The Supreme Court will decide whether it is possible to make money from a bank’s mistake with the exchange rate

As Kommersant learned, the first dispute about Tinkoff Bank clients receiving benefits from currency conversion in February-March 2022 reached the Supreme Court of the Russian Federation (SC). The case of Ilya Filimonov was transferred to the civil collegium, demanding the return of €68.8 thousand written off by the bank, which the citizen earned through foreign exchange transactions. There are dozens of similar disputes with Tinkoff Bank alone, but judicial practice is contradictory. Lawyers disagree on whether the actions of citizens who took advantage of favorable conditions should be considered unconscionable. But everyone agrees that the bank, in any case, should have applied to the court to collect funds, and not write off the money without authorization.

For the first time, at the level of a civil board, the Supreme Court will consider a dispute between a bank and a client who made money on currency exchange against the backdrop of the collapse of the ruble exchange rate after the start of Russian military operations in Ukraine. We are talking about the case of Ilya Filimonov against Tinkoff Bank, UNIO Law Firm partner Maxim Salikov, who represents the interests of the citizen in the Supreme Court, told Kommersant.

In February-March 2022, a number of bank clients were able to carry out profitable currency conversion operations, making money on such exchanges.

For example, on February 27, 2022, you could buy dollars for 88 rubles. through intermediate conversion into pounds sterling, although with direct conversion the dollar cost about 150 rubles, and on the Moscow Exchange the rate reached 109 rubles, Forbes wrote in March 2022.

One of these citizens who received income from foreign exchange transactions was Ilya Filimonov. Since 2018, he had opened card accounts with Tinkoff Bank in US dollars and euros, and on February 27, 2022, he opened an account in pounds sterling. Then, on March 1 and 11, Ilya Filimonov made 96 currency conversion transactions, making money on the difference in rates.

On March 14, Tinkoff Bank announced that on February 27, March 1 and March 11, there were failures in the calculation of cross-currency rates, and bank employees mistakenly set incorrect conversion rates that differed from market ones. Thus, on March 11, in the bank’s systems, the euro exchange rate was 123 rubles. instead of 133 rub. (Central Bank exchange rate at that time was 132.9 rubles). As a result, the bank blocked Mr. Filimonov’s accounts and on April 19 wrote off €68.8 thousand received by the citizen from exchange transactions. The accounts were later unblocked.

The citizen demanded that the bank return the income from currency conversion, and after the refusal filed a lawsuit, insisting on the legality of his actions. The Odintsovo City Court of the Moscow Region satisfied the citizen’s claim, collecting another 2 million rubles from the bank in addition to €68.8 thousand. fine for violation of consumer rights and 10 thousand rubles. compensation for moral damage. The first instance found that “the transactions were carried out through the fault of the defendant,” and the bank froze the accounts without reason and wrote off the client’s money, so it must return them.

However, the appeal and cassation rejected the claim, explaining that the purpose of the citizen’s exchange transactions was not “to purchase the necessary currency”, but “to make a profit from the exchange rate difference due to an error made by the bank.” The courts considered this an “abuse of law.”

The bank’s actions to return unjust enrichment in the form of writing off the earned amount from the accounts were recognized as legal.

Ilya Filimonov filed a complaint with the Supreme Court, and the case was transferred to the civil collegium. The definition (available from Kommersant) contains arguments that attracted the attention of the Supreme Court. According to the applicant, the bank had no grounds for direct debiting of funds. In addition, the bank is “obliged to carry out the client’s orders” to carry out transactions on accounts, while “does not have the right to determine and control the direction of use of the client’s funds” and limit it in this.

In addition, according to the law on currency regulation, the bank itself determines currency exchange rates, “usually different from the rate of the Central Bank of the Russian Federation,” which are “publicly available to all consumers.” Having established the controversial rate, the bank made an “offer to an unspecified circle of persons,” which was accepted, including by Mr. Filimonov. In his opinion, the failure was not proven, and the courts did not explain what the abuse consisted of, how the client should have recognized the bank’s mistake and for what reason should he have refrained from exchange transactions. The board meeting is scheduled for March 12.

“We expect that the Supreme Court will prohibit banks from placing all the risks of currency conversion on their clients and shifting responsibility for mistakes made onto them,” Maxim Salikov, representing the plaintiff, told Kommersant. “We are waiting for a fair decision from the Supreme Court, based on a comprehensive study of the situation,” Tinkoff Bank told Kommersant. They explained that at the end of February and in March 2022, “against the backdrop of sanction pressure, the bank experienced short-term technical failures in the algorithm for calculating cross-currency rates, as a result of which some bank clients carried out closed chains of currency conversion operations at an incorrect rate and benefited from this profit”.

