Recovery of a penalty under a loan agreement. Penalty on the loan: reduction of the penalty on the loan agreement. The legitimacy of the collection by banks under loan agreements of increased interest for using the loan in case of violation of the deadline for repayment of credit

More than 50% of all borrowers have made a late payment at least once in their credit history. The reasons for delays are different for everyone, but the consequences are the same - a fine or a fine. Let’s take a look at what a loan default is and what it entails.

Penalty and legislation

The relationship between the bank and the borrower is regulated by several legislative acts, the main of which is the Civil Code of the Russian Federation. From Art. 330 of the Civil Code of the Russian Federation, it follows that the penalty on a loan is the amount established by the terms of the agreement on the provision of borrowed funds or the Law, which the client must pay to the financial institution in the event of default, in particular in the event of an unpaid debt.

In the same article, it is determined that the penalty is divided into two types:

1. Penalties- a measure of punishment applicable one-time, but in each case of delay. For example, if there is no payment on the settlement date, a fine of 100 rubles is charged the next day, a month later this amount may double and for 60 days of delay you will have to pay 200 rubles, for 90 days - 500, etc. Also, the fine may remain fixed , then for 30, 60 or more days the penalty will be equal to - 100 rubles.
2. penalty- this is a daily penalty, which is charged based on the actual number of days of lack of funds in the credit account.

In Art. 395 of the Civil Code of the Russian Federation there are recommendations for calculating penalties. The amount of the penalty is set based on the level of the key rate of the Central Bank in force at the moment in the corresponding period. Calculated as 1/360 of the refinancing rate. Today the rate is at the level of 9.25% per annum, then the minimum penalty will be 0.257% per day. Possible reasons for delay include:

1. Conscious non-payment when the borrower does not have sufficient funds.
2. Using self-service terminals, cash desks of banks or Russian Post offices for payment. Transfers by the listed methods are carried out, as a rule, from 2 to 5 days, due to which a technical delay may occur.
3. Payment of the monthly installment later than the date indicated in the schedule. Such miscalculations occur when the payment date falls on the 31st of the month. Usually, the settlement day is postponed a day earlier - the 30th, which is why the bank client must deposit money earlier, but does not.

Methods for calculating the penalty

Consider the method of calculating the penalty based on the amount established by law - 0.0257% per annum. For example, a loan was taken in the amount of 100 thousand rubles. at a rate of 13.9% per year (available at Sberbank) for a period of 24 months. Under such conditions, the annuity payment is 4796.56 rubles. per month.

Let's assume that the borrower has not made 2 payments, and the actual delay is 50 days. Under such conditions, the penalty will be 61.63 rubles.

• the amount of the penalty accrued on the basis of the absence of payment for one calendar month:

4796.56 * 30 * 0.0257 / 100 \u003d 36.98 rubles.

• the amount of the penalty accrued for the delay in the second payment for the period of 20 days of the second month:

4796.56 * 20 * 0.0257 / 100 \u003d 24.65 rubles.

• the total amount of interest for 50 days.

36.98 + 24.65 \u003d 61.63 rubles.

Such a small amount of the penalty can hardly be found in practice, since when drawing up loan agreements, banks use the provision of paragraph 2 of Art. 332 of the Civil Code of the Russian Federation, which determines that the interest rate of the penalty may be increased if the parties come to such an agreement.

The most common interest rate is 0.2-0.5% per annum. So, with a rate value of 0.5%, the amount of the penalty in the above example will not be 61.63 rubles, but 1199.14 rubles. Such figures, according to banks, look more solid and may affect the acceleration of the debt payment process.

Consider how to calculate the penalty on a loan for an overdue principal debt in the form of a fixed fine. For example, under the terms of Sberbank, for a delay under a consumer lending agreement, a fine of 20% of the loan amount is provided (the maximum allowable value according to the legislation of the Russian Federation). In the presented example, the payment amount is 4796.56 rubles, which means that the amount of the penalty will be 4796.56 * 20% / 100 = 959.31 rubles. Such a penalty will need to be paid for each fact of delay - the next day after the monthly payment date.

Bank actions in case of overdue debt

According to the Law "On Credit Histories", banks are required to transfer data on actual customer delinquency to credit bureaus once every 7 days. It does not matter how many days of delay - one or seven. As a result of various reasons, sometimes beyond the control of the debtor, not only a penalty can form, but also a damaged credit history, which affects further cooperation with creditors.

The first few months, banks are trying to independently resolve the problems that have arisen with their customers. What does a penalty on a loan mean in this case for a bank? This is his opportunity to influence the client in order to speed up the refund process. Bank employees can use the following methods:

• SMS messages with a reminder to pay the monthly fee, as well as with the amount of fines already accrued and, possibly, future ones;
• calls with audio messages or directly from specialists of banking departments for working with bad debts (the content of calls is similar to messages);
• letters to the mail (electronic, home) informing about the amount of current and overdue debts, as well as with details for its payment;
• invitation of the debtor to a personal meeting with a bank employee.

In most loan agreements, the expected actions and their permissible number are clearly described. For example, a bank may prescribe the right to make up to 2 calls daily and no more than 10 messages weekly.

Also, banks indicate in the terms of lending their right to assign the right to claim. This means that they have the right to transfer the client's data and his debts to collection companies. Collectors are usually involved not earlier than 3-4 months after the first delay. Conversations with these organizations, as a rule, end on a negative note, for example, with threats to take away all available property. In order not to listen to banking intermediaries, it is recommended to contact the bank for a civilized solution to financial problems.

Actions of the borrower in case of delay

If the client cannot independently deal with the current situation, for example, when the reason for charging the penalty was not unplanned expenses (illness, vehicle repair), but serious changes in life (death of the breadwinner, loss of legal capacity, dismissal), then you need to contact the bank for a review lending conditions.

The application is written in free form. It indicates the causes of arrears, as well as possible solutions to the problem. For example, a request to extend the loan term in order to reduce the payment, or to reduce the amount of the accrued penalty in exchange for partially early repayment of the loan.

The document must be handed over to the manager so that he is assigned an incoming number. Banks are required to respond within one month from the date of acceptance of the request. If the answer does not satisfy the borrower, or is completely absent, you can proceed to litigation.

In the event that the bank offers the client to agree to new lending conditions, an additional agreement is signed to the existing agreement on the debt restructuring service. This may be a change in the term, interest rate, as well as the currency of the loan. It is extremely rare to use a reduction in the annual rate or the provision of credit holidays. From the moment the restructuring begins, the accrual of penalties stops.

Litigation for loan defaults

Examples of how to reduce the penalty on a loan in court have been constantly increasing since 2011. It was from this year that many additions were made to the legislation in the field of credit relations. Now, on the basis of Art. 333 of the Civil Code of the Russian Federation, borrowers can apply to the Magistrate's Court at the place of residence or another court specified in the contract. The article states that if the fines are incomparable with the consequences of the violation of the terms of the contract, the penalty may be reduced or written off. This allows debtors to achieve a significant reduction in the amount of penalties accrued. From the moment the court accepts the application, fines cease to accrue, and the amount of debt is fixed.

More than 50% of all borrowers have made a late payment at least once in their credit history. The reasons for delays are different for everyone, but the consequences are the same - a fine or a fine. Let’s take a look at what a loan default is and what it entails.

