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THE RESOLUTION OF THE PLENUM OF THE SUPREME SPECIALIZED COURT OF UKRAINE ON CONSIDERATION OF CIVIL AND CRIMINAL CASES OF UKRAINE

of March 30, 2012 No. 5

About practice of application by courts of the legislation in case of resolution of disputes, arising from credit legal relationship

(In edition of the Resolution of plenum of the Supreme specialized court of Ukraine of 07.02.2014 No. 7)

For the purpose of ensuring the correct and identical application by courts of the legislation which regulates credit legal relationship, plenum of the Supreme specialized court of Ukraine on consideration of civil and criminal cases of POSTANOVLYAET to make to courts such explanations:

1. Hearing of cases in the claims arising in case of the conclusion, providing, accomplishment and the termination of credit agreements and also in case of recognition by their invalid, shall be performed in strict accordance with the law and in the terms established for this purpose.

In case of the decision of such disputes courts shall proceed from provisions of Articles 41, of 42, 99 Constitutions of Ukraine, article 1 of the First protocol to the Convention on human rights protection and fundamental freedoms (RIM, 04.XI.1950), and also to consider that credit relations are settled, in particular, by Chapters 52, of 53, of 71 Civil code of Ukraine (further - group of companies), the laws of Ukraine: of December 7, 2000 No. 2121-III "About banks and banking activity"; of October 2, 1992 No. 2654-XII "About pledge"; of June 5, 2003 No. 898-IV "About mortgage"; of May 12, 1991 No. 1023-XII "About consumer protection"; of November 18, 2003 No. 1255-IV "About providing requirements of creditors and registration of burdenings"; of June 19, 2003 No. 979-IV "About mortgage lending, transactions with the consolidated mortgage debt and hypothecation certificates"; of July 1, 2004 No. 1952-IV "About state registration of the material rights to real estate and their burdenings"; The Decree of the Cabinet of Ministers of Ukraine of February 19, 1993 No. 15-93 "About system of currency control and currency exchange control" (further - the Decree about currency control) and other regulatory legal acts including published by the National Bank of Ukraine within the powers determined by the Law of Ukraine of May 20, 1999 No. 679-XIV "About the National Bank of Ukraine".

2. As in the disputes arising from credit legal relationship, the parties are both legal, and physical persons and taking into account requirements of Articles 15 - 16, parts two of Article 118 of the Code of civil procedure of Ukraine (further - GPK) in case of determination of judicial jurisdiction courts shall recognize that such cases are subject to consideration according to the procedure of civil legal proceedings if one of the parties is the physical person, and requirements are interconnected among themselves and their separate consideration is impossible. In particular, it can be claims of bank (other financial institution) to the physical person - the borrower and to legal litsuporuchitel or on the contrary, arisen from the same legal relationship - receipt of the credit.

The agreement of bail has additional (accessory) to the basic obyazatelstvucreditny agreement - nature and consists for ensuring accomplishment of the last, and the guarantor according to part one of Article 554 of group of companies answers to the creditor, by the general rule, solidary with the borrower if the agreement of bail does not establish its accessorial (subsidiary) liability. The impossibility of separate consideration of this agreements can be connected, in particular, with determination of outstanding amount, method of accomplishment of the obligation and other conditions of agreements.

At the same time, as presentation of the claim to solidary debtors is the right, but not obligation of bank or other financial institution (part one of Article 543 of group of companies), in case of presentation of the claim to each of them separately courts shall consider the competence of the courts determined by GPK concerning consideration of civil cases. In particular, the claim of bank (other financial institution) to the legal entity - the guarantor with involvement of the physical person - the borrower as the third party who does not declare independent requirements concerning matter in issue, is subject to consideration according to the procedure of economic legal proceedings.

3. In the presence in the credit agreement of arbitration caution (the free arbitration standing agreement) in case of dispute decision the court shall consider Item provisions 14 parts one of article 6 of the Law of Ukraine of May 11, 2004 No. 1701-IV "About reference tribunals" about what put concerning consumer protection, including consumers of services of bank (credit union), are not subject to consideration by reference tribunals. Therefore in the presence of the specified arbitration caution (the free arbitration standing agreement) of leaving of the action for declaration of the consumer without consideration based on Item 6 parts one of Article 207 GPK are inadmissible. Such statements are subject to the decision and in the presence about it the decision of reference tribunal made outside its competence. At the same time according to provisions of the Law of Ukraine "About consumer protection" the bank is not consumer.

The contract of the parties on transfer of dispute for consideration of reference tribunal in the cases provided by the law (Article 17 GPK), is not disclaimer on appeal to the court behind protection, and one of methods of realization of right of defense of the rights and interests.

4. The claims arising from credit legal relationship are shown in court by the general rules of cognizance determined by Chapter 1 of the Section III GPK.

At the same time the court shall consider the consumer's right to presentation of the claim also at the registered place of residence or stay of this person or in the place of damnification or agreement performance (Article part five 110 GPK).

The claims arising from activities of branch or representation of the legal entity can be shown also on their location (Article part seven 110 GPK), however defendant in case is the bank or other financial institution as the legal entity. The specified rule of territorial cognizance extends to claims of borrowers (consumers), but not to claims which are made by banks or other financial institutions concerning accomplishment of credit obligations as in this case rules of Article 109 GPK are effective.

Rules of Article 114 GPK about exclusive cognizance are applied to the claims arising concerning real estate (for example, the address of collection on real estate, the pledged mortgage property, transfer to the mortgage holder of the property right regarding mortgage, recognition of the agreement of mortgage invalid, etc.).

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