A recent ruling by St. Petersburg City Court undermines one of the major tenets of the market economy in the country, that is, citizens' confidence in the banking system. In Russia the fate of any multi-million dollar bank account now depends on the mood of clerks with a salary of $ 700. Judicial system and MDM Bank seam to tolerate careless and untrammelled dispose of fortunes, entrusted to the bank.
«No, you're a trickster!»
As we already mentioned earlier, in June 2011 Tamara Kostomarova appealed to Vyborgsky district court of St. Petersburg with a claim to the MDM-Bank. Once the legal department of the bank learnt about the impending trial, head of MDM Bank St. Petersburg branch Konstantin Haytovich did something that showed just how one of the largest Russian banks actually treats its clients.
He wrote three almost identical statements: to the Prosecutor of Petrogradsky district of St. Petersburg Dmitry Smirnov, to head of Main Directorate of Internal Affairs in Petrogradsky district of St. Petersburg Mikhail Chernyak, to head of the Main Directorate of Internal Affairs in St. Petersburg and Leningrad region Sukhodolsky. All three documents had a peculiar title: "On the fact of fraud by Ms. T.V. Kostomarova" Here are some quotes from these outstanding documents:
"On 6 January 2011 and 11 January 2011 in Kamennoostrovsky office of MDM Bank St. Petersburg branch prior to the expiration of the contract ... Mikhail Alekseyevich Kobyakov ... and Pavel Vyacheslavovich Krylov ... acting on behalf of Tamara Kostomarova based on the issued and notarized proxy letters demanded bank employees to pay out the deposit with interest reaching a total amount of 11,359,316 rubles ...
In these proxy letters notary public put a signature certifying that "the proxy letters were signed by Ms. Tamara Kostomarova in the presence of a notary who had established her identity and legal capacity”, and moreover, each of the notaries confirmed to the security service of the bank that the proxy letters were signed by Ms. Kostomarova in the presence of a notary, notarized by a notary and issued to Tamara Kostomarova, i.e. the presented proxy letters are legitimate and authentic.
Currently, Ms. T.V. Kostomarova appealed to St. Petersburg branch of MDM-Bank with the demand to pay out the deposit of 11 million rubles, and wrote a statement that on 11 January 2011 (prior to the expiration of the contract) she logged on to the bank's online Client-Bank service and when checking the status of her deposit she allegedly discovered the disappearance of funds amounting to about 11 million. Thus Ms. Tamara Kostomarova is trying to fraudulently obtain money for the second time. She is aware that the funds have been previously handed to her legal representatives Mikhail Alekseyevich Kobyakov ... and Pavel Vyacheslavovich Krylov ... that is, deposited funds have been received. The bank fully and properly fulfilled all its obligations ...
In accordance with Article 144 of the Criminal Code of the Russian Federation I am sending you relevant documents and asking to open a criminal case over fraud based on this letter under Article 159 of the Criminal Code... "
Konstantin Haytovich failed to mislead Petrogradsky district police leadership and the District Prosecutor's office. On 19 August 2011 Ozdoev, senior Petrogradsky district investigator, ruled to refuse the initiation of a criminal case on the claim filed by the head of MDM Bank St. Petersburg branch, explaining his decision in a wording undermining the baker's position:
"After studying the material presented ... I have come to the conclusion that there are no reasons for the decision to initiate a criminal case ... because the factual information contained in the statement by K.E. Haytovich, the head of MDM Bank St. Petersburg branch, have not been confirmed during a police check ... "
In fact, investigator Ozdoev worded his ruling in an official document so that he is very clearly saying that Konstantin Haytovich is lying. The banker was denied initiation of a criminal case based on paragraph 1 of Part 1 of Article 24 of the Criminal Code of the Russian Federation, i.e. due to absence of a criminal act.
