How to return pension savings if they were unlawfully transferred to a non-state pension fund. What should I do if I was transferred to a non-state pension fund without my knowledge? Illegal transfer to NPF
The Central Bank admitted that, despite the flow of complaints against NPFs during the transition campaign, it has no real opportunity to bring unscrupulous funds to justice. Russians can only resist their actions through the courts.
Investors at the NPF office (Photo: Maxim Kimerling / Kommersant)
The Central Bank is unable to effectively counteract fraud when transferring the funded pension of Russians from one pension fund to another. This follows from the response of the Central Bank to a complaint from a citizen of the Russian Federation on this matter (a copy of the document is at the disposal of RBC). The regulator has the right, but cannot administratively punish non-state pension funds (NPFs) for unlawful actions of their agents, the letter from the Central Bank says, since in the vast majority of cases the statute of limitations for the relevant offense has expired by this time.
A representative of the Central Bank refused to comment to RBC on the specific case in connection with which he responded to the complaint, but acknowledged the existence of a problem, as well as the fact that as a result, the affected owners of pension savings have only one option left - the court.
Outrageous campaign
According to the law, Russians can apply at any time to transfer their pension savings from fund to fund. At the same time, according to the results of the 2016 transition campaign, the Accounts Chamber, Russians “massively” discovered manipulations when changing pension funds: some remained in the fund from which, according to the applications submitted, they intended to leave, others were transferred to another NPF without their consent to this, others were not warned about the loss of investment income (this happens when changing funds more often than once every five years).
Many complaints in this regard were filed with the Central Bank. In 2017, the regulator received approximately five times more complaints based on the results of the transition campaign than in the three previous years, Interfax quoted Central Bank Deputy Chairman Vladimir Chistyukhin in the summer of 2017. Over the past year, the Bank of Russia received more than 8 thousand requests on this matter, a representative of the regulator told RBC.
If the documents on the change of non-state pension funds are recognized as fraudulent, the Central Bank considers the issue of bringing the fund to administrative responsibility, the Central Bank says in its response to the citizen’s complaint. However, in reality, the Central Bank cannot punish funds, since the period for bringing them to administrative responsibility, as a rule, expires before a citizen can prove that his rights have been violated.
Vladimir Chistyukhin (Photo: Stanislav Krasilnikov / TASS)
This is explained by the fact that the results of the transition campaign become known only after March 31 of the following year - within three months, the Pension Fund considers applications submitted during the previous year and makes decisions on them. And only after this, citizens, having received the appropriate notification, have the opportunity to detect manipulations with the funded part of their pension.
“With the existing procedure for transferring from fund to fund, both the citizen himself and his previous NPF often find out about the fact of transfer of pension savings too late, when the only way to defend their rights is to go to court. Unscrupulous funds or their agents are counting on this, given the reluctance of many people to start legal proceedings,” a representative of the regulator explained to RBC.
Limited by statute of limitations
In accordance with paragraph 20 of Article 36.2 of Law No. 75-FZ, NPFs are obliged to bear responsibility for failure to fulfill or improper fulfillment of their obligations under compulsory pension insurance by agents who must act on the instructions of the fund and under its control. “For this violation, Part 10.1 of Article 15.29 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability,” the Central Bank writes in its response to the complaint. However, Article 4.5 of the Code of Administrative Offenses of the Russian Federation limits the period for bringing the fund to administrative liability to one year.
The fund can only be held administratively liable by the regulator, and here the statute of limitations really plays an important role, points out Ivan Tertychny, partner at Tertychny Agabalyan. A false application to change NPF can be dated at any date, but a citizen will learn about it only after March 31 of the next year, he explains, and it is unlikely to be able to apply an administrative penalty for a period of one year - it will take more time to prove the fact of the offense .
In addition, there is a difficulty in applying the article on the responsibility of NPFs for the actions of their agents - this is the collection of evidence related to the fact that the signature on the application was indeed forged, a representative of the Central Bank told RBC.
Advisor to Saveliev, Batanov & Partners Radik Lotfullin notes that the Central Bank could apply other measures of influence on NPFs - for example, issue an order to eliminate violations of the law or even revoke a license for repeated violations of the requirements for dissemination, provision or disclosure of information during the year. “However, I am not aware of such precedents in Russian practice, when a license was canceled due to mass complaints from citizens,” he admits.
