detail how the bank will act in the event of failure to pay a sufficient amount to pay off the monthly payment. Typically, this is interest calculated daily. You can often find a fixed fine for each month of delay. Moreover, the accrual of interest on the debt for each missed day does not cancel this fact.
2. Secondly, keep a close eye on the calendar and take into account holidays and weekends.

Delay can appear when:

You need to know that any mistakes can and should be corrected. Moreover, at the written request of the client, the penalty can be extinguished if it is proved that the accrual was made through the fault of the bank.

Therefore, you regularly need to check the current state of your accounts and solve possible problems without waiting for a call from collectors or the appearance of bailiffs.

How to calculate late payment interest yourself?

The easiest way, of course, is to contact the representatives of the bank that issued the loan with a request to advise on the resulting debts. They competently and professionally are obliged to issue information in full. And also suggest how you need to lead yourself so that debts do not accumulate.

Some banks suspend the accrual of interest, allowing the client to solve personal problems within 1-2 months. However, for this, it is necessary to draw up a personal statement indicating the reason for non-payment and the estimated timing of the debt repayment. Otherwise, the default interest will continue to be charged from the first day following the payment date.

If there is no free time to visit the bank, you can use one of the numerous Internet services that allow you to independently calculate the necessary additional payments. To do this, you need to know what penalties for a loan delay are provided for by your loan agreement.

Having found out the established interest for late payment, you need to multiply the amount of the loan payment by it. The resulting number will become the amount of the penalty. And the monetary value of the established payment is now added to it. The amount received will become the number that must be paid.

Such a calculation will come in handy if payment is made literally the next day after the deadline established by the contract. For a few days, the calculation will be more complicated.

It is worth remembering that daily interest is not calculated on the indicator of the monthly payment, but is recalculated every day based on the ever-increasing debt. That is, on the second day, the interest on delay will need to be multiplied by the amount of debt accumulated on the first day of delay. And add yesterday's debt indicator to this figure.

On the third day, the multiplication is carried out by the amount of debt on the second day. Etc. That is, the debt will grow like a snowball. And if it is not repaid before the next payment deadline for the loan, then an additional penalty will be charged. And then the interest will be overgrown with the amount of debt, penalties and fines.

We must not forget that even if you make a partial or full loan payment not on time, you will not stop the accrual of interest. Indeed, penalties for late interest on a loan are also provided as sanctions. This means that the debt can gradually increase until it is fully repaid.

More than 50% of all borrowers made a payment with a delay at least once in their credit history. The reasons for delays are different for everyone, and the consequences are the same - a fine or a penalty. Consider what a forfeit on a loan is and what consequences it entails.

The relationship between the bank and the borrower is regulated by several legislative acts, the main of which is the Civil Code of the Russian Federation. From Art. 330 of the Civil Code of the Russian Federation, it follows that a forfeit on a loan is the amount established by the terms of the loan agreement or the Law that the client must pay to the financial institution in the event of default, in particular in the event of an unpaid debt.

In the same article, it is determined that the penalty is divided into two types:

1. Penalties - a measure of punishment, applicable one-time, but in each case of delay. For example, if there is no payment on the settlement date, the next day a fine of 100 rubles is charged, in another month this amount may double and for 60 days of delay you will have to pay 200 rubles, for 90 days - 500, etc. Also, the fine may remain fixed. , then for 30, 60 or more days the penalty will be equal to - 100 rubles.
2. Penalty - This is a daily penalty, which is calculated based on the actual number of days of absence of funds on the credit account.

In Art. 395 of the Civil Code of the Russian Federation has recommendations for calculating penalties. The amount of the forfeit is set based on the level of the Central Bank's key rate in effect at the time in the relevant period. Calculated as 1/360 of the refinancing rate. Today the rate is at 9.25% per annum, then the minimum penalty will be 0.257% per day. Possible reasons for delay include:

1. Deliberate non-payment in the absence of a sufficient amount of funds from the borrower.
2. Using self-service terminals, cash desks of banks or Russian Post offices for payment. Transfers by the above methods are carried out, as a rule, from 2 to 5 days, which can lead to a technical delay.
3. Payment of the monthly installment after the date indicated in the schedule. Such miscalculations occur when the due date falls on the 31st of the month. Usually, the settlement day is postponed one day earlier - the 30th, which is why the bank client must deposit money earlier, but does not.

Methods for calculating the penalty

Consider the method for calculating the interest rate based on the statutory rate of 0.0257% per annum. For example, a loan was taken in the amount of 100 thousand rubles. at a rate of 13.9% per year (available at Sberbank) for a period of 24 months. Under such conditions, the annuity payment is 4,796.56 rubles. per month.

