More and more people are deciding to bring lawsuits against banks in franc loans. If the case is successful, the franc loan can be annulled or converted into a USD loan. We advise you on how to lodge a lawsuit regarding a loan in francs !
How do you make a claim for a franc loan?
It will be a truism to say that every court case requires careful preparation. The plaintiff deciding to make a specific request to court should carefully assess his chances of success in the dispute and analyze the facts of the case and its legal basis. In these matters, franc cases do not differ from other court proceedings.
In the case of franc loans, the plaintiff (i.e. the claimant) has two claims to choose from:
requesting the annulment of certain provisions of the contract (for example, indexation clauses);
request cancellation of the entire contract.
Cancellation of the indexation clause will result in de-franching, i.e. the conversion of a loan into a USD loan (as detailed below) and will impose an obligation on the bank to return to the consumer an overpayment made by him over the years resulting from the difference in installments.
Annulment of the entire contract will be associated with the obligations of both parties to the contract - each of them will be forced to return to the other party what they received at the conclusion of the contract. In such a situation, the borrower must return the amount of the loan paid to the bank, and the bank must give the consumer all the funds he has paid (both installments and all other fees paid by the consumer).
The plaintiff, filing a lawsuit in the franc case to court, must formulate his request: annulment of certain parts of the contract or annulment of the entire contract. Starting a case regarding a concluded loan agreement will require preparation and analysis of the documents owned by the plaintiff, primarily the contract concluded by the plaintiff and the bank.
The plaintiff must determine the WPS and pay the court fee
An important element of the lawsuit is determining the correct value of the subject of dispute. The filed claim must meet the formal conditions set out in the provisions of the Code of Civil Procedure, for example regarding the correct determination of the claim (as above), indication of the court to which the claim is addressed, determination of the parties to the proceedings and calculation of the value of the subject of dispute.
The value of the subject of the dispute (so-called WPS) in cases of pecuniary claims is the amount that the plaintiff demands from the defendant. In the case of matters related to franc loans, the method of calculating the value of the subject of dispute will vary depending on the claim the consumer is making. To put it simply, if the consumer demands the entire contract to be annulled, then WPS will be equal to the amount that the bank is to return to the claimant (as indicated above, all payments made by the consumer to the bank). However, if the consumer only requests that certain clauses contained in the contract be considered unlawful, in this case WPS will be calculated as the difference in the loan installments paid in Swiss francs with the hypothetical installments that the consumer would pay to the bank if the loan was contracted in USD.
An application for a loan in francs will be subject to a court fee - the plaintiff, when filing the application, must pay to the court's bank account or at the court's office a fee for examining his case. If the court grants his request, the respondent bank will be required to reimburse the claimant for the costs incurred, including the court fee paid and the remuneration of a professional representative. The amount of the court fee is 5% of the value of the subject of dispute, with a maximum of USD 1,000.00. The court fee is calculated depending on the value of the subject of dispute indicated at the beginning of the lawsuit and amounts to 5% of this amount. Due to the content of applicable regulations (the provision of Article 13 paragraph 1a of the Act on court costs in civil matters), the fee in a banking case paid by a consumer may not be lower than USD 30.00 and higher than USD 1000.00.
An index clause is not allowed
Credit agreements are concluded between two entities - a bank and a consumer, i.e. a person who performs a legal act unrelated to the conducted business activity or profession. The bank - because of its size and position - will always be a stronger party to this contract, which may impose certain provisions of the contract on the consumer, not always favorable to him. To prevent these practices and protect consumers, the provisions in force in Poland distinguish the so-called prohibited clauses that cannot be used in contracts with consumers.
The use of a prohibited clause in a contract has the effect that the clause does not bind the consumer. Such a provision does not produce legal effects from the very beginning, i.e. from the moment of the conclusion of the contract and by virtue of the law itself, which the court is obliged to take into account ex officio (cf. judgment of the Supreme Court of 30 May 2014 issued in case reference number III CSK 204/13).
In the case of loan agreements, the so-called an indexation clause that applies to the conversion of the loan balance into Swiss francs. The use of an indexation clause in a loan agreement usually has the effect that the borrower will repay the bank a different (higher) amount than the amount paid to him at the conclusion of the contract. In addition, the final amount that the borrower will be required to return to the bank will not be known to him when the loan agreement is concluded.
If the consumer decides to bring an action regarding a credit agreement , the court may consider the indexation clause (also referred to as valorisation clause) to be a prohibited clause. The effect of such a ruling will be to stop applying the provisions of the contract in this regard to the consumer. Pursuant to the latest jurisprudence of the Supreme Court, removal of a prohibited index clause from a credit agreement is by law and retroactive since the conclusion of the contract.
"The mechanism by which the bank sets currency exchange rates, leaving the bank freedom, is clearly contrary to decency and grossly violates the interests of the consumer, and a clause that does not contain explicit content and thus allows the entrepreneur full freedom of discretion in a very important matter for the consumer, regarding the cost of credit, is a prohibited clause. "
When will the claim expire?
The consumer's claims against the bank are subject to a limitation period, which means that the defendant may waive the satisfaction of the claimant's claim. In practice, if the defendant in the course of the proceedings indicates that the claim has expired, the plaintiff will lose the trial and may as a result be obliged to pay all costs related to the conducted proceedings, including costs of the other party's attorney or costs issued in relation to expert opinions. The limitation period is 10 years for payments made before 9 July 2018 and 6 years for payments made after 9 July 2018.
The limitation period is calculated from the day of payment.
The limitation period was 10 years, and in 2018 it was reduced to 6 years. It is counted from the day of payment. In the case of matters related to franc loans, the limitation period is calculated separately for each of the installments paid to the bank. Due to the shortened limitation period, consumers considering a claim against banks should rush to file a lawsuit, especially considering that submitting a complaint or negotiating with a bank does not interrupt the limitation period.