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Andrei Vladimirovich is an entrepreneur and he owns a Technobank card. Thanks to the card account, men undergo various payments in large numbers. In May 2015, the man issued an overdraft, which was repaid in July of last year. But suddenly he received a call from the bank and said that he had a minus 385 rubles on the card. The Minsker began to understand why this happened.
– The overdraft was refunded on July 5, 2017, but I did not close the account, but I continued to use it, explains Andrei Vladimirovich. – On October 5, the employees of the bank called me and explained that I had a complaint. When I arrived at the bank, it turned out that on my debit card, there was a negative balance of 385 rubles 5 kopecks. It turned out that the debt was due to an "incorrect transfer of data on the funds balance on your bank card on July 5, 2017". You see, through this card account, I had various payments, so I could easily forget about the movement of the account in that amount. Unexpectedly, where does the debt come from? They offered me to pay back before October 26th.
What does the bank say?
Andrey Vladimirovich was several times turned to the bank and tried to find out why he had extra money on his account. That is what Technobank answered in one of his letters
"It was established that" due to a technical error in the bank's software, after the repayment of the overdraft, the funds of the bank were available, 2017, signed by the acting president of the council .- This fact is confirmed by the badysis of the statement on the settlement account, from where it shows that for the period from 11 July to 22 August 2017, you have actively carried out both replenishment and expenditure transactions, during which 903.46 Belarusian rubles were paid into the settlement account, while the expenditure transactions were carried out in the amount of 1,288.51 Belarusian rubles.Thus, you used the money in excess of the balance of your current account, resulting in a technical overdraft – unpaid balance of debts of the customer.
In this regard, you have arrears to Tekhnobank OJSC in the amount of 385, 05 Belarusian ruble, which is subject to return in accordance with the procedure and conditions established by the legislation (clause 7-1 of the law). instruction on the procedure to conduct transactions with bank payment cards approved by the resolution of the National Council The bank also referred to Article 971 of the Civil Code, which requires a person who without the grounds established by law or the transaction, to purchase at the expense of another person, to return to the latter unjustly acquired: "In accordance with Part 2 of Article 976 of the Civil Code, the amount of unjustified monetary enrichment is liable for the use of the funds of others in accordance with the procedure laid down in Article 366 of the Civil Code (at the amount of the refinancing on the day of o execution BLIGATIONS. – Note. Onliner.by) from the moment the acquirer learned or ought to have learned about the infidelity to receive money. "
What did the National Bank say?
Andrei Vladimirovich turned to the National Bank." The regulator explained what is the "unresolved balance" The definition in the first paragraph of paragraph 2 of the Instructions on the Procedure for the Execution of Bank Card Transactions approved by the National Bank Board Resolution January 18, 2013 No. 34.
The NCSP is the amount exceeding the customer account balance and / or the overdraft limit established by the agreement on the use of the bank payment card (the maximum amount of the loan granted by the issuing bank in accordance with the terms of the loan agreement) and the debt resulting from non-monetary payments made by the holder of the bank payment card, cash receipt in cash and foreign exchange transactions using the
– According to information provided by JSC Technobank, we believe that the debt under the current settlement bank account contract, the legitimacy of which you dispute, can be attributed to the NPLC, under repayment reserve to the issuing bank, – the regulator estimates. – The creation of the NCIP is conditioned by the submission by the issuing bank of the consent to conduct an operation the amount of which is knowingly greater than the maximum allowed, due to an error in the organization of the commercial process relevant to the issuing bank. At the same time, we consider that it is necessary for the customer to repay the amount of NPLC
The regulator also referred to Article 971 of the Civil Code, which was also mentioned by Technobank. In addition, the National Bank has attracted the attention of "Technobank" on the need to eliminate errors in the business process, because of which Andrei Vladimirovich was late.
What does Andrei Vladimirovich think?
Andrei Vladimirovich his arguments. He cites article 987 "unjust enrichment, not subject to return" of the Civil Code. According to clause 4 of this article, the unjustified enrichment is not refundable if money or other property has been granted in performance of a non-existent obligation if the Buyer proves that the person requesting the return of the property was aware of the absence of obligations
when the funds became available to me on the map, the bank had no obligation for the overdraft, – the man thinks. – There was only one contract for the maintenance of the card account. That is to say that at that time the bank knew that she had no obligation to me
The second point, emphasized by Andrei Vladimirovich, is the definition of overdraft under the current account agreement. On the basis of this agreement, the relations between the citizen of Minsk and the bank were built after July 5, 2017.
– The contract contains clause 4.1, which clearly states that "when using the the map, a technical discovery can occur. card, ie transactions made in accordance with the rules of operation of Visa International, without prior verification of the adequacy of funds for their conduct, or because of exchange differences in the event that the holder holds the account of the opera tions using currency cards other than the currency of the account ", etc., – shows the paper Andrey. – Notice, in the wording, there is nothing about the error of the bank. If to be exact in the formulations.
At the same time, the man says that he started correspondence with the bank not because he wants to keep his money. He says that returning such a sum for him is not a question. His position is different.
– I would like the bank to recognize its mistake and be ready to respond. Why did not they apologize, did not they answer that they understood the situation and corrected the mistakes? he request. – Why did I learn the mistake I made in July only in October? Why did the bank in an ultimatum demand the payment of arrears, and even with the position that sanctions can be applied to me in the form of interest? Moreover, why should I answer for the mistake of the bank alone, where there is a joint responsibility? Bank staff is to blame, and ultimatums and threats increase interests – me? Is not it reasonable in this regard to recover the funds allegedly lost by the bank, precisely from those who committed it? Well, or why the bank does not offer to incur liability with me, I would be satisfied even with 10% of the amount. But no, the bank is in a posture
What did the court say?
Finally, Technobank filed a complaint against Andrei Vladimirovich. He asked the customer to return 385 rubles 5 copecks, the benefit without accumulated interest. The first court won the bank. In the reasoned part of the decision, the Minsk Central District Court explained its position:
"The Respondent's arguments that the funds could be received by him in a debt settlement account were not confirmed when of the trial. On the basis of the statement on the account, the defendant carried out expenditure transactions in excess of the flow of funds, which, in the opinion of the court, was a technical error. In addition, the court considers the defendant's arguments that the employees of the bank who made a technical overdraft should bear the responsibility for the expense.
As a result, the court ruled that Andrey Vladimirovich should not only repay (5% of the claim) .The man filed an appeal in cbadation in the city court, but he also supported the previous decision, and now, the Minsker is thinking of appealing the decision in the supervisory order.
– It seems to me that in such cases we have loopholes in legislation, a form of formal approach [supportsAndreiVladimirovich- I would like the banks bear the responsibility for their mistakes …
The help of lawyers at the service "Onliner Services"
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