The relationship between the bank and the borrower is regulated by several legislative acts, the main of which is the Civil Code of the Russian Federation. From Art. 330 of the Civil Code of the Russian Federation, it follows that the penalty on a loan is the amount established by the terms of the agreement on the provision of borrowed funds or the Law, which the client must pay to the financial institution in the event of default, in particular in the event of an unpaid debt.

In the same article, it is determined that the penalty is divided into two types:

1. Penalties- a measure of punishment applicable one-time, but in each case of delay. For example, if there is no payment on the settlement date, a fine of 100 rubles is charged the next day, a month later this amount may double and for 60 days of delay you will have to pay 200 rubles, for 90 days - 500, etc. Also, the fine may remain fixed , then for 30, 60 or more days the penalty will be equal to - 100 rubles.
2. penalty- this is a daily penalty, which is charged based on the actual number of days of lack of funds in the credit account.

In Art. 395 of the Civil Code of the Russian Federation there are recommendations for calculating penalties. The amount of the penalty is set based on the level of the key rate of the Central Bank in force at the moment in the corresponding period. Calculated as 1/360 of the refinancing rate. Today the rate is at the level of 9.25% per annum, then the minimum penalty will be 0.257% per day. Possible reasons for delay include:

1. Conscious non-payment when the borrower does not have sufficient funds.
2. Using self-service terminals, cash desks of banks or Russian Post offices for payment. Transfers by the listed methods are carried out, as a rule, from 2 to 5 days, due to which a technical delay may occur.
3. Payment of the monthly installment later than the date indicated in the schedule. Such miscalculations occur when the payment date falls on the 31st of the month. Usually, the settlement day is postponed a day earlier - the 30th, which is why the bank client must deposit money earlier, but does not.

Methods for calculating the penalty

Consider the method of calculating the penalty based on the amount established by law - 0.0257% per annum. For example, a loan was taken in the amount of 100 thousand rubles. at a rate of 13.9% per year (available at Sberbank) for a period of 24 months. Under such conditions, the annuity payment is 4796.56 rubles. per month.

Let's assume that the borrower has not made 2 payments, and the actual delay is 50 days. Under such conditions, the penalty will be 61.63 rubles.

• the amount of the penalty accrued on the basis of the absence of payment for one calendar month:

4796.56 * 30 * 0.0257 / 100 \u003d 36.98 rubles.

• the amount of the penalty accrued for the delay in the second payment for the period of 20 days of the second month:

4796.56 * 20 * 0.0257 / 100 \u003d 24.65 rubles.

• the total amount of interest for 50 days.

36.98 + 24.65 \u003d 61.63 rubles.

Such a small amount of the penalty can hardly be found in practice, since when drawing up loan agreements, banks use the provision of paragraph 2 of Art. 332 of the Civil Code of the Russian Federation, which determines that the interest rate of the penalty may be increased if the parties come to such an agreement.

The most common interest rate is 0.2-0.5% per annum. So, with a rate value of 0.5%, the amount of the penalty in the above example will not be 61.63 rubles, but 1199.14 rubles. Such figures, according to banks, look more solid and may affect the acceleration of the debt payment process.

Consider how to calculate the penalty on a loan for an overdue principal debt in the form of a fixed fine. For example, under the terms of Sberbank, for a delay under a consumer lending agreement, a fine of 20% of the loan amount is provided (the maximum allowable value according to the legislation of the Russian Federation). In the presented example, the payment amount is 4796.56 rubles, which means that the amount of the penalty will be 4796.56 * 20% / 100 = 959.31 rubles. Such a penalty will need to be paid for each fact of delay - the next day after the monthly payment date.

Bank actions in case of overdue debt

According to the Law "On Credit Histories", banks are required to transfer data on actual customer delinquency to credit bureaus once every 7 days. It does not matter how many days of delay - one or seven. As a result of various reasons, sometimes beyond the control of the debtor, not only a penalty can form, but also a damaged credit history, which affects further cooperation with creditors.

The first few months, banks are trying to independently resolve the problems that have arisen with their customers. What does a penalty on a loan mean in this case for a bank? This is his opportunity to influence the client in order to speed up the refund process. Bank employees can use the following methods:

• SMS messages with a reminder to pay the monthly fee, as well as with the amount of fines already accrued and, possibly, future ones;
• calls with audio messages or directly from specialists of banking departments for working with bad debts (the content of calls is similar to messages);
• letters to the mail (electronic, home) informing about the amount of current and overdue debts, as well as with details for its payment;
• invitation of the debtor to a personal meeting with a bank employee.

In most loan agreements, the expected actions and their permissible number are clearly described. For example, a bank may prescribe the right to make up to 2 calls daily and no more than 10 messages weekly.

Also, banks indicate in the terms of lending their right to assign the right to claim. This means that they have the right to transfer the client's data and his debts to collection companies. Collectors are usually involved not earlier than 3-4 months after the first delay. Conversations with these organizations, as a rule, end on a negative note, for example, with threats to take away all available property. In order not to listen to banking intermediaries, it is recommended to contact the bank for a civilized solution to financial problems.

Actions of the borrower in case of delay

If the client cannot independently deal with the current situation, for example, when the reason for charging the penalty was not unplanned expenses (illness, vehicle repair), but serious changes in life (death of the breadwinner, loss of legal capacity, dismissal), then you need to contact the bank for a review lending conditions.

The application is written in free form. It indicates the causes of arrears, as well as possible solutions to the problem. For example, a request to extend the loan term in order to reduce the payment, or to reduce the amount of the accrued penalty in exchange for partially early repayment of the loan.

The document must be handed over to the manager so that he is assigned an incoming number. Banks are required to respond within one month from the date of acceptance of the request. If the answer does not satisfy the borrower, or is completely absent, you can proceed to litigation.

In the event that the bank offers the client to agree to new lending conditions, an additional agreement is signed to the existing agreement on the debt restructuring service. This may be a change in the term, interest rate, as well as the currency of the loan. It is extremely rare to use a reduction in the annual rate or the provision of credit holidays. From the moment the restructuring begins, the accrual of penalties stops.

Litigation for loan defaults

Examples of how to reduce the penalty on a loan in court have been constantly increasing since 2011. It was from this year that many additions were made to the legislation in the field of credit relations. Now, on the basis of Art. 333 of the Civil Code of the Russian Federation, borrowers can apply to the Magistrate's Court at the place of residence or another court specified in the contract. The article states that if the fines are incomparable with the consequences of the violation of the terms of the contract, the penalty may be reduced or written off. This allows debtors to achieve a significant reduction in the amount of penalties accrued. From the moment the court accepts the application, fines cease to accrue, and the amount of debt is fixed.

A penalty on a loan occurs when drawing up loan obligations, which specify the rights and obligations of the parties. They oblige the client to comply with the debt repayment schedule regarding the terms of the loan agreement.

In case of deviation from the rules, the bank will impose certain sanctions in the form of fines and penalties. Many clients neglect an important section of the contractual agreement, which reveals the rules regarding late refunds.

As a rule, very often the bank offers the possibility of paying a penalty on credit funds.

If the client does not have the opportunity to timely make one to several payments, or there is a delay in a single payment, it is possible to calculate the amount of penalties using the contract.

The concepts of fines and penalties

A loan penalty is a set amount that is subject to reimbursement at the time of delay in repaying credit funds, and the period of delay is absolutely not important.

