Following the landmark judgment of the TEUJE in the Dziubak State and the determination of the annulment of the agreement linking them to Raiffeisen Bank, many borrowers decided to bring an action for the annulment of credit agreements against banks. Moreover, courts are increasingly taking into account the demands of borrowers.
Undoubtedly, good information for borrowers is that courts are increasingly willing to make provision to secure their claims. Although the courts have not yet issued provisions on the granting of a guarantee in franc matters, there is a clear change in this practice. Both the judgment of the TEU (issued on 3 October 2019), as well as the ruling of the Polish court in the case of the Dziubak State (cf. the District Court in Warsaw in judgment) dated 3 January 2020.
The obligation to pay the instalments of the loan to the bank shall be suspended for the duration of the court proceedings, if the party to the proceedings so requests.
Forms of safeguarding the interests of the party to the proceeding
The provisions of the Civil Procedure Code provide for various forms of protection of the interests of the parties to the proceedings.
On the other hand, the most common collateral for the borrower's claim is the cessation of the obligation for the borrowers to pay the instalments of the loan from the date of the provision of the security of the claim to the date of the final decision in the case.
In addition, the party to the proceedings may request that, at the same time, the court prohibits the defendant from making a declaration of termination of the credit agreement throughout the proceedings i.e. until the final decision on the case is final.
This means that the obligation to pay instalments of credit to the bank is suspended for the duration of the legal process (i.e. at least 2 – 3 years).
The alternative is to secure the bank accounts of the defendant to the amount of the borrower's claim. The court will be willing to apply this solution first of all if the borrowers have paid or overpaid the amount of capital made available to them by the bank on the basis of the contested credit agreement. Interestingly, there are no obstacles to the application to the court to apply both of the above-mentioned safeguards to the bank.
Without doubt, it is of particular importance for the court to secure the claim of the borrower, since the condition for granting it is that the claim is similar. Thus, if the court grants such a security, that fact indicates that it has found the action pending for annulment of the entire contract to be similar. Such a conclusion allows you to have more hope for a beneficial outcome for the borrower.
Request for a security
An application for a security may be lodged together with a lawsuit against the bank or in the course of an ongoing case. In that case, the borrower is not obliged to bear any additional court fees for the provision of the collateral. However, this request can also be made before the action against the bank is brought.
It is then necessary to pay a court fee of 100 PLN. It should be borne in mind that the application for a security requires that the claim is similar and that the legal interest in the provision of the security is demonstrated.
Assessment of the likelihood of a claim
The possibility of a claim requires evidence of the existence of grounds to assume that the claim in fact exists and to demonstrate the legal interest of the borrower. However, the way in which a claim is to be produced depends on the facts of the case. In cases relating to indexed/denomised loans, the Swiss Franc court will provide collateral first of all when it is convinced that there is a high likelihood that a claim for cancellation of the credit agreement will be taken into account by the court.
The fact that the claim is similar shall be assessed by the court before the decision on the security is taken on the basis of evidence to which, in principle, the documents accompanying such a request are attached.
The claim should be considered to be similar when the borrower demonstrates the correct basis for accepting that the claim exists and is due.
From the experience gained so far, it appears that the courts are sufficient to read the pleading itself and the documents attached to it to demonstrate the borrower's legal interest in so-called franc cases.
Deadline for bringing a lawsuit against the bank
It should be borne in mind that in the event of a security being granted before the opening of proceedings, the court shall set a time limit within which to bring a lawsuit against the bank. This period may not exceed two weeks. Where the borrower fails to file a claim within the prescribed time limit, the security shall be forfeited and the borrower shall continue to be required to regularly pay the instalments.
Although the action against the bank still recently was subject to considerable risk, there are real chances of winning such a case.
The reason for the different and at the same time beneficial to the borrowers, the position of the courts is, above all, the recently changing case law of the national courts, which increasingly issue judgments establishing the nullity of the CHF indexed/denomised credit agreement.
It should be stressed that, in my view, such a judgment constitutes a proper and complete regulation of the situation of borrowers.
Therefore, the borrowers now have a real chance of effectively pursuing claims against banks and declaring the contracts invalid. Moreover, it is worth considering a request to secure the borrower’s claim, as this eliminates the risk of loss of money as well as the difficulties in recovery for the future.