What banks are allowed to do – and what they are not
A loan agreement is a continuous obligation. It basically runs until the date agreed upon in the contract. A early termination across the board – with immediate maturity of the entire loan – is only permissible in exceptional cases.
A prerequisite is a important reason, such as:
-
a massive deterioration of the borrower's financial situation,
-
the omission or non-provision of agreed collateral,
-
serious, credit-related contractual breaches.
So there needs to be a concrete risk of non-repayment. A merely „tense“ relationship between bank and customer is not enough.
Higher Regional Court of Vienna: Borrower's claim is not a ground for termination
In the 2013 ruling in question (5 R 21/13a), a bank had a current account overdraft facility called in early, although the loan would not have actually been due according to the regular schedule until later.
The borrower had
-
asserted claims for damages against the bank and
-
die Set-off declared with these demands.
The bank stated that the relationship of trust was so severely damaged as a result that a extraordinary termination is permissible. Both the court of first instance and the Vienna Higher Regional Court have rejected.
The Vienna Higher Regional Court states:
-
The assertion of claims – including potentially unauthorized – is a permissible behavior of the borrower.
-
It undermines confidence in proper repayment not automatically.
-
If the assertion of claims were accepted as a reason for termination, borrowers would effectively waive their rights, in order not to risk the loan being called due.
The decision is legally binding and sends a clear signal: The bank must not use the loan as leverage to prevent borrowers from asserting their claims.
Transfer of loan processing fees
Today, in many cases, it is not about general damages, but rather about Claim for refund of loan processing fees and other fees whose billing is legally questionable.
The following constellation is typical:
-
When the loan was finalized, the bank Loan processing fee or other flat-rate fees are charged.
-
According to current jurisprudence and clause control, these fees are often inadmissible.
-
Borrowers want the overpaid amounts claim back including interest.
This is precisely where the logic of the Vienna Higher Regional Court comes into play:
-
The mere assertion the recovery (out-of-court or judicial) is no good reason, to declare the loan immediately due and payable or to exercise other means of pressure on the bank customer.
-
Even if the claim should turn out to be unfounded in individual cases, that is on its own no reason for termination.
In other words: You are allowed Claiming back loan processing fees, without having to fear a legally secure immediate loan cancellation for that reason alone.
What you as a borrower should take away from this
-
You have the right to, Check and reclaim wrongfully charged loan processing fees to leave.
-
Threats or hints by the bank that it could „then review the loan“ or „call everything due“ are legally critical if they are based solely on your assertion of claims.
-
An extraordinary termination requires hard, economically justifiable reasons, which are related to the repayment – and not merely the fact that you are exercising your rights.
ATB.LAW: Enforcement of your claims against the bank
ATB.LAW assists borrowers in Claims against banks to enforce in a structured and legally sound manner.
We:
-
analyze your credit agreement and the fee clauses,
-
check whether and to what extent Loan processing fees and other costs recoverable are,
-
calculate the recovery amount including interest,
-
take over the legal argumentation vis-à-vis the bank and – if necessary – in court proceedings.
Conclusion: Verification is worthwhile
Anyone who has taken out a loan agreement should have it reviewed. We offer a free and non-binding review for you.
For further information and an initial assessment, Anela Blöch and Roman Taudes at any time under office@atb.law or by phone at 01 39 12345 available.