Whether the client missed one day, or twenty-one. Basically, all rates are clearly set and do not depend on the number of outstanding payments.

Each subsequent situation leads to the fact that the amount of the fine increases in proportion to the number of untimely returns.

Let's take for a clear example of a situation where the first delay entails the payment of a fine in the amount of 400 rubles, the second will already be 700 rubles, and the third will cost the client 900 rubles.

All obligations are spelled out by the banking organization in the contract, with a clear indication of tariffs for untimely reimbursed money.

Penalty for late loan look like a percentage of the total debt or the amount of payments and it is charged for each day of the delay.

The situation with penalties is more or less clear, but how to correctly and without errors calculate the penalty for yourself?

The thing is when the date of depositing funds comes - the bank writes off the penalty at the initial stage, only later takes the funds to repay the body of the loan itself and interest on its use.

Contractual agreements provide for the procedure for writing off penalties and forfeits, but in any case, credit funds are written off last.

Therefore, the introduction of the amount of the body of the loan, without paying the penalty will lead to a subsequent delay and forms another outstanding obligation.

Bank penalty and its nuances

All credit relations between the client and the bank, like any other relationship, provide for a certain mutual understanding, with the presence of mutual obligations and rights.

The Bank obliges its client to timely reimburse the amounts taken in installments with interest on use. Very often, financial institutions prepare a large rate for untimely reimbursed funds.

By itself, the penalty is the ability to cover funds that are not paid in the appropriate terms under the contract.

It is a measure - thanks to which property liability for non-compliance with contractual agreements between the bank and the client is withdrawn.

With regard to statistical studies, many legal proceedings go something like this:

The judicial authorities received a lawsuit from a banking organization with a request to apply the forfeit process for violation of the timeliness of payment.

As a result of the process, the claim was not satisfied in full. The contractual terms contained information about the payment of 32 percent in case of repayment not on time, the court ruled that the penalty was a disproportionate loss for the client.

The consideration included criteria that determined the position of incommensurability: first of all, a large amount of the amount for late repayment worked, followed by a huge excess of the amount.

Thirdly, the court did not suit the deadline for default. As a result, a decision was made on the discrepancy between the amount of the penalty and the terms of the bank claim.

The model of behavior of financial organizations in such cases provides for the maximum inclusion of all risks in contractual obligations between the client and the bank. Given the inflated interest rate to cover possible losses.

Other disputed situation with a claim

It included consideration of a loan agreement in the amount of 300 thousand rubles. rub. taking into account the rate of 17.5 per year. Within the stipulated time, the installment was not returned. The decision of the judiciary was made in favor of the bank with the subsequent payment of all penalties and interest on loans.

On appeal, the Court of Cassation made an identical decision due to the current legislation, in which it is not permissible to waive the client's obligations unilaterally.

All of the above examples indicate that the court can also satisfy the bank's claim, but what should clients do in such cases when they find themselves in such a difficult situation?

After all, filing an appeal is not a guarantee of protecting the client. How to prove your right without extra financial costs.

Banks do not use the solvency of borrowers and in such conditions withdraw for themselves to the maximum. A high amount of penalties for overdue loans haunts any client in an unfavorable financial situation for him.

But there is an opportunity at the stage of concluding a loan agreement to come to an agreement with a banking organization and prescribe in it more loyal conditions that can satisfy both parties.

Since it is the borrower who bears all the losses in the event of a situation. One of the more profitable options is to provide a service in the form of an installment plan for the payment of a previous obligation.

Default loan

Everything is very simple, this is the provision of new lending to cover the old one. One of the many criteria for the possibility of circumventing the penalty itself is the likelihood of paying off the debt in the amount of fifty percent of the full amount.

This process will result in the bank's decision to apply the standard terms and conditions for the payment of the subsequent installment, excluding any fines or penalties.

All parties to the conflict situation are interested in a good outcome of events. The difficult economic situation in the country has led to a change in conditions in the credit sector, they have become more loyal to customers.

Now borrowers have the opportunity to change the terms of an already received installment plan with the obligatory observance of a subsequent obligation.

Many difficulties in life make all credit relations between the bank and the client difficult. And in order not to lose their borrowers, banks are trying on an individual basis to meet conscientious clients.

The next way to repay may be the possibility of premature repayment of credit funds and takes place when a long installment plan is taken, and it is returned much earlier than the period established by the contract.

The advantages of this type include repayment of the full amount, but with a reduced amount of interest, which greatly simplifies the financial costs of the client.

It is important to understand that if lending is provided in rubles, then it is better not to rush to repay it. Because there is a tendency for the ruble to fall.

If the loan is taken in dollar terms, then it is better to hurry, because. every day, the exchange rate is growing.

Sometimes the contract indicates the amount to be reimbursed, namely in rubles. And to repay the debt in dollars, you need to weigh the pros and cons well with respect to the exchange rate on the day of repayment. It is necessary to repay the debt at the bank where the installment plan was taken, so getting into the account will be quick and clear.

It is not advisable to make postal transfers or transfer funds through other banks, as you can miss the deadlines, and to avoid this, it is better to carry out the procedure several days in advance.

Many financial institutions for tolerance have set a period of five days without applying all kinds of penalties.

All clients are given the opportunity to repay loans through their wages by submitting an application to the accounting department at the place of work with a request to withhold and transfer a certain amount in the periods specified in the documents.

Two loan repayment options

• The first of them is an annuity, and its essence lies in the fact that on a monthly basis, within the period established by the agreement, the payment amount, including interest, is credited to the account of the financial institution.

A distinctive feature of such payments is that with each subsequent month the amount of repayment on the loan will constantly increase, and the payment of interest will decrease. The bank, as a rule, includes the entire commission for servicing in the total amount.

• The second repayment option is differentiated, its essence is that every month payments can be different. At first, the amount will be much higher, and then it will decrease as the funds are repaid.

The first option is more popular in the banks of the country, but no matter what type is chosen, you need to remember that banks are trying to meet their customers.

The bank has filed a claim - next steps

Let's analyze the standard situation when a loan is taken, and the current life situations do not allow making monthly repayment payments. Constant calls from collectors and filing a lawsuit by the bank in court.

To understand the situation, you must first read the application and pay attention to the points related to fines and penalties. After all, they are - a penalty on a loan.

It is possible to reduce the amount of the penalty if it is incommensurable with respect to the amount of debt, interest on it.

The most important thing is that it is impossible to achieve a reduction in the body of credit debt and interest on it. Because signed an agreement. Therefore, only the penalty itself can be changed, because the party that provided the loan does not incur additional financial costs.

Risk of overcharge

Often banks overestimate their powers regarding penalties. Although recently such moments have become less common, as the country's population has become more literate.

The use of article No. 133 of the Civil Code of the Russian Federation brings positive results regarding the possibility of changing to a smaller side, penalties for late return of funds taken.

The bank's interest is to get a court decision in hand as soon as possible. Well-known and large banks, as a rule, do not overestimate the penalty.

The process of reducing the penalty

In this article, the concept was described in detail - loan security forfeit. But in what situation can it be reduced?

It is clear that the amount of fines and penalties does not have a specific basis, and an unreasonably high penalty is the amount that jumps the threshold of 10% of the loan body itself.

In theory, you can achieve a reduction of ninety percent. And it would be stupid to assume that, with a principal debt of one hundred thousand rubles and a penalty equal to two thousand, count on a reduction.

