The Eleventh Civil Senate of the Federal Court of Justice, responsible for banking law among other areas, ruled for the first time on October 28, 2014, in two decisions, on the commencement of the limitation period for borrowers' claims for repayment of loan processing fees agreed upon ineffectively in standard terms. Accordingly, the knowledge-dependent three-year limitation period under Section 195 BGB in conjunction with Section 199 para. 1 BGB for claims for repayment that arose earlier began to run only at the end of 2011, because it was not reasonable for borrowers to file a corresponding claim for repayment before 2011.
In both proceedings, the plaintiffs seek repayment from the respective defendant banks of processing fees that the defendants had charged in standard terms within the framework of consumer loan agreements.
In proceedings XI ZR 348/13, the plaintiff there concluded a loan agreement with the defendant there in December 2006 for €7,164.72. The defendant charged a 'processing fee including disbursement and commitment fee' of €189.20. In October 2008, the parties concluded another loan agreement for €59,526.72. The defendant again charged a 'processing fee including disbursement and commitment fee', which in this case amounted to €1,547.10. In June/July 2011, a third loan agreement for €12,353.04 was concluded, with the defendant charging a 3.5% 'processing fee' amounting to €343. The plaintiff demands reimbursement of these processing fees from the defendant. With his lawsuit filed with the court in December 2012, he originally sought an order for the defendant to pay a total of €2,079.30. The defendant acknowledged a partial amount of the claim, €1,015.96 – which included the processing fee for the loan granted in 2011 and part of the processing fee for the loan taken out in 2008; for the remainder, she raised the plea of limitation. Regarding the unacknowledged remaining amount of the claim, the lawsuit was unsuccessful in the lower courts, which had assumed the commencement of the limitation period.
In proceedings XI ZR 17/14, the plaintiff there concluded a consumer loan agreement with the defendant there in February 2008 for a net loan amount of €18,500. The defendant charged a processing fee of €555, which the plaintiff claims back with his lawsuit filed in 2013; the defendant also raises the plea of limitation. The claim for repayment was successful in both lower courts in this case.
In proceedings XI ZR 348/13, the Eleventh Civil Senate, upon the appeal on points of law by the plaintiff borrower, overturned the appellate judgment and ordered the defendant bank to pay the remaining amount of the claim that it had not acknowledged. In proceedings XI ZR 17/14, the appeal on points of law by the defendant bank there was unsuccessful.
In both legal disputes, the appellate courts rightly assumed in their outcome that the respective defendant had obtained the disputed processing fees through performance by the plaintiff party without legal basis, pursuant to Section 812 para. 1 sentence 1 case 1 BGB. The agreement on processing fees in General Terms and Conditions for consumer credit agreements is, as the Eleventh Civil Senate decided with its two judgments of May 13, 2014, invalid pursuant to Section 307 para. 1 sentence 1, para. 2 no. 1 BGB. This jurisprudence also applies to the fee regulations at issue here.
Furthermore, the claims for repayment of both plaintiffs are not time-barred; the contrary assumption of the lower courts in case XI ZR 348/13 is incorrect. Claims based on unjust enrichment generally become time-barred after three years under Section 195 BGB. The regular limitation period begins at the end of the year in which the claim arose and the creditor gained knowledge of the circumstances giving rise to the claim or should have gained such knowledge without gross negligence (Section 199 para. 1 BGB). The creditor of a claim based on unjust enrichment under Section 812 para. 1 sentence 1 case 1 BGB has knowledge of the circumstances giving rise to the claim if they are aware of the performance and the facts from which the lack of legal basis results. However, it is generally not required that they draw the correct legal conclusions from the known facts. Exceptionally, a creditor's ignorance of the law can postpone the commencement of the limitation period if there is an uncertain and doubtful legal situation that even a legally knowledgeable third party cannot assess to an extent sufficient for filing a lawsuit. This applies even more so if the enforcement of the claim is hindered by contrary supreme court jurisprudence. In such a case, the reasonableness of filing a lawsuit, as an overarching prerequisite for the commencement of the limitation period, is lacking. Given the circumstance that processing fees of a 'customary banking amount' of up to 2% had previously been approved by older jurisprudence of the Federal Court of Justice, it was only reasonable for borrowers in the present case to file a claim for repayment after established higher regional court jurisprudence had developed in the course of 2011, disapproving processing fees in General Terms and Conditions upon the conclusion of consumer loan agreements. Since then, a legally knowledgeable third party could reasonably expect that banks would in the future be denied successful reliance on the older jurisprudence of the Federal Court of Justice.
Based on this, currently only those claims for repayment are time-barred that arose before 2004 or in 2004 more than 10 years ago, provided that the borrower has not taken any measures to suspend the limitation period within the absolute – knowledge-independent – 10-year limitation period of Section 199 para. 4 BGB.
Judgment of the Federal Court of Justice of October 28, 2014 – XI ZR 348/13
Lower Courts:
Local Court of Mönchengladbach – Judgment of March 21, 2013 – 3 C 600/12
Regional Court of Mönchengladbach – Judgment of September 4, 2013 – 2 S 48/13
and
Judgment of the Federal Court of Justice of October 28, 2014 – XI ZR 17/14
Lower Courts:
Local Court of Stuttgart – Judgment of July 24, 2013 – 13 C 2949/13
Regional Court of Stuttgart – Judgment of December 18, 2013 – 13 S 127/13
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
