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Entrepreneurs often use consumer loans for commercial purposes. Should the bankers to apply any sanctions to the borrowers in such situations?
the Revenue instead of
the Association of Russian banks sent a letter to the Chairman of the Central Bank Elvira Nabiullina with a request to clarify how to proceed if issued by a private person the loan is being used for commercial purposes.
"In recent years, increasingly began to be identified the facts, for example, received a loan of funds for the purchase of motor vehicles not for personal use, and generate income. Acquired by the borrowers in the loan vehicles are used as source of income (for example, to provide services of taxi, car-share, etc.), which may indicate either about the conduct of borrowers business activities, or to provide them to individuals services for personal, family, and (or) other similar needs in the status of self-employed citizens," the letter reads.
In accordance with paragraph 2 of article 814 of the Civil code of the Russian Federation in case of default by the borrower under the terms of the intended use of the loan the lender has the right to refuse further performance of the contract and to demand early repayment of the provided funds and the payment of interest. In this regard, the bankers, the question arises, do they have the right to apply the relevant provisions of the civil code of the Russian Federation at revealing of the facts of use by the borrowers credit purchase things (e.g., cars) with the business purpose or to provide services as self-employed.
"the Borrower must be the most honest"
Bankers were forced to turn to the regulator for clarification, as for commercial and consumer loans have different rules, said Banks.ru the President of ARB Garegin Tosunyan.
"This is due to issues of risk, security and redundancy. We asked for a detailed clarification from the regulator on how to act in such situations. Will not apply sanctions against a Bank if it has issued consumer credit, and the borrower used it as commercial? On the one hand. And on the other — how to act, without complicating the procedure of registration of consumer credits", — said Tosunyan. According to him, the share of loans that are the consumer, and in fact are used for business, is not less than 30%. "The borrower should be as honest with your lender. If you're using the credit for commercial purposes, tell me about it," — said Tosunyan.
"If it turns out that the vehicle was purchased on credit in order to make a profit violates the relevant paragraph of the agreement, the borrower is in danger of falling under the sanctions outlined in this agreement. We are talking about early loan repayment, seizure of collateral or the return of liquidated damages, or damages to the Bank", — said the Deputy Chairman of the Board Loko-Bank Andrey lyushin. But he noted that such precedents were.
the Contradiction between the Civil code and the law on consumer crediting consists that GK gives the right to unilaterally terminate the contract, and the law on consumer crediting — no.
"the Consequences stipulated in the civil code of the Russian Federation in respect of misuse of the loan: the right of unilateral withdrawal from the contract or demand early repayment of the loan and the payment due at the time of payment of interest. FZ on consumer credit, for example, does not provide a right of unilateral withdrawal. Moreover, there is a General rule of the prohibition of a unilateral refusal of the contract with citizens (article 310 GK the Russian Federation). To terminate such a contract is possible only in a judicial order if a substantial breach of the consumer credit contract. In other words, the resolution of the question of the violation of the purposes of the loan issued is solely within the jurisdiction of the court", — explains the lawyer of international law firm Integrites Violetta Korolkova.
Sanctions for consumers
the Main objective of the banks to the legal possibility in case of misuse of the item purchased on credit, to demand early repayment of the loan, said the lawyer, partner of the international center of protection of the rights GlobalLaw Andrew Saunin.
"In this case, banks would minimize their risks associated with a more rapid deterioration, such as a car used by the borrower for business purposes. However, the individual terms of consumer loans can provide for a penalty for each fact of violation by the borrower of the rules of use of things (change the storage location, the admission to management of persons agreed with the Bank, etc.), which was purchased with borrowed funds. The civil code says only that the money was spent on the purchase of specific things. My opinion: trust loan may not provide it, how it should be used thing. The main thing is to use things answered its purpose. Therefore, neither the civil code nor the special law does not stipulate in this case the Bank's right to apply the mechanism to claim early repayment of the loan with interest," said the Saunin.
this can be followed by actions, tightening of consumer lending, says the partner of law group "Yakovlev and Partners" Veronika Salnikova.
"we Can assume that the CBR will issue clarifications to establish the need for tougher to determine not only the conditions of the consumer credit, but also the conditions of control over targeted use of funds, as well as sanctions against individuals. Or impose restrictions on certain credits, the ability to terminate the contract and demand a refund for violation of its targeted use. From the point of view of banks, this may be the solution of the situation, will allow you to push the consumer sanctions and additional terms. However, from the perspective of the consumer is not quite adequate measures, it is possible that the tightening of credit conditions will affect the demand for the consumer credit market," she said.
"For borrowers, it could face more scrutiny before issuing a loan or loan agreement may be made to the item under which the borrower agrees not to use the borrowed money to generate income," agrees senior consultant "BCS" Maxim Kovyazin.
Entrepreneurs do prefer using consumer credits, as it is much easier, says first Vice-President of "OPORA Russia" Paul Segal.
"Sphere of lending to SMEs has not the best times. For the development of the system needs to solve several problems. First, to Refine and improve the system of evaluation of the stability and solvency of the SMEs or startups, the risks of lending to entrepreneurs. Second, not all entrepreneurs are detailed records, preferring the simplified system of taxation, or work on the patent, which complicates the assessment of the business processes of the enterprise Bank. While these issues remain unresolved, the timing of consideration of applications for a loan, the number of different bureaucratic barriers have overriding effect on the entrepreneur when selecting between consumer special loan for SMEs. However, it is worth noting that in recent years the state has embarked on the simplification of lending for entrepreneurs, adapting legislation, contributing to the development of the respective banking tools," he said.
Anna PONOMAREVA, Banki.ru
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