Termination of the loan agreement: judicial practice. How to terminate a loan agreement with a bank unilaterally: sample application
File a lawsuit for termination loan agreement not only the bank, but also the borrower has the right. The reason may be the wrongful actions of the creditor or significant changes in the circumstances of the client. You will find the procedure for terminating a loan agreement through the court, a list of required documents, as well as the consequences for the borrower and the bank below.
Documents for termination
You can file a lawsuit in court personally or through a trustee, at the place of residence or location of the bank. When you apply to the court, you must prepare a statement of claim, which indicates:
- the name of the judicial body;
- personal information - address and full name, as well as the name and location of the respondent bank;
- the fact of violation of your rights and the nature of the requirements;
- the circumstances on the basis of which the claims and evidence on them arose;
- information on compliance with the appeal to the bank, if it is provided for by the loan agreement;
- list of attached documents.
If there are multiple defendants in a case, do appropriate amount copies of this application.
Along with the claim, you must submit documents confirming:
- Payment of state duty. For individuals, its size is 200 rubles.
- Competence of the representative, if any. It can be a power of attorney or other document.
- Circumstances on which the claim is made. This will require:
- additions and changes to the contract;
- loan application;
- detailed calculation of the cost of the loan;
- statements from your bank accounts on the movement of funds;
- documentary evidence of correspondence with a financial institution with a mark on the receipt of letters and other references.
The number of copies of the listed documents must correspond to the number of participants in the case.
4. Attempt to resolve the dispute before judicial order. As evidence, a written claim with a bank note of receipt is suitable.
The success of a case in court largely depends on the quality of the documents provided. A loan lawyer will help you correctly draw up an application and collect the necessary package of documents. The cost of his services will pay off with the competent conduct of the trial.
Statement
Before filing a lawsuit in court, you must attempt an amicable settlement of the dispute. To do this, you must submit an application to the bank to terminate the contract. A special form can be taken from an employee of a financial institution or found on the Internet and printed. When submitting a document to the bank, consider the following points:
- You should specify in detail the reasons for terminating cooperation with a credit institution.
- When sending a document by mail, order a letter with a notification. The receipt of its receipt by the bank will serve as evidence in court.
- When personally submitting an application to the bank's affairs department, make sure that it is registered. Make a photocopy of the document and ask the employee to mark it as received.
If the bank refuses or does not answer you at all, contact with. In accordance with paragraph 2 of Art. 452 of the Civil Code of the Russian Federation, you are entitled to this after 30 days from the date of application.
You need:
- Prepare a claim and file a lawsuit.
- Within 5 days, receive a decision on accepting the case for trial.
- Attend the preliminary hearing and the main hearing.
- Get a court order.
Consequences for the borrower and the bank
Please note that this does not relieve you of the payment of the remaining part of the debt and other costs associated with servicing the loan. With a positive court decision, the growth of debt will be completely stopped, since the bank will not be able to charge fines and penalties for delays.
The court makes a decision in favor of the bank or the borrower, depending on the reasons for terminating the contract and the evidence provided:
- The claim was filed in connection with the unlawful charging of commissions by the bank and the claim is substantiated by you. Most likely, the court will oblige the bank to pay commissions and fees taken illegally.
- Some time after applying for a loan, your circumstances changed - you lost your job, fell ill, lost your collateral, etc. If you prove that the situation is hopeless, the court will change the payment schedule, monthly installment and other conditions.
In the event that the contract provided for sanctions for early termination, a fine may be imposed on the borrower.
Practice shows that such disputes are more often resolved in favor of banks. Go to court if you are sure that you are right and have weighty arguments.
You can file an appeal within one month from the date of the final decision by the court.
There are two ways to terminate a loan agreement: the parties sometimes agree, and more often it happens through the courts. Wherein termination of the loan agreement arbitrage practice notes possible if Art. 450 of the Civil Code of the Russian Federation.
When the loan agreement is terminated by agreement of the parties
Two points are taken into account:
- Has the borrower repaid the debt under the contract?
- Has the contract expired?
If the loan debt is repaid in full, the contract is automatically terminated (Article 408 of the Civil Code of the Russian Federation). Wherein additional documents do not need to be formatted. But even if the borrower has fulfilled his initial obligations, the effect of other clauses of the contract remains, which were concluded to service the created debt.
Here is a common example: there is a bank account agreement concluded to provide a non-cash loan to a current account. And since such contracts do not automatically terminate, the debt for maintenance and initial introduction bank card continues to accumulate. Therefore, it is required to correctly draw up your wish to terminate the accompanying agreements, and then receive a certificate from the bank confirming that at the moment you have no debt to the credit institution.
How judicial practice considers the termination of a loan agreement with outstanding debt
After the expiration of the contract, it does not terminate if the credit debt remains. Then the borrower, who wants to terminate the loan agreement, needs to go to court. If the contract has expired, you definitely need to pay off the debt. But first, in case of serious difficulty, you need to contact the bank to restructure the debt, that is, to arrange more acceptable conditions:
- change the repayment schedule;
- extend deadlines;
- reduce interest rate.
Early termination of such an agreement
- With a one-time provision of funds, if you have fulfilled the terms of the contract ahead of schedule, you need to draw up an appropriate application. If this phrase was not indicated in the contract, after the loan is repaid, it terminates automatically (Article 408 of the Civil Code of the Russian Federation).
- You can also sign an additional agreement to this agreement regarding its termination if the agreement concerns the opening of a credit line. The supplement is suitable for the case when you have paid off the debt, but you are not going to take new loan tranches (clause 1, article 450 of the Civil Code of the Russian Federation). Such a case is rarely considered in judicial practice, since there is an agreement of the parties here.
Arguments used when terminating a loan agreement
When it is not possible to resolve the issue peacefully, the borrower goes to court using various arguments.
- The other party could materially violate the terms of the contract. Such a violation is considered significant if it led to damage to the interests of the borrower, and he lost the benefit that he could count on when he concluded the contract (clause 2, article 450 of the Civil Code of the Russian Federation). Reasons for going to court may include:
- illegal appointment and collection of penalties, various commissions;
- violation of the order of debt cancellation, there may also be other reasons.
- The parties entered into an agreement under specific circumstances, which have now changed (Article 451 of the Civil Code of the Russian Federation):
- the borrower could lose his job;
- he lost the previously guaranteed other income.
What should be done to terminate the contract through the court?
An offer to a credit institution to terminate a loan agreement
First of all, send a letter to the bank with a proposal to terminate the contract. Moreover, a registered letter, with acknowledgment of receipt. But you can make a photocopy and personally hand over the original to the appropriate department of the bank. Let them make a note in the journal about the incoming documentation. The same confirmation must be on your photocopy. When you receive a rejection or no response at all set time(30 days), send your request to the court regarding the termination of the contract (clause 2, article 452 of the Civil Code of the Russian Federation).
