Loan withdrawal comes to the attention of the BGH
Another hearing before the Bundesgerichtshof (BGH), Germany’s Federal Court of Justice, concerning withdrawal from consumer loans has been scheduled for May 24 (XI ZR 366/15). The BGH will then have to rule on an appeal brought by a bank.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Three scheduled hearings before the BGH relating to withdrawal from loans have been cancelled to date, either because the parties agreed to do so at short notice or the bank withdrew its appeal. It remains to be seen whether the bank will pull out once again in order to prevent the possibility of the BGH delivering a consumer-friendly ruling. This assumption might particularly hold true given that the so-called “ewiges Widerrufrecht” (perpetual right of withdrawal) for real estate loans concluded between 2002 and 2010 is set to come to an end on June 21, 2016 and the intention is to avoid a landmark decision by the BGH on a point of principle in favour of consumers. For the time being, consumers can still brandish this much invoked get-out-of-jail-free card. Lawyers who are competent in the field of banking law can assess whether the conditions for this are met.
The case slated for May 24 in Karlsruhe concerns the withdrawal from loan agreements by consumers who had concluded various credit agreements in the years 2008 and 2009 and subsequently withdrew from these in June 2014. They seek to obtain a declaratory ruling stating that the loan agreements were terminated as a result of the withdrawal. Their legal action has already been successful before the Landgericht Stuttgart (Regional Court of Stuttgart) as well as the Oberlandesgericht Stuttgart (OLG) [Higher Regional Court of Stuttgart] (Az.: 6 U 41/15).
The OLG Stuttgart held that the withdrawal had been effective, pointing out that the bank had used guidance pertaining to the right of withdrawal which deviated from the standard guidance and in so doing made alterations to its contents. Moreover, the information relating to the commencement of the withdrawal period was said to lack the necessary clarity. Due to the flawed guidance on the right of withdrawal, the withdrawal period had never commenced, with the result that the withdrawal was still timely even years later. The Court went on to say that the deviations from the standard guidance also meant that the bank could not rely on arguments based on legitimate expectations, and that the right of withdrawal had not been forfeited or exercised improperly. The bank has since appealed this ruling and the BGH will now have the final say on May 24.