среда, 13 июля 2011 г.

What if the bank refused to return deposit

If you do not give contribution or give parts of it

Employee of Irina's furniture store for two weeks trying to win back their hard-earned $ 5,000 for one domestic bank. "Two days before the end of the deposit, I called the station and warned that the money will come. I was promised that they will order the required amount and it will be waiting for me at the box office, "- says the girl.

But when Irina came to the bank, she said: "This does not work, come back tomorrow." "So I went to aweek. Patience is exhausted, went to the head office to understand. He quite seriously said to me: "Currencies and the department is not in the next few days will not want to take away at the rate of UAH", - says the aggrieved depositor.

When the girl refused to take the national currency, the banker offered another option - the payment of the deposit part. "The" parts "means $ 100 a day! Now I go to the bank, both at work and completely get my money in the spring "- lamenting Irina.

How to act

In this case, lawyers are advised to act according to the following algorithm.

Step 1. Necessary to address a written statement to the bank to issue a deposit. Statement to register. This means that you must write two identical copies of the letter, and on the copy which will remain with you, the bank has put a mark incoming messages. This will be proof of receipt of the document. This is not a waste of time: if the case goes to court, you will be able to document that applied to the bank to issue a deposit. The absence of a written application for deposit gives bankers the right to assert alleged contributor expressed his desire this. So, they in no way guilty.

If the bank refuses to register a document, the statement is sent by registered mail with receipt. Notice of receipt of a letter will be proof that you sent a written request to the bank. In any case, is to preserve and copy. The Bank is obliged to respond to a written request from the client.

Step 2. If you come to a written refusal to issue a bank deposit or no response at all under the same scheme should file a complaint with the National Bank. Verbally complain to the regulator to a commercial bank can call (044) 2530180. In the same address and telephone number prompt local unit of National Bank, which is to write a letter of complaint.

True, the law firm partner, "Tarasov & Partners" Alexander Subbotin, said: "The attempt to file a complaint with the NBU will not lead to the desired result, because the regulator simply overloaded with complaints of investors."

Nevertheless, the NBU should complain. At a minimum, for three reasons. Firstly, the existence of written statements of their disagreement with the actions of the bankers will be an additional "trump card" in court. Second, the more complaints will come to a controller for a specific bank, the National Bank will soon deal with it. Do not complain about unfair bank in NBU, it's like to not tell the police on a pocket thief - let him go and he obvoruet others.

Oh, and, thirdly, about half of the "deposit" end debate on pre-trial stage and not always clear what played a role - a letter to the National Bank or simply serious attitude of the investor. But the fact remains. So use all the features necessary, especially those that are given to us free of charge.

Step 3. If a complaint to the National Bank did not lead to the desired result, you need to go to court and challenge the illegal actions of the bank. "Part 2 of Art. 1060 CC of Ukraine established that the contract of bank deposit, regardless of its type, the bank is obliged to give all or part of the depositor on demand ", - says Yuri Bauman. According to him, any restriction on the client's right to early receipt of his bank deposit is unlawful and illegal. The prohibition of NBU, in fact, limit the client's right to dispose of his property at his discretion, so the chances of winning the case, based on these arguments, the court almost 100% of HN.

But in this case, the lawyer said, is patience: litigation can last for months. But if lawyers are qualified enough, as a rule, the whole procedure is embedded in three months. The practice, however, shows that it can be completed and without trial. Many banks do not want to "defile his good name of" a competent and investor actions are to back down and return him the money.

Savings deposit made in urgent

Elena from Kiev opened a savings account in the national currency at a bank in the top five. Terms of the contract stipulated that she can withdraw money at any time. However, when a few days before the new year, Elena decided to pick up the accumulated, she refused. "I was told, they say, imposed a moratorium on all deposits and deposits to my prirovnyali, nothing in this case I'm not saying - says depositor. - This employee of the bank is very emotional to me talking. Convinced that all investors have long been signed to transfer money to a monthly deposit. And if I still linger, it will not be able to get the money in a month. "

Options that are offered to managers of financial institutions, there were two. The first - to transfer money from savings to checking account and pick them up in a month. The second - a higher rate of interest to put money on term deposit and again to get their hands on in 30 days. Elena agreed to the second option and signed the relevant agreement.

Comment

"By law, a unilateral change of contract terms is only possible if it is directly stipulated by the contract. Accordingly, if the bank has no right to change the terms of the contract, the contribution of change in status by amending the terms of the contract is also illegal," - said Alexander Subbotin. That Helen is simply taken "on the gun," a good first frightened her that if she does not sign the treaty, not soon be able to take part. If Helen had not signed the contract would remain funded through the moratorium and is not subject to .

However, some legal scholars believe that this is not the end of the story. "The depositor may apply to the court with a claim for recognition of such an agreement invalid on the grounds that the contract was concluded under the influence of error, fraud or due to difficult circumstances and to extremely unfavorable conditions (Articles 229, 230, 233, Civil Code)" , - said Vitaly Shigansky, a partner at the law firm "legal standard." The effectiveness of this strategy was confirmed by other lawyers interviewed by us. However, these articles are mainly on the Civil lawyers are focused, when defending the interests of older people because they are easier to confuse with the design contract. And the judges take that into account.

How not to get into a situation

Lawyers advised to carefully review the initial version of the agreement. After all, it can be laid right bank transfer deposit from the category of indefinite in term. And then you should not challenge the illegal actions of the bank, as part of the contract.