Preparing a claim for filing in court
Such an application must be made in writing. It specifies:
- the name of the court;
- your actual address (the plaintiff) and the bank;
- how the bank violated your rights;
- circumstances to which the plaintiff pays attention;
- claimant's claims;
- evidence of a violation of your rights, for example, some consumer rights (Article 28, Clause 7, Article 29 of the Code of Civil Procedure of the Russian Federation);
- list of additional documents (Art. 131 Code of Civil Procedure of the Russian Federation).
This declaration must be signed by the following persons:
- plaintiff;
- his representative, if any.
Then why was it necessary to consider the possibility of resolving disputes regarding the termination of the contract by peaceful means, if it was possible to resolve this issue immediately in court? The answer is simple: this will mean that you have previously made every effort to resolve the conflict, did not hide from creditors or from the problem itself. The court must take your side.
P.S. If you need a lawyer for credit debts- click on the link.
How to terminate the contract before its execution
(Conditions under which the contract may be terminated until the full fulfillment of the obligations of the parties)
It is good when the contractual relationship ends with the proper fulfillment of obligations by both parties. But this is not always the case. In practice, it often becomes necessary to terminate contracts: when the circumstances on the basis of which the parties entered into the contract have changed significantly, or when one of the parties does not fulfill its obligations.
The law provides for several ways to terminate contracts:
- by mutual agreement;
- through the court
- by repudiation of the contract.
Termination of the agreement at mutual will
It is easier to terminate an irrelevant contract by mutual agreement. By general rule the agreement is terminated in the same form in which it was concluded (Article 452 of the Civil Code of the Russian Federation). Most often, this is a written form. The parties conclude an agreement on termination, in which it is advisable to prescribe the consequences of this action. For example, the parties may provide that even if the performance of obligations to each other is not equivalent, the unjust enrichment rule does not apply. Or vice versa, an obligation may be established for the parties to return to each other everything executed. This is allowed by the provisions of Article 453 of the Civil Code of the Russian Federation.
If one of the parties to the agreement came to the conclusion that the continuation of the contractual relationship is inappropriate and proposed to terminate it, the other party has the right to refuse termination, citing the fact that it did not commit any violations (Resolution of the Arbitration Court of the North-Western District in the case of 2015 of the year).
Termination of contractual obligations through the court
The law contains a list of situations in which any party may apply to the court for termination of agreements (Articles 450, 451 of the Civil Code of the Russian Federation):
- a significant change in the circumstances that the parties took into account when concluding the contract;
- material breach of contract by one of the parties;
- other cases stipulated by law or contract.
But before filing a claim, the party must send a letter to the counterparty with a proposal to terminate the contract, otherwise the court will leave the application without consideration (Articles 148 of the Arbitration Procedure Code of the Russian Federation, 222 of the Code of Civil Procedure of the Russian Federation).
Denunciation of agreements due to a significant change in circumstances
A change in circumstances is recognized as significant if, in the new circumstances, the parties would not have concluded an agreement or would have concluded on completely different conditions.
It is important that the consequence of such changes is not the impossibility of fulfilling contractual obligations, but a significant violation of the balance of interests of the parties in the event of the execution of the contract. In this case, the parties themselves may provide for the conditions that will allow terminating the contract. For example, a change in the exchange rate.
To determine the materiality of the changes, the circumstances accompanying the specific legal relations of the parties matter. The claim will be satisfied if there are a combination of the following conditions:
- if, when signing the contract, the parties did not expect such changes;
- if the plaintiff could not overcome the reasons for the changes with all his desire;
- if the execution of the contract in the current version threatens with a serious violation of property interests;
- unless it follows from custom or the nature of the contract that the plaintiff bears the risk of a change in circumstances.
For example, with a significant increase in the cost of materials and equipment provided by the contractor, and if the customer refuses to increase set price, the former has the right to demand termination of the contract due to changed circumstances (Article 709 of the Civil Code of the Russian Federation).
Satisfying the requirement to terminate the contract, the court may also determine the consequences of this action.
At the same time, the court will take into account and fairly distribute all the costs that the parties incurred in connection with the execution of the terminated contract. To do this, either party must present the judge with the appropriate request.
Termination of the contract in connection with its material breach by one of the parties
First of all, the concept of the materiality of the violation must be defined. Violation of the contract by one of its parties is significant when it causes damage to the other party. But not just damage, but by which the injured party is largely deprived of what it had reason to count on when concluding a contract.
Judicial practice: the plaintiff applied to the court with a request to terminate the contract for the sale of a share in the authorized capital of an LLC. The claims are substantiated by the fact that the defendant did not make payment under the contract within the prescribed period. In response, the defendant acknowledged the claim. The court found that the plaintiff did not receive what he was entitled to expect when concluding the contract, namely: payment for the share he sold in the amount of about 4 million rubles. In addition, non-payment by the buyer of the acquired property for a long period of time (more than 2 years) is a material breach of the contract and grounds for its termination. Therefore, the court ruled to terminate the contract (Decision of the Arbitration Court of the Amur Region in the case of 2016).
Other cases allowing to terminate the contract through the court
The various cases in which a party to a contract may apply to the court for its termination are established by the provisions on various types of contracts. The main condition is violation of the contract by the counterparty.
Thus, Article 619 of the Civil Code of the Russian Federation gives the landlord the right to terminate the contract ahead of schedule through the court (for example, if the tenant repeatedly misses the payment deadline). The tenant also has the right to terminate the contract in case of violation of the contract by the landlord.
The parties themselves may establish in the contract the circumstances that allow the contract to be terminated through the court.
Unilateral withdrawal from the contract
According to the general rule, unilateral refusal to fulfill obligations is not allowed (Article 310 of the Civil Code). Exceptions to it are established by law or contract. For example, if the seller within a reasonable time has not fulfilled the buyer's requirements for completing the goods, the buyer has the right to refuse to fulfill the contract of sale and demand the return of the paid sum of money(Article 480 of the Civil Code of the Russian Federation).
In addition, in all situations where the law allows you to apply to the court for termination of the contract, either party may refuse to perform the agreement by sending a notice to the counterparty. Such a refusal will be legal if the agreement itself provides for an appropriate basis (Article 450.1 of the Civil Code of the Russian Federation). Moreover, it is important that it is indicated specifically for extrajudicial procedure. Otherwise, the other party can simply ignore the rejection notification.
The parties may also agree on an unmotivated refusal to execute the contract by either party. V entrepreneurial activity it is permissible to negotiate compensation for withdrawal from the contract (Definition Supreme Court Russian Federation in the case of 2015). If the contract does not contain a condition for the payment of compensation by the party that refuses to perform the contract, its counterparty will not receive monetary compensation.
Refusal to fulfill the agreements always entails the termination of the agreement. Moreover, the parties may agree that it is considered terminated after a certain period after the notification is sent or the counterparty fails to eliminate the violation within the prescribed period.
