Commencement of the limitation period for recovery claims by borrowers

On 28 October 2014, the XI Civil Senate of the Federal Court of Justice, which is responsible for banking law among other things, ruled for the first time in two decisions on the question of the beginning of the limitation period for claims for repayment by borrowers in the case of ineffectively agreed loan processing fees. According to these decisions, the knowledge-dependent three-year limitation period pursuant to section 195 BGB in conjunction with section 199 (1) BGB for claims for repayment that arose earlier did not begin to run until the end of 2011, because borrowers could not reasonably be expected to file a corresponding action for repayment before 2011.

In the two proceedings, the plaintiffs are seeking repayment from the respective defendant banks of processing fees that the defendants charged in the context of consumer loan agreements on the basis of standard forms.

In the proceedings XI ZR 348/13, the plaintiff there concluded a loan agreement for € 7,164.72 with the defendant there in December 2006. The defendant charged a "processing fee incl. 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 incl. disbursement and commitment fee", which in this case amounted to € 1,547.10. In June/July 2011, a third loan agreement was concluded for €12,353.04, in which the defendant charged a 3.5% "processing fee" of €343. The plaintiff demanded reimbursement of these processing fees from the defendant. With his action filed with the court in December 2012, he originally sought to order the defendant to pay a total of €2,079.30. The defendant acknowledged the claim in the amount of € 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. With regard to the remaining amount of the claim not recognised by the defendant, the action remained unsuccessful in the lower courts, which assumed that the claim was time-barred.

In the 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 in the amount of € 555, which the plaintiff claimed back with his action filed in 2013; the defendant also raised the defence of limitation. The action for repayment was successful in both lower instances.

In the proceedings XI ZR 348/13, the XI Civil Senate overturned the appeal judgement on the plaintiff borrower's appeal and ordered the defendant bank to also pay the remaining amount of the claim not recognised by it. In the proceedings XI ZR 17/14, the appeal of the defendant bank was unsuccessful.

In both legal disputes, the courts of appeal correctly assumed that the respective defendant had obtained the disputed processing fees by performance of the plaintiff without legal cause, § 812 para. 1 sentence 1 case 1 BGB. The agreement of processing fees in general terms and conditions for consumer credit agreements is, as the XI Civil Senate ruled in its two judgments of 13 May 2014, invalid pursuant to section 307 (1) sentence 1, (2) no. 1 BGB. This case law also applies to the fee regulations at issue here.

Moreover, the repayment claims of both plaintiffs are not time-barred; the contrary assumption of the lower courts in the case XI ZR 348/13 is incorrect. Claims for enrichment are generally subject to a limitation period of three years pursuant to § 195 BGB. The regular limitation period begins at the end of the year in which the claim arose and the creditor became aware of the circumstances giving rise to the claim or should have become aware without gross negligence (section 199(1) BGB). The creditor of a claim for enrichment under section 812 (1) sentence 1 case 1 BGB has knowledge of the circumstances giving rise to the claim if he knows about the performance and the facts from which the lack of legal ground results. As a rule, however, it is not necessary that he draws the correct legal conclusions from the facts known to him. Exceptionally, however, the creditor's ignorance of the law may postpone the commencement of the limitation period if there is an uncertain and doubtful legal situation which even a legally competent third party is not able to assess to a sufficient degree to bring an action. This applies all the more if the enforcement of the claim is prevented by a contrary supreme court decision. In such a case, the reasonableness of bringing an action as an overarching prerequisite for the commencement of the limitation period is lacking. In view of the fact that processing fees in a "customary amount" of up to 2% had been approved by the older case law of the Federal Supreme Court, borrowers in the present case could only reasonably be expected to file a claim for repayment after a consolidated case law of the Higher Regional Court had emerged in the course of 2011, which disapproved of processing fees in general terms and conditions when concluding consumer loan agreements. Since then, a legally competent third party had to reasonably expect that banks would be denied the successful invocation of the older case law of the Federal Supreme Court in the future.

Based on this, only those claims for repayment that arose before 2004 or in 2004 more than 10 years ago are currently subject to the statute of limitations, provided that the borrower has not taken any measures to prevent the statute of limitations within the absolute - knowledge-independent - 10-year limitation period of § 199 para. 4 BGB.

Judgment of the BGH of 28 October 2014 - XI ZR 348/13

Lower courts:

AG Mönchengladbach - Judgment of 21 March 2013 - 3 C 600/12

LG Mönchengladbach - Judgment of 4 September 2013 - 2 S 48/13

and

Judgment of the Federal Supreme Court of 28 October 2014 - XI ZR 17/14

Lower courts:

AG Stuttgart - Judgment of 24 July 2013 - 13 C 2949/13

Stuttgart Regional Court - Judgment of 18 December 2013 - 13 S 127/13

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law 2014

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law

E-mail: info@goldberg.de

 

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