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TYPES OF EXPERTISE
Getting a credit is almost always associated with new opportunities and prospects.Ordinary citizens and enterprises use credit money to fulfill different needs and to conduct business.However, nowadays not everyone can pay off their debts, which often leads to credit disputes with banks.It is almost meaninglessto confront such a large financial structure as a bankalone.This is connected with the fact that credit institutions contain entire legal departments in their state that deal with the process of issuing and repaying credits.It is clear that credit disputes in the courts are presentedby representatives of banks with deep knowledge of legal principles, legal systems and laws.But it does not mean that disputes with banks are a priori losing.In many situations, the client manages to proveits case and to win in court. This occurs both due to the competent legal support of the borrower, anddue to the justified forensic expert conclusion.
The main reasonsfor credit disputes with banks:
Appeal against the conditions of loan agreements; Illegal execution of a loan according to client’s documents; Resolution of issues of collateral, its loss, replacement etc.; Unauthorized increase in the bank’s interest rate; Incorrect accrual of interest and commissions on loan; Debt collection from the borrower on the suit of the bank; Evasion of the borrower from debt payment and cooperation with representatives of the bank with a troubled debt; Illegal transfer of credit case to collectors, who attempt to confiscate property in the extrajudicial procedure or to perform other unlawful actions.
Unlawful commission of banks:
Domestic practice on credit disputes shows that very oftenwhen concluding loan agreements banks include illegal commission in the mortgage agreement.
Most often, banks charge the following additional commissions:
Commission for maintaining a loan account; Early loan repayment fee; Commission for issue of certificates on the status of debt of the borrower under a loan agreement; Commission for credit application consideration; Commission for issuing a credit; Commission for maintaining the credit line limit.
The bank has the right to obtain a particular remuneration (commission) along withthe interest for using the loan only in case if this remuneration is provided in the form of an individual service to the bank’s client.In other cases, the court must assess whether these commissions can be assigned as a credit usage fee or not.At the same time, when solving the credit dispute about recovery of interest due from the borrower for usingcreditloan, the court takes into account actual and legal circumstancesof the violations committed.
Unlawful increase in interest rates on a loan agreement
In recent years, the judicial practice in increasing the interest rate by the bank unilaterally received an unambiguous assessment of the Supreme Economic Court of Ukraine (hereinafter,“the SECU”) in its Resolution dated November 24, 2014 (hereinafter,the Resolution).Thus, paragraph 2.7 of part 2 of the Resolutionnotes that, according to Article 10561 of the Civil Code of Ukraine, it is prohibited to increase the fixed interest rate on a loan agreement bythe bank (or the procedure for paying a variable interest rate set by the loan agreement) without the consent of the borrower.
Credit disputes: protection of the borrower’s interests in court and at the pretrial stage
In recent years,practiceshows that one of the effective ways to protect a borrower in a credit dispute with a bank is the appointment of forensic economic expertise (at the trial stage) or conducting an economic research (in the process of pretrial settlement of the credit dispute).
Forensic economic expertise in economic or civil dispute
Article 41 of the EconomicProcedural Code of Ukraine(hereinafter,theEPCU) stipulates that in order to clarify issues arising in the resolution of an economic dispute and requiring special knowledge, the arbitral tribunal appoints a forensic examination.Participants in the trial have the right to propose questions that need to be clarified by the forensic expert to the Economic Court.The final range of these issues is determined by the court in a resolution.In accordance with Article 143of the Civil Procedure Code of Ukraine(hereinafter,the CPCU),in order to clarify the circumstances that are important for the case and require special knowledge, the court assigns an expertise at the request of the persons involved in the case.Consequently, when considering a case for a loan dispute, the borrower has legal grounds in accordance with the norms of the EPCU and the CPCU to provide the judge with apetition for the forensic economic examination to reveal the facts of abuse by the bank.
Economic research at the stage of pretrial settlement of the credit dispute
The practice of reviewing credit disputes by the experts of the KIFEI proves that a competent position in negotiating with the representatives ofbanks, supported by the expert conclusion in the form of an economic research, is often a weighty reason for the interest rate reduction/decrease in the body of acredit loan from the side of the bank (after all, the well-grounded conclusions regarding the illegal actions of the bank, given in conclusion of the economic research, may have a decisive influence in future at the stage of the litigation).
The judicial practice of considering credit disputes
The main advantage ofKyiv Independent Forensic Expert Institutionis sufficiently powerful practice with positive results incredit disputes.The conclusions of forensic experts of the KIFEI are taken into account by the courts of general jurisdiction in Ukraine of all levels: positive decisions in favor of the borrower are taken by the courts both at the local level and at the level of the appellate courts and the Supreme Economic Court of Ukraine.
Judicial decisions on credit disputes, adopted on the basis of the KIFEI conclusions:
1) Decision of the Svyatoshinsky District Court of Kyiv in civil case No.2-7944/11:http://reyestr.court.gov.ua/Review/32362357
2) Decision of the Boguslavsky District Court of Kyiv region in civil case No.1004/2134/12:http://reyestr.court.gov.ua/Review/36888308