3 questions to smart minds

Revocation joker and processing fee for loans

For this 3 questions to Dr. Michael Zoller

Wirsing Hass Zoller Attor­neys at Law
Photo: M. Zoller | W. H. Z.
11. March 2015

In 2014, the Fede­ral Court of Justice (BGH) start­led credit insti­tu­ti­ons and borro­wers alike with two ground­brea­king decis­i­ons. On the one hand, it ruled that flat-rate proces­sing fee clau­ses in consu­mer contracts can be inva­lid, in which case proces­sing fees can be reclai­med. On the other hand, it has given borro­wers the so-called “revo­ca­tion joker”: By rely­ing on forms that alle­gedly deviate from the legal requi­re­ments, custo­mers are suppo­sed to be able to escape long-term fixed inte­rest rates even a long time after the loan has been valued. This trig­ge­red avalan­ches of custo­mer complaints, parti­cu­larly at the turn of the year 2014/2015.

For this 3 ques­ti­ons to Attor­ney at Law and Part­ner at Wirsing Hass Zoller Attor­neys at Law in Munich

1. To which types of loan agree­ments is this BGH case law applicable?
The case law of the Fede­ral Court of Justice is based on consu­mer protec­tion law, which rest­ricts private auto­nomy. Since the legis­la­tor makes the gene­ral assump­tion that both the expe­ri­ence and the nego­tia­ting power of the profes­sio­nal market parti­ci­pant far outweigh those of the private end consu­mer, revo­ca­tion rights are prescri­bed in certain constel­la­ti­ons, the exis­tence of which must be correctly explai­ned to the consu­mer. Further­more, the consu­mer is protec­ted against unfairly disad­van­ta­ge­ous clau­ses in gene­ral terms and condi­ti­ons. The Fede­ral Court of Justice (BGH) has reco­gni­zed a conflict between the prac­tice follo­wed for many years and the statu­tory requi­re­ments, both in the area of revo­ca­tion instruc­tions and in the area of proces­sing fees, and has even turned away from its earlier case law in some cases.
2. Are there also chan­ces for profes­sio­nal borro­wers to invoke this case law?
Even if nume­rous lawy­ers try to apply this case law to loans that serve busi­ness or other produc­tive purpo­ses, the answer to the ques­tion is a clear “no”. Consu­mer protec­tion prohi­bits gene­ra­li­zing these ideas and pulling busi­ness loans or other loans made by profes­sio­nal borro­wers under this juris­dic­tion as well. This shall not be affec­ted even if the credit insti­tu­tion has inad­ver­t­ently used an incor­rect contract form. It is the content of the tran­sac­tion that matters, not the outward form. There is no revo­ca­tion for profes­sio­nal borro­wers. Any proces­sing fees paid also remain with the lender.
3. What dead­lines must be observed?
So far, the Fede­ral Court of Justice has only given clear guidance on the issue of proces­sing fees. All proces­sing fees paid up to 2011 can no longer be reclai­med today, unless measu­res to prevent the statute of limi­ta­ti­ons were taken by Decem­ber 31, 2014. As far as the revo­ca­tion issue is concer­ned, there are diffe­rent opini­ons. Howe­ver, one opinion that is gaining ground draws the customer’s atten­tion to the fact that legal peace must prevail in this area as well, i.e., revo­ca­tion rights cannot be exer­cised “until never-never day. Howe­ver, there are no clear legis­la­tive requi­re­ments in this regard; even the case law of the highest courts has not yet made a clear state­ment in this regard.

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