The Financial Ombudsman filed an extraordinary complaint to the Supreme Court against the judgement issued in the case of a woman with a loan in Swiss francs. The District Court in Wrocław, which examined the case, failed to notice the abusiveness of the provisions of the loan agreement, and therefore – according to the Financial Ombudsman – did not assess it properly. Based on the court’s decision, the woman could lose the roof over her head as a result of bailiff enforcement, so the Financial Ombudsman also filed an application to suspend the enforcement of the judgement, which had already been granted by the court.
The Financial Ombudsman was approached by an applicant who, together with her husband, had entered into a mortgage loan agreement in 2005 with a term of 300 months. The amount of the liability was set at nearly PLN 92 thousand. Unfortunately, at some point the borrowers were unable to make timely payments. The bank terminated the loan agreement. It then filed a lawsuit demanding immediate payment of over PLN 110 thousand. This was a much higher amount than the customers borrowed, due to the mechanism of indexation of the loan amount to CHF.
A co-borrower, who was obligated to repay the loan along with the applicant, died after service of the lawsuit. This resulted in her becoming the sole person responsible for repaying the debt to the bank. The Regional Court in Wrocław allowed the claim in its entirety, recognizing the bank’s claims as legitimate. The defendant was not represented by a professional attorney at this stage, and did not itself appeal the judgement. Thus, the court’s decision became final. The Borrower is therefore liable to pay the full amount claimed and the Bank is pursuing enforcement against her property pursuant to this judgement.
– In my opinion, the court’s ruling contradicts the principles of a democratic state of law. There was a gross error of law in the case, as a result of which the court hearing the case did not provide the applicant with sufficient protection to the consumer, points out Prof. Dr. Habil. Mariusz Golecki, the Financial Ombudsman.
The Financial Ombudsman, in order to secure the applicant’s interests, made an application to suspend the execution of the judgement. The court granted the motion, which in practice means that enforcement against the applicant’s assets cannot proceed until the Supreme Court resolves the extraordinary complaint.
In the view of the Financial Ombudsman, conversion clauses referring to exchange rate tables determined unilaterally by the bank, without indicating objective criteria, are non-transparent, leave room for arbitrary action by the bank and thus burden the borrower with unpredictable risk and violate the equality of parties. They therefore grossly infringe consumer interests and are contrary to good practice.
– In the present case, the court was obliged to examine ex officio whether the relevant contractual provisions violated the law. Unfortunately, it did not do so, which infringed the applicant’s interests, explains Krzysztof Witkowski, attorney-at-law at the Financial Ombudsman Office.
If the court agrees with the Financial Ombudsman’s standpoint, it will dismiss the bank’s claim or overturn the contested judgement. The applicant will then be given a chance to go to trial, during which the court will assess the loan agreement for abusive clauses and the consequences thereof.
It is worth noting that the Financial Ombudsman’s action in this particular case may have an impact on other consumers. Persons in a similar situation will have a chance to change final decisions by means of an extraordinary complaint.
Important! When to file a request for an extraordinary complaint to the Financial Ombudsman?
Requests to the Financial Ombudsman to lodge an extraordinary complaint may relate to decisions ending proceedings in a case which became final after 3 April 2018. Only the Attorney General and the Ombudsman have the power to make an extraordinary complaint in respect of cases decided before that date.
It is worth emphasizing that the extraordinary complaint is intended to apply to truly exceptional situations. One of three prerequisites must be present:
- the judgement violates the principles or human and civil liberties and rights set forth in the Constitution of the Republic of Poland;
- the judgement grossly violates the law by being misinterpreted or misapplied;
- there is a clear contradiction between significant findings of the court and the content of evidence gathered in the case.
In addition, the filing of an extraordinary complaint will also be allowed only if the contested decision cannot be changed or reversed by other extraordinary means of appeal. Moreover, the extraordinary complaint may not be based on allegations that were the subject of the cassation complaint or cassation examined by the Supreme Court. In addition, an extraordinary complaint may be brought only once against the same judgement in the interests of the same party.
In order for the Financial Ombudsman to be able to prepare an extraordinary complaint, it is essential that he is provided with as complete a record of the case as possible. That means the applicant must describe the objections to the judgement, present the pleadings, the judgements of both courts with reasons, and the evidence. Only on this basis can the Financial Ombudsman decide to apply to the Supreme Court. Ideally, such a motion should be prepared by a professional attorney who already knows the case and has handled it in previous instances. He will also know best which prerequisites for filing an extraordinary complaint are met in a given case. Of course, this is not a formal requirement. If someone cannot afford to engage an attorney, the Financial Ombudsman’s lawyers will perform such an analysis based on the documentation provided.