There are moments in judicial practice when, by the decision of the judge, it turns out to be reduced to the maximum, and this is all 90% of the total amount.

In a request for reduction, you can indicate your wildest assumptions and requests, and then everything will depend on the judge and his decision. But if the claim contains an adequate amount of penalties, one should not hope for an appeal.

It is very important to understand that the reduction of all penalties, according to the law, is primarily a right of a citizen, and not a judicial duty. Article 333 of the Civil Code of the Russian Federation protects the client.

Having taken up the process of struggle, it is necessary to approach with maximum responsibility, and always remember that the result does not guarantee 100% fulfillment of your requirements, because the judge may make a decision that is inconsistent with the desire of the debtor.

If the judge asks for the possibility of providing certain arguments regarding the incommensurability of the amount of fines, it is necessary to be on alert and take evidence on the example of other large banks. This will require documents with the seals of banking organizations.

Three main ways to reduce penalties

A penalty on a loan may have a verbal request for a reduction in tariffs for it. This request is made orally.

A written request is issued in case the debtor is absent at the court session or at the personal request of the judge. In this form, it is necessary to indicate the name of the court and from whom the petition is filed.

It is also necessary to write on the basis of what legislative act this petition was drawn up. Be sure to indicate in the document the percentage by which the reduction is planned. This application must be submitted to the clerk of the court.

Objection to a claim

Each person who finds himself in such a situation has the right to file an objection to the statement of claim of a banking organization.

In which you should write the main reason for insolvency, with a specific indication of it (dismissal from work, a sharp deterioration in financial stability, the appearance of a child, poor health, etc.)

In the future, you need to attach all copies of petitions that are related to the restructuring of credit funds and the bank's refusal to provide it.

The application for restructuring itself is written in order to kill two birds with one stone: either the bank will meet and provide a service, or the application with a refusal will go to court to object to the statement of claim.

The application must indicate the reason for disagreement and justify it and make it clear that the refusal to pay the penalty is associated only with its inflated tariffs.

In practice, banks deliberately delay the filing of a claim in order to increase the amount of penalties. If in the application for objection the client indicates that he does not mind paying the penalty. And denotes a request for a reduction due to inflated rates, with agreement to pay for the reduction.

In the best case, for a client who finds himself in a difficult life situation, there will be a voluntary agreement with the bank.

But if, nevertheless, the matter went to court, knowledge of the legislative acts and the competent preparation of an objection can reduce the financial pressure of the bank on the borrower.

Today in Russia, every tenth borrower of credit funds is in arrears in monthly payments. In this regard, banks accrue large penalties to such customers.

Very often, the initial loan amount is several times less than the penalty, this is especially evident in microfinance organizations, where the client takes 5 thousand rubles, makes a delay and owes 20 thousand rubles in a month. Let's look at how you can reduce loan penalties or even eliminate them.

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Important! Since February 2014, Art. 333 of the Civil Code of the Russian Federation begins work only if the bank agreed to terminate the contract in court under Art. 451 Code of Civil Procedure of the Russian Federation. Or he sued the debtor himself.

You took loans from one or more banks, but due to force majeure circumstances and deteriorating financial situation, you could not pay off on time. Banks in this case reacted very quickly and punished you with the first fine, then they began to charge interest and penalties. At one fine moment, you realize that it is almost impossible to get out of the debt hole, and the situation needs to be solved somehow.

The first thing a person in this position does is most often go to a "qualified" lawyer. Taking money for a consultation, he tells the debtor that he can help him, of course, not for free.

If the client agrees, then he is asked to collect a package of necessary documents, namely:

• account statement (Art.);
• 2NDFL certificates;
• work book;
• a certificate from the hospital (if the delay was due to illness), etc.

Then, with all these papers, the lawyer goes to the court office and, by proxy on behalf of the client, writes a statement on the basis of Art. 333 of the Civil Code of the Russian Federation, thereby trying to reduce the penalties on the loan. In addition, the client can be "divorced" for additional services, for example, the cancellation of a banking agreement.

All this will cost a decent amount. The average prices of a lawyer in the Russian Federation: consultation - 500 rubles, filing a claim with a bank - 2 thousand rubles, representation in court 1 day - 10 thousand rubles, drawing up any contract or document - 3 thousand rubles. It turns out a decent amount for the work that you can do yourself. Moreover, the chances of breaking the contract with the bank are practically equal to zero.

Much cheaper to do some of the work yourself:

1. Come to the magistrate's court at the place of residence, or rather, to his office.
2. Write a statement that you disagree with the interest charged by the bank. In connection with the deterioration of the financial condition on the basis of Art. 333 of the Civil Code of the Russian Federation, ask them to cancel.
3. Provide evidence of why you are unable to pay the debt (labor - if you were fired, 2NDFL - reduced wages, discharge from the hospital, account statement - if you overpaid for several years, etc.).

In order to correctly draw up an application, everything must be done according to the model. This sample is presented at the information stand of any court.

Usually, judges meet the debtors halfway and reduce loan penalties, but this is only if evidence is presented that your financial situation has worsened or there has been a large overpayment.

Then the amount of the debt is fixed, and the court decision is transferred to the bailiff service, where the borrower will already pay his debt.

The property of the debtor may be seized. It is better to prepare for this in advance. A list of property subject to arrest can be found in this.

Important! If the debtor has no delays yet, but he understands that in the near future he will not be able to pay more, he needs to apply to the bank for restructuring. If he is refused, and fines and interest begin to accrue, only then it is necessary to apply to the court with a petition under Art. 333 GK.

Judicial practice of application of the law

Article 333 of the Civil Code is almost the only possibility for the debtor to reduce the amount of the debt. In this regard, jurisprudence has extensive jurisprudence on this issue. Any lawyer will first advise the debtor to exercise the right to apply this law.

It must be understood that the application to reduce the penalty is ONLY the initiative of the borrower. If you yourself do not indicate this point, the court will not reduce the debt. Nobody but you needs it.

The petition itself is a template type document. You do not need to have special knowledge to fill out the form. All samples are on the Internet, they can be downloaded for free. However, we recommend reading Art. 131 and 132 of the Code of Civil Procedure of the Russian Federation on the correct preparation of documents for the court.

Art. 333 of the Civil Code of the Russian Federation (reduction of the penalty) - a reasonable percentage

The first paragraph of the article tells us that if the penalty is disproportionate to the amount of the debt, it can be reduced. But how to determine this disproportion (reasonable percentage)?

To do this, there are a number of ways and values ​​that showed decent results in litigation:

1. The amount of the penalty must not exceed the amount of the debt.
2. Rospotrebnadzor can calculate the total debt for you and make recommendations for the judicial system.
3. Independent expert companies with successful legal practice can recalculate the loan, identifying all inconsistencies in the agreement.

Art. 404 of the Civil Code of the Russian Federation

This article works well in conjunction with 333. The guilt of the creditor can also be proven by experienced lawyers. If this fact is established, then the debt can be seriously reduced.

Don't count on a full debt relief. It is impossible in principle. But partial satisfaction of the requirements of the creditor is a common thing for the judicial system.

Outcome

The task of banks is to extort as much money from their customers as, as you know, debt is a serious business. The task of debtors is to know their rights and laws and be able to apply them on their own without unnecessary overpayment, and the simplest thing that can be done is to cancel loan fines.

