§ Foreign currency loans in Ukraine beyond the law
The Supreme Court of special consideration of civil and criminal cases confirmed the possibility of cancellation of foreign currency loans, made in the pre-crisis time
Fierce fighting between banks and borrowers, which began with the advent of the financial crisis, has found its continuation in late December of last year. At this time won by debtors who have received the best of times loans in foreign currency, but now can not return the money because of the significant growth of the dollar and euro. Borrowers have repeatedly appealed and won a court to recognize the credit agreement (and with them the contract for provision of loans) invalid on the grounds that the banks had no right to give them foreign currency loans. Like, all the calculations in Ukraine should be made in UAH, and to use conventional units, we need an individual license of NBU.
However, consensus and judicial practice with regard to this issue in the state until now has not happened: some courts agree with the arguments of the borrower’s part — denied them. Finally in December 2010, the Supreme Court for special consideration of civil and criminal cases ruled that dismissed a cassation appeal PABOTP Bank to cancel the decisions of courts lower court, which concluded that the illegality of foreign currency loansissued by banks only on the basisGeneral license.
Thus, it can be concluded that half the loans now could be in jeopardy of no return: the court decisions people will return the amount of credit banks (called the body of the credit), and those in the answer — the amount of interest paid (interest). Who is right or wrong and what is the possible fate of foreign currency loans, decided to investigate «Judicial and legal newspaper.»
The position of the Court
Thus, the decision of the Supreme Court for consideration of specialized civil and criminal cases, and recognized them as legitimatedecision of Pechersk district court of Kyiv (case № 2-552-1), the appellate court of Kiev (case № 22–14931), were found illegal loan contracts in the currency and the mortgage agreement. Furthermore, in application of the consequences of the invalidity of the basic contract agreed to exclude the entry of state registration of the mortgage contract from the State Register of mortgages. Accordingly, the prohibition on alienation of property, dwelling in a pledge, was also cleared.
Decisions of the courts of all instances argued inability to use foreign currency as a means of payment in the territory of Ukraine without obtaining an individual license of the NBU. This license must be obtained, according to Secs. «R» Clause 4, Article. 5 of the Decree of Cabinet of Ministers «On the system of currency regulation and currency control». Without this license, and the borrower has no right to perform the duties of the credit agreement.
In making its decision,VSSGUD ignoreda letter from the NBU 07.12.2009 «On the Legitimacy of concluding agreements in foreign currency, taking into account the position of the regulator, expressed in another letter — from 02.06.2000» On the implementation of operations under the residents of the Ukrainian Cabinet of Ministers Decree «On the System currency regulation and currency control «. In this letter, the NBU, the availability of the bank’s general license (written permission) does not give him a right to engage in currency transactions which, according to Art. 5 of the Decree shall be performed solely on the basis of an individual license of NBU.
The same position is held by the courts. In the far in 2001 existed at the time the Supreme Arbitration Court of Ukraine in its scoping letter № 01–8/481 indicated that the use of foreign currency on the territory of Ukraine as a means of payment or collateral lawfully only on the basis of an individual license of the National Bank of Ukraine. The same requirement has repeatedly expressed and most importantly the tax department of the country.
Definitively whether the court’s decision?
Unfortunately, there were cases where the servants of Themis took absolutely the opposite decision. And borrowers will probably be uncomfortable to know that this opinion has been expressed is the Supreme Court, which are going to contact representatives of the «victim» of the bank. Thus, the decision of the Supreme Court of Ukraine dated 01.12.2010 on the case at the suit of PAB «Subsidiary Bank Sberbank of Russia to recover the debt under the loan agreements and on an individual counterclaim for invalidation of credit agreements noted that banks are authorized under a full banking license operations with currency values have the right to carry out operations to extend credit in foreign currency.
The Supreme Economic Court of Ukraine in a decision dated 08.09.2010 and confirmed the legality of issuing bank loan in foreign currency as well as receiving interest on loans in foreign currency under a general license for foreign exchange transactions.
