Statement of claim for recovery of loan servicing fees
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To the Medeu District Court of Almaty
The plaintiff: _____________________
IIN ____________________
city of Almaty, ________________
Representative by proxy:
Law Firm LLP
Law and Law"
BIN 190240029071
Almaty, Zhibek Zholy ave., 50,
office 202, Business center Block
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 727 978 5755; +7 700 978 5755
Defendant: JSC "____________________"
BIN ____________________
city of Almaty, ____________________
Statement of claim
about the refund of the loan service/organization fee
Between _______________________ ( further – the Plaintiff, the Borrower) and JSC "_______________________" ( Next – The defendant, the Bank) a bank loan agreement was concluded № _______________________ dated __ April 20__ (hereinafter referred to as Agreement 1) and Bank Loan Agreement No. _______________________ dated July __, 20__ (hereinafter referred to as Agreement 2), which were duly executed by the Plaintiff in accordance with the Agreements and Repayment Schedules. Subsequently, the loans under Contract 1 and Contract 2 were repaid ahead of schedule. In P. 1.5 of the Agreement 1 states that the Borrower pays the Bank a commission for the organization (issuance) of the loan in the amount of 3,274 (three thousand two hundred and seventy-four) tenge (monthly), which is included in the amount of the loan. In the repayment schedule for Contract 1, the commission is displayed in a separate column, and is payable by the Borrower on a monthly basis. As a result, the Plaintiff under Contract 1 paid a commission for the organization (issuance) of the loan in the amount of 137,508 (one hundred thirty-seven thousand five hundred eight) tenge. (Information about the loan received from the Bank is attached). In accordance with subclause 2 of 2 Contracts 2 loan servicing fee paid by the Borrower to the Bank (monthly) it amounts to 3,630 (three thousand six hundred and thirty) tenge. In the repayment schedule for Contract 2, the commission is also displayed in a separate column. Under Contract 2, the Plaintiff paid a loan servicing fee in the amount of 148,695 (one hundred forty-eight thousand six hundred ninety-five) tenge. (Information about the loan received from the Bank is attached). Recently, the Plaintiff learned from the media that the charging of fees by second-tier banks is illegal, and that there is also an official letter from the National Bank of the Republic of Kazakhstan addressed to second-tier banks demanding that the practice of charging illegal fees cease. The plaintiff sent a letter to the Bank with a request to recalculate all the commissions received by the bank under Contract 1 and Contract 2, and return all the commission received.
However, the Bank refused, arguing that the Borrower's loan obligations under Contract 1 and Contract 2 have been fulfilled in full, including all monthly payments, including loan servicing fees, have been recognized and repaid, and therefore the obligations of the parties under the Agreements have been terminated. Dear Court, The Agreements were signed by the parties with standard terms, any clarifications or discussions of the terms regarding payment of the loan servicing/organization fee under clause 1.5 of the Agreement 1 and clause 2 of the Agreement. 2 The Defendant did not perform 2 contracts, the Plaintiff did not violate the terms of the Contract, she did not know about the illegality of the commission when signing contracts due to lack of knowledge in the field of banking. In accordance with paragraph 1 of Article 178 of the Civil Code of the Republic of Kazakhstan, the general limitation period is set at three years. According to Article 39 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities", remuneration and commission rates, as well as tariffs for the provision of banking services, are set by banks and organizations engaged in certain types of banking operations independently, subject to restrictions established by the laws of the Republic of Kazakhstan. Thus, the basis for the commission fee should be a banking service, that is, a service for banks to carry out banking and other legally permitted operations.
Statement of claim for recovery of loan servicing fees
In this regard, the question arises: is the loan servicing/organization service covered by a bank loan service, or is it an independent type of banking service? Obviously, loan servicing/organization cannot be considered an independent type of banking service. Firstly, there is no such independent type of banking operations as "servicing/arranging bank loans". Secondly, banking services, like any other service, should be aimed at meeting any needs of the client (in this case, the borrower). This is consistent with the general rule of Article 683 of the Civil Code of the Republic of Kazakhstan, which regulates the contract for the provision of paid services in general.
However, in reality, the borrower does not receive anything for himself as part of this service. What is the practical meaning of "loan servicing/organization"? And it consists in the internal accounting of the loan issued, the correctness of its reflection in the balance sheet, the correct management of accrued amounts of remuneration, commissions, the remaining debt amounts - in general, in what the bank needs, but not the borrower himself. Hence, the latter have a reasonable question - what to pay for? According to Article 6 of the Law of the Republic of Kazakhstan "On Payments and Money Transfers", a bank account is a way of reflecting contractual relations between a bank and a client for accepting money and (or) banking services to a client; bank accounts are divided into current and savings accounts of individuals and legal entities, as well as correspondent accounts of banks. Accounts that cannot be used for transactions specified in paragraph 2-1 of this article, as well as accounts reflecting accounting positions in banks, personal accounts (subheadings) that are components of a balance sheet account, including loan (current) accounts, are not bank accounts. Thus, opening and maintaining a loan account is the responsibility of a second-tier bank to the National Bank of the Republic of Kazakhstan, and not to the borrower. This account is intended for the purposes of reflecting the borrower's debt on loans issued and is a method of accounting for funds, and does not relate to settlement transactions.
The borrower's loan account is not a bank account, and opening and maintaining such an account cannot be considered a separate banking operation. Further, Dear Court, the procedure for calculating such a commission is puzzling: in the court dispute under consideration, the commission for servicing/arranging the loan was set in monthly installments and depends on the amount of the loan. Even if we recognize the legality of charging such a commission, what is the rationale for calculating it? After all, the bank's expenses for the maintenance of the staff servicing the loan cannot depend on the loan amount in any way: the labor costs for a loan manager or accountant will be the same as for a loan of 1 million tenge, and for a loan of 100 million tenge. I will give one more argument in favor of evaluating these commissions as illegal. According to paragraph 8 of the Rules for Calculating Remuneration Rates in a reliable, Annual, Effective, comparable calculation (real value) for loans and Deposits (approved by Resolution of the Board of the National Bank of the Republic of Kazakhstan No. 137 dated March __ 20__), loan servicing payments should be included in the calculation of the effective interest rate, but only those that which are payable to other organizations (intermediaries). For example, if a bank uses the services of third parties for the purpose of issuing and servicing a loan, the amount of fees in favor of third parties must be taken into account in the GESB and this commission must be reflected in the bank loan agreement. I would like to emphasize that we are talking about a commission for a loan servicing service provided by a third party, but not by the bank itself. In the case under consideration, as can be seen, it is not a third party, but the bank itself that claims to receive a commission for servicing/arranging the loan, which, in my opinion, is unacceptable.
It follows from the above that it is illegal for the bank to set a commission for servicing/arranging a loan, since servicing/arranging a loan is not a separate banking service or operation and the bank receives remuneration for the loan, which covers expenses, including those related to servicing/arranging the loan. Due to the above reasons, charging fees for servicing/arranging bank loans seems to me illegal, the bank's actions to charge the borrower a commission for servicing/arranging the loan are regarded as illegal and violating the rights of the borrower. Moreover, as can be seen from the Contracts, the disputed monthly fees for servicing/arranging the loan were formally introduced by the Bank, only for monitoring incoming funds, that is, without performing any operations. Consequently, in accordance with paragraph 1 of Article 158 of the Civil Code of the Republic of Kazakhstan, the Plaintiff's claims for invalidation of paragraph 1.5 of the Agreement 1 and clause 2 of clause 2 of the Agreement 2 are reasonable.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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