Complaints received from citizens in connection with the transfer of pension savings, as a representative of the Bank of Russia clarified to RBC, are forwarded by the regulator to law enforcement agencies.
To NPF through court
“The citizen still has the opportunity to demand through the court that the fund return his savings to where they were stored before. In this case, the Central Bank’s recognition of the statement as fraudulent will be a weighty additional argument,” adds Tertychny. Lotfullin agrees with him - the letter from the Central Bank can become important evidence that the plaintiff is right, but even it cannot guarantee the satisfaction of the claim.
If an agreement with a new NPF is discovered after a year, it must be declared invalid in court, after which a request to be written to the NPF to return pension savings to the previous insurer, a representative of the Central Bank explained the procedure for subsequent actions. “In addition, interest for the unlawful use of pension savings and funds aimed at forming the fund’s own funds, generated from investment income, must be transferred to him no later than 30 days from the date of receipt of the relevant court decision. Within the same period, the Pension Fund must be notified, which will make appropriate changes to the unified register of insured persons,” concluded the regulator’s representative.
SOLUTION
IN THE NAME OF THE RUSSIAN FEDERATION
July 4, 2014 Golovinsky District Court of Moscow
as part of the presiding judge Novikova E.A.
under secretary D.V. Mayorov,
Having considered in open court civil case No. 2-1801/12 at the claim of the Golovinsky interdistrict prosecutor of Moscow in the interests of A.A. Bukvareva. to the non-profit organization Non-state Pension Fund "Norilsk Nickel" on the invalidation of the agreement on compulsory pension insurance and the transfer of the funded part of the labor pension, court
INSTALLED:
The Golovinsky interdistrict prosecutor of Moscow filed a lawsuit in the interests of A.A. Bukvareva. to the defendant Non-Profit Organization Non-State Pension Fund "Norilsk Nickel" and asks to invalidate the agreement on compulsory pension insurance No. dated 02.12.2010, the parties to which are A.A. Bukvareva. and the Non-Profit Organization Non-State Pension Fund "Norilsk Nickel" and oblige the defendant to transfer the funded part of the labor pension to A.A. Bukvareva. to the Pension Fund of the Russian Federation.
The plaintiff motivates his demands by the fact that Bukvareva A.A. filed a complaint with the prosecutor's office about the illegal transfer of her pension savings funds from the Pension Fund of the Russian Federation to the Non-State Pension Fund "Norilsk Nickel", since she did not express the corresponding will, did not sign the agreement, she learned about the transfer of pension savings funds from the notification of the Pension Fund of the Russian Federation about making changes to the unified register of insured persons.
At the court hearing, the assistant to the Golovinsky Interdistrict Prosecutor of Moscow, M.K. Postavnicheva, acting on the basis of a power of attorney, supported the claim in terms of the requirements to invalidate the compulsory pension insurance agreement No. dated 02.12.10, explaining that she does not support the requirements for the defendant’s obligation to transfer accumulative part of the labor pension of Bukvareva A.A. to the Pension Fund of the Russian Federation, due to the transfer by the defendant on March 30, 2012. pension savings funds Bukvareva A.A. in the amount of 26,693 rubles. 23 kopecks to the Pension Fund of the Russian Federation.
Plaintiff Bukvareva A.A. was notified of the time and place of the court hearing, but did not appear in court.
The defendant, the non-profit organization Non-State Pension Fund "Norilsk Nickel", was notified of the time and place of the court hearing, but the representative did not appear in court.
The third party State Pension Fund of the Russian Federation, represented by a representative acting on the basis of a power of attorney, Rybnikova Yu.V., supports the claim.
The court, having heard the prosecutor, a representative of a third party of the State Pension Fund of the Russian Federation, acting on the basis of a power of attorney to Yu.V. Rybnikov, having checked and studied the case materials, comes to the following.
According to Part 2 of Article 1 of the Civil Code of the Russian Federation, citizens (individuals) and legal entities acquire and exercise their civil rights of their own will and in their own interest. They are free to establish their rights and obligations on the basis of the contract and to determine any terms of the contract that do not contradict the law.