Do not sign any paper that offers you a bank without first consulting with a lawyer. If you have not signed up, and the contract provides for the modification only by signing dopsoglasheniya, all the changes the contract unilaterally illegal (Article 525 Civil Code). Even if you come to a notification by mail, your silence - no sign of agreement. "This rule does not change the rights and obligations unilaterally or in the past or the present time", - says Yuri Bauman, an attorney, the chief advisor on financial and legal issues of Ukrainian lawyers' association "Alliance".

If you are not satisfied with the option offered by the bank, but the managers of financial institution threatened not to return the contribution in general, impose its own terms, it is necessary to act on complaints of the algorithm described above up to the court.

Personal experience

Not in the interests of the bank to bring the case to court.

Natalia, Sales Manager, one of the capital of companies was able to get your deposit in the bank ahead of the top twenty. "We needed money for treatment of his grandmother, and we gathered all inquiries, please contact your bank. In the department to grant us the deposit was denied, citing the moratorium. Then the whole package of documents was sent to the board of the bank "- the woman said. According to the depositor, it is not nourished hopes that the bank will then return the money circulation. "We are waiting for formal rejection, with peace of mind to sue in court. When we came to write-off, we turned to the lawyers and those have helped to draw up an application, focusing just on our heavy circumstances, "- says Natalia. According to the depositor, two weeks after the first court hearing she received a call from a bank branch, where she designed the contribution, and was invited to take the money: "They said they came from the central office paper: to satisfy my request."

How to knock out the money from credit unions

When an insurance agent Victoria chose a way to preserve and increase the accumulated savings, and more banks liked the conditions in the credit union. "They said that the guarantee of a credit union," the same "as the banks. No we did not say that deposits in credit unions are not guaranteed by the state, "- says Victoria.

Two months ago, expired on deposit, and then another girl asked for their money and profit. "But I'm so straight and said, We do not know when you give away money. Perhaps - never. And you do not do anything to us, "- recounts the history of Victoria" Today. " According to the girl, the managers of the credit union referred to the charter institutions. They say that their main activity - issuing credit. But people do not return the loans, deposits and therefore can not be returned.

Victoria has already written two letters to the credit union. In one of them found out repayment terms. The answer was: as long as the complex situation in the country - is unknown. In another letter, she asked about the reasons for non-payment. The answer did not come until now. Victoria and hundreds of credit union depositors wait for a criminal case by the police under "Fraud".

Comment

"Unlike banks, credit unions do not attract deposits, and fees. It may be mutual membership dues and contributions to savings accounts. To attract the latter needs a license. If not, the COP may raise money under the guise of deposits, whereas in fact it will be more mutual contributions "- says an independent lawyer, Valery Timchenko. He also adds that, unlike bank deposits, the contribution to the CC there is no fixed timing and amount of income - they determine the general meeting of the COP.

In explaining to members of credit unions Financial Services Commission of 30.12.2008 says: share capital, which is formed at the expense of such deposits is the property of the credit union. Moreover, these tools can cover the losses of the COP. While the bank deposit - the property investor, it is specific and clear terms of return fixed income.

"The payment of an additional unit fee (which is" masked "under the" contribution "-" Today ") and the accrual of income on the additional Shares subject to compliance with the credit union relevant financial regulations and the absence of losses in the credit union" - the document says the state commission. That is, if the COP is unprofitable or not met other requirements for financial performance, money, "cried," it is legitimate.

And since the action of the Deposit Guarantee Fund does not apply to the COP, we guarantee the return of the contribution from the state to no one. And the state commission authority to make it back COP member union, no. It just may withdraw from the COP license for the provision of financial services, if any exists.

That is the situation with the credit union, which has invested Victoria, the motivation of the "other members of the CC does not return the loans" is justified only if the union under the guise of attracting deposits shares. And if it is a deposit, then a member of the COP, its loss-making should not be interested in, say lawyers.

What to do

If you suspect that you cheated, and was named the deposit is that it actually is not, in the Financial Services Commission recommend to contact directly to the court. According to the explanation of the commission, if the COP without a license, sign a contract with you, which shows a clear time frame and return a specific return on the contributions you, as a member of the credit union can apply to court for recognition of the work of the COP solicit contributions (contributions ) of the credit union to deposit accounts. The result of this lawsuit will be a recognition of the actions of the COP "sham transaction." "Roughly speaking, the court finds that the COP has attracted your money illegally, and will oblige to return savings. Nevertheless, no percentages, of course, can not speak "- explains Mr. Timchenko.

If the COP acted lawfully under the contract, but does not return the money, is first to file a complaint with the Financial Services Commission, which commits the violation. And probably will withdraw the license for financial services. However, the first fiddle in the "dislodging" of resources will still be playing court.

"If you do not want to sue at once, there is another way to collect the money - to terminate the deal early. Notice to the COP for 10-30 before. If the terms are not spelled out clearly, the Civil Code provides for the termination of the contract for 3 months ", - said Vitaly Shigansky.

However, as the NBU for the banks, the Financial Services Commission also issued a COP for a kind of "moratorium" on the issue of pre-term funds. "The ban can be circumvented by writing the statement of withdrawal from the Credit Union, as the Law of Ukraine" On credit unions ", when leaving the credit union, the last member is obliged to return money deposited, except for an entrance fee. However, it must be remembered that the day of termination of membership in a credit union shall be the date the general meeting of members of the credit union or credit union's Supervisory Board a decision ", - says Yuri Bauman.

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