If the refusal occurred due to the fault of the counterparty, unilateral cancellation of the contract is a way of self-defense of the right permitted by law (decree of the Arbitration Court of Appeal in the case of 2016).
Consequences of terminating the contract
When early termination is permitted by law or contract, such actions are not a civil law violation. The main consequence of terminating the contract is the termination of the obligations of the parties under it (Article 453 of the Civil Code of the Russian Federation). Otherwise, it may be provided by law, contract or follow from the essence of obligations. For example, upon termination of a lease agreement, the tenant is obliged to return the property in the condition in which he received it, taking into account normal wear and tear or in the condition stipulated by the agreement (Article 622 of the Civil Code of the Russian Federation).
Usually, the parties do not have the right to demand the return of their performance under the obligation until the termination of the contract. If the obligations are fulfilled unequally, the rules on unjust enrichment are applicable to the relations of the parties. Other consequences of termination of the agreement may be enshrined in law or contract.
Another consequence is the ability to recover damages if the termination was due to the fault of one of the parties. The penalty, as a general rule, is charged only until the moment of termination.
At the end of the publication, it should be noted that the right of a party to annul agreements is far from always obvious.
Termination of a loan agreement: judicial practice
Especially in the case when the party to the contract believes that the changed circumstances prevent the fulfillment of obligations. In addition, it is often necessary to return what was performed under the contract through the court. Questions also arise about the amount and for what period sanctions should be collected (interest for using other people's money, forfeit). It is not easy to recover damages in full. Therefore, in all difficult situations in which the correct answer is not obvious, it is better to contact an experienced lawyer.
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Termination (change) of the loan agreement
The loan agreement may be terminated by its parties (one of the parties) by terminating it in the manner, on the grounds and in the manner provided for general provisions contract law in relation to any civil law contract, but subject to special rules (Chapter 42 of the Civil Code) governing the termination of a credit agreement.
It is depending on the method of termination (change) of the contract used by the parties in accordance with the Civil Code of the Russian Federation (Chapter 29) that the grounds and procedure for termination (change) of the contract are determined<*>.
The main way to terminate the contract is its termination by agreement of the parties (paragraph 1 of article 450 of the Civil Code). When the parties use this method of terminating the loan agreement, the circumstances that served as the basis for the parties to conclude the corresponding agreement do not have legal significance for assessing the legality of the agreement to terminate the agreement itself (this is the area of free discretion of the parties), but under certain conditions (for example, if the basis for terminating the agreement by agreement of the parties, there was a material breach of the contract by one of the counterparties), the grounds for terminating the contract may predetermine the consequences of terminating the contract (for example, the obligation to compensate the bona fide party for damages).
The regulation of the procedure for terminating the contract by agreement of the parties is limited by the rule that the corresponding agreement of the parties must be made in the same form as the contract, unless otherwise follows from the law, other legal acts, the contract or the customs of business. In this regard, in relation to the loan agreement, we can conclude that the agreement on its termination should be clothed in a simple written form(Article 820 of the Civil Code).
Thus, the loan agreement can be terminated by agreement of the parties at any time at their discretion without any restrictions. On this occasion, M.I. Braginsky writes: “Giving the parties such a wide opportunity to determine the fate of the contract is one of the direct expressions of contractual freedom: those who have the right to conclude a contract of their own free will should, in principle, be just as free to terminate it or change individual contractual terms”<*>.
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<*>Braginsky M.I., Vitryansky V.V. Decree. op. S. 348.
Another way to terminate a loan agreement (as well as any other agreement) is that it can be terminated at the request of one of the parties (paragraph 2 of article 450 of the Civil Code) (in our case, the lender or borrower).
Features of termination of the loan agreement in 2018
When applying this method of terminating the contract, the assessment of the circumstances that served as the basis for presenting a request for terminating the contract becomes crucial. common ground for use by a bona fide party this method termination of the contract are violations of the terms of the contract committed by the counterparty, which can be qualified as significant violations, i.e. violations that entail such damage for the counterparty that he is largely deprived of what he was entitled to count on when concluding the contract.
In addition, the contract may also be terminated at the request of one of the parties in cases provided for by the Civil Code of the Russian Federation, other laws or the contract (clause 2, article 450 of the Civil Code). In this regard, the special rules on a loan agreement, as well as on a loan agreement (applied to a loan agreement) provide for three special grounds for its termination at the request of the creditor, which are united by the fact that all of them are associated with a violation by the borrower of certain additional conditions of the loan agreement.
First, the grounds for terminating, at the request of the lender, a loan agreement that provides for the borrower's obligation to provide security for the fulfillment of its obligation to repay the loan amount received and pay interest for the use of funds may be the borrower's failure to fulfill this obligation, and in case of its fulfillment, also the loss provided security or deterioration of its conditions due to circumstances for which the creditor is not responsible (Article 813 of the Civil Code).
Secondly, the grounds for terminating, at the request of the lender, a loan agreement concluded with the condition that the borrower uses the funds received for certain purposes (target loan) are recognized as a violation by the borrower of the obligation to ensure that the lender can exercise control over the intended use of the loan amount, as well as the borrower’s failure to comply with the conditions a loan agreement on the intended use of the loan amount (Article 814, clause 3 of Article 821 of the Civil Code).
Thirdly, the basis for terminating, at the request of the lender, a loan agreement containing a condition on the borrower's obligation to repay the loan amount in installments may be the borrower's violation of the deadline set for the return of the next part of the loan (clause 2 of article 811 of the Civil Code).
The loan agreement may provide for other grounds for its termination both at the request of the creditor and at the request of the borrower.
When using such a method as termination of the contract at the request of one of the parties, the contract is terminated in court, a prerequisite for which is the observance by the interested party filing the relevant claim with the court of a special pre-trial procedure for resolving the dispute directly between the parties to the contract. The essence of this procedure is that the interested party, before applying to the court, must send its offer to the other party or terminate the contract. A claim for termination of the contract can be brought to court only if one of two conditions is met: either the other party refuses to offer to terminate the contract, or the response to the corresponding proposal is not received within 30 days, unless another period is provided by law, the contract or contained in the proposal to change or terminate the contract (paragraph 2 of article 452 of the Civil Code). In case of violation of the established procedure for pre-trial settlement of the dispute, the court must return the claim for termination of the contract without consideration.
The third way to terminate the contract is that one of the parties exercises its right, provided for by law or the contract, to unilaterally withdraw from the contract (from the performance of the contract). Unilateral refusal of the contract is possible only in cases where it is expressly permitted by law or by agreement of the parties (paragraph 3 of article 450 of the Civil Code). The requirement for the procedure for terminating the contract with the named method of terminating it is that when terminating the contract by unilateral refusal of one of the parties from the contract, a mandatory written notification of this to the counterparty under the contract is required. The specified requirement must be recognized as complied with if the relevant notice is brought to the other party to the contract by postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to establish that the document comes from the party that has renounced the contract (from the performance of the contract). As for the grounds for terminating the contract in such a way of terminating it as unilateral cancellation of the contract, the exercise by the authorized counterparty of its right to unilaterally cancel the contract in accordance with the requirements of the law or with the terms of the contract may be made dependent on the occurrence of relevant circumstances (grounds for refusal from the contract) or not depend on any circumstances at all.
