The Attorney General has already filed 46 extraordinary complaints in the cases of “francowicze” to the Supreme Court. In eight of the nine cases examined so far, the court has eventually withdrawn the payment orders.
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In the withdrawn payment orders, the Supreme Court shared the arguments of the Attorney General and ruled in favor of consumers, finding a violation of their rights under the Constitution and EU law. In the pending complaints, the prosecutor argues that the courts issued payment orders without examining loan agreements, which they often did not even have at their disposal, and punished the illegal provisions contained therein.
Among these cases, there are three complaints that have recently been submitted to the Supreme Court. The first concerns the order issued in 2017 by the court in Kalisz for the payment of almost PLN 6.9 thousand. Swiss francs under a home loan agreement indexed to the exchange rate of the Swiss franc, ie the so-called franc loan. The prosecutor’s office emphasized that the court accepted the claim in its entirety, and had only the extract from the bank books attached by the bank, which showed that the debt of the defendant was due on the date of filing the claim, and a duly filed payment request.
Prior to the pronouncement of the judgment, the court did not require the plaintiff to submit the credit agreement from which the payment obligation arises. Since there were no objections, the order for payment became final and constitutes an enforceable title in the ongoing enforcement procedure. In this case, it is common ground that, owing to the death of her husband, with whom she had jointly taken out the above loan, the defendant was unable to repay
says the prosecutor.
Disputed payment order
In another case, the Prosecutor General questioned the order for payment issued in June 2020 by the Gdańsk District Court in an order for payment procedure. This case concerns a loan taken out in 2006 for more than PLN 30,000. frank, which was intended for the purchase of a building plot. Due to the problems of the borrowers, the parties have reached further settlements, specifying new installments and repayment dates of individual installments. Ultimately, the contract was terminated due to the failure to repay the obligation. As a result, the bank filed a lawsuit, which the court in Gdańsk fully recognized and ordered to pay the bank 30.5 thousand PLN within two weeks. francs with contractual interest.
As it has been established, one of the defendants died after the lawsuit was filed, but before the warrant was issued by the Gdańsk District Court. The court was unaware of this and proceeded with the proceedings, subsequently passing judgment against the defendant, who had no legal capacity. Due to the aforementioned legal proceedings conducted in this case, as well as the order for payment issued as a result, they were affected by the invalidity of
said the prosecutor.
Great interest
The third complaint recently submitted by the public prosecutor’s office concerns a home loan in francs taken out in 2008 by a married couple. In March 2019, the court in Bielsko-Biała upheld the bank’s claim and ordered the defendants to pay more than PLN 269,000. francs with interest equal to four times the amount of the NBP Lombard Credit Rate. On the basis of this payment order, enforcement proceedings are currently pending, in which the defendants are obliged to pay almost PLN 1.5 million. So far they have already repaid more than 156,000. zloty.
In the extraordinary complaints filed with the Supreme Court, the Attorney General requested that the three payment orders be withdrawn and the cases reconsidered. At the same time, the public prosecutor’s office requested that the execution of the contested judgments be suspended.
Consumer Protection
The complaints highlighted that the courts in these cases, even if they had loan agreements, did not examine their contents for the presence of prohibited clauses.
Thus, they have not assessed their validity and effectiveness. According to the complainant, the fact that this investigation had not been carried out proved that the requirements arising from the constitutional principle of consumer protection against unfair market practices had not been met. In each of these cases, the defendant was a consumer in a weaker legal position as he was in a dispute with a professional entity. As the complainant pointed out, in these cases the contracting courts were obliged to assess not only whether the claim against the consumer existed, and if so, to what amount, but also whether the credit institution abused the subjective right against a non-professional
says the prosecutor.
In his complaints to the Supreme Court, the Attorney General also emphasized that the loan agreements were drawn up on the basis of a model developed and used by the bank, which unilaterally shaped the legal position of borrowers.
The disputed agreements thus enabled the banks to set criteria that influenced the amount of the debt in an arbitrary and unpredictable way for the consumer, which seriously violated the interests of the borrower and was undoubtedly contrary to good practice and the contractual balance of the parties undermined
said the prosecutor.
DAD
Source: wPolityce