Statement of claim for refund of commission from the bank
In ____________ District Court of Almaty
address: _____________
The plaintiff: _______________
IIN: __________
address: __________
bodys: __________
Defendant: JSC "_________"
address: _______________
__________
BIN: __________
Statement of claim
about the refund of the loan account maintenance fee
Between me, _______________( further – the Plaintiff, the Borrower) and JSC "_______________" ( hereinafter referred to as the Defendant, the Bank) a Loan agreement was concluded No. ____ dated __________ (hereinafter referred to as the Agreement), under which the Bank provided me with a Loan in the amount of 49,995 (forty-nine thousand nine hundred and ninety-five) US dollars, with an interest rate of 13.0% per annum. This Agreement is executed by me properly in accordance with the terms of the Agreement and the Payment Schedule. Clause ____ of the Agreement provides for a monthly commission for maintaining a loan account (hereinafter referred to as the CFS) in the amount of 0.1% of the Loan amount. Further in the same paragraph, it is stated that the above-mentioned commission amount is reduced to 25 (twenty-five) US dollars (0.05% of the Loan amount) if the Borrower is granted a Loan as an employee of the Employer specified in n ____ of the Contract. According to the Schedule for repayment of the loan amount and payment of remuneration under the Agreement, the amount of the CVSS is 24.99 US dollars per month.
By me in the period from __________ the city of po __________ The CCC was paid in the amount of 3323.97 (three thousand three hundred and twenty-three) US dollars 97 cents (based on 133 months *24.99$). In early June 201_, I learned from the media that charging a commission for maintaining a loan account was illegal, and that there were also relevant official letters from the National Bank of the Republic of Kazakhstan dated February 9, 2012, No. 667/206/740 and January 6, 2014, No. 67-2-14/1, addressed to second-tier banks, demanding that the practice cease. to charge a commission for maintaining a loan account and take measures to refund borrowers previously unlawfully withheld loan account fees under existing agreements. However, despite the requirements of the National Bank of the Republic of Kazakhstan, JSC "_______________" I continued to accrue CVSS until June 12, 2017. On June 28, 201_, I sent a letter to the Bank with a request to recalculate all commissions received by the bank under the Loan Agreement no. ____ from _________ of the year, and all received CVSS should be credited to the repayment of the principal debt. However, the Bank refused me, arguing that the Bank had refunded the amount of the CCC paid under the Agreement in the amount of 599.76 (five hundred and ninety-nine) dollars 76 cents to my current account opened with the Bank for the period from __________ G. by ___________; it is not possible to satisfy my request for a refund of the previously paid amount of the CVSS for the entire loan period, since the Bank assumed an obligation to the National Bank of the Republic of Kazakhstan only to stop collecting the CVSS, and the obligation to refund the previously withheld CVSS was not accepted by the Bank.
Due to the fact that between JSC "_________" and AO "_______________"__________ The transfer act was signed, and on January 16, 2019, I sent letter to JSC "_________" with a request to transfer the remaining amount of the CCC in the amount of 2,723.91 (two thousand twenty-three) dollars 91 cents to repay the principal debt. However, AO "_________" He also refused me, giving the same arguments as AO. "_______________"Due to the fact that between JSC "_________" and AO "_______________"_________ The transfer act was signed, and on January 16, 2019, I sent letter to JSC "_________" with a request to transfer the remaining amount of the CCC in the amount of 2,723.91 (two thousand twenty-three) dollars 91 cents to repay the principal debt. However, AO "________" He also refused me, giving the same arguments as AO. "_______________". I also sent a letter to theI also sent a letter to the National Bank of the Republic of Kazakhstan, and received a response in which the National Bank explained the illegality of charging the loan fee, since a loan account is a balance sheet (accounting) account, not a bank account; its opening does not relate to banking operations, therefore, charging for it is illegal. Since it was not possible to achieve a pre-trial settlement of this issue, I am forced to go to court. Dear Court, I would like to point out that in accordance with Article 39 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities" (hereinafter referred to as the Law), remuneration and commission rates, as well as tariffs for 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. According to subparagraph 1 of paragraph 1 of the Rules for the Provision of Banking Services and Consideration by Banks of Customer Requests Arising in the Process of PAccording to subparagraph 1 of paragraph 1 of the Rules for the Provision of Banking Services and Consideration by Banks of Customer Requests Arising in the Process of Providing banking services, approved by Resolution No. 19 of the Board of the Agency of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Organizations dated February 28, 2011, banking services are the implementation by banks, organizations engaged in certain types of banking operations, (hereinafter referred to as banks) of banking and other operations established by Article 30 of the Law.