If you need advice or have questions on the topic of this article, describe your problem in the comments, or contact the site's duty lawyer in the form of a pop-up window. We will definitely answer and help you.

Usually, few people think about the stability of their financial situation and its prospects. As a result, many do not cope with the credit burden and delays in loan payments begin.

The second trouble is that few people read the loan agreement in detail. Therefore, loan delays are not perceived as something terrible: “ah, just think, I overstayed by two days. In the end, I paid!” Even though the payment was eventually paid, the delay probably entailed penalties and an increase in the amount of the debt.

In accordance with the Civil Code of the Russian Federation, the penalty consists of two components:

• Penalty for the fact of the penalty. The fine can be both one-time and imposed every time the delay (which is usually done);
• Penalty, which is added for each day of delay. Usually this is some percentage of the amount of the debt;

Either a fine or a penalty can be charged. Each bank chooses for itself which option suits it.

What penalties do banks apply for late payments?

Now from theory to practice. What fines are usually applied by our banks in fact?

• A fixed amount of the fine (for example, a fine of 500 rubles for each delay);
• An increasing fine (for example, for the first delay 500 rubles, for the second and third - 1000, subsequent - 1500);
• Penalty on the payment amount (for example, a monthly payment of 5 thousand, and a fine - 10%. Total fine - 500 rubles);
• Penalty on the amount of the debt (for example, the remaining debt is 47 thousand rubles, a fine of 1%. Total fine is 470 rubles);

The first and second options are most often encountered when working with credit cards in most banks (Russian Standard, Tinkoff, Home Credit, etc.). The third and fourth option is often found with a mortgage, car loan or personal loan.

Consequences of delay in some banks

To complete the picture, I publish penalties for delay, which apply in a number of banks (information may not be relevant for all loans of a particular bank):

Alfa Bank

2% of the payment amount for each day of delay

Home Credit

This bank allows you to delay payment on a credit card up to 15 days. After that, a fine of 300 rubles is charged. On the 25th day, a fine of 500 rubles is added, after 10 days - another 800 rubles. On the 60th day and in subsequent months, the fine is 800 rubles. For consumer loans, from the 10th day, a penalty of 1% of the debt amount is charged for each day.

Credit Europe Bank

Penalty 15% of the amount of the monthly payment, at least 300 rubles.

Opening

Penalty 0.5% of the amount of the monthly payment for each day of delay.

Russian standard

First delay - 300 rubles
Second - 500 rubles
Third - 1000 rubles
Fourth - 2000 rubles

Sberbank

Penalty for each day of delay in the amount of 0.5% of the amount of the overdue payment.

Summarizing

These are the fines for delay in our banks. It is easy to imagine that by skipping "only" a couple of monthly payments, you can greatly increase the amount of debt to the bank. For example, you have a loan at Sberbank with a monthly payment of 14,000 rubles. You are overdue by 14 days, therefore you will have to pay penalties: 0.5% of the amount of 14000 = 70 rubles per day. For 14 days, the penalty will be 980 rubles.

In total, having overdue the payment for 14 days, you owe the bank 980 rubles more. In addition, in recent years, for frequent delays, many banks have been practicing termination of the contract and the requirement to repay the loan ahead of schedule.

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To ______________ District Court of __________

From the defendant:

in a civil case on the statement of claim of JSC "________" to _____________________ for the recovery of debt under a loan agreement
PETITION

OJSC "____________" applied to the ____________ District Court of the city of ______ with a statement of claim against me - ________________________ for the recovery of debt under Loan Agreement No. ______ dated ___________, concluded between ____________ and OJSC "____________" (hereinafter referred to as the Agreement), in the amount of ______________ ruble __ kopecks, as well as the cost of paying the state duty in the amount of ____________________ rubles __ kopecks.
In support of the claim, the plaintiff provided a calculation of the debt under the Agreement:
The amount of the principal debt - ___________________ rubles __ kopecks;
Accrued interest for the use of funds - __________________ rubles __ kopecks;
Accrued penalties - ___________________ rubles __ kopecks.
In accordance with the terms of the Agreement, I was granted a loan in the amount of ________________ rubles. The interest rate on the loan was __ (_______________) % per annum. The loan term is ___ months.
According to clause 2.9 of the Agreement, the amount of the minimum monthly payment is _______________ rubles. This amount includes part of the loan, interest accrued for the use of the loan, commission for the operational servicing of the loan account.
According to par.

Consequences of late loan payments.

2.6 of the Agreement, a fee for maintaining a loan account is charged in the amount of ___% of the loan amount. In a month, the specified commission was ___ rubles.
By virtue of clause 2.7 of the Agreement, the penalty for late annuity payment is ___% of the amount of the overdue payment for each calendar month of delay.
In accordance with clause 2.8 of the Agreement, the penalty for failure to fulfill the Bank's requirement for early repayment of all monetary obligations under the Agreement is __% for each day of delay for the amount of all monetary obligations under the Agreement, except for accrued penalties.
As of _________, I have paid the amount of the principal debt in the amount of ________________ rubles __ kopecks.
At the conclusion of the Agreement, I had sufficient income to fulfill the obligation.
However, starting from ____, due to the difficult financial situation, a sharp decrease in income, I was not able to monthly and on time deposit funds to repay the loan and interest in accordance with the specified Agreement.
According to Art. 330 of the Civil Code of the Russian Federation in the event of non-performance or improper performance of an obligation, including in the event of a delay in performance, the debtor is obliged to pay the creditor the penalty provided for by law or the contract.
By virtue of Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty.
In the current situation, the penalty required by the Claimant in the amount of ____________ rubles __ kopecks is clearly disproportionate to the consequences of the breach of obligation.
It should also be noted that the Claimant did not take advantage of the opportunity provided by law for the timely satisfaction of debt obligations. Due to the impossibility of fulfilling the obligation, the transfer of funds to pay off the debt on the loan was terminated in ____, however, OJSC ____________ filed a claim with the court only in ____. This circumstance led to an increase in the amount of debt, including increase in the amount of the penalty.
Therefore, in this case, there are grounds for reducing the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation.
According to Part 1 of Art. 203 Code of Civil Procedure of the Russian Federation, the court that considered the case, at the request of the persons participating in the case, the bailiff, or based on the property status of the parties or other circumstances, has the right to defer or extend the execution of the court decision, change the method and procedure for its execution.
My spouse - _____________ died on _________. Death certificate ____ No. _________ dated _________
The only source of income for our family was the earnings of the deceased spouse.
Due to the death of my husband, I am currently left without a livelihood. My mother is dependent on me - _____________, ____ b. and son - _____________________.
Consequently, my financial situation does not allow me to fulfill the obligation to pay the loan in a timely manner.
Thus, there are grounds for reducing the penalty for non-fulfillment of the terms of the Loan Agreement No. ________ dated __________, concluded between ___________ and JSC "___________", as well as for the installment of the execution of the court decision.

Based on the above, guided by Article.Article. 333, 203 of the Civil Code of the Russian Federation

PLEASE COURT:

1. Reduce the amount of the penalty for non-fulfillment of obligations under the Loan Agreement No. _______ dated _______, concluded between ________________ and OJSC ________________.
2. Grant me - ___________________________ an installment plan for the execution of the court decision for a period of __ months.

