The Tribunal gave many tools for a fair fight against banks.
Interview with Attorney Agnieszka Sobczyk from K&L Legal, who has been dealing with borrowers’ matters for 10 years, representing them in disputes with banks. He has won over 400 cases, including the first group judgment in the country taking into account the invalidity of contracts with a currency element.
Do Swiss franc borrowers have an advantage at the moment?
Mec. Agnieszka Sobczyk: You can say so boldly. At the end of 2023, there were approximately PLN 342,000 of accounts of people with mortgage loans linked to CHF as one of the foreign currencies to which loans were indexed or denominated in 2004-2009. At the same time, the turn of 2023/2024 was a race against time for banks to sue those who filed claims against them in connection with the existence of unfair clauses for return of capital, indexation, and sometimes – remuneration for the use of capital.
How many people do you think are still hesitant to file a lawsuit?
Agnieszka Sobczyk: I think that about 20% of borrowers have taken their cases to courts in order to be covered by Directive 93 protection at the moment. This still means that over 80% of customers involved in loans with indexation in foreign currencies (not only CHF) have still not done anything with their affairs.
Do we have any statistics about what percentage of those who filed a lawsuit win in court?
Agnieszka Sobczyk: Yes, almost 98% of invalidity lawsuits are won by the so-called “Francowicze”.
What do you think stops Swiss franc borrowers from deciding to end their adventure with the bank?
It seems that it is the banks’ counter-suits that have so far aroused concern among consumers. This concern was not removed by the judgment C-520/21 issued by the CJEU. Some Polish judges still saw grounds to award the bank from the client other benefits beyond the paid capital. But the CJEU came to the rescue of consumers.
Well, what changed in January 2024?
On January 12, 2024, the Tribunal issued a decision in which it indicated that Directive 93 directly prohibits the consumer from ordering a bank that has introduced unfair contractual regulations into the contract to revaluate the capital after it has been determined that the contract is invalid. The EU Tribunal once again emphasized that the only claims that the bank is entitled to against the consumer are the return of the capital paid to him along with interest for the delay. No other claims that could in any way compensate the bank for any problems resulting from the introduction of provisions in the contract that are inconsistent with the law and Directive 93 should not be accepted.
And the CJEU commented again a few days later, right?
On January 18, 2024, another favorable decision was made in favor of consumers. The judgment is particularly important because it concerns those consumers who did not appeal against the payment order issued in electronic payment proceedings within the statutory deadline. The case is important because, under Polish procedure, an appeal against this decision at the stage of anti-enforcement proceedings cannot concern facts and circumstances preceding the issuance of the order, i.e., information about risks or prohibited provisions. The Court of Justice of the European Union has ruled that the court supervising enforcement proceedings may ex officio examine a potentially unfair contract clause.
Are we still waiting for any CJEU ruling that will be important for Swiss franc borrowers?
In the area of the so-called Most people waiting for the verdict in a case related to the bankruptcy of Getin Noble Bank SA. All consumers benefited from the change in the courts’ approach to the so-called Swiss franc cases. Now we should rather expect questions about PLN loans. Well, everything is ahead of us