Suppose the borrower has not made 2 payments and the actual delay is 50 days. Under such conditions, the penalty will be 61.63 rubles.

• the amount of the penalty calculated based on the absence of payment for one calendar month:

4796.56 * 30 * 0.0257 / 100 \u003d 36.98 rubles.

• the amount of the penalty charged for the delay in the second payment for the period of 20 days of the second month:

4796.56 * 20 * 0.0257 / 100 \u003d 24.65 rubles.

• the total amount of interest for 50 days.

36.98 + 24.65 \u003d 61.63 rubles.

Such an insignificant amount of the penalty can hardly be found in practice, since when drawing up loan agreements, banks use the provision of clause 2 of Art. 332 of the Civil Code of the Russian Federation, which determines that the interest rate of interest may be increased if the parties come to such an agreement.

The most common fine is considered to be 0.2-0.5% per annum. So, with a rate of 0.5%, the amount of the forfeit in the above example will not be 61.63 rubles, but 1199.14 rubles. Such figures, in the opinion of banks, look more solid and may affect the acceleration of the debt payment process.

Let's consider how to calculate the forfeit on a loan for an overdue principal debt in the form of a fixed fine. For example, according to the terms of Sberbank, a fine of 20% of the loan amount is provided for delays under a consumer lending agreement (the maximum allowable value according to the legislation of the Russian Federation). In the example presented, the payment amount is RUB 4796.56, which means that the amount of the forfeit will be RUB 4796.56 * 20% / 100 \u003d RUB 959.31. Such a fine will need to be paid for each fact of delay - the next day after the monthly payment date.

Bank actions in the event of an overdue debt

According to the Law "On Credit Histories", banks are obliged to transmit data on actual delinquencies of clients to the credit bureaus once every 7 days. It does not matter how many days of delay - one or seven. As a result of various reasons, sometimes beyond the control of the debtor, not only a penalty can arise, but also a damaged credit history, which affects further cooperation with creditors.

For the first few months, banks are trying to independently resolve the problems that have arisen with their clients. What does the penalty in the loan mean in this case for the bank? This is his ability to influence the client in order to speed up the refund process. Bank employees can use the following methods:

• sMS messages with a reminder to pay a monthly fee, as well as with the amount of already accrued fines and, possibly, future ones;
• calls with audio messages or directly from specialists of bank departments for work with problem debts (the content of calls is similar to messages);
• letters to the post office (electronic, home) with information about the amount of current and overdue debt, as well as details for its payment;
• invitation of the debtor to a personal meeting with a bank employee.

Most loan agreements clearly describe the proposed actions and their allowable number. For example, the bank can register the right to make up to 2 calls daily and no more than 10 messages weekly.

Banks also indicate in the terms of lending their right to assignment of claims. This means that they have the right to transfer the data of the client and his debts to collection companies. Collectors are usually attracted no earlier than 3-4 months after the first delay. Conversations with these organizations, as a rule, end in a negative note, for example, threats to take away all available property. In order not to listen to banking intermediaries, it is recommended to contact the bank for a civilized solution to financial problems.

Borrower's actions in case of delay

If the client cannot independently deal with the current situation, for example, when the reason for calculating the forfeit was not unplanned expenses (illness, vehicle repair), but serious changes in life (death of a breadwinner, loss of legal capacity, dismissal), then it is necessary to contact the bank for revision lending conditions.

The application is written in free form. It indicates the causes of arrears, as well as possible solutions to the problem. For example, a request to extend the loan term in order to reduce the payment, or to reduce the amount of the accrued forfeit in exchange for a partial early repayment of the loan.

The document must be handed over to the manager to be assigned an incoming number. Banks are required to give a response within one month from the date of acceptance of the request. If the answer does not satisfy the borrower, or is completely absent, you can proceed to court proceedings.

In the event that the bank offers the client to agree to new lending conditions, an additional agreement is signed to the existing agreement on the debt restructuring service. This can be a change in the term, interest rate, and currency of the loan. It is extremely rare to use a reduction in the annual rate or the provision of credit vacations. From the moment the restructuring begins, the accrual of penalties stops.

Litigation in case of loan delays

Examples of how to reduce forfeit on a loan in court have steadily increased since 2011. It was from this year that many amendments were made to the legislation in the field of credit relations. Now on the basis of Art. 333 of the Civil Code of the Russian Federation, borrowers can apply to the magistrate's court at their place of residence or another court specified in the agreement. The article states that if the fines are incomparable with the consequences of the violation of the terms of the contract, the penalty may be reduced or written off. This allows debtors to achieve a significant reduction in the amount of accrued penalties. From the moment the application is accepted by the court, fines cease to be charged, and the amount of debt is fixed.