In the loan agreement, both of its parties (both the lender and the borrower) are granted the right to unilaterally withdraw from the agreement, however, if the right of the creditor is stipulated by the need for certain circumstances under which it can only be exercised, then the borrower’s right to withdraw from the loan agreement is not conditioned by any - or circumstances that could serve as a basis for unilateral termination of the contract.
In accordance with paragraph 1 of Art. 821 of the Civil Code of the Russian Federation, the lender has the right to refuse to provide the borrower with a loan provided for by the loan agreement in whole or in part if there are circumstances that clearly indicate that the amount provided to the borrower will not be returned on time.
Commenting on this legal provision, Russian authors usually understand the insolvency of the borrower or a sudden deterioration in his financial condition as the circumstances that serve as the basis for the lender's refusal to provide a loan (i.e., unilateral termination of the loan agreement). For example, E.A. Sukhanov writes: “Such a circumstance may, in particular, be the revealed insolvency of the borrower or its significant decrease, for example, when the economic company - the borrower reduces the size of its authorized capital. Obviously, this rule serves to protect the interests of the creditor.<*>. According to N.I. Solovyanenko, among the circumstances that clearly indicate that the amount provided to the borrower will not be returned on time, “first of all, include economic and legal factors that cast doubt on the creditworthiness of the borrower (insolvency of the debtor, holding him accountable, etc.) »<**>.
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<*>Sukhanov E.A. Decree. op. S. 226.
<**>Solovyanenko N.I. Decree. op. S. 515.
L.G. Efimov, analyzing the grounds for the refusal of the bank from the loan agreement, provided for in paragraph 1 of Art. 821 of the Civil Code of the Russian Federation, concludes that it is necessary to impose on the borrower an additional obligation to ensure control by the bank over its financial condition. “The indicated circumstances,” writes L.G. Efimov, - may occur with a serious deterioration in the financial and economic condition of the borrower, when he is unable to fulfill his contractual obligation.
To exercise its right to refuse to provide a loan, the bank must be able to control the financial and economic activities of the borrower. Therefore, the loan agreement should provide for the obligation of the borrower not to deviate from bank control". Such control by the lender, in her opinion, “regards not only the intended use and security of the funds received by the borrower, but also the general condition of his business enterprise”<*>.
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<*>Efimova L.G. Bank transactions: law and practice. S. 552.
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R termination of the loan agreement in the same manner as the termination of any other contract, taking into account those features that are established by law for this type of contracts.
Regarding the termination of the loan agreement by agreement of the parties, there is only one requirement, which is of a general nature: termination of the contract must be denounced in the same form as the contract itself, i.e. You can terminate the loan agreement by signing a written agreement. The parties have the right to terminate the loan agreement at any time at their discretion without any restrictions.
Termination of the contract at the initiative of one of the parties is possible only by the court on the grounds provided for in clause 2. Art. 450 of the Civil Code of the Russian Federation: in case of a material breach of the contract by the other party; in other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement.
An essential condition for terminating the contract in court is obligatory compliance with the claim procedure, which consists in the fact that the interested party, before applying to the court, must send its proposal to the other party to terminate the contract.
The basis for terminating the loan agreement will also be a violation by the counterparty of the terms of the agreement, but not any, but one in which the bona fide party is largely deprived of what it expected when concluding the agreement. Unilateral refusal from the contract in cases where it is provided for by law or the contract, also entails the termination of the contract.
One should not confuse the unilateral refusal of the contract and the termination of the contract at the initiative of one of the parties (which, as indicated above, is possible only in court).
The law provides the creditor, at least three options for terminating the contract on his initiative:
- Unless otherwise provided by the agreement itself, then the borrower's failure to fulfill the obligations stipulated by the loan agreement to ensure the return of the loan amount or the borrower's loss of security, deterioration of its conditions due to circumstances for which the creditor is not responsible - all this gives the creditor the right to demand early fulfillment of the borrower's obligations - the return of all loan amount and payment of interest (Article 813 of the Civil Code of the Russian Federation).
- The grounds for terminating, at the request of the creditor, an agreement concluded with the condition that the borrower uses the funds received for certain purposes (targeted loan) are recognized as a violation by the borrower of the obligation to ensure that the creditor can exercise control over the intended use of the loan amount, as well as the borrower's failure to comply with the terms of the loan agreement on the intended use loan amount (Article 814 of the Civil Code of the Russian Federation).
- Violation by the borrower of the terms of the agreement on the repayment of the loan in installments (delay in making the next payment on the loan) also gives the lender the right to demand early fulfillment of the borrower's obligations - the return of the entire loan amount and payment of interest (Article 811 of the Civil Code of the Russian Federation).
Borrower can terminate the loan agreement only on the grounds provided for in Article 450 of the Civil Code of the Russian Federation discussed above.
The borrower is also given by law the right to unilaterally withdraw from the loan agreement (Clause 2, Article 821 of the Civil Code of the Russian Federation), however, such a refusal is due to a number of conditions under which it is possible:
- you can only refuse to receive a loan,
- Cancellation is possible only before the term of the loan provision established by the agreement,
- the borrower must notify the lender of the refusal of the loan, and this notification must be received by the lender before the relevant loan term.
Considering that the specified norm is valid only if otherwise is not provided by law, other legal acts or a loan agreement, then, knowing our "bankers", it is not difficult to guess that the loan agreement usually provides for "other", and the borrower's right to refuse the loan is more of a declarative nature, while the creditor's right (clause 1 of article 821 of the Civil Code Russian Federation) refuse to issue a loan if there are circumstances indicating that the loan amount will not be returned on time, not burdened specific conditions and is so vague that the lender's refusal to issue a loan, even after the conclusion of the contract, cannot actually be challenged in court, since coercion to issue a loan is prohibited in our country. The only thing that can be done here is sue for damages- in practice, they are made up of the difference between the amount of interest under the agreement, which the creditor refused, and the amount of interest under the agreement, which the borrower was forced to conclude with another creditor. Given the amount of loans and the amount of interest, this type of protection of one's interests is practically unavailable. individuals due to disproportionate costs of litigation and the amount of the claim.
Unilateral termination of the loan agreement (Sevastyanova Yu.V.)
Legal entities and entrepreneurs applying for large loan amounts take advantage of this opportunity and often win these disputes.
Entering as early return a loan of funds in a smaller amount than was indicated by the borrower-citizen in the application for early repayment of the loan, in itself is not a reason for refusing to credit these amounts to repay the debt. ( Determination of the Investigative Committee of the Russian Federation on civil cases of the Armed Forces of the Russian Federation dated May 30, 2017 No. 4-KG17-20).
