Even minor deviations from the respective standard guidance render guidance on the right of withdrawal flawed in the case of loan agreements. In most cases, it is still possible to withdraw from these.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Like other higher regional courts before it, the OLG Brandenburg (Oberlandesgericht Brandenburg) concluded in its ruling of January 20, 2016 that even minor deviations from the relevant standard guidance in the case of loan agreements give rise to flawed guidance on the right of withdrawal. The result is that the withdrawal period never commenced and it remains possible to withdraw from these loans even years after they were taken out (Az.: 4 U 79/15).
In the case in question, the consumer withdrew in 2014 from a loan agreement that had been concluded in 2008. The OLG Brandenburg ruled that the withdrawal had been effective and the right of withdrawal had neither been forfeited nor exercised improperly, as the bank had made use of flawed guidance pertaining to the right of withdrawal. The Court noted that the first subheading “Widerrufsrecht” [Right of Withdrawal] was missing from the guidance. Moreover, the bank had not strictly stuck to the wording featured in the standard guidance: it had used the phrase “Der Lauf der Frist beginnt frühestens (…)” [The period shall not begin to run earlier than (…)] instead of “Die Frist beginnt frühestens (…)” [The period shall begin no earlier than (…)] (as per the model guidance applicable from December 8, 2004) and “Die Frist beginnt nach Erhalt dieser Belehrung in Textform” [The period shall begin upon receipt of this guidance in writing] (from the model guidance applicable as of April 1, 2008). There was also said to be divergent wording under the subheadings “Widerrufsfolgen” [Consequences of Withdrawal] and “Finanzierte Geschäfte” [Financed Transactions]. The Court held that the bank had thus edited the content of the standard guidance and could not fall back on any provisions conferring protective effect.
The OLG went on to say that the right of withdrawal had not been forfeited. The bank was not in a position to assume that the consumer would no longer make use of her option to withdraw, since her lack of action clearly stemmed from the fact that she was not aware that the standard guidance was invalid.
A lot of banks and savings banks made use of flawed guidance regarding the right of withdrawal with respect to real estate loans concluded between 2002 and 2010. Generally speaking, it is still possible to withdraw from these loans today. Lawyers who are versed in the field of banking law are able to identify whether the conditions for loan withdrawal are met. However, withdrawal must be declared by June 21, 2016, as that is when the right of withdrawal is set to expire for legacy contracts.
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