But the head of MDM Bank St. Petersburg branch continued his attempts. On his orders, the bank's lawyers have tried to appeal to Moscovsky district court of St. Petersburg to recognize null and void a loan agreement that Tamara Kostomarova had concluded with a friend of hers after the disappearance of money she had deposited to MDM Bank. From the outset, the money was designated to pay for the medical treatment of her son, and since Konstantin Haytovich was not acting very gentlemanly, Tamara Kostomarova had to borrow five million rubles so that her child could have his next scheduled surgery in France. When filing her claim to the Vyborgsky District Court, Tamara Kostomarova also demanded to recover from MDM Bank one million rubles, which stood for the interest that she had to pay on the loan agreement. Apparently, it was to avoid paying this million that Haytovich decided to try to challenge the loan agreement in court.
However, MDM Bank suffered a crushing defeat in Moscovsky district court. Judge Yulia Ershova completely rejected the bank's claim with a very simple wording, though completely inconsistent with the image of any large credit institution: the court's opinion was that there was no reason to rule the loan agreement null and void. The only reason there was for such a thing was the desire of MDM-Bank leadership, which, fortunately, can not be considered evidence.
In fact, during the hearings the bank representatives used the most absurd arguments. For example, they tried to convince the court that in reality Tamara Kostomarova did not receive the money she allegedly borrowed, although there is irrefutable proof of her receiving the loan. Another thing representatives of MDM Bank tried to prove to the court was that Tamara Kostomarova did not provide evidence that the borrowed money was actually used for the treatment of her son, although common sense tells us that in this case it does not make any difference at all.
Nonetheless, after a humiliating defeat in Moscovsky district court, the leaders of MDM-bank were not going to give up.
Supporting the weaker party
In Vyborgsky district court of St. Petersburg representatives of MDM Bank desperately tried to prove that their bank fully and conscientiously fulfilled its obligations and that it was Tamara Kostomarova who was misleading everyone. In support of their position, they voiced the most incredible arguments that burst like a soap bubble after a handwriting examination that the judge ruled to be conducted on the proxy letters the criminals used to rob Tamara Kostomarova of her money.
The reasoning part of Vyborgsky district court decision says the following:
"In accordance with the conclusions of the expert ... handwritten surname, first name and patronymic "Kostomarova Tamara Vasilievna" and the signature in question made allegedly by Tamara Kostomarova on the proxy letters signed 20 December 2010 and 11 January 2011 registered by notaries E.V. Chistyakova and O.I. Ashkaulina are not authentic and belong to some other person ...
Based on the completeness, validity and reliability of this conclusion, the court finds that the arguments of the claimant that T. V. Kostomarova had not given the right of proxy, have been confirmed during case procedures ... "
Vyborgsky district court jugde Inna Novikova in ruling in favour of Tamara Kostomarova acted based on two other issues that are extremely important for all customers of Russian banks.
"Contract between the parties provides that the bank is not responsible for the consequences of the execution of transactions orders on the account that are issued by unauthorized persons, when in accordance with bank's rules and procedures under the agreement the bank could not establish the fact that persons placing the order have not been authorized to do so.
However, according to Art. 16 of the Law of the Russian Federation ... "On Protection of Consumer Rights" terms of the contract that shall infringe the rights of consumers as compared to the rules established by the laws or regulations of the Russian Federation in the field of consumer protection, are null and void ... "
And the second:
"Considering that in disputes between consumers and entrepreneurs the court shall protect the interests of the economically weaker party, that is, the consumer, the court comes to the conclusion that the execution of transaction orders on the deposit issued by unauthorized persons lies within the scope of risks of credit institutions, which provides legitimate grounds for satisfaction of claims in regard to the collection of the stated sums of money from the bank in favour of the consumer ... "
Vyborgsky district court dismissed some of the claims put forward by Tamara Kostomarova but satisfied the main ones by recovering from MDM Bank the amount of stolen deposit reaching 11,167,340 rubles, accrued interest in the amount of 2,776,959 rubles, a penalty in the amount of 1,740,296 rubles, pecuniary damages in the amount of 50,000 rubles, a penalty of 50% of the awarded amount reaching 7,842,298 rubles, and 151,000 rubles in court costs. In total, in accordance with the decision by the judge Inna Novikova, MDM Bank was required to pay Tamara Kostomarova more than 20 million rubles.
But suddenly the situation was turned the other way around by St. Petersburg City Court, where an appeal was submitted.