Of course, the termination of the contract does not mean that the legal relationship of the parties ceased without any consequences. In any case: the loan agreement is terminated at the initiative of one of the parties (the court decides) or by agreement of the parties (the lender and the borrower agree together), the condition must be met to bring the parties to a state in which they interests will not be affected- credited funds must be returned in full, losses reimbursed, etc. It is this situation that causes the most controversy. Loan agreements are complex for the consumer, and the borrower should understand their terms, correlate these terms with the requirements of the law, changes in this area of law, as well as with judicial practice without professional help is simply not realistic. Modern tendencies lawmaking is aimed at bringing the legislation on consumer loans in line with international practice and the requirements of consumer protection legislation.
How to terminate a loan agreement with a bank
To stop the bank from accruing interest and penalties on a loan, the borrower is often recommended to terminate the loan agreement. Such advice is usually given by not very knowledgeable users of Internet forums, however, professional lawyers rarely talk about this possibility. The fact is that terminating a loan agreement at the initiative of the borrower is a very difficult task that rarely achieves its goal. However, so that you can assess the prospects for your particular situation, we will describe in detail the options available.
If you have not paid all the money that the bank requires, then there are only two mechanisms for terminating the loan agreement - by agreement of the parties and through the court. Naturally, it is possible that you simply pay the entire debt (including interest and penalties), then the obligations under the contract are considered fulfilled, and it is not required to terminate it. Another scenario should also be mentioned: within 14 days after receiving the loan, you can repay it by paying symbolic interest for a few days. This rule is based on the law on the protection of consumer rights, and does not require agreement with the bank and termination of the loan agreement.
Termination by agreement of the parties
So, there are two mechanisms for termination - by agreement of the parties and through the courts. Regardless of which option you choose, at the first step the steps will be the same - you need to send an application to the bank to terminate the loan agreement.
How to terminate a loan agreement with a bank correctly?
In this document, you must not only officially declare your intention, but also indicate its reasons (for example, you were fired from work, you fell ill, etc.) Practice shows that regardless of the seriousness of your reasons, the bank will either leave your application without an official response , either immediately refuses to terminate, or offers unacceptable conditions.
For example, the bank may respond that it is ready to terminate the contract after the borrower has paid the entire amount, including interest and penalties (although after that it is no longer necessary to terminate the contract, it terminates automatically). Another response from the bank is a proposal not to terminate the contract, but to restructure the loan. Accepting such offers or not depends on the specific situation. If you've been run over high interest and fines, it may be more profitable to refuse and wait for the trial. In any case, we recommend that you consult with a credit lawyer before signing any agreement with a bank.
In short, if your goal is precisely the termination of the contract, then it will not work to agree on this with the bank (on acceptable terms). In the same way that terminating a loan agreement is beneficial for the borrower, it is disadvantageous for the bank. In fact, this option means only one thing for the bank - it will no longer be able to charge interest and penalties, i.e. will eventually get less money. Why would a bank delve into your problems and voluntarily agree to a reduction in profits? His task is to accrue interest, and then collectors or bailiffs will knock out debts.
If you still decide to try and write an application for termination to the bank, then you need to remember that such an application interrupts the statute of limitations on the loan. This is especially important in cases where a lot of time has passed since the last loan payment (one and a half to two years or more). It is definitely not necessary to write an application after three years, since the limitation period will begin to be considered anew, even if it has already expired once. In general, contacting the bank to terminate the contract may not only be useless, but even be harmful in your particular case.
Termination of the loan agreement through the court
The only situation in which it makes sense to write a termination application to the bank is when you are ready to go all the way and go to court. In this case, the application is needed in order to confirm attempts to negotiate with the bank "in a good way", otherwise the court will have an additional reason for refusal. Naturally, the presence of an application is a necessary, but not sufficient, condition for the court to decide to terminate your contract. The main and most difficult thing is that you need to prove to the court that after the conclusion of the contract the conditions have changed significantly, and this could neither be foreseen nor overcome.
As significantly changed conditions, many borrowers cite dismissal from work, long-term illnesses, all kinds of family or financial difficulties etc. However, even if these arguments are supported by the necessary documents, the court rarely takes the side of the debtor. Roughly speaking, the court usually takes the position that the borrower should have analyzed all these risks when signing the loan agreement. For example, there is nothing unexpected in dismissal, sooner or later everyone has to change jobs, and if the borrower has not provided for this option, these are his problems.
The chances of terminating the contract increase if some very force majeure circumstances arise - fire, natural disasters, hostilities, etc. However, even in this case, there is no guarantee that the court will side with the borrower. The position of the court may be based on the fact that the borrower could use the services of insurance companies and insure against any surprises. As a matter of fact, the court does not need to substantiate its decision in “everyday” language, it is enough to refer to the abstract wording of the law, which will say little to an ordinary person (not a lawyer).
Nevertheless, there are still exceptions, and sometimes the court treats the borrower's arguments with understanding. If you want to try, you just need to prepare and take to the court a statement of claim to terminate the loan agreement. It is impossible to predict the outcome of a lawsuit with a 100% guarantee, but an experienced loan lawyer can estimate the chances depending on the specifics of your particular situation. If you still intend to go to court, we recommend that you first consult with a specialist - at least by phone, but better at a personal appointment.
A large role in law enforcement and judicial practice is given to the regulation of legal relations in the field of lending. An important role is occupied, among other things, by the courts considering cases on termination of loan agreements. An analysis of the judicial practice of the Russian Armed Forces allows us to speak about the increased dynamics of the consideration of this category of cases by the courts in recent years.
Termination of the loan agreement is one of the ways to protect the right
As a rule, the purpose of terminating the contract is to maintain a balance of interests of the parties to legal relations - the bank and the borrower, and this action is an exclusive way to protect the right. To terminate the contract legal meaning has a violation of the obligations of one of the parties, which may be due to circumstances beyond the control of the parties, or due to refusal to fulfill them.
Termination of credit obligations, by virtue of h. 3 Article. 453 of the Civil Code of the Russian Federation, is considered to have occurred from the moment the court decision on termination of the contract enters into force.
Changing the circumstances (essential conditions) that existed at the time of the conclusion of the agreement with the bank, and from which the parties proceeded, in accordance with the provisions of Art. 451 of the Civil Code of the Russian Federation may be the basis for terminating a loan agreement. Essential in this case are the circumstances that objectively prevent the fulfillment of obligations by the parties to the contract.
Since the bank, as a credit institution, at the time of issuing credit funds, fulfills its initial obligations, followed by a counter obligation to repay the loan by the borrower, violations of the terms of the contract most often occur on the part of borrowers. That is, dishonest fulfillment of obligations or refusal to fulfill them (return money - the body of the loan and interest) are the basis for the possible termination of the contract.