Appendix:
1. Copy of death certificate _______________

________________

" ____ " _______________ of the year

The legitimacy of the collection by banks under loan agreements of increased interest for using the loan in case of violation of the deadline for repaying the loan, as well as high penalties for late fulfillment of the obligation to repay the loan and interest for using it

Shcherbinin Sergey Sergeevich

Specialist in civil, constitutional law, as well as system analysis of legislation. PhD in Law.

Was born on January 26, 1975 in Moscow. In 1997 he graduated from the law faculty of Moscow State University. M.V. Lomonosov.

Author of the Commentary on the Law on Export Control (2002), Commentary on the Law on Investment Activities in the Russian Federation Carried out in the Form of Capital Investments (2002), co-author of the Commentary on the new Law on State and Municipal Unitary Enterprises (2003), as well as articles in scientific collections , legal and economic journals.

In the practice of credit relations, cases of establishing in loan agreements increased interest for using a loan in case of violation of the deadline for repaying a loan are common.

Along with an increase in interest for using a loan, such agreements, as a rule, establish a penalty for late payment of current interest for using a loan.

In the practice of arbitration courts, questions were resolved about the legal nature of increased interest for using a loan and about the legality of collecting a penalty in the amount specified in the loan agreement.

In one of the disputes under the loan agreement, it was established that the borrower was charged the following interest for violation of his obligations to repay a loan in foreign currency:

increased interest for violation of the deadline for repayment of the loan in the amount of 25% per annum instead of 20% for using the loan within the period of using it;

penalties for late payment of current interest for using the loan in the amount of 0.07% of the lost amount for each day of delay, which equals 25.55% per annum.

In arbitration practice, the following position has developed regarding the legitimacy of collecting increased interest and penalties from the borrower in the amounts established in the loan agreement.

According to par.

15 Resolutions of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14, as well as Resolutions of the FAS of the North Caucasus District of January 10, 2006 in the case of N F08-6393 / 2005 and FAS of the Ural District of On April 24, 1998, in case No. F09-292 / 98-GK, in cases where the loan agreement establishes an increase in the amount of interest due to late payment of the debt, the amount of the rate by which the fee for using the loan has been increased should be considered a different amount of interest established by the agreement in accordance with paragraph 1 of Art. 395 of the Civil Code of the Russian Federation.

Thus, increased interest for using a loan (in the dispute under consideration, 5% per annum of the loan amount) is qualified in arbitration practice not in accordance with their literal meaning specified in the loan agreement, but is interpreted as a penalty for violation of the terms for the borrower to fulfill his obligation to repay the loan and interest on loans.

In accordance with the generally accepted interpretation, the penalty is one of the ways to ensure the fulfillment of obligations, a means of compensating for the creditor's losses caused by the debtor's violation of his obligations.

At the same time, it should be borne in mind that the interest charged by the creditor for the amount of money provided to the borrower also compensates, to a certain extent, for the consequences caused by the defendant's violation of his obligations.

Thus, if the agreement provides for sufficiently high amounts of interest for using the loan (for example, 20% per annum, as in the dispute under consideration), the collection of penalties, along with interest for using the loan, is clearly disproportionate to the consequences of a breach of obligations by the borrower.

In accordance with paragraph 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of October 8, 1998 N 13/14, if determined in accordance with Art. 395 of the Code, the amount (rate) of interest paid in case of non-fulfillment or delay in fulfilling a monetary obligation is clearly disproportionate to the consequences of the delay in fulfilling a monetary obligation, the court, given the compensatory nature of interest, in relation to Art. 333 of the Civil Code of the Russian Federation has the right to reduce the rate of interest charged in connection with the delay in the performance of a financial obligation.

When applying Art. 333 of the Civil Code of the Russian Federation, the courts take into account the compensatory nature of the penalty, the period of delay in the performance of contractual obligations, as well as the absence of any evidence that the plaintiff has negative consequences arising from the improper performance of obligations by the defendant. At the same time, according to paragraph 4 of the Review of the practice of application by arbitration courts of Art. 333 of the Civil Code of the Russian Federation (attachment to the information letter of the Supreme Arbitration Court of the Russian Federation dated July 14, 1997 N 17), the criteria for establishing the disproportionate penalty in each specific case may be: an excessively high percentage of the penalty; a significant excess of the amount of the forfeit of the amount of possible losses caused by the violation of obligations; duration of non-fulfillment of obligations, etc.

Taking into account the indicated circumstances, when calculating the penalty, the courts, as a rule, apply the refinancing rate of the Central Bank of the Russian Federation, which is currently 10% per annum (telegram of the Central Bank of the Russian Federation dated June 18, 2007 N 1839-U).

In accordance with the Decree of the Federal Antimonopoly Service of the North Caucasus District of August 31, 2005 in case N F08-3302 / 2005, the decision of the Moscow Arbitration Court of November 6, 2007

Delay in loan payment: how to reduce the amount of fines and penalties?

in case A40-40628 / 07-29-377 (which entered into force), a high percentage of forfeit, the absence of evidence in the case file confirming that the plaintiff has losses commensurate with the accrued forfeit losses, gives grounds for its reduction approximately to the amount of interest on loans from commercial banks. The interest of commercial banks on loans is a reflection of the minimum amount of losses incurred by the plaintiff in connection with the defendant's failure to fulfill contractual obligations.

At the moment, the average interest rate of credit institutions in Russia on loans in US dollars is 9%<1>.

Thus, if there are grounds for reducing the borrower's liability and in accordance with Art. 333 of the Civil Code of the Russian Federation, the amount of interest charged from the borrower in connection with the delay in the execution of the loan agreement can be reduced from 5% per annum of the loan amount and 25.55% per annum of the amount of interest for using the loan, as in the case under consideration, as a result, to 9% per annum in total.

1.

Decision No. 2-2053/2017 2-2053/2017~M-1941/2017 M-1941/2017 dated December 30, 2017 in case No. 2-2053/2017

Soviet District Court of Tomsk (Tomsk Region) – Civil

…at the meeting, the defendant did not recognize the claims, on the grounds set out in the objection to the statement of claim, further explaining that he paid the loan, asked to reduce the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation. Based on Art. 167 Code of Civil Procedure of the Russian Federation, the case is considered in the absence of the plaintiff, duly notified of the time and place of the hearing. After listening to the defendant, having studied the materials of the case, ...

2.

Decision No. 2-13730/2017 2-13730/2017~M-12183/2017 M-12183/2017 dated December 30, 2017 in case No. 2-13730/2017

Dzerzhinsky District Court of Volgograd (Volgograd Region) – Civil and Administrative

... supported the requirements in full. The representative of the defendant PJSC IC «Rosgosstrakh» FULL NAME7 asked to satisfy the claim to refuse, if the claim is satisfied, to reduce the amount of the penalty by virtue of Art. 333 of the Tax Code of the Russian Federation. After hearing the representatives of the parties, examining the written evidence available in the case file, the court considers the claims to be subject to partial satisfaction. In the present case, the court found DD.MM.YYYY …

3.

Decree No. 44G-24/2018 4G-387/2018 4G-4600/2017 dated December 29, 2017 in case No. 2-359/2017

Samara Regional Court (Samara Region) – Civil and administrative

... voluntarily meeting the requirements of the consumer, a fine in the amount of fifty percent of the amount awarded by the court in favor of the consumer. recovering in favor of the plaintiff subject to the provisions of Article. 333 of the Civil Code of the Russian Federation a penalty in the amount of 9,000 rubles a fine in the amount of 7,000 rubles, the court proceeded from the fact that the plaintiff's claims for the return of the value of the goods on a voluntary basis ...

