There have been many instances of banks and savings banks using ambiguous statements in guidance on the right of withdrawal regarding the commencement of the withdrawal period. Consequently, it is still possible to withdraw from these loans even years after they were taken out in most cases.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: In an indicative ruling of February 8, 2016, the Oberlandesgericht Nürnberg (Higher Regional Court of Nuremberg) confirmed that it remains possible to withdraw from loan agreements which contain flawed guidance on the right of withdrawal.
The basis of the case before the OLG Nürnberg was a loan agreement from 2009. The relevant guidance on the right of withdrawal featured the following statement: “Der Lauf der Frist für den Widerruf beginnt einen Tag nachdem Ihnen eine Ausfertigung dieser Widerrufsbelehrung, die Vertragsurkunde, der schriftliche Vertragsantrag oder eine Abschrift der Vertragsurkunde oder des Vertragsantrages sowie die Information nach Fernabsatzrecht zur Verfügung gestellt wurden, aber nicht vor dem Tag des Vertragsschlusses.” (The period of withdrawal shall begin to run one day after you have been provided with a copy of this guidance on the right of withdrawal, the contractual document, the written contract application, or a copy of the contractual document or the contract application as well as information pursuant to the Fernabsatzrecht [legislation on distance selling], but not before the day on which the agreement is concluded). The OLG Nürnberg held that this guidance concerning the right of withdrawal was flawed: the final half sentence stating that the period would not begin to run before the day on which the agreement is concluded was said to be unclearly worded. The Court stated that consumers could be given the erroneous impression that the withdrawal period commences by signing, whereas it does not in fact begin until the bank has received the contractual documentation.
This was not the only passage that the OLG Nürnberg criticized. The bank was said to have edited the content of the applicable standard guidance in other places as well. Thus, the Court ruled that the guidance on the right of withdrawal was flawed and the withdrawal had been effective. It went on to say that the right of withdrawal had neither been forfeited as a result of the loan’s early repayment by way of an early repayment penalty nor exercised in bad faith. The Court held that the plaintiff was entitled to reimbursement of the early repayment penalty.
Banks and savings banks have frequently made use of flawed guidance on the right of withdrawal, particularly with respect to real estate loans concluded between 2002 and 2010, with the result that it is still possible today to withdraw from many of these loans. A lawyer who is versed in the field of banking law can assess whether the guidance on the right of withdrawal used by the bank is flawed and if it therefore remains possible to withdraw from the loan.
Having said all of that, it is important to note that the right of withdrawal is set to expire for legacy contracts on June 21, 2016. For that reason, consumers should take prompt action.
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