Even if a citizen has made money from errors in currency exchange rates, the bank does not have the right to write off income from the client’s account by default. A precedent-setting decision on this was made by the Supreme Court of the Russian Federation (SC) as part of the dispute between Tinkoff Bank and Ilya Filimonov. The Supreme Court emphasized that repeated currency conversion operations and making profits from them cannot in themselves be considered abuse. The bank will have to prove otherwise. The Supreme Court decision will have a “colossal impact” on practice, lawyers say. According to experts, it can motivate citizens to more actively take advantage of the mistakes of bankers, on the other hand, push the latter to revise the rules for the provision of services.
The Civil Collegium of the Supreme Court made a decision on the dispute between Tinkoff Bank and Ilya Filimonov, who earned €68.8 thousand on foreign exchange transactions in the spring of 2022 against the backdrop of fluctuations in the ruble exchange rate after the outbreak of hostilities in Ukraine. This is the first of a dozen similar disputes between the bank and clients that have reached the highest authority.
Tinkoff Bank explained to Kommersant that in February-March, due to “short-term technical failures,” some clients were able to make money by “currency conversion at an incorrect rate.” Having discovered this, the bank blocked the citizens' accounts and unilaterally wrote off the profits they received without authorization. Many of the clients then went to court, demanding a refund. Among them was Mr. Filimonov, who made 96 currency exchange transactions.
The practice in these disputes has developed differently. Mr. Filimonov lost his case – the appeal and cassation rejected his claim. According to the courts, “multiple transactions of the same type” indicate a “desire to take advantage of the bank’s mistake,” the client “abused his right” in order to obtain “unjust enrichment” and the bank lawfully returned these funds. But Ilya Filimonov filed a complaint with the Supreme Court. The case was transferred to the civil collegium, which on March 12 canceled the acts of appeal and cassation. The preparation of a reasoned decision by the Supreme Court took one and a half months.
The ruling of the Supreme Court board (available from Kommersant) notes that “the bank does not have the right to determine and control the direction of use of the client’s funds” or to establish other restrictions on the right “to dispose of funds at its own discretion.”
At the same time, the bank can independently determine foreign currency exchange rates, which is what the defendant did by placing “in the public domain a public offer for an indefinite number of persons to carry out transactions for the purchase and sale of currency.”
The established quotes “were available to all clients of the bank” and on these dates the plaintiff “could not purchase currency at a different rate,” the Supreme Court emphasized. Moreover, the performance of numerous transactions in a short period of time “in itself does not indicate abuse of law,” the panel recognized, and the burden of proving the opposite lies with the bank. And this may not be easy to do: it is unclear “how the plaintiff could recognize the presence of an error in the exchange rates established by the bank and due to which he should have refrained from making these transactions,” the Supreme Court admitted.
According to the panel, the unprofitability of transactions for the bank did not deprive the plaintiff of the right to make them, and in addition, the case lacks evidence of a “technical failure, since the defendant’s representatives themselves pointed out the errors of the bank’s employees when setting rates.”
At the same time, the bank “wrongfully wrote off” the funds “in the absence of an order from the plaintiff, a court decision and any other legal grounds,” the Supreme Court recognized.
The bank argued that the terms of the agreement gave it the right to write off customer debts without acceptance. However, it is unclear why the funds in the client’s account received on the basis of transactions are recognized as his debt to the bank, the Supreme Court noted. The panel also did not see any legal grounds for temporarily blocking the plaintiff’s account, nor did they see any reasons for the courts’ refusal to collect compensation for moral damages that the consumer requested. With these comments and clarifications, the case was sent for a new trial to the appellate court. Tinkoff Bank did not respond to Kommersant’s request. UNIO law firm partner Maxim Salikov, who represented the interests of Ilya Filimonov, welcomes the decision of the panel.
“The Supreme Court completely sided with the client on all points of the complaint,” explained Mr. Salikov. “A precedent has been formed that exchange rates published by the bank are a public offer, and when accepting a public offer, the bank’s client cannot abuse the right.”
“The decision of the Supreme Court will certainly affect the practice of resolving such disputes,” says Anastasia Lysenko, senior lawyer at YurTechConsult. “It is obvious that the influence of the position of the Supreme Court on similar cases of citizens with banks will be colossal,” confirms Orchards adviser Azat Akhmetov.
Delcredere lawyer Egor Kovalev emphasizes that “the bank clearly did not have the right to write off money from the client’s account in such a situation.” According to Ms. Lysenko, the bank should have gone to court to challenge transactions such as those made under the influence of a mistake, “but instead the attention of the courts was focused on consumer aspects and the integrity of the citizen.”
Azat Akhmetov calls the extrajudicial write-off of money instead of filing a claim against a citizen for the recovery of unjust enrichment “the main tactical mistake of the bank.” “This exposed the bank not as a victim of the actions of an overly enterprising client, but, on the contrary, as a villain who encroached on other people’s funds,” explains the lawyer.
In fact, the decision of the Supreme Court allows you to “perform many conversion transactions unprofitable for the bank, if you had no influence on the established exchange rates, which were the result of an error by bank employees,” explains Delcredere lawyer Egor Kovalev.
Whether the presence of a technical failure changes the situation is unclear; “the board, unfortunately, does not explain this,” clarifies Mr. Kovalev.
At the same time, Azat Akhmetov believes that “it is impossible to recognize as conscientious the behavior of a citizen who could not help but understand the inaccuracy of the exchange rate and took advantage of it, knowing that there would no longer be such a chance to earn money.” “Such behavior does not correspond to civilizational values, expressed in justice and honesty, and not obtaining benefits in any way,” the lawyer believes.
According to Mr. Akhmetov, the position of the Supreme Court “can be taken advantage of by unscrupulous persons ” “This creates the ground for consumer terrorism; perhaps there are already citizens who are looking for inconsistencies in corporate programs and trying to make a profit from them,” says the lawyer.
In this regard, the decision The Sun “may cause a revision of the internal rules of banks, especially those related to the provision of services through a mobile application,” believes Anastasia Lysenko. In particular, Egor Kovalev admits, contracts “may contain provisions on the bank’s right to write off funds received from clients’ accounts as a result of a technical failure, error or actions of third parties.”
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