Judicial practice in cases related to the termination of loan agreements does not speak in favor of consumers (borrowers). Over the entire multi-year period of consideration of litigation between borrowers and credit institutions related to the termination of loan agreements due to changes in material conditions, only one event was recognized as such - the default that occurred in August 1998. To date, a review of judicial practice shows that all litigation on the termination of loan agreements in which the borrowers were the plaintiffs, including those where the basis of the legal position was the circumstances of the 1998 default, were not brought in their favor.
The Court of Appeal in case No. 33-6973/2012 issued a ruling to terminate the loan agreement. During the consideration of the court case, it was established that the plaintiff, who was the borrower under the loan agreement, filed a claim against CJSC VTB 24 to terminate the loan agreement and impose obligations on the bank to stop accruing payments under the agreement. The basis for the above claims was that, according to the plaintiff, the financial difficulties that he had experienced for the present period of time prove a change in the material conditions that existed at the time when the loan agreement was concluded. In this regard, the plaintiff indicates the impossibility of fulfilling its obligations under the contract and asks to satisfy the claims.
The court, as follows from the case file, found that this event (change in the financial situation of the plaintiff) is not an event that can be considered in the context of Art. 454 of the Civil Code of Russia, and is not evidence of a change in the conditions that existed at the time of the conclusion of the contract.
The procedure for terminating the loan agreement with the bank by the borrower
According to the results judicial review In this case, a decision was made to leave the claims of the plaintiff unsatisfied.
Method of protection against dishonest performance of obligations
Often, borrowers, without assessing their strength and ability to pay, having received loan funds unable to pay obligations under the loan agreement. The consequence of non-fulfillment of contractual obligations is the legal possibility of banks to resort to termination of the loan agreement with the application of sanctions provided for by the agreement for a civil violation (collection of penalties or penalties). The courts in this case often do not consider the circumstances that caused the violation of the terms of the contract, but take into account only the fact that the debtor did not fulfill his obligations to pay the money. Accordingly, the decision in such cases, as judicial practice on loans shows, is not made in favor of the borrower. Banks almost always receive satisfaction on claims.
Here is one of the typical court decisions in a dispute over the collection of credit debt and termination of the loan agreement, in which the court found that JSCB Express-Volga sued the defendant (borrower) to terminate the loan agreement and collect the debt. In substantiating the claim, the plaintiff pointed out that the borrower, having received credit funds that were transferred to his account at the branch of CJSC JSCB Express-Volga, evaded fulfilling contractual obligations for a long time, in connection with which, according to the plaintiff, the latter had the right to demand early repayment of the loan and termination of the contract. In substantiating his legal position at the court session, the defendant stated that he had stopped paying the loan due to the loss of his job.
As a result, the court, having examined the materials of the case, issued a decision, according to which the following was recovered from the defendant (borrower):
- the amount of the main obligation under the contract;
- reimbursement of bank expenses;
- penalties for breach of contractual obligations;
- overdue interest
And the loan agreement concluded between the bank and the borrower was terminated.
Termination of obligations unilaterally
Termination of the agreement does not mean that the obligations between the bank and the borrower have been terminated. The borrower retains the obligation to return the loan amount, interest on it, as well as a penalty for violation of contractual relations. If accepted judgment the borrower bears obligations about this until the full execution of this decision. As described in the explanations of the Presidium of the Supreme Arbitration Court of the Russian Federation on this issue, if in accordance with Art. Art. 310, paragraph 3 of Art. 450 of the Civil Code of the Russian Federation, the bank has every reason to believe that the borrower will not return the amount under the credit line, then the bank has the right to terminate its obligations unilaterally, while maintaining all legal grounds for receiving counter obligations. Moreover, the penalty and interest on the loan to the bank must be paid for the entire period until the return of the entire loan amount. And from paragraph 8 of the Information Letter N 147 of the Presidium of the Supreme Arbitration Court of the Russian Federation, it is clear that upon termination of the contract in court, the obligations are terminated only for future period. (The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 1 of the Information Letter dated December 21, 2005 N 104 “Review of the practice of applying arbitration courts norms Civil Code RF…… Art. 453 of the Civil Code of the Russian Federation). Such a legal position is set out in (Decree of the FAS of the East Siberian District of 04/06/2011 in case N A33-5284 / 2010, as well as Resolution of the FAS of the North Caucasus District of 02.10.2009 in case N A53-16893 / 2008).
This example of applying the method of protecting the bank's rights is a consequence of the borrower's failure to fulfill its obligations.
Important to remember: based on the practice of criminal cases, malicious (deliberate) evasion of repayment accounts payable may result in the perpetrator being prosecuted.
As the experience of judicial practice shows, a powerful financial and legal system, of which credit organizations and banks are a part, will be your ally in achieving the goals that you pursue when entering into loan agreements, only if the parties maintain a balance of contractual legal relations. But often reality and circumstances dictate their own conditions for the development of situations in which you have to defend your interests in court. In this case, legal experts and lawyers will become your allies and assistants.
When we are talking about banks, the borrower should carefully read the documents that he signs. Often debtors want to get rid of the accrual of all kinds of interest and penalties on the loan and terminate the contract. But is it so easy to do in practice?
How to terminate a loan agreement with a bank
Termination of the agreement with the bank may occur:
- by agreement of the parties;
- according to the verdict of the court.
There is also the possibility to make payment on all debts, then the agreement will be considered fulfilled.
It is important to know: after issuing a loan, the consumer has the right to return it back within 14 days, while paying a small percentage.
At the initial stage, the borrower sends a request to the creditors to terminate the contract. It should notify credit institution about your desire and indicate in detail the reasons (dismissal, illness). Practice shows that usually the bank very rarely makes concessions. He may not give an official answer at all, refuse to cancel or offer impossible conditions.
In any case, it is better to make a decision not on your own, but with the support of an experienced lawyer.
Important to know: The application can run over a new loan statute of limitations, especially if a lot of time has passed.
Can the bank unilaterally terminate the loan agreement
If the borrower does not pay regularly on the loan, the bank may prematurely terminate the agreement unilaterally.
He is able to demand the return of the debt and, as a result, the termination of the contract. The complexity of the situation lies in the fact that after the bank sends a written request to return the entire debt, the borrower is given only 15 days to implement. Repayment of the debt implies the availability of finance, and if the borrower paid the loan in good faith, the bank would not seek to terminate the agreement ahead of schedule.
Therefore, further communication between the creditor and the debtor occurs through higher authorities.
To apply to higher authorities, the institution may take 2 months or more. All this time, the debt will grow, consisting of penalties and interest, and by the time the long-awaited appeal to the court, the bank will present a huge amount of debt.
Often they deliberately delay going to court so that the debt of the borrower grows even more. The solution is for the borrower to file a claim with the credit institution, thus speeding up the involvement of the court in the proceedings.
Termination of a loan agreement with a bank at the initiative of the borrower
In the history of judicial practice, termination can also occur at the initiative of the debtor. However, termination cannot release the borrower from liability and debt repayment, but can reduce its size, and in a good scenario, completely cancel it.
