Statement of claim for repayment of the loan servicing fee
In ____________ District Court of Almaty
The plaintiff: ____________
IIN: __________
address: __________
Severnaya St., 1
bodys: ____________
Representative by proxy:
Sarzhanov Galymzhan Turlybekovich
IIN: 850722301036.
Almaty, Medeu district,050002, Zhibek Zholy ave., 50, office 202, Business center Quarter.
info@zakonpravo.kz / www.zakonpravo.kz
+ 7 (708) 578 57 58
Defendant: JSC "_______"
address: _____________
BIN: _____________
Statement of claim
about the refund of the loan servicing fee/for maintaining a current account (loan account)
Between me, ____________ ( further – the Plaintiff, the Borrower), and JSC "_______" ( hereinafter referred to as the Defendant, the Bank) a bank loan Agreement was concluded No. _______ from _______ of the year, which is duly executed by me on a monthly basis in accordance with the Contract and Payment Schedules. According to subclause 3) of clause 5 of the said agreement, the loan servicing/current account (loan account) fee is 0.3% of the Loan amount, which is KZT 6,459 (six thousand four hundred and fifty-nine) 48 thousand tenge per month. The total amount of the loan servicing fee is 542,596 (five hundred forty-two thousand five hundred ninety-six) tenge 32 tiyn (at the rate of 6,459 tenge * 84 months) in the period from _______ to ______.
In early December 2018, I learned from the media that charging certain types of bank loan fees 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 they stop charging illegal fees. Next, I sent a letter to the Bank with a request to recalculate all the commissions received by the bank under the Bank Loan Agreement no. ______ of _______, and to credit all the received commission for servicing the loan/for maintaining the current account (loan account) to the repayment account of the contractual obligation.
However, the Bank refused me, arguing that the Bank Loan Agreement specified all these fees. However, in accordance with the legislation of the Republic of Kazakhstan, the terms of the contract should not contradict the Laws and other regulations of the Republic of Kazakhstan in accordance with paragraph 1 of Article 382 of the Civil Code of the Republic of Kazakhstan.
In this regard, Dear Court, I would like to note that, in accordance with Article 39 of the Law of the Republic of Kazakhstan "On Banks and Banking Activities", 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 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 on Banks.
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 (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. Moreover, the letter of the National Bank of the Republic of Kazakhstan dated 02/09/2012 also indicates violations committed by second-tier banks, the need to stop the practice of charging fees for maintaining a loan account and take measures to refund borrowers previously unlawfully withheld fees for maintaining a loan account under existing agreements. 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 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 setting a loan servicing fee by the bank is illegal, since loan servicing is not a separate banking service or operation, and the bank receives remuneration for the loan, which covers expenses, including those related to loan servicing.
Since this type of commission is not provided for by law and other regulations, the bank's actions to charge the borrower a commission for servicing the loan are regarded as illegal and violating the rights of the borrower. I would also like to inform you that starting from 07/01/2016, banks have the right to charge only those commissions for lending that are listed in the List of commissions related to the issuance and Servicing of a bank loan issued to an individual, approved by the Board of the National Bank dated 05/30/16 No. 134. There is no commission for loan servicing/for maintaining a current account (loan account) in the specified List, therefore, under bank loan agreements concluded on 07/01/2016, banks are not entitled to require it.
In connection with the above, Dear Court, I consider that subclause 3) of clause 5 of the Bank Loan Agreement no. ______ of ______ year contradicts the legislation. According to art. paragraph 1 of art.158 of the Civil Code, a transaction whose content does not comply with the requirements of the law, as well as a transaction made for a purpose knowingly contrary to the principles of law and order, is contested and may be declared invalid by a court in accordance with art. 161 CC 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 Clause 3 of art.157-1 of the Civil Code, if the transaction is invalid, 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 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, unless other consequences of the invalidity of the transaction are provided for by this Code. By 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.
In accordance with paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial practice of considering civil cases on disputes arising from bank loan agreements", when considering disputes arising from bank loan agreements, courts should be guided by the legislation in force at the time of the emergence of these legal relations. When resolving disputes arising from bank loan agreements, courts should carefully examine the terms of the bank loan agreement, which must comply with the rules binding on the parties, established by legislation (mandatory norms) in force at the time of its conclusion. Based on the above, in accordance with Articles 9, 272, 293 of the Civil Code of the Republic of Kazakhstan, 148 of the CPC of the Republic of Kazakhstan,
I ask the court:
To invalidate clause 3) clause 5 of the Bank Loan Agreement no. _______ dated _______ of the year concluded between JSC "_______" and ____________.
Collect from JSC "_______" in favor of ____________ on account of repayment of the principal debt under the Bank Loan Agreement no. _______ of _______, the amount in the amount of 542,596 (five hundred forty two thousand five hundred and ninety-six) tenge.
Collect from JSC "_______" in favor of ____________ on account of repayment of the principal debt under the Bank Loan Agreement no. _______ of ______ year, the amount of the state duty in the amount of 5,726 (five thousand four hundred and twenty-five) tenge.
with respect,
___________/ Sarzhanov G.T.
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