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02/11/2020

Swiss Franc loans: can the bank request the refund of the loan?

SWISS FRANC LOANS:

CAN THE BANK REQUEST THE REFUND OF THE LOAN?

Until now, the jurisprudence of the Courts on this issue has appeared to be cautious. Recently, however, more and more serious considerations have emerged as to what may happen after a possible agreement is declared invalid.

District Court in Białystok (I ACa 447/17) dismissed the claim of the bank which, in the event of the cancellation of the loan agreement, demanded remuneration from the borrowers for using its capital. It was the first such sentence in Poland.

In our opinion, the judge rightly pointed out that the bank’s demand for remuneration for using the capital – while concluding that the invalidity of the contract results from the use of prohibited contractual provisions – is an attempt to obtain benefits at the consumer’s expense. Such a procedure would be contrary to the EU Directive 93/13.

In our opinion, the demand for remuneration for using the capital is unfounded, since the bank is the entity that introduced unfair provisions to the contract. If the aforementioned remuneration was awarded – the consumer would bear all the consequences of applying these prohibited contractual provisions in the contract.

It is difficult to draw far-reaching conclusions – but we can expect that further judgments in similar cases of Swiss franc loans will go in the same direction. This is certainly not good news for the banks.

No less important in this case are the considerations of the verdict concerning the commencement of the limitation period. The verdict clearly emphasized that this course should be counted from the loan disbursement, and not from the judgment annulling the contract. If the jurisprudence becomes established in this form – banks will not be in good positions. Most of the loans were launched in 2005-2008, so banks’ claims will be time-barred even with a ten-year limitation period (though bank has a three-year statute of limitations due to the fact that it is an entrepreneur).

So far, in our court cases, in the responses to the lawsuit prepared by bank representatives, we have not met with a claim for the return of capital to be set off, nor with a claim for remuneration for the use of capital. The only exception is the position presented by the attorneys of Santander Bank. In the case of loans granted by other banks, it is yet unknown whether or not the banks will submit a counter-claim after the judgment becomes final.

To summarize judges order the repayment of installments paid by clients in the last 10 years without deducting any amounts due to banks. In addition, judges annul the contracts and, consequently, no further installments are paid.

We will have to wait for a uniform jurisprudence tendency to emerge. In our opinion, everything is going in the right direction.

We encourage you to get acquianted with our offer regarding Swiss franc loan cases!