Just before the so-called “ewiges Widerrufsrecht” [perpetual right of withdrawal] was set to lapse, a ruling of the Oberlandesgericht (OLG) Frankfurt [Higher Regional Court of Frankfurt] has given this get-out-of-jail-free card renewed momentum. In doing so, the OLG has once again aligned itself with consumers.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Not for the first time, the Oberlandesgericht Frankfurt am Main has aligned itself with consumers in the context of a legal dispute concerning withdrawal from a loan agreement. In its ruling of April 25, 2016, the 23rd Civil Division of the OLG held that the plaintiffs had effectively withdrawn from a loan agreement, thereby overturning a judgment of the Landgericht Hanau (Regional Court of Hanau).
The plaintiffs had taken out a loan agreement in 2008 and subsequently withdrew from this in 2014. The Division ruled that this withdrawal had been effective due to the fact that the guidance used regarding the right of withdrawal did not satisfy the legal requirements. Thus, it was said that the wording, the withdrawal period “beginne frühestens mit Erhalt dieser Belehrung” [shall begin at the earliest upon receipt of this guidance] was inadequate as per the settled case law of the Bundesgerichtshof, Germany’s Federal Court of Justice. The Court stated that it did not meet the requirement of clarity and was liable to mislead consumers. It went on to say that by using the word “frühestens” [at the earliest/no earlier than], it was not automatically clear to consumers when the withdrawal period would commence.
Moreover, the bank in question could not rely on arguments regarding legitimate expectations, as the applicable standard guidance had not been fully adopted but instead had its content revised. These revisions were said to be found in the section featuring the heading “Finanzierte Geschäfte” [Financed Transactions]. The Court also stated that the right of withdrawal had neither been forfeited nor improperly exercised. According to the OLG, the withdrawal had been effective and the loan agreement was to be rescinded.
Like various other Oberlandesgerichte [higher regional courts] before it, the OLG Frankfurt aligned itself with consumers in this ruling. This case law demonstrates that it is often possible to withdraw from a real estate loan concluded between 2002 and 2010 if the bank or savings bank made use of flawed guidance on the right of withdrawal, because the withdrawal period never commenced in these cases as a result of this and it is still possible today to withdraw from these legacy contracts.
Having said that, the legislature has set a limit to this perpetual right of withdrawal. It thus only remains possible to withdraw from legacy contracts until June 21, 2016. However, consumers are still able to take advantage of this period in order to withdraw from their loans and benefit from low interest rates. Lawyers who are competent in the field of banking law can assess whether the requirements for a successful withdrawal have been met.
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