In accordance with Part 1 of Article 166 of the Civil Code of the Russian Federation, a transaction is invalid on the grounds established by this Code, due to its recognition as such by the court (voidable transaction) or regardless of such recognition (void transaction).
According to Part 1 of Article 167 of the Civil Code of the Russian Federation, an invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment of its completion.
By virtue of Art. 168 of the Civil Code of the Russian Federation, a transaction that does not comply with the requirements of the law or other legal acts is void unless the law establishes that such a transaction is contestable or does not provide for other consequences of the violation.
In accordance with Article 160 of the Civil Code of the Russian Federation, a transaction must be concluded in writing by drawing up a document expressing its contents and signed by the person or persons entering into the transaction, or their duly authorized persons.
According to Part 2 of Article 434 of the Civil Code of the Russian Federation, an agreement in writing can be concluded by drawing up one document signed by the parties...
As established at the court hearing and follows from the case materials, Bukvareva A.A. was in a contractual relationship for compulsory pension insurance with the Pension Fund of the Russian Federation and had no intention of transferring the funded part of her labor pension to the Non-State Pension Fund “Norilsk Nickel”. However, according to the notification received by the plaintiff from the Pension Fund of the Russian Federation dated March 17, 2011, her pension savings were transferred to the Non-State Pension Fund Norilsk Nickel, based on the plaintiff’s application dated December 16, 2010. No. on the transfer of pension savings funds from the state pension fund to the non-state pension fund "Norilsk Nickel", as well as newly received pension savings funds reflected in the special part of the personal account No., in accordance with the agreement on compulsory pension insurance No. dated 02.12.2010. (ld. 5-6.17).
These circumstances are not disputed by the defendant; in the case file, the defendant Non-Profit Organization Non-State Pension Fund "Norilsk Nickel" submitted a certificate stating that, in accordance with the Notification of amendments to the unified register of insured persons dated March 15, 2012. No. of the pension savings fund of Bukvareva A.A. (No.) in the amount of 26,693 rubles. 23 kopecks transferred to the Pension Fund of the Russian Federation on March 30, 2012. included in the amount of 956288514 rubles. 08 kopecks, which is confirmed by the copy of payment order No. dated 03/30/2012 submitted to the case materials, and an extract from the register dated 03/30/2012. No. (serial number No.) (case sheet 52,53); in response to a request from the court of the Pension Fund of the Russian Federation dated June 19, 2012. No. that the pension savings funds of A.A. Bukvareva transferred by the non-profit organization Non-State Pension Fund "Norilsk Nickel" to the Pension Fund of the Russian Federation on March 30, 2012 in the amount of 26,693 rubles. 23 kopecks (case file 73).
According to Part 2 of Article 68 of the Code of Civil Procedure of the Russian Federation, recognition by a party of the circumstances on which the other party bases its demands or objections frees the latter from the need to further prove these circumstances.
Taking into account that the defendant does not dispute the plaintiffs’ arguments that Bukvareva A.A. did not sign the agreement on compulsory pension insurance No. dated 02.12.10, by virtue of Article 168 of the Civil Code of the Russian Federation, Part 1 of Article 167 of the Civil Code of the Russian Federation, the court comes to the conclusion that this agreement on compulsory pension insurance, the parties to which are Non-State pension fund - Non-profit organization Non-state pension fund "Norilsk Nickel" and Bukvareva A.A., is invalid, since during the trial it was reliably established that Bukvareva A.A. did not express its will to transfer from the Pension Fund of the Russian Federation to the Non-State Pension Fund "Norilsk Nickel" and transfer pension savings to it, did not sign an agreement with the Non-Profit Organization Non-State Pension Fund "Norilsk Nickel", and therefore the form of the transaction required by law was violated. The legal consequence of recognizing the agreement as invalid is the transfer by the defendant of pension savings to A.A. Bukvareva. to the previous insurer - to the Pension Fund of the Russian Federation.
Taking into account the fact established at the court hearing that the defendant transferred on March 30, 2012. pension savings funds Bukvareva A.A. in the amount of 26,693 rubles. 23 kopecks to the Pension Fund of the Russian Federation, to satisfy the requirements in terms of imposing on the defendant the obligation to transfer the funded part of the labor pension to Bukvareva A.A. application to the Pension Fund of the Russian Federation should be denied.