4.

Decision No. 2-748/2017 2-748/2017~M-717/2017 M-717/2017 dated December 29, 2017 in case No. 2-748/2017

Anninsky district court (Voronezh region) - Civil and administrative

…at the rate of 1% on the amount of rubles, the amount of the penalty amounted to rubles. The court of general jurisdiction recognized these claims of the victim as justified, but on the basis of Article 333 of the Civil Code of the Russian Federation reduced the amount of the penalty to the amount of rubles. The victim came to the conclusion that he had the right to claim against the defendant for the recovery of a penalty for ...

5.

Decision No. 2-4447/2017 2-4447/2017~M-3843/2017 M-3843/2017 dated December 29, 2017 in case No. 2-4447/2017

Zheleznodorozhny District Court of Novosibirsk (Novosibirsk Region) – Civil and Administrative

…attention the duration of the defendant's failure to fulfill obligations to pay monthly payments, as well as the size of his unfulfilled obligation, the court finds no reason to reduce the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation below the amount to which it was reduced by the plaintiff on his own initiative. The Court considers that this amount of the penalty under these circumstances is commensurate with the consequences of default by the defendant. …

6.

Decision No. 2-21614/2017 2-21614/2017 ~ M-19594/2017 M-19594/2017 dated December 29, 2017 in case No. 2-21614/2017

Pervomaisky District Court of Krasnodar (Krasnodar Territory) - Civil and administrative

…calculations of the plaintiff penalty for late execution by the defendant of obligations under the insurance payment is 221,340 RUB. The presented calculation at the hearing is not challenged. By virtue of the provisions of Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty. The court, taking into account the defendant's request for a reduction in the amount of the penalty, considers it possible ...

7.

Decision No. 2-3857/2017 2-3857/2017~M-3879/2017 M-3879/2017 of December 29, 2017

Loan penalties

in case No. 2-3857/2017

Soviet District Court of Vladikavkaz (Republic of North Ossetia-Alania) – Civil and administrative

... insurance indemnity increased for reasons beyond the control of the defendant. She asked to refuse to satisfy the claims in full, and if the claim is satisfied, apply Art. 333 of the Civil Code of the Russian Federation and reduce the amount of the penalty due to its disproportion. She also filed a petition for the appointment of a forensic appraisal, raising the question of determining the actual cost for the experts ...

8.

Decision No. 2-6424/2017 2-6424/2017~M-6131/2017 M-6131/2017 dated December 29, 2017 in case No. 2-6424/2017

Sovetsky District Court of Ufa (Republic of Bashkortostan) – Civil and administrative

…on the recovery of a fine from the defendant in favor of the plaintiff in the amount of 20,615 RUB. (41,230 rubles * 50%). Grounds for reducing the amount of the fine according to Art. 333 of the Civil Code of the Russian Federation, the court does not see, since the reduction of the amount of the fine is possible only in exceptional cases, when the fine to be paid is clearly not commensurate with the consequences of the violation of the obligation, which in the case under consideration ...

9.

Decision No. 2-725/2017 2-725/2017~M-907/2017 M-907/2017 dated December 29, 2017 in case No. 2-725/2017

Kormilovsky district court (Omsk region) - Civil and administrative

…and payment of interest in the amount of 120% per annum of the amount of the overdue payment for each calendar day of delay, which is reflected in the calculation of the debt. According to Part 1 of Art. 333 of the Civil Code of the Russian Federation, if the penalty payable is clearly disproportionate to the consequences of the violation of the obligation, the court has the right to reduce the penalty. If an obligation is violated by a person engaged in entrepreneurial activity, the court has the right to reduce the penalty when ...

10.

Decision No. 2-14355/2017 2-14355/2017 ~ М-16557/2017 М-16557/2017 dated December 29, 2017 in case No. 2-14355/2017

Leninsky District Court of Krasnodar (Krasnodar Territory) - Civil and administrative

... the creditor is not obliged to prove the infliction of losses on the claim for payment of a penalty. Considering that the insurance company did not make a payment, the court considers it necessary to take into account the provisions of Art. 333 of the Civil Code of the Russian Federation, reducing the amount of the penalty claimed by the plaintiff and recover from the insurance company a penalty in the amount of 10,000 rubles. According to Article 151 of the Civil Code of the Russian Federation, if a citizen has suffered a moral ...

Accounting for penalties under a loan agreement

I.V. Bashkirova, expert of the Legal Consulting Service GARANT

The organization paid the penalties stipulated by the loan agreement for late repayment of the principal debt.

Loan fees.

Can these expenses be taken into account for income tax purposes? If yes, in what order?

In accordance with clause 1 of Article 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers money or other things defined by generic characteristics to the ownership of the other party (the borrower), and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount other things he received of the same kind and quality.

By virtue of paragraph 1 of Article 810 of the Civil Code of the Russian Federation, the borrower is obliged to return to the lender the received loan amount on time and in the manner prescribed by the loan agreement.

As a measure of liability for violation of contractual obligations, the loan agreement may provide for the payment by the debtor to the creditor of a penalty (fine, penalty) in accordance with Article 330 of the Civil Code of the Russian Federation. The specified article determines that a penalty, a fine, a penalty fee is a sum of money determined by law or an agreement, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of the obligation, in particular, in case of delay in performance. The penalty may be paid (reimbursed) voluntarily or collected in court.

The amount of the forfeit is taken into account as part of non-operating expenses accepted for profit tax purposes on the basis of subparagraph 13 of paragraph 1 of Article 265 of the Tax Code of the Russian Federation.

In this case, the basis for classifying the penalty as expenses on the accrual basis is the recognition of this debt by the debtor or the entry into force of the relevant court decision.

In accordance with subparagraph 8 of paragraph 7 of Article 272 of the Tax Code of the Russian Federation, the date of recognition of expenses under the accrual method for expenses in the form of fines, penalties and (or) other sanctions for violation of contractual or debt obligations, as well as in the form of amounts of compensation for losses (damage) is the date recognition of their debtor or the date of entry into force of the court decision.

According to paragraph 1 of Article 252 of the Tax Code of the Russian Federation, expenses must be justified and documented. Justified costs are understood as economically justified costs, the assessment of which is expressed in monetary terms.

Documented expenses are understood as expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation, or documents drawn up in accordance with business practices applicable in a foreign state in whose territory the corresponding expenses were made, and (or) documents indirectly confirming the costs incurred. expenses. Expenses are recognized as any costs, provided that they are made for the implementation of activities aimed at generating income.

The basis for the recognition of non-operating expenses may be documents indicating that the organization agrees to pay the penalty in full or in the amount, based on the terms of the concluded agreement.

Such documents include:

• an agreement providing for the payment of sanctions;
• bilateral act;
• the debtor's letter, agreement or other document confirming the fact of breach of the obligation, allowing to determine the amount recognized by the debtor.