By virtue of article 30 of the Law, banking operations include, among other things, accepting deposits, opening and maintaining bank accounts of individuals. 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 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 settleme 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. In accordance with paragraphs 1 and 2 of Article 718 of the Civil Code, unless otherwise provided by legislative acts of the Republic of Kazakhstan or the agreement, the borrower pays remuneration to the lender for the use of the loan item in the amounts determined by the agreement.
The protection of borrowers' rights from violations by banks, organizations engaged in certain types of banking operations, microfinance organizations and credit partnerships is ensured by setting the maximum amount of the annual effective remuneration rate, including remuneration, all types of commissions and other payments charged by the lender in connection with the issuance and servicing of the loan, and calculated in accordance with the procedure established by the legislation of the Republic of Kazakhstan. Thus, it followshus, it follows from the meaning and content of this provision of the law that the established remuneration includes all types of commissions and other payments charged to the borrower in connection with the issuance and servicing of the loan. It follows from the above that the establishment of a CCC by the bank is illegal, since maintaining a loan account is not a separate banking service or operation, and the bank receives remuneration for the loan, which covers expenses, including those related to maintaining a loan account.
Since this type of commission is not provided for by the legislation of the Republic of Kazakhstan, the bank's actions to charge the borrower with the CCC are regarded as illegal Since this type of commission is not provided for by the legislation of the Republic of Kazakhstan, the bank's actions to charge the borrower with the CCC are regarded as illegal and violating the rights of the borrower. In connection with the above, Dear Court, I consider that paragraph ____ of the Loan Agreement no. ____ dated _________ of the year contradicts the legislation of the Republic of Kazakhstan. According to paragraph 1 of Article 158 of the Civil Code, a transaction, the content of which does not comply with the requirements of the law, as well as a transaction made with a purpose that knowingly contradicts the principles of law and order, is contested and may be declared invalid by a court. In accordance with Article 161 of the Civil Code, the invalidity of a part of a transaction does not entail the invalidity of its other parts, if it can be assumed that the transaction would have been completed without including the invalid part. According to paragraph 3 of art. 157-1 CC in case of invalidity of the transaction, each of the parties is obliged to return to the other everything received under the transaction, and if it is impossible to return in kind (including when the received is expressed in157-1 CC in case of invalidity of the transaction, each of the parties is obliged to o the other everything received under thesaction, and if it is impossible to return in kind (including when the received is expressed in the use of property, work performed or services provided) - to reimburse the cost of the returned property, the cost of using the property, work performed or services rendered in money, if other consequences of the invalidity of the transaction are not provided for by this Code.
By virtue of Part 2 of Article 13 of the Constitution of the Republic of KazakhstBy virtue of Part 2 of Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to judicial protection of their rights and freedoms. According to Part 1 of Article 14 of the International Covenant on Civil and Political Rights (done in New York on 12/16/1966 and ratified by the Law of the Republic of Kazakhstan dated 11/28/2005 No. 91), all persons are equal before the courts, everyone has the right, when determining his rights and obligations in any civil process, to a fair and public hearing by a competent, an independent and impartial court established by law.
Based on the above, in accordance with Articles 9 of the Civil Code of the Republic of Kazakhstan, Articles 148, 149 of the Civil Procedure Code of the Republic of Kazakhstan,
I ask the court:
To invalidate clause ____ of the Loan Agreement no. ____ of ________ of the year concluded betw
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