The strength of the "small print"

Voronezh resident has introduced the amendments to the agreement with the bank, writing them in small print. Because of this, he not only does not pay any interest for the loan, but is going to sue the Financial colossus 24 million rubles!


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He has already won in court the right not to pay the interest and penalties that were trying to recover from it. Kominternovskiy Voronezh district court began its consideration of the unprecedented action of the client to the bank. 42-year-old resident of the regional center Dmitri Alexeev (name changed) requires the bank "Tinkoff Credit Systems" to fulfill the obligation - to compensate for violation of the loan agreement, the terms of which offered itself Alekssev. Voronezh resident sent to the legal service of the bank to settle the dispute out of court claim, wherein said amount of 24 million rubles. It is based on the fact that the bank violated the terms of the loan agreement. By signing the agreement, the bank agreed to take on the obligations. They also Alekseev, in the place where the document to the bank's clients were written in small, barely readable font changed.

Bankers signed the document, apparently automatically, without examining the text, not knowing that the client suggested terms. So Alexeyev pointed out that the interest rate on the loan and the commission for cash withdrawal are 0%. And also ordered that "the customer may not pay all commissions and fees, provided the tariffs."

Now Voronezh has a good chance to win a lawsuit against the bank. Not least because, earlier court upheld an agreement made by the parties. According to this decision, the contract drawn up by Alexeyev, was lawful.

However, first things first.




Bankers in their own trap

The story began in 2008 when the Voronezh resident received a letter in the mail an offer from ZAO "Tinkoff Credit Systems" to use a credit card. For its registration only had to fill in an application form and then send it by mail to the address that was printed on the envelope.

By the way, it is unlikely among residents of Russia there is at least one person who would be getting offers from the banks about the design of the loan or credit card. As a rule, all the most important documents to get them written in very small print. So that it is hardly possible to make out. At the time, many Russians burned badly because of their carelessness - they signed the document without reading the small print. Meanwhile, it contains information about the interest rates, commissions and penalties. As a result, people had to pay a huge interest, knowing in advance that they would never take money from the bank.

Dmitri Alexeev proved legally savvy customer: in the past he served in law enforcement. Voronezh resident bank decided to offer new terms posted on its website.

Voronezh resident scanned application form from JSC "Tinkoff Credit Systems" and changed with regard to the fine print of the contract terms offered by the bank. He pointed out that the interest rate on the loan and the commission for cash withdrawal are 0%. And also ordered that "the customer may not pay all commissions and fees, provided the tariffs." In addition, there Alekseev instead of the address of the bank www.tcsbank.ru referred to his site - www. tcsbank.at.ua, affirming that "with the current General terms and tariffs placed on the Internet, is familiar." Simply put, Alekseev prescribed for themselves unlimited and free credit. Separately, the agreement envisaged on the site if the bank violated the terms of the document.

 - The Bank has no right to make changes and additions to these General Terms and Conditions unilaterally. In the case of changes, additions, substitutions, the General Conditions unilaterally by the Bank, the Bank shall pay compensation to customers in the amount of 3 000 000 (three million) rubles for each regular modify, supplement or replace the General Conditions, - have a client.

Upon termination of the contract unilaterally ordered the payment from the customer of the bank in the amount of 6 million rubles.

Soon Dmitri Alexeev has received from the bank "Tinkoff Credit Systems" authorized copy of the application forms and your credit card. This meant that the bank agrees to the conditions specified by the client.

The client also has the right

After receiving the credit card Voronezh resident began to actively use it. Two years at "Tinkoff Credit Systems" questions to Alexeyev did not arise. The Bank terminated the contract with him, and set the final score in April 2010. According to the organization, the customer started to prevent late payment of the minimum payment.

In 2012 JSC "Tinkoff Credit Systems" appealed to the court to recover from Alexeyev considering delinquency fees and fines of more than 45 thousand rubles. Customer has provided to the world court Kominternovsky area agreement signed by the bank and announced the terms of a site. At the same time, he agreed to repay the loan - 19 thousand rubles.

