15. Dec 16

OLG Nürnberg: Flawed guidance on right of withdrawal in loans after June 10, 2010

As demonstrated by a ruling of the Oberlandesgericht (OLG) Nürnberg [Higher Regional Court of Nuremberg], flawed guidance on the right of withdrawal can also be found in real estate loans concluded after June 10, 2010. That means that it is possible to withdraw from these.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: It is still possible to play the get-out-of-jail-free card in relation to real estate loans that were taken out after June 10, 2010, as shown by a ruling of the OLG Nürnberg from August 1, 2016 (Az.: 14 U 1780/15).

In the instant case, a consumer had concluded a loan agreement in November 2010 and subsequently withdrew from this in July 2014. Like the Landgericht Nürnberg-Fürth [Regional Court of Nuremberg Fürth] before it, the OLG Nuremberg held that the withdrawal from the loan had been successful. It stated that due to the flawed guidance concerning the right of withdrawal, the withdrawal period had never commenced and withdrawal therefore remained possible even years after the agreement was concluded. For this reason, the loan was to be rescinded.

The OLG ruled that the information pertaining to the withdrawal period was not clear enough. It reasoned that the reference to the period commencing after the agreement had been concluded but not prior to receipt of all of the mandatary information did not enable the consumer to reliably determine when the period would commence. The Court held that apart from three types of mandatory information specified as examples, it was not clear from the consumer’s perspective how much and what mandatory information existed in relation to his contract that he still had to receive. As such, the OLG considered the circumstances to be similar to those in a case that came before the Bundesgerichtshof (BGH), Germany’s Federal Court of Justice. According to the latter’s judgment, wording indicating that the period would commence upon receipt of the relevant guidance at the earliest failed to properly inform the consumer about the commencement of the withdrawal period.

The fact that the substance of the standard guidance used was in line with the statutory template did not preclude the view that the consumer had not been sufficiently informed about the right of withdrawal, since the statutory template was said to be insufficient and only provided the maximum assistance possible. Moreover, the guidance used regarding the right of withdrawal did not sufficiently stand out.

These and other comparable errors are featured in the guidance of a number of loans that were taken out from June 11, 2010. In many cases, withdrawal is thus still an option and consumers are able to restructure their debts at historically low interest rates. Lawyers who are experienced in the field of banking law can assess whether the conditions for withdrawal are met.

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