The Supreme Court of the Russian Federation has ordered courts to assess the actions of credit institutions in terms of good faith, reasonableness and prudence when entering into loan agreements through a mobile bank.
The highest instance criticized the actions of the bank, which, knowing that its client was issued a loan from someone else's phone number, still demanded to recover the debt from her in court. At the same time, the Supreme Court notes that both the consumer and the bank itself were recognized as victims in a criminal case of fraudulent embezzlement of funds.
The gist of the matter
The Supreme Court of the Russian Federation considered a case on debt recovery under a loan and counterclaims of a bank client to recognize the contract as non-concluded: the credit institution considered that the borrower did not fulfill its obligations under the agreement, and the consumer claimed that she did not enter into the contract, but became a victim of cyber fraud.
A resident of the Samara region explained that an unknown person called the bank's hotline on her behalf, disabled the notification function from the mobile bank in her personal account, changed her phone number to a new one (which does not belong to her) and signed a loan agreement on her behalf. Moreover, the police opened a criminal case on this fact, and the defendant was recognized as a victim.
Thus, the victim points out, the bank's offer to conclude a loan agreement was not sent to her at all, and she, accordingly, did not give consent to its conclusion.
According to the materials of the criminal case, the unknown person called the bank's hotline, disabled the notification function on behalf of the defendant, reconnected the personal account of the mobile bank to another number, left a loan application and, after receiving a confirmation sms, took the money. At the same time, according to the investigative authorities, the fraudster stole not only credit funds, but also the victim's personal money in her account.
The case file also contains a certificate from the variety operator, who confirmed that the phone number from which the loan was issued changed six owners, but it was the defendant who never owned it. On the day of the incident, calls were recorded from Novosibirsk.
Court decisions
The court of first instance rejected the bank's claims in absentia and granted the client's counterclaim, but later the case was reviewed and the opposite decision was made: the credit institution's claim was fully satisfied, and the consumer's counterclaim was denied.
The court of First instance concluded that there were no violations on the part of the bank when opening a current account, executing a loan agreement, or debiting funds. The judge considered that since the instructions and documents were received by the bank on behalf of the defendant and contained correct data from the sms, they were lawfully accepted and executed by the bank.
In rejecting the counterclaim, the court of first instance proceeded from the fact that the preliminary investigation had not yet been completed and the court verdict had not established the criminality of someone's actions in granting a loan.
The court also pointed out that the mere initiation of a criminal case against unidentified persons does not yet indicate that the actions of the bank's client himself did not show signs of imprudent behavior in using his electronic signature and technical means with which he concluded the loan agreement.
The appeal and cassation instances agreed with this decision.
Sun position
Russian legislation provides for a scenario where civil rights and obligations are generated by illegal actions, and in such cases the contract may be declared null and void, the Supreme Court reminds.
This, in particular, is indicated in the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2019), approved by the Presidium on April 24, 2019.
"The conclusion of a contract as a result of fraudulent actions is an illegal act that encroaches on the interests of a person who did not sign the relevant contract, and who, in relation to Article 168 (paragraph 2) of the Civil Code of the Russian Federation, is a third party whose rights are violated by the conclusion of such a contract.
Thus, the contract concluded as a result of fraudulent actions is void, " the SUN clarifies.
The higher instance draws attention to the fact that the parties to the transaction must act in good faith, taking into account the rights and legitimate interests of each other, mutually providing the necessary assistance to achieve the purpose of the obligation, as well as providing each other with the necessary information (paragraph 3 of Article 307 of the Civil Code of the Russian Federation).
"In the case of remote execution of a loan agreement, a credit institution should take increased precautions, including the fact of submitting an application for a loan by the client and immediately issuing an order to the bank to transfer credit funds in favor of a third party (s)," the Supreme Court notes with reference to the position of the Constitutional Court (Ruling No. 13 of October 2022).2669-0).
He believes that in the present case the courts did not actually question the circumstances indicated by the defendant of entering into a loan agreement on her behalf without her participation, but for some reason still imposed on her the burden of paying for the loan.
Thus, the bank's client drew the attention of the courts that the phone number belonging to her was blocked at the time of loan processing, and according to the operator's printout, no outgoing calls were received from her number to the bank's hotline.
The credit institution itself explained that notifications with one-time passwords for entering the remote access channel of the mobile bank and issuing a loan were generated by the bank and sent to a new subscriber number, which was automatically re-assigned to the respondent after disabling the notification services to the number that was previously assigned to the client.
At the same time, the courts established and the parties did not dispute that the new subscriber number never belonged to the defendant. Thus, the court's conclusions on the conclusion and validity of the contract contradict the provisions of Article 153 of the Civil Code on a transaction as a voluntary act, the Supreme Court points out.
The courts also ignored and evaluated the fact that by the decision of the investigative police department, the bank was also recognized as a victim in a criminal case on the fact of embezzlement of funds, but the credit organization preferred to go to court with a claim for recovery of the stolen money from its client.
"These actions of the bank as a professional participant in these legal relations from the point of view of good faith, reasonableness and prudence when concluding a contract and performing obligations by the courts in violation of the above provisions of the law and its interpretation, no legal assessment has been given," the Supreme Court emphasizes.
The higher instance considers that the courts have committed significant violations of the norms of law during the consideration of this case, and therefore the Judicial Board for Civil Cases decided to send the case for a new consideration to the court of first instance.