The court found that the contract, signed in 2008, the law that the client had a right, as a party to propose its own terms. Legitimate document refers to the page www. tcsbank.at.ua., where the posted terms and tariffs for the issuance of credit cards

 - The Bank accepted the terms of the contract because the plaintiff sent to activate the card ... Alekseev did not take any obligation to pay interest for the use of credit cards. In this regard, the plaintiff's claim for the recovery from the defendant of arrears of interest, penalty interest, service fee, as well as on the principal debt is not justified and are not subject to the satisfaction - concluded the trial.

By decision of the Court of 6 September 2012, in favor of the bank with Alexeyev was charged only the principal amount - 19 thousand rubles. In December, after the appeal it has entered into force.




By what such a contract?

The other day Kominternovskiy Voronezh district court began its consideration of the unprecedented claim to Dmitry Alexeyev "Tinkoff Credit Systems".

Voronezh resident requires the bank to fulfill its obligations: Payments for changes in the conditions and tariffs unilaterally by 3 million for each. According to the customer, the bank has violated these 8 points. Alexeev sent to the legal department of the bank to settle the dispute out of court claim, wherein said amount of 24 million rubles.

According to Alekseev, making a claim against him for recovery of interest and penalties, the bank had breached its obligations. This is confirmed by the materials and the decision of the world court.

 - We ask the court to order "Tinkoff Credit Systems" to fulfill the assumed obligations, to recover from his compensation for the violation of the general conditions and tariffs. As the responsibility is always a certain type of property or personal relationships, it should be expressed in any additional burden, causing negative consequences for the offender - said at a preliminary hearing of the plaintiff's legal representative of the agency "Consultant" Dmitry Mikhalevich.

Lawyer "Tinkoff Credit Systems" at the preliminary hearing in the court was not asking to hear the case without him. In the sent statement, the representative of the bank Alexander Stremousov explained that considers the requirements of the illegal Alekseeva. And asked the court to apply to them the statute of limitations and dismissed the claim.

- The Bank in accordance with the terms of the contract has terminated it unilaterally, putting April 19, 2010 the plaintiff final score. He got by with a notice of termination of 6 May 2010 - said in a statement Alexander Stremousov. - According to the Civil Code, the limitation period shall be three years. Its expiration is the basis for the decision to dismiss the lawsuit. The statute of limitations expired on May 6, 2013.

However, Dmitry Mikhalevich led the court arguments of the plaintiff.

- Dear trial lawyers "Tinkoff Credit Systems" link in the document on the conditions of the model contract of the bank. However, its representatives have signed another agreement - the terms posted on the website with the address www. tcsbank.at.ua. It is recognized as the world court legal. According to the basic provisions of the document, upon termination of his unilateral Bank shall pay the customer compensation in the amount of 6 million rubles. But this was not done, so the contract can not be considered terminated, - noted in his speech Dmitry Mikhalevich.

After hearing the parties, the court decided to request the material world of the court, on the basis of which a decision issued September 6, 2012. The next hearing in the civil case is scheduled for September, which is the bank's lawyers will be notified.

RIA "Voronezh" will monitor developments.

Comment head of the legal department of the famous Voronezh Bank Alexey Litvinov:

The study participants in the judicial practice, namely Resolution 9 AU city of Moscow on December 28, 2012 and the Constitutional Court of 23 February 1999, will allow the parties to take another look at the situation and assess their strength.

In the Decision of the Constitutional Court of the Russian Federation stated that the citizen is an economically weaker party in the legal relationship with the banks and in need of special protection of their rights.

Agreement on the termination of the contract is only possible with the will of both sides of the credit agreement. His involuntary termination with consequences - recovery of the loan, interest and penalties - is possible only on the grounds specified in the law, but in court, subject to pre-trial settlement.

Therefore, only the law, but not the contract is determined by the ability of the Bank to unilaterally terminate the credit agreement, if the borrower is the citizen-consumer.

Since the agreement includes provisions on the bank's ability to unilaterally terminate the contract on grounds not provided for by law, the data bank's actions are contrary to the provisions of the Law on Consumer Protection.

In our opinion, the court will have a difficult task: to find a point of reference the term of limitation.

Source: riavrn.ru

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