In accordance with Part 1 of Article 103 of the Code of Civil Procedure of the Russian Federation, the defendant is subject to collection of a state duty to the budget of the city of Moscow in the amount of 200 rubles, from which the plaintiff, by virtue of Clause 9 of Part 1 of Article 333.36 of the Tax Code of the Russian Federation, is exempted.
Based on the above, guided by Articles 194-198 of the Code of Civil Procedure of the Russian Federation, the court
DECIDED:
Invalidate the agreement on compulsory pension insurance No. dated 02.12.2010, the parties to which are the Non-state pension fund - Non-profit organization Non-state pension fund "Norilsk Nickel" and A.A. Bukvareva.
To collect from the Non-Profit Organization Non-State Pension Fund "Norilsk Nickel" a state duty to the Moscow budget in the amount of 200 rubles.
The rest of the claim is denied.
The decision can be appealed to the Moscow City Court by filing an appeal within a month from the date the court decision was made in final form through the office for civil cases of the Golovinsky District Court of Moscow.
Have you found a notification from the Pension Fund in your mailbox that your application has been approved and your pension savings have been transferred to a non-state pension fund? You didn't write any statements? It is likely that scammers did this for you. How to get your pension savings back if they were unlawfully transferred to a non-state pension fund?
If you have received such a notification from the Pension Fund and are sure that your pension savings were transferred to the NPF unlawfully or that you were misled, you must immediately contact the Pension Fund branch at your place of residence or place of actual residence. Pension Fund specialists will explain your rights to manage pension savings, including the transfer of pension funds back to the Pension Fund or Non-State Pension Fund of your choice.
You have the right to file a claim with the NPF to which your pension savings were unlawfully transferred. The text of the claim is drawn up in free form. The NPF is obliged to inform you on the basis of which your pension savings were transferred to this NPF. The NPF must have the original agreement with you on the transfer of pension savings.
You can write a complaint against the NPF to which your pension savings were transferred and send it to the Pension Fund through the online reception or by mail in a simple letter (119991, Moscow, Shabolovka St., 4, Department for Work with Citizens' Appeals) . You can also leave a complaint and get advice on further actions in the “Consultation Center” on the PFR website by calling the PFR hotline at 8 800 775-54-45.
At the same time, the Pension Fund of the Russian Federation reminds: your pension savings do not disappear anywhere. These funds are still in your individual personal account in the compulsory pension insurance system.
What's upWhat if your savings were transferred illegally?
To transfer pension savings back to the Pension Fund, no later than December 31 of the current year, you must contact the territorial authority with one of the following applications:
- application for transfer from a non-state pension fund to the Pension Fund;
- application for early transfer from a non-state pension fund to the Pension Fund.
It should be noted that the transition is carried out once every five years, and early transition can be carried out annually. In addition, the procedure for calculating the amount of pension savings to be transferred to the new insurer differs. A longer period for the insurer to manage pension savings is more beneficial for the insured person.
REMINDER!
If you were born in 1967 or younger and continue to form a funded pension, then you have the right to refuse to form a funded pension and direct the entire amount of employer insurance contributions to finance only the insurance pension. At the same time, all previously generated pension savings are preserved: they continue to be invested and will be paid in full when you become eligible to retire and apply for it.
In order to refuse a funded pension, you must submit a corresponding application to the territorial body of the Pension Fund at your place of residence.*
*if you have never submitted an application to the Pension Fund for choosing a management company or a non-state pension fund and have not become a victim of an unlawful transfer of pension savings, you do not need to submit an application to renounce your funded pension. It automatically stopped forming in 2016.
Popular methods of fraud involving the transfer of pension savings
Method 1
Agents of a non-state pension fund come to your work (or even home) (as a rule, they do not specify that they represent a private structure) and, appealing to non-existent provisions of the law, urge you to immediately transfer your pension savings - otherwise they will allegedly “burn out”, their “reset to zero”, etc.
What to do: if strangers come to your home, then at a minimum, you do not need to open the door. If for work, then refuse the offered services. If you are particularly persistent, call the police. Remember: employees of the Russian Pension Fund do not go home and your funded pension will not “burn out” or “reset to zero”.
