Repayment loan after revocation | Cancellation of the loan after revocation.
The BGH decides on the repayment after revocation
The Federal Supreme Court has confirmed in its recently published decision of 22.09.2015 Az. II ZR 116/15 again that the banks not only have to pay compensation for the use of interest and principal paid by the borrower but also 5 percentage points above the base rate. The Federal Court of Justice has also pointed out that it considers the question of the cancellation of loan agreements and the compensation for use of it.
This is a clear indication for courts that have previously enforced an “alternative” retroactive accounting. The Federal Court of Justice has thus refuted a large number of court decisions that have since been issued by courts of appeal, which have granted the borrowers only a limited compensation for their use. In some cases, only 2.5 percentage points, or even less, or only a portion of the borrower’s payments yielded interest.
These judgments are not tenable in the light of the case-law of the Bundesgerichtshof. On the contrary, the Federal Court of Justice upheld those courts which, according to the Federal Supreme Court, accepted a compensation of 5 percentage points for the total payments made by the borrower. Any further decision, which earns less than 5 percentage points on the basic interest rate or only a part of the benefits with less than convincing arguments, thus violates the case law of the Federal Court of Justice and offers the possibility of being lifted at the latest on appeal.
In its decision, the Federal Court of Justice also expressly refers to its judgment of 10 March 2009 Ref. II ZR 33/08. It is therefore assumed that the banks have received benefits in the order of 5 percentage points above the base rate for both borrower’s interest and principal payments. That this is not the case, the banks must provide the decisive evidence to the contrary.
A general lecture that allegedly little or no uses were made is not sufficient. They have to provide figures and prove that they have little or no advantage. Contrary to what some courts have said so far, it is not up to the borrower to prove that the banks have benefited.
The federal court has made it clear,
From now on, affected banks can no longer rely on the fact that there are still outstanding legal issues with regard to reversal and usage compensation. The federal court has made it clear that everything is clear on these points. Hopefully, the courts that have not yet followed her and have worked with unconvincing arguments, now follow the federal court.
With this decision, the Federal Court of Justice also unequivocally rejects a large number of irrelevant literature reports and considers their statements unconvincing arguments. However, in these literary statements, some banks in particular have been very keen to justify their position to the Court, and some have sometimes even taken this seriously.
The decision of the Federal Court of Justice of 22.09.2015 Az. II ZR 116/15, which has now been issued, clarifies the principles of settlement and which legal interpretations are essential and which are not. The Federal Court of Justice has not recently accepted the decay because of a revoked loan. Some major banks are currently using all means to prevent decisions by the Federal Court of Justice.
In view of a new law, which is due to enter into force by March 2016 and will retroactively destroy the right of withdrawal of borrowers from old credit agreements (end of the indefinite right of revocation from 2016), it is not easy for the borrowers concerned. Therefore, despite a large number of legal proceedings and pending appeals, the Federal Court of Justice is unlikely to make any or only a few decisions on the revocation procedure until the law comes into force.
The consequence of this is that the case law becomes legally binding, which is incompatible with the case law of the Federal Court of Justice, and other courts are impressed by these BGH-compliant judgments and also make wrong decisions. Due to the current legislative procedure and the possible foreseeable end of the indefinite right of withdrawal, the borrowers concerned should seek timely advice from experts as to whether they still have a right of withdrawal.