Issuance of online loans: analysis of judicial practice
Issuance of an online loan. Now all business is being transferred online and microfinance organizations are no exception. While some of them moved online long ago, others are still extremely skeptical about online. We have prepared an analysis of court decisions that will allow us to independently form our own picture of possible risks and ways to minimize them.
Summary of Judgments *
1. The lender has issued a loan to a person with mental illness. The borrower went to court to invalidate the loan agreement. The court ruled that there were no grounds for declaring the transaction invalid since there was no evidence that the borrower had communicated to the lender that he had a mental illness.
2. The loan agreement was recognized as not concluded because the MFI did not prove that the phone and e-mail address belonged to the borrower (where the code (electronic signature) was sent to sign the agreement).
3. The plaintiff (MFO) did not provide evidence of the defendant’s actions to conclude a loan agreement, namely: the borrower’s entry to the MFO website, in order to obtain a password (access to the personal account), send an SMS message to the defendant with a confirmation code (simple electronic signature), the introduction of the specified code by the borrower into a special window (personal account). Consequently, the plaintiff did not provide evidence of the conclusion of a loan agreement with the defendant, which is why the loan agreement was declared not concluded.
4. Clause 10 of the Review of judicial practice of the Supreme Court of the Russian Federation No. 3 (2015), approved. By the Presidium of the Supreme Court of the Russian Federation on 11/25/2015, – the unilateral indication by the payer in the payment order of the loan agreement as the basis for payment in itself is not unconditional and exclusive evidence of the fact that the parties have concluded a loan agreement and is subject to assessment in conjunction with other circumstances of the case, to which may include the previous and subsequent relationships of the parties, in particular their mutual correspondence, negotiations, commodity and money turnover, the presence or absence of other contractual or non-contractual obligations, the defendant’s actions confirming the existence of loan obligations, etc.
5. Court decisions in which the courts considered the provisions of the agreement on the possibility of using an electronic signature for the relationship between the borrower and the lender.
5.1. The loan agreement was recognized as not concluded:
5.1.1. “The Rules for using the system“ Without a Bank ”(hereinafter referred to as the Rules), approved by the order of the General Director of LLC Settlement Center, indicate that an application for a loan is an offer (offer) of a borrower posted on the system’s website to conclude a loan agreement with any other registered user. The application is placed by the borrower under his unique name and password and is a document signed with an electronic signature.
According to section 4 of the Rules, the borrower selects the desired loan conditions from the list of standard loan conditions, taking into account the credit rating assigned to him. The borrower’s application is saved in the system database and becomes available to all system users with the creditor status. By placing an application for a loan, the borrower thereby makes an offer (offer) to conclude a loan agreement with any other registered user on the terms specified in the application, and expresses his consent (by putting a check in the appropriate field) that the lender who accepted the application , his personal data becomes available, containing the last name, first name, patronymic of the borrower, and in the cases specified in these rules, and other data of the borrower. The loan application is signed by the borrower with his electronic signature.
In accordance with section 5 of the Rules, the lender searches for applications in the system. By accepting an application for a loan posted in the system, the lender enters into a loan agreement with the borrower who posted this application, and agrees that the lender’s personal data containing the last name, first name, patronymic becomes available to the borrower. The loan agreement is concluded on the terms specified in the loan application. Applications accepted by the lender are available only to the lender who accepted these applications. An application accepted by the lender, for which a loan was not provided within 48 hours, becomes available for search to other lenders, and the loan agreement is considered not concluded. “
5.1.2. “In accordance with clauses 2.1, 2.2, 2.3 of the Rules for the provision of a consumer loan by Money Men LLC, located on the official website of the plaintiff, a client intending to receive a loan enters the site and, by filling out the form posted on the website, provides the lender with his phone number and email address. mail. Upon completion of filling out the application form, the client, by affixing the code received by means of an SMS message from the lender (simple electronic signature), signs the application form and consents to the processing of personal data, and also assumes other obligations contained in the document “Consents and obligations of the borrower “posted on the Site (clause 2.8 of the Rules).
When a positive decision is made to conclude a loan agreement with a client, the lender sends the client an offer containing the individual terms of the consumer loan agreement (clause 4.1 of the Rules).
Clause 4.3 of the Rules establishes that by accepting the offer, the client undertakes to return the loan amount and the interest accrued on it for using the loan in the amount and terms provided for in the offer.
According to clause 4.5 of the Rules, the offer is recognized as accepted by the client if, within 5 (five) working days from the date of the offer, the client: 4.5.1 signs the offer posted on the website, including the personal account, with a special code (simple electronic signature) received in an SMS message from the lender. In order to obtain a loan, the defendant entered the website of the Money Man MFC, familiarized himself with the Rules for the provision of a consumer loan, in confirmation of which he indicated a personal confirmation code received by an SMS message to the phone number indicated by him, after he registered on the website, entered his personal account, indicating login and password, formed an application form for a loan, indicating the loan amount, loan term, method of obtaining borrowed funds, provided personal information about yourself.