The contract can be recognized as not relevant only after the recognition of the borrower as incapacitated.
In other cases, such as: job loss or illness, the court, unfortunately, does not remove debt obligations from the debtor. The court in this case takes the side of the bank.
How to terminate a loan agreement with a bank
Article 450 of the Civil Code of the Russian Federation states that an agreement can be canceled both with the consent of only one party, and by mutual agreement. But this is not always possible and easy to do. If the debtor cannot pay the debt due to lack of finances, the bank begins to intimidate bailiffs, collectors.
It is possible to refuse to communicate with collectors, but only if the amount of debt is more than 50,000 rubles and the delay period is more than 4 months. If this does not stop, the borrower may apply to the FSSP with a request for an administrative penalty. The amount of the fine will be from 20,000 to 200,000 rubles.
Statement of claim for termination of a loan agreement with a bank - sample
Often the lender and the borrower go to court, since it is not possible to solve the problem on their own. The statement of claim is mandatory when applying to the court.
Termination of a loan agreement with a bank - judicial practice
The court is the last resort where you can turn to try to solve your problems. Providing statement of claim need to convince the courts to terminate the agreement by mutual agreement.
The court should be convinced that the payment of the debt is not possible for very good reasons, and therefore apply for a review of the contract. As good reasons, the debtor attaches to the application documents confirming the fact of dismissal, serious illness, addition to the family, and others. But according to the court, all these nuances, the borrower should have foreseen at the very beginning, when he made a deal with the lender.
The chances of the court considering the situation in favor of the debtor may increase if natural disasters, military operations, fire are involved here.
But usually the court remains to protect the interests of the creditor, although there are exceptions.
The loan agreement is concluded with the bank upon receipt borrowed money for intended or non-intended use. This document contains full terms granting a loan, its return, as well as the rules for early termination of the contract. It does not always provide for a termination clause by the borrower or by agreement of the parties. In this case, the issue is resolved in court.
The procedure for changing and terminating contracts is considered in Art. 450 of the Civil Code of the Russian Federation. After studying the article, it becomes clear that a transaction can be terminated only if one of the parties violates its conditions or if unforeseen circumstances occur that prevent the fulfillment of the obligations assumed.
Termination of the agreement for the provision of a targeted loan
A loan under such an agreement is taken directly for the purchase of a product or payment for specific services. If a situation arises in which the goods are subject to return to the seller or the need for the service is lost, then it is reasonable to want to terminate the loan agreement ahead of schedule.
You can refuse to receive a loan at any time before signing the agreement, even if the application has already been approved by the bank and Required documents printed out. It is also possible to cancel the transaction unilaterally until the goods, service or funds have been received by the borrower.
Before applying to a financial institution, it is necessary to study the terms of the contract, especially the clause on its amendment and termination. From this point you can get answers to some questions:
- the reasons for the possible termination of the contract;
- the responsibility of the parties;
- possible fines or penalties.
If the possibility of termination by agreement of the parties is provided for by the contract, you should apply to the bank, indicate the reason for such a desire of the client, attach evidence (for example, an act of returning the goods) and wait for an official response. In this case, the credit institution usually makes concessions to the client and terminates the contract ahead of schedule. Cash returns the store directly to the bank account, excluding accrued interest. In some cases (if several payments have already been made on the loan), the money for the returned goods is paid to the buyer, and he, in turn, repays the balance of his debt.
If the possibility of terminating the transaction by agreement of the parties is not provided, or the bank does not accept the borrower's arguments as significant, the contract can only be canceled in court.
How to terminate a loan agreement early
The main difference in the termination of the contract for the provision non-purpose loan- it is more difficult to prove the need to stop it. If the document does not provide conditions early repayment, this can be done only if the bank is loyal to the borrower or if the credit institution does not comply with the terms of the agreement.
For example, if the bank:
- increases the interest rate on an existing loan;
- postpones payment terms without the consent of the debtor;
- accrues penalties and fines, which are not specified in the contract;
- withholds illegal commissions.
In these cases, the borrower has the right to break off relations with his creditor. For this, a statement is written indicating the reasons. If the bank does not satisfy the client's request, the court will decide the disagreement.
Refusing a loan because there is nothing to pay
Such cases are common. A citizen takes a loan, after a while realizes that he cannot cope with payments and decides to repay it ahead of schedule, saving on paying interest for the remaining period.
If such an opportunity is provided for by the contract, to implement it, you need to come to the bank, notify the employee of your intentions, find out the exact amount for early repayment and deposit money into the account. In some cases, the agreement terminates automatically, sometimes it will be required additional statement from the client.
Termination of the loan agreement does not mean the annulment of other agreements related to it.
So, at the same time, an agreement can be concluded with it for servicing an account or card, according to which the commission will continue to accrue, even if the loan has already been repaid. It is necessary to clarify these points with the bank.
If the possibility of early repayment is not provided for by the terms of the loan, most likely, the bank will refuse such a request to the borrower. Then the parties, through negotiations, come to a new agreement, according to which the monthly payment on a loan in order to shorten its validity or, conversely, the duration of the loan is increased in order to reduce the monthly payment.
Termination of the loan agreement with prolongation
An urgent loan will end by itself if the obligations of both parties are fulfilled within the specified period. In the case of an extended contract, for example, the use credit card with a rolling tranche, there will be no closing even if the client does not intend to use the funds again. The accrual of commission for servicing the card will continue, which will develop into a debt to the bank.
In this situation, the client must contact credit organization with a notice to terminate the contract.
Going to court
Banks apply to the courts if the client violates the terms of the contract. The borrower also has the right to enforce the agreement through the executive branch. He can also go to court if the bank rejects his reasonable arguments and does not agree to terminate the contract.
Job loss or credit property is not a reason for terminating the agreement if, when applying for a loan, the client refused to conclude an insurance contract offered by the bank against these risks.
Significant reasons include factors that neither the bank nor the borrower could foresee when concluding the contract. For example, the birth of triplets at a client, or the destruction of valuable property that is not related to the terms of the transaction, but is a means of generating income.
To go to court, you must submit this evidence, a written refusal of the bank to satisfy the requirements and confirm your readiness to pay off the remaining debt to the credit institution. After all, the termination of the contract does not exempt from paying the debt, the balance of which will have to be fully repaid after the court decision.
Termination of the contract after a long non-repayment of the loan
Another case faced by inexperienced borrowers is the offer of a bank or an illiterate financial advisor terminate the contract after prolonged non-payment of premiums.
The client was not able to make monthly payments, now he. He decides to terminate the agreement with the bank, citing good reasons for the delay. Such behavior is beneficial for the credit institution, but only exacerbates the situation of the client. The bank will gladly agree to close the loan, after the debtor has paid all the fines accrued during this period. This amount may exceed the principal debt.
