Withdraw loan pattern letter
Made the unlawful impression that I conclude or obtain a credit agreement with you. The revocation of my alleged declaration of intent and the. Please note: The revocation is only useful if you have the money or have agreed a favorable follow-up financing. I withdraw the above loan. You can use this cancellation form if you want to leave your loan agreement without having to pay a prepayment penalty to the bank: Sample: Revocation of a closed credit agreement – What happens after the revocation?
Also note the guiding principles there:
As a guarantor, you can have a right of withdrawal, at least if you hand in your guarantee statement before 13.06.2014 in a “doorstep situation”. The threat threatens a guarantor whenever he finds himself in a so-called front door situation. It does not matter whether the main claim is a consumer credit or a trade credit and whether the debtor was also identified by an entry situation for the conclusion of the contract.
The guarantor can rely on a possible right of withdrawal of the debtor, but does not make the justification of the guarantor’s own right of rescission dependent on the consumer position of the debtor or a situation at the front door that affects him. A separate obligation and a separate right of withdrawal of the guarantor under the terms of the 312 Civil Code are agreed with the guarantee contract.
The cancellation policy of the consumer in such transactions is now enshrined in § 312 g of the Civil Code. It is debatable whether the guarantor can repeal his commitment (under the consumer credit law), even if there is no “door-to-door” business. In a previous procedure, the BGH rejected the guarantor’s general right of withdrawal if the guaranteed main service was a commercial loan.
The right of revocation of the guarantor can not of course be made dependent on whether the main claim arose for business or private reasons.
On the general right of withdrawal of the guarantor (commentary on banking law, 2nd edition, 2016, chapter 29, no. 29-31) and Müller (Neue Justiz 2012, 397). The withdrawal period is usually 2 weeks.
It only expires, however, if the house bank has informed you as the guarantor of your right of withdrawal. This cancellation policy is often wrong, so you continue to exercise your right of withdrawal. You have the right of withdrawal only if you express the warranty as a consumer or consumer. The guarantee can be immoral (and thus invalid) (138 BGB) if the following three conditions are met: 1. You are emotionally associated with the debtor (spouse, close relatives, possibly also employees).
Meanwhile, it is also clarified that this jurisprudence is to be followed even if a final decision (enforcement order) has already been issued against the guarantor; these decisions must be repealed, the enforcement of such decisions is not allowed (constitutional court, decision of 06.12.2005, and to this justice court, decision of 25.04.2006).
“The gross overload of a guarantor who is emotionally attached to the debtor justifies the refutable assumption of immorality of the guarantee.” There is a manifest financial surplus when a forecast based on the date of the guarantee statement shows education, skill and family responsibilities that the guarantor alone is not able to permanently increase the current interest in the secured claim with the garnishment portion of his income and his asset.
The lender can dispel this assumption by not only proving his ignorance of gross financial overload or emotional attachment.
But also proving that the guarantor has a personal or economic interest in taking out a loan. The interests of creditors to protect themselves from possible transfers of property between spouses by the guarantee are not in themselves a matter that excludes immorality.
“With spouses and close relatives, their emotional attachment to the debtor is to be regularly assumed, possibly also with employees (BGH, judgment of 14.10.2003).” Their specific income situation is decisive for their gross financial overload Capital requirement (just under DEM 25,000, DEM 20,000, approximately EUR 17,000, just under EUR 13,000), a significant financial overload, a de minimis restriction would be unjustifiable.
Not only the guarantors, but also the so-called joint liability, the provisions of the ECJ on immoral guarantee. Joint liability is formally a common borrower, but has no self-interest in lending and may not be involved in lending or using it. It then does not matter to you whether you have signed the credit agreement as co-obligor or if you are (only) liable as a guarantor.
“1” 1. Co-perpetrators are only those who have a right to be granted the loan and who have a say in the issue and use of the loan, co-debtors who are not equivalent creditors of the principal bank. Obvious economic congestion of the spouse or close relative can only be confirmed if the person concerned is unlikely to even be able to raise current main interest rates.
Other collateral provided by the creditor will only be taken into account if it limits the liability risk of the sub-obligor to a legally justified extent. In the case of a gross financial burden, it is assumed that the spouse or close relatives in the joint and several liability was not guided by their concerns and a reasonable assessment of the economic risk and that the Institute has used the emotional relationship between the principal and the joint debtor morally offensive,
Obtaining purely indirect benefits from a working capital loan of the debtor is not likely to invalidate the assumption of an inappropriate influence on the will.
