money transfers - for example, if a client draws up a credit card and pays with it, the bank has the right to withhold a commission;currency conversion (exchange) - to pay for services on trips abroad, automatic conversion of funds is performed, which is also paid according to the tariffs established by the bank;cash withdrawals from other banks or credit cards;
documentary transactions - if the loan was issued to a legal entity, the bank may charge an additional fee for providing a bank guarantee for the payment of funds.
It would be illegal to write off banking transaction fees, which are an integral part of the main service, in order to obtain additional benefits. For example, lending is a core service. At the same time, the bank requires separate payment for such operations as consideration of an application for a loan, its provision, transfer of funds to the borrower's account, early repayment of the loan, opening and maintaining a loan account (a bank account for transferring loan funds is opened only for the duration of the loan agreement, therefore charging a commission for this is illegal), informing about debts, etc. These transactions are part of the loan servicing service, which the borrower pays for by making the necessary monthly payments. Therefore, it is reasonable to challenge the commission for such additional services.
The Bank of Russia - on the collection of commissions
In Information Letter No. IN-06-59/126 dated August 26, 2020, the Bank of Russia pointed out to non-credit financial institutions that it is inadmissible to charge fees for providing a consumer loan. It says that it is not allowed for the creditor to collect remuneration for the performance of duties assigned to him by the regulatory legal acts of the Russian Federation, as well as for the provision of services, if at the same time he acts in his own interests and a separate property benefit is not created for the borrower. The Bank of Russia believes that the transfer of the loan amount should not be considered as a separate service for which the lender may charge a fee, but is a necessary and accompanying condition for concluding a consumer loan agreement and arising obligations under it.
Thus, the deduction by a bank or other financial organization of a commission will be lawful only if two conditions are met:
the client has been provided with a service - in addition to that which is included in the terms of the loan agreement (loan agreement) and has already been paid;
as a result of the provision of the service, the client acquires a separate property benefit.
Courts - about charging commissions
The Bank of Russia in the letter mentioned above drew attention to the legal position of the Supreme Court of the Russian Federation set out in Ruling No. 80-KG14-9 dated December 23, 2014. The claim of an individual to invalidate the terms of the loan agreement, in particular, to collect a commission for issuing a loan, was considered. The courts of first and appellate instances dismissed the claim. They pointed out that the provisions on the establishment of the commission were spelled out in the loan agreement, with the terms of which the plaintiff was familiarized with signature, and referred to the principle of freedom of contract.
The Supreme Court did not agree with these conclusions. He noted: from paragraph 1 of Art. 16 of the Law on Consumer Rights Protection and Art. 168 of the Civil Code of the Russian Federation it follows that an individual borrower is an economically weak party and needs special protection of rights, and if the loan agreement concluded with him is a standard one, the terms of which are determined by the bank in standard forms, and the borrower is deprived of the opportunity to influence its content, then inclusion in such an agreement of conditions not provided for by the norms of the Civil Code of the Russian Federation violates the rights of the consumer.
Federation, a fee is charged for an action that is a service. At the same time, actions that do not create a separate property benefit for the borrower, not related to the conclusion of a loan agreement, are not a service as such. When deciding on the recognition of the creditor's action as a service, the Supreme Court decided to evaluate whether it is standard or additional. At the same time, standard actions should be understood as such actions, without which the creditor would not be able to conclude and execute a loan agreement (loan agreement). They do not constitute a service within the meaning of Art. 779 of the Civil Code of the Russian Federation, and the collection of funds for them is unlawful.
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