The courts challenge the foreign currency loans

26.11.2015 00:00
Articles about real estate | The courts challenge the foreign currency loans Borrowers are successful in challenging the courts of credit agreements linked to the exchange rate. Ukraine's Supreme spetssud partially sided with the borrower to the dispute under the contract with the pegged exchange rate, recognizing a binding illegal. This decision does not apply to a similar agreement, so lenders feel comfortable. Supreme Specialized Court of Ukraine in late October invalidated the currency peg to the loan agreement between the Company "Porsche Mobility" and the borrower. "The impugned transaction is concluded for the period of the ban on the provision of consumer loans in foreign currency, and therefore the conditions of the loan agreement on the definition of the currency of payment at the rate equivalent to the US dollar contradict h. 1, Art. 11 of the Law "On Protection of Consumers' Rights, that right is considered by the appellate court", - says the decision.

The court sent the decision to review the Court of Appeal of Zaporozhye region, which canceled the loan agreement. "The Court of Appeal did not indicate any provision of law contrary to the content of all of the credit agreement does not determine whether the impugned transaction is carried out without taking into account of the void," - said in it. Borrower borrowed 145.2 thous. UAH at 9.9% per annum for 60 months and it is necessary to understand how to return the debt.

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Legal Loophole

It prohibited foreign currency lending of the population in 2011, but leasing companies and finance companies affiliated with importers and developers, gave loans to the reference currency for the purchase of automobiles and real estate. The "Porsche Mobility" believe that their definition VSSU not recognize the loan agreement null and void, and only returned to the appellate court for reconsideration because nothing else is not specified after the word "uhvalila." In response to a request FinClub the company listed all the legal rules that prove them right. In particular, they believe that st.524 Part 2 of the Civil Code allows the parties to the agreement to determine the cash equivalent of liabilities in foreign currency. And the faithful of this provision is confirmed not only the decisions of courts in other litigation "Porsche Mobility", but also in the proceedings of other financial companies.

«Porsche Finance Group, in the case of the customer the choice of financing with the definition of equivalent obligations under contracts in foreign currencies are always warned of such client about the risks associated with possible fluctuations in the hryvnia to foreign currencies and thus to changes in the size of payments under the contract. In addition, since 2015, we offer credit and leasing as an alternative in the national currency ", - reported in the" Porsche Mobility. "

Leasing companies see no threats for their activities. "This is the judgment, we belong to the category of judicial incidents, which, unfortunately, we happen sometimes. Only "Porsche Mobility" 12 positive court decisions on peg, and the market in general there are hundreds, "- says the director of the Association" Ukrainian Union of Lessors "Marina Masich. A CEO "UniCredit Leasing" Larisa Chernysheva draws attention to the fact that the High Specialized Court overturned the decision is not just an appeal for recognition of the loan agreement null and void, but sent the case back for reconsideration in the same appeal.

At the same time receiving equipment leasing has not become popular among the population. "We do not work with private clients. Most of our portfolio is really in the currency, but we are mainly working with exporters, "- says CEO of" OTP Leasing "Andrew Pavlushin. His company plans to continue to give funding currency. "Next year we are going to finance the purchase of a $ 60 million", - Andrey Pavlushin promises. "Moreover, we have a formal credit does not provide, respectively, the loan agreements we have. We provide financial leasing, and the leasing contract with us, "- says Larissa Chernyshov.

Point set

Larisa Chernysheva recalls that in October 2014, the Supreme Court has confirmed that the conditions of the leasing agreement, which provides for an adjustment of the lease payments based on changes in exchange rates, laws. "The provisions of the legislation although it provides for the mandatory use of the currency of Ukraine in the implementation of the calculations, but do not include the prohibition of certain cash equivalent liabilities in foreign currency. Therefore, adjustment of the lease payments, which are based on changes in the exchange rate difference (change of the hryvnia against the dollar) is not explicitly prohibited, and do not contradict the current legislation of Ukraine ", - stated in the judgment.

Developers are cautious

Despite the fact that often the peg used in the sale of real estate in installments, the developers also do not expect a massive invalidation of contracts. "We give credit, because we have no right to lend. Each individual case is different. In theory, at any proceedings may be a reference to the decision, may draw an analogy. But to say unequivocally that for developers this decision will have irreversible consequences, can not be ", - said director of sales and marketing LCD RiverStone Angelina Derevleva.
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