The situation will be saved by a court decision, which, as a rule, awards for payment only the amount of principal and interest. But banks are in no hurry to go to court, patiently waiting for the deadline limitation period and pressing on the client in the hope that he will pay the entire debt voluntarily. And any appeal of the borrower to a credit institution, including writing an application for termination of the contract, only delays this period for another 3 years.
From the foregoing, we can conclude that it is beneficial for the client to break off relations with the bank if:
- the contract has lost its relevance (refusal of the goods);
- there were no delays in payments;
- there is an opportunity to pay off the debt.
In other cases, they usually resort to debt restructuring or wait for a court decision at the request of the bank.
worsened financial position? Can't make loan payments? We will talk about legal means to help solve your problem.
It happens that the loss of a job, a serious illness, an increase in monthly expenses make repayment of the loan impossible. What if there are obligations on the loan, but there is nothing to pay them?
A loan is a great way out when something is needed here and now, but sometimes circumstances change dramatically. Get rid of loan obligations, that is, terminate the loan agreement with the bank, in this situation - the best way. It happens financial institution she herself initiates a break in relations with the borrower - the bank terminates the loan agreement unilaterally. In any case, it is worth knowing how to behave correctly so as not to get into a mess.
What is a loan agreement?
A lending agreement is a legally significant document that governs the relationship between the borrower and the loan provider. The document describes all aspects of the transaction as accurately as possible, therefore it contains enough mandatory items:
- loan amount;
- purpose of borrowed money;
- time frame for the fulfillment of obligations under the loan;
- guarantees of the financial well-being of the debtor;
- annual interest for the use of credit funds;
- the order and amount of payments on the loan;
- other conditions.
The document takes into account all the probabilities and possibilities, therefore it also indicates how to terminate the loan agreement with the bank, or on what basis the bank terminates the loan agreement unilaterally.
As for the form, the Civil Code of the Russian Federation requires only one thing - a simple written version. The transaction is executed in compliance with the norms of business communication in two or more copies, the document is signed by both parties to the agreement. At the same time, certification or registration in specially authorized state institutions or notary offices is not required. A loan agreement concluded orally is not considered valid.
How to terminate a loan agreement with a bank?
The mandatory procedure for granting a loan suggests that the risk of non-compliance with the conditions and obligations under the contract is somewhat higher for the debtor. In addition, each finance company has its own legal service, therefore, it is much more important to consider the situation of termination of the loan agreement by the borrower.
It is also possible to terminate a mortgage or other loan agreement with a bank on its initiative, personal decision or agreement of both counterparties in a judicial proceeding if several conditions coincide at the same time:
- it was impossible to assume an unfavorable change in circumstances at the time of signing the papers;
- the prerequisites for a change in circumstances did not depend on the party involved, and even the honest fulfillment of obligations under the agreement would not have affected the result in any way;
- further fulfillment of obligations violates the ratio financial interests counterparties, and the interested participant in the transaction will suffer losses in the form of the loss of a greater degree of expected benefits under the contract.
The terms of the business relationship imply that any risk of changing conditions is attributable to the interested party, so it is important to know how to terminate a loan agreement with a bank or what to do when a bank terminates a loan agreement on its own.
What threatens the termination of the loan agreement with the bank?
Grounds for termination of the contract
Already at the time of preparation of the transaction, counterparties can negotiate among themselves the possibility of early termination financial relations. Such a right is provided for by the legislation of the Russian Federation as a basis for common law (Article 450 of the Civil Code). Moreover, if the peaceful solution to the dispute for some reason did not produce a result, the second paragraph of this article provides options for how to terminate the loan agreement with the bank, or, on the contrary, how the organization can cancel the transaction in court.
For such serious measures, significant reasons are needed:
- significant or systematic breach of obligations under the agreement by one of the counterparties;
- other situations provided for by law.
Significance refers to the degree of violation of the terms of the loan, in which one of the parties loses any benefit from the transaction. In addition, the bank legally terminates the loan agreement ahead of schedule or the borrower does it if the circumstances have changed dramatically (Article 451 of the Civil Code of the Russian Federation). Circumstances should be not just unfavorable, but such that if they could have been assumed at the time of signing the contract, then it would not have been signed.
Instruction
In any case, you are not the first client who wished to terminate the loan agreement. The bank, as a rule, has a form of its own agreement to terminate the transaction in such cases. The debtor should fill it out and hand it over to the employee for the further progress of the case.
However, if the bank is not interested in breaking the deal, then its representatives will probably try in every possible way to slow down the process, even refuse to provide an agreement form. In this case, you can terminate the loan agreement with the bank if you write an appeal in free form in compliance with the ethics of business correspondence, be sure to indicate good reasons for terminating further cooperation in accordance with the agreement. It will be even easier to download a ready-made form and simply fill in the fields.
It is best to send such a document by registered mail with notification - this will guarantee its receipt by the addressee. The bank may not respond or send a refusal, but if the intention to terminate the loan agreement with the bank is solid, then you should go to court.
Required documents
Preparation of a competent statement of claim is the most important stage on which the success of the case largely depends. There are many samples of such papers on the Internet, but in this particular case it is better to contact a professional. Only he will be able to take into account all the individual legal subtleties so that the case goes smoothly.
There is more than one application to the court, it should be strengthened with additional papers:
- copies for each of the participants in the case;
- a check for the payment of duty (300 rubles according to the Tax Code of the Russian Federation);
- a power of attorney to conduct business in the name of a representative (if any);
- papers arguing what was written in the lawsuit, in the number of defendants in the case (loan agreement, letter of termination of the transaction, letters from the bank (if any), account statements and other documents proving your case).
It is important to understand that the abundance of weighty documentary arguments will make it possible to tilt justice towards the debtor better than non-documentary evidence.
According to Art. 56 of the Code of Civil Procedure of the Russian Federation, each of the counterparties is obliged to confirm before the court the correctness and validity of the conditions to which it refers in its petition.
What to do if the bank terminates the contract ahead of schedule?
Borrower becomes aware of such intention financial institution usually from a letter with a copy of the statement of claim. This is a signal to no longer delay solving the problem of non-payment under the loan agreement. And the first thing to try to do is to contact the bank for a peaceful, pre-trial, settlement of the issue (debt restructuring, deferred payment, etc.). In case of refusal, prepare your response to the claim, through which the bank terminates the loan agreement unilaterally. In the response, it is necessary to indicate that a counterclaim is being put forward, and provide your own version of the calculation of the debt, confirmed by documentary arguments. So it will be possible to reduce the amount of debt, as well as agree with the creditor on installment payments without penalties.
What to do if you can't pay mortgage loan? Can a bank unilaterally terminate mortgage agreement? Does he have the right to demand payment of the entire amount at once?
Conclusion
The practice of such proceedings shows that in most cases of applying for termination of a loan agreement with a bank, the judge decides in favor of the financial institution. Therefore, before doubting whether the bank has the right to terminate the loan agreement, and even more so to start litigation, it is worth weighing the circumstances forcing the termination of the agreement several times.
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