The highest instance criticized the actions of the bank, which, knowing that its client was issued a loan from someone else's phone number, still demanded to recover the debt from her in court. At the same time, the Supreme Court notes that both the consumer and the bank itself were recognized as victims in a criminal case of fraudulent embezzlement of funds.
The gist of the matter
The Supreme Court of the Russian Federation considered a case on debt recovery under a loan and counterclaims of a bank client to recognize the contract as non-concluded: the credit institution considered that the borrower did not fulfill its obligations under the agreement, and the consumer claimed that she did not enter into the contract, but became a victim of cyber fraud.
A resident of the Samara region explained that an unknown person called the bank's hotline on her behalf, disabled the notification function from the mobile bank in her personal account, changed her phone number to a new one (which does not belong to her) and signed a loan agreement on her behalf. Moreover, the police opened a criminal case on this fact, and the defendant was recognized as a victim.
Thus, the victim points out, the bank's offer to conclude a loan agreement was not sent to her at all, and she, accordingly, did not give consent to its conclusion.
According to the materials of the criminal case, the unknown person called the bank's hotline, disabled the notification function on behalf of the defendant, reconnected the personal account of the mobile bank to another number, left a loan application and, after receiving a confirmation sms, took the money. At the same time, according to the investigative authorities, the fraudster stole not only credit funds, but also the victim's personal money in her account.
The case file also contains a certificate from the variety operator, who confirmed that the phone number from which the loan was issued changed six owners, but it was the defendant who never owned it. On the day of the incident, calls were recorded from Novosibirsk.
Court decisions
The court of first instance rejected the bank's claims in absentia and granted the client's counterclaim, but later the case was reviewed and the opposite decision was made: the credit institution's claim was fully satisfied, and the consumer's counterclaim was denied.
The court of First instance concluded that there were no violations on the part of the bank when opening a current account, executing a loan agreement, or debiting funds. The judge considered that since the instructions and documents were received by the bank on behalf of the defendant and contained correct data from the sms, they were lawfully accepted and executed by the bank.
In rejecting the counterclaim, the court of first instance proceeded from the fact that the preliminary investigation had not yet been completed and the court verdict had not established the criminality of someone's actions in granting a loan.
The court also pointed out that the mere initiation of a criminal case against unidentified persons does not yet indicate that the actions of the bank's client himself did not show signs of imprudent behavior in using his electronic signature and technical means with which he concluded the loan agreement.
The appeal and cassation instances agreed with this decision.
Sun position
Russian legislation provides for a scenario where civil rights and obligations are generated by illegal actions, and in such cases the contract may be declared null and void, the Supreme Court reminds.
This, in particular, is indicated in the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2019), approved by the Presidium on April 24, 2019.
"The conclusion of a contract as a result of fraudulent actions is an illegal act that encroaches on the interests of a person who did not sign the relevant contract, and who, in relation to Article 168 (paragraph 2) of the Civil Code of the Russian Federation, is a third party whose rights are violated by the conclusion of such a contract.
Thus, the contract concluded as a result of fraudulent actions is void, " the SUN clarifies.
The higher instance draws attention to the fact that the parties to the transaction must act in good faith, taking into account the rights and legitimate interests of each other, mutually providing the necessary assistance to achieve the purpose of the obligation, as well as providing each other with the necessary information (paragraph 3 of Article 307 of the Civil Code of the Russian Federation).
"In the case of remote execution of a loan agreement, a credit institution should take increased precautions, including the fact of submitting an application for a loan by the client and immediately issuing an order to the bank to transfer credit funds in favor of a third party (s)," the Supreme Court notes with reference to the position of the Constitutional Court (Ruling No. 13 of October 2022).2669-0).
He believes that in the present case the courts did not actually question the circumstances indicated by the defendant of entering into a loan agreement on her behalf without her participation, but for some reason still imposed on her the burden of paying for the loan.
Thus, the bank's client drew the attention of the courts that the phone number belonging to her was blocked at the time of loan processing, and according to the operator's printout, no outgoing calls were received from her number to the bank's hotline.
The credit institution itself explained that notifications with one-time passwords for entering the remote access channel of the mobile bank and issuing a loan were generated by the bank and sent to a new subscriber number, which was automatically re-assigned to the respondent after disabling the notification services to the number that was previously assigned to the client.
At the same time, the courts established and the parties did not dispute that the new subscriber number never belonged to the defendant. Thus, the court's conclusions on the conclusion and validity of the contract contradict the provisions of Article 153 of the Civil Code on a transaction as a voluntary act, the Supreme Court points out.
The courts also ignored and evaluated the fact that by the decision of the investigative police department, the bank was also recognized as a victim in a criminal case on the fact of embezzlement of funds, but the credit organization preferred to go to court with a claim for recovery of the stolen money from its client.
"These actions of the bank as a professional participant in these legal relations from the point of view of good faith, reasonableness and prudence when concluding a contract and performing obligations by the courts in violation of the above provisions of the law and its interpretation, no legal assessment has been given," the Supreme Court emphasizes.
The higher instance considers that the courts have committed significant violations of the norms of law during the consideration of this case, and therefore the Judicial Board for Civil Cases decided to send the case for a new consideration to the court of first instance.
