Today, almost every adult citizen has a bank account, and a bank card can be used to pay for almost any goods and services. Bailiffs should rejoice at the popularity of non-cash payments, for whom the bank accounts of citizens have become a convenient means of collecting debts.
Let us tell you about the cases in which banks can write off money from the client's account without his consent?
The grounds for debiting funds from the account are defined in Art. 854 of the Civil Code of the Russian Federation - in addition to the client's order, the withdrawal of funds in the account is allowed by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client.
If a citizen has a loan debt to the bank, and money was written off against him, for example, from a salary card, then it is worth looking into the loan agreement and see what is written in it. Most likely, it contains a clause on direct debiting of funds from any client's account as a loan debt. This provision is stubbornly included by banks in the loan agreement, despite the fact that it contradicts the Regulation of the Central Bank of Russia dated August 31, 1998 N 54-P "On the procedure for the provision (placement) of funds by credit institutions and their return (repayment)", in accordance with clause 3.1 of which there must be a written order for the debiting of funds from the borrower's accounts.
Rospotrebnadzor has repeatedly brought banks to administrative responsibility for including this clause in loan agreements, which infringes on consumer rights. The position of the Arbitration Court on this issue is similar. “Direct debiting of funds from clients' accounts in order to repay debt under a loan agreement is allowed only in relation to legal entities. Direct debiting of funds from the accounts of borrowers - individuals is not allowed,”- from the decision of the Arbitration Court of the Tver Region on the complaint of a commercial bank challenging the order of the Office of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare.
If the funds are written off in the absence of the grounds established by Art. 854 of the Civil Code of the Russian Federation, then the bank's actions can be appealed in court by filing a statement of claim according to the rules of Art. 131-132 Code of Civil Procedure of the Russian Federation.
Before going to court, it is worth filing a claim with the bank with the requirement to restore the funds in the account. Filing a claim will make it possible in court to collect from the bank, in addition to monetary funds and interest for their use, also compensation for moral damage and a fine in favor of the consumer in the amount of 50% of the awarded amounts.
To collect the debt, the bank must apply to the court with an application for the issuance of a court order or with a statement of claim for the collection of a debt on a loan. When applying, banks often ask the court to seize property within the amount of the debt, which is carried out on the basis of a court ruling that is subject to immediate execution. The seizure of account funds does not allow them to be disposed of, but does not entail their write-off, since the purpose of the seizure is to ensure future recovery.
The withdrawal of funds from the account is possible only by a court decision that has entered into legal force, or on the basis of a court order issued to the claimant, since in this case enforcement proceedings are initiated. It is within its framework that the bailiff has the right to issue a resolution on the foreclosure of funds on the debtor's account. The debtor has the right to appeal against the decision to the senior bailiff and (or) to the district court under Art. 441 Code of Civil Procedure of the Russian Federation.
In accordance with Art. 9 of the Federal Law "On the National Payment System", the bank is obliged to inform the client about the completion of each transaction using the electronic means of payment by sending the client a corresponding notification in the manner prescribed by the agreement with the client. Usually informing takes place by SMS or e-mail.
A citizen can find out on what grounds the funds were debited from the account by contacting the bank with a corresponding application. Banks are obliged to provide this information by virtue of Art. 10 of the Law of the Russian Federation "On Protection of Consumer Rights".
The bailiffs, in turn, must also inform the debtor that enforcement proceedings have been initiated against him. However, often this information does not reach the addressee, since the debtor does not live at the place of official registration, or the notification was sent by the bailiffs to the wrong address. However, you can always check your debts online in the database of enforcement proceedings on the website of the Federal Bailiff Service.
Federal Law 229 "On Enforcement Proceedings" (Article 101) establishes the types of income that cannot be foreclosed. This list includes, for example, child benefits. Monetary amounts paid as alimony, maternity capital funds, etc. cannot be collected either. A complete list can be found in the law.
However, it often happens that funds are debited from the account to which this money is transferred. The fact is that bailiffs, when levying execution on a bank account, do not always know exactly what funds are being transferred to it. Therefore, if the write-off affected income that cannot be foreclosed, then we advise you to contact the bailiff service to cancel it. You can also appeal the collection in court.
