In the middle of 2011, the plaintiff bought a used BMW 318 i at a purchase price of € 26,000.00 through a car trading company based in Bergisch-Gladbach. Part of the purchase price was paid by a trade-in of a used vehicle. He financed the remaining purchase price of € 18,700.00 through a loan from the defendant, BMW Bank GmbH, and concluded a corresponding loan agreement with the latter. This provided for the plaintiff to pay 35 monthly instalments of € 239.78 each starting on 30 July 2011 and a final instalment of € 13,780.00 on 30 June 2014.
The defendant included a so-called "processing fee" of 2%, i.e. € 374.00 net, in the total amount of the loan of € 22,172.29. The due date of this processing fee does not arise from the contract. A due date for this processing fee does not result from the contract.
Referring to the corresponding case law of the Federal Supreme Court, the plaintiff initially demanded the amount of € 374.00 out of court under 21 December 2014. The defendant refused, which is why Goldberg - Rechtsanwälte filed an action with the Munich Local Court under file number 13 C 11587/15 on 1 September 2015.
The defendant, represented by a lawyer, mainly invoked the statute of limitations. In addition, it argued that the recent case law of the Federal Supreme Court only applied to the consumer loan agreement, whereas the plaintiff used the purchased vehicle for business purposes. In response to the defendant's plea of limitation, the plaintiff argued that, in the absence of provisions to the contrary, a due date for the fee had only become due with the agreed final instalment on 30 June 2014. The three-year limitation period therefore only started to run on 31 December 2014 and ended on 31 December 2017.
With regard to the defendant's further objection that the recent case law of the Federal Supreme Court only applies to consumer contracts, the plaintiff referred to the well-known reasoning of the present Federal Supreme Court decisions, according to which, among other things, clauses in general terms and conditions are invalid with which charges are levied for services which the user is already obliged to provide by virtue of the law or a secondary contractual obligation or which he undertakes in his own interest. With this reasoning, it is completely irrelevant whether the customer is a consumer or a businessman.
After the hearing and the court's instructions on 3 September 2015, the plaintiff acknowledged the claim with the asserted interest without justification, because it was evident that it did not want to wait for a court decision, which would have been of considerable importance to it. Thereupon, the Munich Local Court issued a judgment of acknowledgement with the legal consequence of costs.
Goldberg Attorneys at Law 2015
E-mail: info@goldberg.de