On average, 48 transactions were carried out, and the funds were eventually returned to the original currency “in order to increase the convertible amount,” the bank emphasized.

They believe that “such behavior obviously does not correspond to the goals and purpose of conversion operations”; in the absence of a failure, such actions of clients “would not make economic sense, since the currency sale rate is always lower than the currency purchase rate by banks.”

Kommersant asked large banks (Sberbank, GPB, Rosbank, PSB, MTS Bank, VTB and Alfa Bank) about their experience of such disputes with citizens, but received no response. Disputes between clients and banks over currency exchange rates have occurred in the courts, but before 2022 there were fewer of them, notes Anastasia Lysenko, senior lawyer at Yurtechconsult. In her opinion, the increase in the number of disputes involving citizens “is caused by significant fluctuations in exchange rates, as well as the spread of mobile applications of banks, which have made their services more accessible to a wide range of non-professional participants.”

There is no uniform practice in such cases, but disputes often end in favor of the banks, says Ekaterina Tokareva, partner of the Pen & Paper Bar Association. Thus, says Orchards advisor Azat Akhmetov, in 2017 Ak Bars Bank in court recovered from a citizen unjust enrichment that arose due to a technical error, due to which the wrong currency exchange rate was applied during conversion. And at the end of 2020, the Moscow Credit Bank, citing a failure, achieved the invalidation of exchange transactions and recovered the benefit received by the client, adds Mr. Akhmetov.

Disputes over incorrect currency exchange rates in the spring of 2022 arose specifically with Tinkoff Bank, dozens of whose clients went to court, demanding the return of money earned on conversion. The practice on these disputes is contradictory. The case of Ilya Filimonov is the first to be referred to the civil panel of the Supreme Court, so the position of the Supreme Court “will be decisive for similar disputes with Tinkoff Bank,” says Delcredere lawyer Egor Kovalev. “If the Supreme Court formulates a general rule in relation to such disputes, this decision will be practical for the industry as a whole,” points out Anastasia Lysenko.

“At its core, this dispute is similar to the recent case between Central Department Store and a citizen who, due to an error in the application, purchased branded goods at a significantly reduced cost,” says Azat Akhmetov.

In 2023, in a dispute between a consumer and TSUM, the Supreme Court sided with the citizen, considering that the risk of negative consequences due to a technical failure of the application should be borne by the store as the stronger party. Egor Kovalev admits that in the case with the bank, VS will express a similar position.

There is no consensus among lawyers about the legality of such consumer actions. Some people consider it wrong for citizens to enrich themselves from the technical mistakes of sellers. “When the consumer realizes that the offered price of goods or the exchange rate is inadequate, inflated and clearly erroneous, such a transaction cannot be valid and give rise to legal consequences,” explains Azat Akhmetov. In his opinion, if citizens obviously understood the incorrectness of the exchange rate and could compare it with the market one, then their actions constitute an abuse of law.

Other lawyers support the consumer’s side unless malicious intent has been proven. Anastasia Lysenko does not consider the client’s actions to be abuse, since it must be “a deliberately dishonest exercise of civil rights, when there is an obvious deviation of the actions of a participant in civil transactions from conscientious behavior.” Yegor Kovalev agrees with this: “The exchange rates were determined by the bank itself, and the client only performed legal transactions.”

“Since the bank itself sets the rules and organizes the site, it is logical to place responsibility for imperfect rules and failures on the site on it,” adds Ms. Lysenko.

In addition, Ekaterina Tokareva does not agree with the conclusion of the appeal that the purpose of currency exchange for an individual is to purchase goods, work or services with it, and not to earn money: “Currency exchange is quite often used to obtain benefits. If it is legal for a bank to receive a profit from exchange rate differences, then why is it unfair for a citizen to receive the same benefit?” She also admits that “a favorable rate during a complex conversion could not be a mistake, but an entrepreneurial miscalculation of the bank.” According to Anastasia Lysenko, in order to transfer risks to the client, he must be, for example, an employee of the bank itself, who took advantage of the situation, or a professional who makes money on exchange operations on an ongoing basis.

But in any case, lawyers consider it unlawful for a bank to write off funds from a client’s account without authorization. “If the bank considered the actions of a citizen to be dishonest, then it should have filed a lawsuit to recover funds, and not write off money from the client’s account without his consent,” says Mr. Kovalev. Azat Akhmetov believes that Tinkoff Bank should have filed a lawsuit to challenge the exchange transactions. As a rule, the basis for direct write-off is an overdue debt, notes Ms. Tokareva, “but unjust enrichment must be proven in court.”

Anna Zanina, Ksenia Dementieva