A loan repaid years ago? You can still recover some of the money

Free loan sanction and loans from the so -called old wallet. We talk with Agnieszka Sobczyk – a legal advisor at the Chancellery of Legal Advisers K&L Legal Granat and Wspólnicy about who and on what terms they can use this protection

Beata Anna Święcicka, “Wprost”: What loans and in what period could the free loan sanctions be subject to the previous Consumer Credit Act?

Agnieszka Sobczyk: Loans that were subject to free credit sanctions in accordance with the Consumer Credit Act concerned contracts concluded after 2001 (and for mortgage loans – after February 21, 2006) until December 17, 2011. The condition for applying this sanction was that the loan was intended for purposes not directly related to business activity and that the loan amount did not exceed PLN 80,000 or its equivalent in a foreign currency, calculated on the basis of the average NBP exchange rate as the day before signing the contract.

What goals were these loans then?

In those years, the amount of PLN 80,000 was sufficient for the renovation of the apartment, the purchase of a municipal or cooperative apartment, as well as for the consolidation of loans. This amount was also allocated to the purchase of cars. Analyzing the concluded contracts, we also came across cases where the funds were intended for the purchase of an apartment. In all analyzed contracts, we found violations of the Consumer Credit Act, resulting in the sanction of a free loan. This, in turn, entitles the consumer to apply to the lender for reimbursement of benefits that would be without sanctions due for the use of his capital (i.e. commission, contractual interest). The use of sanctions transforms the contract for free into free.

What mistakes were made by banks when concluding these contracts?

Several banks have forgotten in the content of the constructed contracts, in addition to determining the total cost of the loan (CKK) and the actual annual interest rate (APRC), indicate information about the total amount of all costs, fees and commissions to which the consumer is required to pay. Many contracts also omitted a clear and unambiguous determination of the principle of changing the interest rate, subject to the variable interest rate. The bank made interest rates dependent on its decision, because he reserved the right, and not the obligation to change the interest rate in the event of a change in the indicators listed, which also constitutes a violation of the act. In another contract, the contract made the interest rate dependent on one indicator and the rules of the change regulated in another integral part – the regulations, but he appealed with the rules for changing the interest rate to a different indicator than indicated in the contract.

APRCs were also insane

Yes, to underestimate the CKK and the APRC by reserving an increase in the interest rate until the mortgage entry, the lender did not take it in the costs. These issues are crucial for the consumer, because when comparing loan offers and a specialized language, he is based on the data provided. Thus, the lender’s offer may seem more favorable to the consumer, which finally turned out to be fiction, since all costs were not taken into account for its calculation. The directive and the Act have set out the form and minimum requirements for the content of the document confirming the conclusion of the contract, as well as introduced the concept of the actual annual interest rate (effective annual interest rate), meaning the total cost of the loan that the consumer is incurred, expressed in the form of an annual interest rate on the amount of the loan (calculated in accordance with the uniform mathematical model). This uniformity helped a consumer who did not have specialized knowledge to compare offers by listing established parameters. There is no doubt that the colloquial knowledge that the cost of the loan is influenced by the margin and commission is usually not enough to assess the competitiveness of the loan on the market. Often seemingly higher above Data do not make a loan more expensive finally.

What other violations are we talking about?

Another agreement was violated by determining the rules and repayment terms. The legislator’s will obligatory provisions of the consumer loan agreement, which were listed in the Act, should be literally agreed in the contract, clearly, directly and comprehensively. The consumer has the right to transparent, complete and unambiguous information in matters that are important to secure his legal interest. The repayment schedule constituting an integral part of the contract is not the same and the very fact of sending it to it does not automatically attract the sanctions of the free loan, if it is an integral part of the contract and is served on the conclusion of the contract, in a situation where the contract does not indicate the date and manner of determining installments. It cannot be considered that the lender agreed with the borrowers the manner and the loan repayment schedule at the date of the contract by just indicating that the bank will inform the borrower about the amount and date of payment of the first installment of the loan within 14 days of the loan. In addition, in the contested contract, information on the amount of further repayment installments and repayment dates was to receive the loan in the bank statement, and the bank decided within 5 days of the consumer meeting the conditions to start the loan, when the one was finally paid and it was this date that later set the date of repayment of the installment. In this situation, in the obvious way, the borrower concluding a contract, apart from the knowledge that the loan repayment should not be made in a certain number of installments, they did not know when the loan repayment began, from what date they did not know the amount of installments or the dates of their repayments.

What do bank errors result in and what can the borrower gain, whose agreement was such errors?

When we determine the existence of grounds for sanctions, the lender should be made a statement of using it. Pursuant to art. 15 UKK of 2001, in the event of a violation by the lender specified in the Act, the content of the concluded consumer loan agreement changes in such a way that the consumer, after submitting the lender a written statement, is obliged to reimburse the loan without interest rate and other credit costs due, subject to paragraph 3, within the time limit and in the manner set out in the contract.

And the matter of terms?

During the duration of the first Act on consumer credit, the right to make a statement on the use of a free loan sanction must be treated as indefinite. This means that the possibility of taking advantage of the free loan sanction even a few years after the expiry of the contract due to the repayment of the loan is possible, because the premise of the free loan is not the existence of this relationship (contract) at the time the consumer submits a written statement. The consumer may turn to the lender with a request to return the difference between the loan paid and repayments also when the loan has been repaid in full. The lack of determination of the deadline to take advantage of the free loan sanctions, according to some, was a gap in the law, but it is not possible to fill this gap by applying other provisions by analogy. The current wording of this provision and a circulated annual deadline for making a statement does not speak for the acceptance of the expressed view that the right to use the free loan sanction expires as a result of the performance of the obligation.

Does this mean that loans from the “old wallet” this annual date does not apply? So can the consumer injured at the time still report the desire to take advantage of the sanctions?

The provisions of art. 15 para. 1 UKK from 2001 constituted the implementation of the Council Directive 87/102/EEC of 22 December 1986 on the approximation of statutory, executive and administrative member states regarding consumer credit (preceding the current Directive 2008/48/EC of April 23, 2008 regarding consumer credit agreements and repealing the Council Directive 87/102/EEC), which They were aimed at protecting the borrower as the weaker side of the legal relationship. Therefore, the restrictions, also temporary, the rights provided for in the Consumer Credit Act, should result directly from the regulations, and not be interpreted only by interpretation. Also regarding the limitation period, the Court of Justice was on the side of consumers. The EU consumer protection system and the Card of Fundamental Rights are based on the assumption that the deadline cannot begin until the Consumer borrower knows about the violation of the law in his contract by the lender. On April 22, 2021, the Court of Justice of the European Union announced a judgment in case C-485/19, in which he indicated that the principle of effectiveness of EU law prevents national regulations, which involve the start of the limitation period at the time the consumer is undue. Thus, such amounts can also be claimed after full loan repayment and several years, if the consumer did not know earlier that the contract was subject to sanction.

Thank you for the interview

BIO: Agnieszka Sobczyk – legal advisor, member of the District Chamber of Legal Advisers in Wrocław. A graduate of the Faculty of Law, Administration and Economics of the University of Wrocław and the Postgraduate Economic Insurance Study. She was the first to win the trial in a franc -collective lawsuit, she has final wins from PLN loans and free loan sanctions. He is an experienced lawyer who has been conducting cases against banks for over 10 years, representing clients in disputes not only for franc loans, but also dishonest banking agreements and violations of consumer rights. Her practice includes a representation of clients in courts throughout Poland. He regularly publishes articles on consumer rights and the banking market and participates in legal and industry conferences.