“On the conditions under which the presumption of immorality of the joint liability agreement can be rebutted in the event of a gross financial burden on the jointly and severally affected spouse, see justice court, decision of 15.11.2016 (Az 32/16).
Note: In the aforementioned decision, the justice court overestimates the meaningfulness of the contract text for the definition of co-responsibility / joint liability and thus leads to a subsidiary information burden for the co-debtors. In reality, it is not an interpretation of the loan agreement, but the determination and assessment of the framework conditions that led to the conclusion of the loan agreement (Schimansky, WM 2002, 2437, 2438).
The decisive argument of the justice court for a subsidiary disclosure obligation of co-obligated persons thus expires. The Higher Regional Court justifies the burden of proof of the house bank for the personal benefit of the co-obligated person with its “obligation to inquire about the purpose of the loan in order to know who of the spouses has their own right to conclude the contract”.
If such an obligation of BayernLB exists to determine the purpose of the contract, the co-obligor may not have a subsidiary disclosure obligation for the purpose that BayernLB already knows on the basis of its obligation. Rule of thumb: As a guarantor / co-obligor you are critically charged, if you can not even afford the current interest payments from your attachable salary.
If you have assets, this can put you at risk of gross financial overload. Partner for a credit debt of the other part only if it is ensured that the person concerned is at most affected by a “contingent liability” that does not exceed its financial strength. 3 When questioning whether the land charges safeguard future claims against the borrower according to the salary of the preconceived bank conditions, ambiguity within the meaning of Section 5 (2) HGB must not be borne by the guarantor or co-signatory, who is severely overburdened financially.
The possibility of exemption from the residual debt according to 286f. With regard to further collateral, however, the guarantor or co-obligor may only be subject to “default liability” which does not exceed its economic possibilities and therefore does not fall within the meaning of section 138 (1) no. 3 of the Civil Code. 32): “The purpose of the lengthy and complex exemption procedure is not to protect institutions that abuse the obvious willfulness of an economically over-taxed spouse or unmarried partner of the principal debtor, their alleged claims from the far-reaching nullity penalty of 138 para. 1 no of the Federal Data Protection Act.
If you pay as guarantor to the payee, other securities of the debtor (borrower) will be transferred to you.
Regardless of the immorality of the guarantee, the guarantee expires if the payee provides the security of the debtor (§ 776 BGB). “The due date of the claims under a direct enforceable guarantee, unless otherwise agreed by the Parties, is the due date of the principal claim and does not depend on the payment request of the payee.
“It is contrary to the security purpose of the statute of limitations to link the beginning of the period to a request for payment of the payee, as it would then be in the hands of the payee to arbitrarily postpone the beginning of the period and the necessity of statute of limitations (confirmation of the decision of the payee) Senate of 29.01.2008, Case ZI 160/07, paragraph 24).
“The contracting parties may provide for a different period for the assertion of the warranty claim.There is a clause on the terms of the warranty claim depends on a request by the creditor (” no unauthorized disadvantage of the guarantor in accordance with 307 BGB “) and the expiry of the warranty period if the guarantee has been given before 1 January 2002 (reduction of the warranty period from 30 to three years).
The guarantor (in this case: the liable managing director of the partner of the GmbH in the meantime) can not invoke the shortening of the limitation period, if he knows that the lender renounces his claim after the due date of the claim, because he wants to wait, whether the debtor the installment payment is announced several times (BGH, Az 26.02.2013, Az. 167/11).
A general terms and conditions clause shall apply which extends the limitation period (three years) to five years (“no unauthorized disadvantage of the guarantor according to 307 BGB”) if it partially favors the guarantor because – contrary to the legal provision (199 para. 1 Nr. 2 BGB) – the beginning of the limitation period does not depend on knowledge-dependent aspects (“BGH”, judgment of 21.04.2015, Az. ZI 200/14).
Notwithstanding the limitation period for the warranty claim, the guarantor may also request that the main claim come into force. The same applies if the debtor does not comply with the limitation period and is therefore legally transferred or if the debtor wishes to waive the period of limitation. If the debtor was finally and conclusively punished in spite of the limitation of the period of limitation, the guarantor can generally no longer claim that the principal benefit has been claimed.