31. Aug 16

Loan withdrawal to come before BGH again

While the right of withdrawal for real estate loans concluded between 2002 and 2010 is set to come to an end on June 21, the courts will continue to grapple with the subject of withdrawal beyond this date.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Following a change in the law, the so-called “ewiges Widerrufsrecht” [perpetual right of withdrawal] for real estate loans concluded between November 2002 and June 10, 2010 shall lapse on June 21, 2016. Notice of withdrawal needs to have been received by the bank or savings bank in question by this date. However, this does not mean that the legal disputes concerning the effectiveness of a withdrawal will have come to an end. On July 12, for instance, the Bundesgerichtshof (BGH), Germany’s Federal Court of Justice, will rule on the appeal (Az.: XI ZR 564/15) brought by a bank against a judgment of the Oberlandesgericht (OLG) Nürnberg [Higher Regional Court of Nuremberg].

In the instant case, the consumers had taken out a loan in 2008 and subsequently withdraw from this in 2013. The OLG Nürnberg held that the withdrawal had been effective (Az.: 14 U 2439/14). The Court justified its decision by stating that the guidance used by the bank concerning the right of withdrawal was flawed and withdrawal was therefore still an option. It went on to say that the wording pertaining to the withdrawal period was not sufficiently clear: this stated that the withdrawal period would begin “frühestens” (no earlier than / at the earliest) upon receipt of the guidance. Moreover, the bank could not rely on arguments relating to legitimate expectations, as it was said to have edited the respective standard guidance by adding the footnote “Bitte Frist im Einzelfall prüfen” (Please check the withdrawal period on a case-by-case basis). The Court ruled that this statement was likely to be misunderstood by consumers as well. It therefore concluded that withdrawal was still possible despite years having gone by since the loan was taken out.

The BGH must now rule on the bank’s appeal. That being said, there have already been a number of BGH hearings on the topic of withdrawal which have fallen apart due to the bank withdrawing its appeal at short notice or the parties reaching a settlement. This suggests that the banks wish to avoid a ruling by the BGH that would probably be in favour of consumers. It also shows that consumers generally have a good chance of achieving a successful withdrawal, provided that the guidance on the right of withdrawal was flawed or inadequate and notice of withdrawal is received on time by the bank before June 21, 2016. Lawyers who are experienced in the field of banking law can assist consumers in their efforts to withdraw.

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