According to clause 1.1 of the offer for a loan *. This offer is recognized as accepted if, no later than 5 working days from the date of transfer of the offer to the company, Money Men LLC transfers the loan amount to the bank account specified in the offer (p. 8). “
5.2. The loan agreement is recognized as concluded:
5.2.1. “According to clauses 1.32, 3.3 – 3.5.2, 7.7 – 7.8 of the general terms of the agreement:“ electronic signature ”- information in an electronic document that defines in the system the borrower (and only him), who signs electronic documents in the system. The operator of the system is the lender, the conclusion of the agreement in terms of the general conditions means that the borrower has read the information, form, and rules for granting a loan and fully agrees with them, the lender’s system is programmed in such a way that without confirmation by the borrower of reading, understanding and accepting the terms of the form, he cannot use the system and receive loans, in order to obtain individual conditions, the borrower must fill out an application in the system and transfer it to the lender in the manner specified in the rules.
The proposed individual conditions are provided through the personal account and / or e-mail of the borrower and act as an offer within five working days from the date of submission. Individual terms and conditions cannot be changed by the lender during the term of their offer. During the validity period of the offer of individual conditions, the borrower’s requirements for providing him with general conditions are fulfilled by communicating the general conditions to the borrower on the website. If the borrower agrees with the individual conditions, he must, during the validity period of their proposal, sign them with an electronic signature and transfer to the lender, the individual conditions signed by the borrower are considered received by the lender immediately after registration in the system of the fact that the borrower signed them with an electronic signature, verification of the electronic signature by the lender is carried out by comparing the private key of the electronic signature applicable to the document and the characters transferred by the borrower to the system. The borrower checks the electronic signature by requesting the lender about the validity of the electronic signature, indicating the public key of the electronic signature. Verification of the electronic signature by third parties is possible only after the accession of such third parties to the information system of the lender by requesting the lender about the validity of the electronic signature with an indication of the public key of the electronic signature or without such accession in the event that the electronic signature is verified by the state bodies of the Russian Federation having the appropriate powers in in accordance with the legislation of the Russian Federation.
5.2.2. “According to clause 5.1.2 of the Agreement on Electronic Interaction (chapter 5 of the Rules for the provision of microloans by MigCredit LLC to individuals), when concluding a Loan Agreement using Electronic Documents, the Lender and the Borrower agreed on the following procedure for Electronic Interaction:
220.127.116.11. On the basis of the data specified by the Borrower in the Application Form, the Lender forms the Individual Conditions in the format of an Electronic Document, signs them with the TSA, and together with the General Conditions through the Website presents them for review to the Borrower.
18.104.22.168. If the Borrower agrees with the text of the Individual and General Terms and Conditions, he uses the Site to send a request to create an Electronic Signature and send it to his mobile phone number. The Borrower confirms that the mobile phone number specified in the Application Form is registered in the name of the Borrower and uniquely identifies the Borrower as the recipient of SMS messages. The Parties to the Electronic Interaction assume that the SIM card corresponding to the mobile phone number is in the permanent and legal possession and use of the Borrower.
22.214.171.124. The Lender, having received the Borrower’s request, sends a one-time password, which is an Electronic Signature, to the mobile phone number specified in the Application Form as part of the CMC message.
126.96.36.199. The Borrower enters the Electronic Signature into a special field on the Site, after which the Lender performs the Electronic Signature Authentication. In case of successful completion of Authentication for the purposes of Part 2 of Article 6 and Part 1 of Article 9 of Federal Law No. 63-FZ of 06.04.2011 “On Electronic Signature”, the Electronic signature of the Borrower is entered into the field “signature of the Borrower” of the Individual Conditions, which from this moment are recognized as equivalent document on paper, signed by the Borrower’s handwritten signature, and, accordingly, generate legal consequences identical to such a document “
6. The courts refused to satisfy the demand of the MFO to collect the debt from the borrower due to the fact that they did not prove the circumstances of the case:
6.1. The money was transferred to a current account that does not belong to the borrower, as a result – the court declared the loan agreement not concluded;
6.2. There was no agreement between the parties to the loan agreement on the use of the TSA and the bank did not provide evidence of who exactly received the money;
6.3. The loan agreement was signed with an EDS (by entering an SMS code), but the borrower provided evidence that the phone number was not registered in his name and the current account to which the borrowed funds were received was not opened in the name of the borrower;
6.4. The loan agreement was recognized as not concluded, since the borrowed funds were credited to the current account, and the bank provided a document stating that the borrower did not have open or closed accounts with the specified bank;
6.5. The borrowed funds were transferred to another person – namesake (S. Naumov) and the court recognized the loan agreement as not concluded.
“However, as follows from the answer of JSC” xxx “(p. 93), accounts, bank cards, credit agreements and other valuables addressed to Naumov S. S., xxx year of birth, registered at the address: xxx, in JSC” xxx “are missing. The account No. xxx specified in the request, opened for recording operations on the income card (agreement No. xxx from xxx), belongs to S. S. Naumov xxx year of birth, native of xxx, registered and residing at xxx. In support of which JSC “xxx” submitted an application for concluding an agreement on the provision and maintenance of a bank card of JSC “xxx” with attachments (p. 94-96) “
6.6. The lender did not prove that the e-mail address, phone number, bank account belonged to the borrower, which is why the agreement was declared invalid.
6.7. The court considered that the MFO did not provide the necessary evidence for the transfer of funds to the borrower, namely, the person to whom the borrowed funds were sent (the money was sent to Yandex.Money) was not identified.
6.8. The loan agreement was concluded, the money was transferred through the Contact Payment system, but the handwriting examination indicated that the signature on the payment order when receiving the money did not belong to the borrower, which is why the loan agreement was recognized as not concluded.
6.9. The court found that the phone number and bank card did not belong to the borrower, which is why the loan agreement was declared invalid.