Nevertheless, today will be the main argument VSSGUD, since this court is now on appeal to such disputes (disputes between banks and physical persons can be considered only in the district courts of general jurisdiction). Can I take the above decision of the Supreme spetssuda as a call to action for the cancellation of foreign currency loans? While answering this question difficult. The fact that under Art. 355 Code of Civil Procedure of the complainants have only one month to apply for a review of the cassation court. A month has passed. But the term, of course, if you want you can always renew. In addition, VSSGUD unlike the other two specialized courts did not accept the provisions on the procedure for referring cases to the Supreme Court of Ukraine. At the moment there is a perception that VSSGUD supposedly does not admit the case for review in the MAT. However, in the uniform register of judicial decisions is an order of referral to the consideration of MAT, as judges make decisions on these issues collectively in the order of Art. 360 Code of Civil Procedure(see Comments).
Everyone must return to their seats
Thus, with high probability we can assume that in a short time, many insolvent borrowers emulated by this argument and go to court to cancel their loan contracts. VSSGUD solution for many district court will be a direct indication of how to solve this category of cases, and, accordingly, many banks are waiting for an unenviable fate. Try to predict it.
According to the article. 227 of the Civil Code of the transaction entity, perfect them without proper authorization (license) may be deemed invalid by a court. Therefore, if the bank granted a loan in foreign currency, without an individual license, you need to go to court to admit the contract null and void. Also do not forget Part 2 Art. 548 CC, according to which the invalidity of the obligation entails the invalidity of the obligation to ensure that means that the mortgage agreement, which provides a credit agreement is void.
All this means that the parties must return to each other that they have received as a result of invalidation of the transaction (double restitution). That is, all interest and penalties paid for the years of struggle, go to the expense of the loan principal. Only the body of the borrower and must return because it is believed that the bank is not having the right to issue credit, had no right to receive interest for the use of this loan, apply penalties. The only problem is that at the moment for each contract should be a separate decision of the court to recognize that such a contract void. Either do not recognize.
Banks are also, apparently, determined to profiteer at the races in exchange rates in recent years, handing out loans in dollars, euros and Swiss francs to the right and left, forgetting about the prohibitions established by law. Now, this forgetfulness vengeance favor of the borrower. And rightly so, because even the NBU pretends that fundamentally does not see the situation in the country, shifting the solution of problems in the courts. As a result, borrowers have not managed to persuade banks to restructure or decrease in the exchange rate, silently watching the growth of its debt, and banks are sitting with no money and can not return deposits to investors. Find some compromise had exactly the National Bank, not the courts. Nevertheless, now that borrowers have all grounds to cancel its unreliable credit agreements if they have, of course, have something to give to the bank.
Comments
Judge of the Supreme spetssuda review of civil and criminal cases Nikolai Pshonka:
— At the moment VSSGUD allowed dozens of cases for review in the Supreme Court. We are guided in this case Art. 360 Code of Civil Procedure, under which the question of admission of a case by a panel of five judges of the Supreme Court of Ukraine is a specialized review of civil and criminal cases, which is formed without the participation of judges, a decision that is appealed. On the admission of the case the court within fifteen days after receipt of an application makes a decision. Therefore, despite the fact that the Regulations on the transfer of cases is not, if we will receive an application for review, we will consider it and make a decision: to allow or not allow him to MAT.
President of the Association of Ukrainian Banks Oleksandr Sugonyako:
— The Association of Ukrainian Banks, as well as the National Bank of Ukraine has repeatedly expressed its position regarding the sufficiency of foreign currency lending to the general license of NBU on operations with currency values. In recent years, courts in Ukraine reviewed more than a dozen lawsuits to invalidate the contracts of credit in foreign currency. The vast majority of such cases decided in support of the position of legal lending in foreign currency if the bank general NBU license for operations with currency values. The question of return or repayment of loans can not be, in principle, loans must be repaid. The key problem lies in another — often the courts legitimize non-return of debts to banks. This issue requires serious attention from the first-person state. Without the protection of creditors' rights will not be full-fledged resumption of lending to the economy.
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Дата: Пятница, 11 Февраля 2011