According to specialists of the Ministry of Finance of Russia, the circumstance indicating the recognition by the debtor of the obligation to pay the amount of the penalty (fine, penalty interest) is both the actual payment to the creditor and a written confirmation expressing the willingness to pay the penalty (see letters dated 05.25.2012 No. 03-03- 06/1/272, dated 11/29/2011 No. 03-03-06/1/786). The same opinion is shared by specialists of the Federal Tax Service of Russia for Moscow in a letter dated March 18, 2008 No. 20-12 / 025119.

At the same time, one should take into account the position of the specialists of the Federal Tax Service of Russia, according to which payment orders for payment of penalties do not in themselves indicate the recognition of these sanctions by the organization and in order to recognize the penalty as part of non-operating expenses, a document is required confirming the recognition of the penalty by the debtor, for example, a written consent of the debtor to pay the debt in the indicated amount (see letter dated 06.26.2009 No. 3-2-09/121).

Thus, in order to avoid disputes with regulatory authorities, in order to recognize the amount of the penalty provided for in the loan agreement as part of non-operating expenses for profit tax purposes, in addition to the payment order, the documentary consent of the borrowing organization to pay the penalty in the prescribed amount is required, for example, an agreement or a bilateral act.

Alexey Dudin

You must organization//

How to reduce fines and penalties on overdue loans

If you are in arrears with your loan, then you can be sure that for violation of the terms of payment the bank will charge you a penalty. Fines and penalties stipulated by the loan agreement, usually quite high. Due to this, the penalty accrued by the bank sometimes becomes comparable to the amount of the debt itself. So, for example, if you allowed a delay in the repayment of a consumer loan in the amount of 50,000 rubles for three consecutive months, then with a penalty of 0.5% for each day of delay, the amount of the penalty charged by the bank will be 22,500 rubles. In the same situation, if there is a fine (and not a penalty) in the loan agreement for missing a monthly payment in the amount of 10% of the outstanding loan amount, the amount of the penalty will be 15,000 rubles. The longer the duration of the delay or the higher the amount of the penalty provided for in the loan agreement, the more tangible will be the financial losses of the debtor.

Having learned about the accrual by the bank of a significant amount of the penalty, it makes sense to try to reduce it. This is especially true for situations in which the amount of fines and penalties required by the bank is half or more of the loan amount. Moreover, some banks may deliberately postpone the moment of application, so that there are more fines and penalties.

The possibility of reducing fines and penalties is provided for by law, namelyArticle 333 of the Civil Code of the Russian Federation. According to this article of the Civil Code of the Russian Federation, “if the penalty payable is clearly disproportionate to the consequences of the breach of obligation, the court has the right to reduce the penalty.” When assessing the consequences of a breach of an obligation and the amount of the penalty charged by the creditor, the court may take into account, among other things, circumstances that are not directly related to the consequences of the breach of the obligation (the price of goods, works, services; the amount of the contract, etc.).

The procedure for calculating the penalty on the loan, liability, repayment terms

Such an explanation for the courts was made by the Plenum of the Supreme Court of the Russian Federation in paragraph 42 of its joint Decree with the Plenum of the Supreme Arbitration Court No. 6/8 of July 01, 1996 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation”.

In the event that the bank has accrued a penalty, but has not yet applied to the court for its recovery, you should write a written application to the bank, in which it is necessary to indicate the presence, in your opinion, of a clear disproportionate penalty accrued by the bank. Also, in a letter to the bank, it is important to offer the bank to reduce the amount of the penalty charged. It is important to make a letter in two copies, one of which is to be sent to the bank office (or its territorial branch, additional office, etc.) with the bank employee marking the second copy of the receipt of the letter. In the event that the bank employee refuses to make a mark on the second copy, then send your letter to the bank by mail in the form of registered mail with a return receipt and an inventory of the attachment.

If, based on the results of consideration of the received letter, the bank goes to meet you and decides to reduce the penalty, then the agreement reached will need to be recorded in writing. In the event that the bank refuses to reduce the accrued penalty in writing, or leaves your application unanswered, then it will be necessary to prepare to resolve the issue of reducing the penalty in court.

In the event that the bank, after accruing the penalty, applied to the court for its recovery, together with the balance of the outstanding debt on the loan, then as part of the lawsuit You must apply in writing to the court to reduce the penalty. At the same time, it will be useful to attach to the application your letter to the bank with a request to reduce the penalty, which remained unsatisfied or unanswered (if you sent it).

To substantiate your petition to reduce the penalty in the text of the petition itself, you should pay the attention of the court to:

• the absence for the bank of any serious consequences resulting from the existing delay in repayment of the loan. Despite the provisions of Article 330 of the Civil Code of the Russian Federation, which state that a penalty is charged for the very fact of a breach of obligations (and the bank does not need to prove the infliction of losses on it), it is important to note that the amount of the penalty in any case must be reasonable. In the event that the penalty charged by the bank is huge, and there were no serious negative consequences from the delay in repaying the loan, then there is every reason to believe that the amount of the penalty of 0.3%, 0.5%, etc. manifestly disproportionate to the consequences of the breach of obligations;
• the ratio of the penalty charged by the bank andrefinancing ratesCentral Bank of the Russian Federation. If the amount of interest accrued by the bank is, say, 0.3% for each day of delay, then this will be over 100% in terms of annual interest, despite the fact that the refinancing rate of the Central Bank of the Russian Federation is several times lower. All this allows us to say that the amount of the penalty required by the bank makes it possible not only to compensate the bank for its losses (if any), but also to receive a significant income. In some situations, such income may exceed the bank's benefit from receiving fees for using the loan. So, for example, a loan on which a debt arose could be issued by a bank at 20% per annum, and the amount of the penalty accrued by the bank when converted to annual interest is more than 100%. As a result, it becomes obvious that when collecting debt on a loan (taking into account the accrued interest for using the loan), as well as penalties for violating the loan repayment period, the bank's income from the received penalty will be higher than the income from the issued loan.
• the ratio of the amount of debt outstanding on the loan and the amount of the penalty accrued by the bank. In the event that the amount of debt on the loan is small, and the amount of the penalty accrued by the bank is several times greater than the amount of the debt, then it is worth saying that the recovery of the penalty after the fact allows the lender to receive income that significantly exceeds the benefit that was expected for him during the normal execution of the loan agreement ;
• an unreasonably long period of time during which the bank "draged" to go to court with a claim for the recovery of debt on the loan and a penalty for violating the terms of repayment of the loan. Despite the fact that the bank has the right to go to court at any time within the statutory limitation periods, it is worth paying the attention of the court to the above circumstance. In addition to this, it is important to note that since the loan agreement provides for a significant penalty, and the bank delayed filing a lawsuit for no apparent reason, this is most likely due to the bank’s desire to recover not so much the amount of the debt as a huge the most from the collection of a penalty is a significantly larger income than what was provided for by the loan agreement;
• Your difficult financial situation as a debtor, poor health, requiring expenses for treatment, the presence of dependent minor children and / or other disabled persons and other similar circumstances.

  These circumstances can help convince the court that the violation of the terms of the loan repayment and the petition for a reduction in the amount of the penalty declared in the course of the trial are due to some objective circumstances and are not the result of the debtor’s bad faith and / or his desire to “annoy” the creditor;

• etc.

The application for a reduction in the amount of the penalty is not a 100% guarantee that the court will satisfy it. At the same time, it is important to note that if the court refuses to reduce the amount of the penalty without any justification, then the corresponding court decision has the meaning appeal in the manner prescribed by law, in order to try to get a reduction in the penalty in a higher court.

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