Example revocation loan
If you decide to retreat, you can use the following example. Without repayment of the loan a cancellation of the mortgage in the land register is not possible. The Federal Court of Justice has issued a new decision to revoke consumer credit agreements. It begins with the sending of the revocation. – In the case of a wrong cancellation policy, the right is on your side!
Depending on the reason why the consumer wishes to postpone the debt, the house bank may order early repayment either in accordance with the strict principles of the Federal Supreme Court or even at its discretion. In this context, however, there is another way in which the consumer can dispose of his credit agreement without early repayment: According to the legal requirements, a credit company is required to inform a consumer when concluding a credit agreement that he has a right of withdrawal becomes.
Subsequently, the consumer can dissolve his credit agreement with the bank within a 2-week withdrawal period. In the case of a revocation, the loan agreement is not considered closed from the outset. More than 2/3 of the cancellation policy in real estate loan agreements are obviously wrong. Why are the cancellation instructions wrong?
Often, the credit institutions do not properly inform consumers about the beginning of the opposition period in the cancellation policy. The BGH has stated in a resolution of 2012 that the use of the term “The period begins at the earliest with this instruction” is incorrect since the use of the term “at the earliest” does not allow the consumer to clearly and completely begin the period of validity to grasp the necessary instructions.
This wording is found in a variety of cancellation instructions. The reason for this is quite simple: The legislature has imposed in a relevant information and proof regulation (BGB-InfoV) the institutes a model for the instruction about the revocation. The above wording about the beginning of the deadline is explicitly included in this pattern cancellation declaration.
Therefore, the institutions have ensured that these formulations comply with the legal requirements in the application. This is precisely what the BGH in its case-law of 12 September 2012 made clear that this is not the case, even if this wording is reproduced in the model termination notice. Under the BGB-InfoV, however, institutions may under certain circumstances invoke the correctness of these model termination instructions.
The instruction used by an institution therefore meets the legal requirements only if the pattern of the instruction is used in writing.
However, it is not sufficient for this purpose that the instruction used with regard to the beginning of the objection period literally corresponds to the wording in the version of the model for the contradictory instruction in Annex 2 to § 14 (1) and (3) BGB-InfoV equivalent.
The scope of protection of Section 14 (1) BGB-InfoV only applies if an instruction has been used which corresponds to the model of Annex 2 to 14 (1) BGB-InfoV in the version valid until June 30, 2008.
Which wording of the cancellation policy is wrong? The following often used Cancellation Policy is invalid if it includes this provision: “The Revocation Period shall not commence until the date of receipt of this instruction.” The period shall run one day after such notice has been given and a contract document, a written loan application or a copy the contract or loan application.
“The beginning of the period is the day following the announcement of this instruction and the sending of a document, a written statement or a copy of the document or application.” 3. The term will run after receipt of this instruction, but only after receipt of your order signed copy of the loan agreement.
“The period runs with the delivery of this document, but not before submission of the letter of intent of the client.” The period runs from 10.06. 2010 🙂 “The term runs after conclusion of the contract, but only after receipt of all according to 492 Abs. 2 BGB prescribed information (eg information on the type of credit, information on the net loan amount, information on the responsible for the credit institutions supervisory authority) ….”.
In addition, the revocation instructions used by the credit institution may also be invalid because they are incorporated without particular emphasis into the General Terms and Conditions and the consumer can not see clearly that this is a substantial instruction for him with regard to his rights and obligations in this connection is.
As part of an examination of the termination instructions by the consumer center was found that for 300 loan agreements, the termination instructions to more than 2/3 are incorrect. You can see an up-to-date resolution concerning a blocking instruction by IKD Bank here: An overview of the revised loan agreements can be found here: What consequences does an ineffective cancellation have?
In the case of an incorrect revocation declaration, the two-week revocation period was not set in motion as it only expires if the revocation declaration was correct. If this is not the case, the revocation period has not yet begun and can now be pronounced. How does the contradiction work?
If you can terminate your loan agreement, the entire loan agreement must be canceled. The consumer therefore receives back his interest and principal payments as well as any agio / discount and any processing flat-rate from the bank. Until when can I file my opposition? Here, the BGH has determined that in principle there is no time for it.
Thus, the consumer can terminate his loan agreement years later. This is possible even if the loan agreement is now fully paid.
Recently, credit institutions have argued that the resignation was bad faith several years after signing the loan agreement. However, this was an isolated case in which the consumer had withdrawn the loan five years after its complete liquidation.
However, we assume that this jurisdiction in no case during the current loan agreement or after conclusion of the cancellation agreement due to the sale of the property and the prepayment paid applies. Then the house bank, which, knowing that it has received incorrect instructions, can instruct the consumer at any time, thereby setting the deadlines in motion, must make a ram call.
This “perpetual” right to termination is to be limited by an amendment to the Act, which will enter into force on 21 March 2016. Accordingly, it should only be possible for borrowers who have received a deficient instruction on the resignation to declare their withdrawal within a period of twelve (!) And 14 days after conclusion of the loan agreement. 4th
In the subsequent period, the previous cancellation option is eliminated. The background to this intended change in the law is likely to be that the banking lobby appears to have a major impact on the current government to deal with the many complaints that can be expected given the continuing high number of erroneous withdrawal instructions.
In the event that the bank accepts the resignation, you are required to repay the net loan amount plus interest at standard market conditions within 30 days of resignation.
You should therefore make sure in advance that in this case, a shift of an outstanding balance is easily possible. It should also be noted that real estate loans are often associated with a mortgage on the property and the consumer has been subjected to direct enforcement in this regard.
Therefore, the consumer must ensure that the institution itself does not terminate in the context of litigation because of lack of installment. The problem in this case is that the credit institutions only issue the securities after payment of the prepayment penalty for the uncommitted purchase by the purchaser.
In this case, it is possible to conditionally pay the early repayment so that the borrower still has the option of requesting repayment at a later date. An often occurring argument of the legal protection insurance is also that the credit agreement was concluded before the conclusion of the legal expenses insurance and therefore insufficient protection is given, since the criminal offense of the credit institutes already existed in the issuing of a defective termination instruction at that time.
By decision of 24 April 2013, the BGH clearly ruled against this view that an infringement of rights only exists if the company requests the withdrawal from the loan agreement on the basis of an incorrect notice of termination or if it does not address a specific deadline.
In any case, the expenses incurred are always manageable and findable. Experience shows that credit institutions do not accept resignation declared by the consumer. Enforcement of the rights of an effective resignation by the attorney is, in some cases, sufficient to create new terms and conditions with the bank for the purpose of further pursuing the loan agreement.
However, despite the clear legal situation, financial institutions often resist, so that in many cases it is also necessary to sue before a court.