Almost 15,000 PLN plus interest will be recovered by the customers of one of the banks if the Supreme Court approves an extraordinary complaint filed by the Financial Ombudsman. It concerns the lack of settlement and the return of a part of the commission in connection with the early full repayment of a consumer loan.
Customers who concluded a consumer loan agreement in February 2016 contacted the Financial Ombudsman. They had borrowed 66,700, of which 50,000 PLN went to their account, and 16,700 PLN was left in the bank in the form of a commission. The contract was concluded for a period of 120 months, with the last installment to be paid in March 2026. They managed to fully repay the loan much earlier, in April 2017 (after 14 months). In this situation – in accordance with Art. 49 of the Consumer Loan Act – they asked the bank for a proportional reimbursement of the commission charged at the stage of concluding the contract. According to their calculations, it was almost 14,800 PLN. However, the bank did not acknowledge the borrowers’ claim and did not return a proportional part of the commission.
The court of first instance ruled in favor of the borrowers and awarded the requested amount. This approach is in line with the position of the Financial Ombudsman, which has been presented for many years. The bank appealed. However, the court of second instance dismissed the claim. It argued that Art. 49 sec. 1 of the Consumer Loan Act does not justify the customer’s request, and the commission is not a cost related to the loan period.
Due to the fact that the claim of the customers was lower than 50,000 PLN, they are not entitled to a cassation appeal. This means that the judgment is final, it terminates the proceedings and it is not open to an ordinary appeal. In this situation, the customers turned to the Financial Ombudsman for help. After reviewing the case files, the Financial Ombudsman made a decision to file an extraordinary complaint.
– I believe that the judgment of the second instance court is inconsistent with the principles of a democratic state ruled by law and indicates a gross violation of the law due to an incorrect interpretation of Art. 49 of the Consumer Loan Act – says dr. hab. Mariusz Jerzy Golecki, Financial Ombudsman.
The Financial Ombudsman has repeatedly presented his position regarding the interpretation of the said provision. It shows that in the event of early repayment of a consumer loan, all costs of such a loan are reduced. Their nature and when they were actually incurred by the borrower is irrelevant. This reduction is proportional, i.e. it applies to the period from the actual loan repayment date to the final repayment date specified in the contract. Settlement of the loan according to such rules may be requested by all customers who concluded such an agreement after December 18, 2011. That is when the provisions of the Consumer Credit Act came into force, regulating the rules for the settlement of previously repaid loans.
Possible consequences of an extraordinary appeal
If the court agrees to the position of the Financial Ombudsman, the customers will receive a refund of almost 14,800 PLN with statutory interest for the delay, calculated from April 2017. The bank will also have to cover the costs of the trial.
The position of the Ombudsman presented in the extraordinary complaint and the court’s decision will be important for all those who in the past were refused by a bank or a loan company to legally settle a previously repaid loan. The method of proceeding depends on how the dispute ended.
If the case has already been legally examined by the court and it has dismissed the customer’s claims, it is possible to submit an application to the Financial Ombudsman for an extraordinary complaint. However, this only applies to final and binding judgments after April 3, 2018.
If the case is still pending in court, it is possible to submit a request to the Ombudsman to present an important view of the case.
Customers who have previously repaid their consumer loan, but did not receive a proportionate reimbursement in accordance with the law, can still pursue their claims. They must first file a complaint with their bank or loan company. A special Financial Ombudsman calculator, available in the link below, may be helpful in determining the amount of the refund due. If it is not recognized, a request for intervention can be sent to the Financial Ombudsman.
When should a request for an extraordinary complaint be sent to the Financial Ombudsman?
Requests for the submission of an extraordinary complaint by the Financial Ombudsman may concern judgments ending the proceedings in cases which became final after April 3, 2018. Only the Public Prosecutor General and the Ombudsman are entitled to an extraordinary appeal in relation to cases settled before that date.
It is worth emphasizing that an extraordinary complaint is intended to concern genuinely exceptional situations. One of three conditions must be met:
- the judgment violates the regulations or human and citizen freedoms and rights specified in the Constitution;
- the judgment flagrantly violates the law due to its incorrect interpretation or application;
- there is a clear contradiction between the essential findings of the court and the content of the evidence collected in the case.
In addition, the submission of an Extraordinary Complaint will also be admissible only when the judgment under appeal cannot be changed or reversed by other extraordinary means of appeal. Moreover, an extraordinary complaint may not be based on the charges that were the subject of a cassation appeal by the Supreme Court. Additionally, against the same decision, in the interest of the same party, an extraordinary appeal may be brought only once.
In order for the Financial Ombudsman to be able to prepare an extraordinary complaint, it is necessary to present him with the most complete documentation concerning the case. It is necessary to describe the objections to the decision, present pleadings, and judgments of the courts of both instances with reasons and evidence. The Financial Ombudsman may make a decision to apply to the Supreme Court only on this basis. The ideal solution would be to prepare such a request by a professional attorney who already knows the case and has dealt with it in previous instances. He will also know best what conditions for submitting an extraordinary complaint have been met in a given case. Of course, this is not a formal requirement. If someone cannot afford an attorney, the lawyers of the Financial Ombudsman will perform such an analysis only on the basis of the documentation provided.