Method 2
Very often, stores do not provide loans for the purchase of small equipment without consent to transfer pension savings to any non-state pension fund. They give different reasons: for example, without this it will not be possible to quickly obtain a loan.
However, there are often cases when people did not sign anything at all, but received “chain letters” from the Pension Fund of Russia. This happens when copies of your documents are taken during the loan application process. These copies fall into the hands of fraudsters who falsify the documents necessary to transfer funds, including your signature.
What to do: if one of the conditions for granting a loan is the transfer of pension savings, and you do not want to transfer them anywhere, we advise you to find another organization to apply for a loan. If possible, do not leave copies of documents in order to avoid fraudulent activities after applying for a loan. If you discover that your funds were transferred using forged documents (including your signature), be sure to contact the Pension Fund and law enforcement agencies!
Method 3
When preparing any documents (when receiving a loan, purchasing equipment, obtaining services, etc.), scammers do not give the entire agreement on the transfer of pension savings for signature, but only its second page. However, it is hidden in a pile of other papers and is not dated. After signing the required page, it is attached to the contract and scammers will be able to use such a document in the future.
What to do: There is only one piece of advice - carefully read everything you are going to sign. Only your own attentiveness will save you from the actions of scammers.
Method 4
Job seekers often turn to recruitment agencies for help in finding employment. Here they are faced with the unpleasant opportunity of transferring their pension savings. Fraudsters work according to two schemes: in the first case, the applicant signs an agreement, discreetly placed in a pile of papers; in the second case, the applicant is guaranteed a job if he transfers his pension savings to the desired NPF. As a rule, in neither case does a person get a job.
What to do: as with the previous method, only your own attentiveness can save you. If you are assured that you will get a job only after transferring pension savings, contact another recruitment agency that does not offer this kind of service.
If you find out that your pension savings have been transferred to another NPF without your consent, then you need to immediately contact the Pension Fund branch at your place of residence, according to the website of the Pension Fund of the Russian Federation.
The fund's specialists will explain how pension savings can be transferred back to the Pension Fund or Non-State Pension Fund.
Fraudsters are actively involved in transferring pension savings from one NPF to another. They submit additional applications for the transfer of pension savings to other NPFs during the year, after which they register the data in the general register of the Pension Fund of Russia. Some of these clients are rejected by the Pension Fund, and some are transferred to other independent pension funds, although the clients did not write statements about this.
How to transfer funds?
To transfer pension savings back to the Pension Fund, you must submit a corresponding application no later than December 31 of the current year to the Pension Fund branch at your place of residence (clause 3, Article 36.8 of Law No. 75-FZ).
To transfer pension savings from one non-state pension fund to another, you need to:
— Conclude an agreement on compulsory pension insurance with the selected NPF.
— Submit an application to the Pension Fund of the Russian Federation for a transfer (early transfer) from one NPF to another. Their forms were approved by Resolution of the Pension Fund Board of May 12, 2015 No. 158p.
The funds will be transferred in March next year. This year they can be transferred by writing an application to the court. The claim must be filed at your place of residence. It must indicate the requirement for the NPF to transfer funds back to the organization where they were located.
You can also file a claim with the NPF to which your pension savings were unlawfully transferred. In response to your complaint, the NPF must inform you on the basis of which your pension savings were transferred. A complaint against the NPF to which your pension savings have been transferred can be sent through the online reception desk of the Pension Fund of Russia or by mail in a simple letter (119991, Moscow, Shabolovka St., 4, Office for Work with Citizens' Appeals).
Does a NPF client lose pension savings?
The client will not lose his savings, but a funded pension that was transferred without his consent can only be returned by court.
“The prosecutor's office opens a case, and the person goes to court. If the court decides that the funds were indeed transferred illegally, then the person does not lose the money when transferring it back to his NPF. There are no automatic refunds. There is a practice of contacting law enforcement agencies,” says President of the National Association of Non-State Pension Funds (NAPF) Konstantin Ugryumov.
Thus, in order not to lose pension savings that were transferred without your knowledge, you need to:
— request a copy of the agreement from the NPF and a copy of the application to the Pension Fund;
— contact law enforcement agencies who will verify the authenticity of signatures on contracts;
- go to court to declare the contract invalid.
