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04/22/2021

PRECAUTIONARY MEASURES IN A COURTCASE CONCERNING A CHF LOAN

The more difficult situation of the banking sector and the established jurisprudence regarding the invalidity of Swiss franc contracts make the courts more willing to agree to borrowers’ applications and suspend the repayment of loan installments for the duration of the process.

It may take several years for your case to be resolved legally. The precautionary measures make it possible to suspend the loan repayment obligation for the duration of the court proceedings.

The decision on the precautionary measures also allows you to find out what the preliminary view of the claim the court adjudicating in the case has. Pursuant to the provisions of the Code of Civil Procedure, the judge may grant precautionary measures for the duration of the proceedings in the manner it deems appropriate.

Usually in cases concerning CHF loans, the precautionary resolution consists of three elements:

  • suspending the obligation to repay the loan,
  • prohibition of terminating the loan agreement,
  • a ban on making entries in registers kept by the Credit Information Bureau,

In such a situation the bank is prevented from exerting pressure on the borrower.

The condition for granting the precautionary measures is proving that CHF loan claim is justified. This can be done, among others by indicating abusive clauses in the loan agreement, e.g. provisions referring to exchange rate tables maintained by the bank, violation of the principle of freedom of contracts or contractual balance.

The applicant must also demonstrate the existence of a legal interest in granting the precautionary measures. The condition is deemed to be met if the lack of security will prevent or seriously hinder the execution of the judgment or the lack of security will otherwise prevent or seriously hinder the achievement of the purpose of the proceedings.

So far, the courts have been reluctant to suspend the obligations of borrowers, indicating that there is no risk that the bank
will not comply. For this reason, the clients of banks in a more difficult financial situation (such as Getin Noble Bank SA) had bigger chance of obtaining precautionary resolution. The growing number of judgments annulling CHF agreements contributes to the change in the jurisprudence, which affects the functioning of the entire banking sector. The courts, sharing the position of the borrowers, also indicate that if the amount of installments paid exceeds the amount of the loan disbursed, the lack of security will make it difficult to achieve the purpose of the proceedings in the case, which is the declaration of invalidity of the contract (for example: District Court in Elbląg, I Civil Department at a closed session on September 10, 2020, file ref. No. IC 312/20).

An application for a security may be submitted both before and during the proceedings. In the first case, it will be subject to a fee of PLN 100.

However, it should be remembered that the precautionary resolution may turn out to be unfavorable to the borrower if the claim is dismissed. Therefore, an individual and comprehensive analysis of each case offered by our law firm is essential.