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Extraordinary appeal against an order for payment on a promissory note

28 October 2021

The Financial Ombudsman submitted to the Supreme Court an extraordinary complaint against a final order for payment in injunction proceedings issued by the Regional Court in Legnica.  The Regional Court in Legnica granted the Financial Ombudsman’s motion to suspend the execution of the payment order until the extraordinary complaint is examined.

The court issued a payment order relying solely on the promissory note presented by the bank. However, it failed to note that the case was a consumer one and chose not to examine the loan agreement, which may have contained abusive provisions. Both spouses X, who took more than CHF 30 thousand loan, after 13 years of repayment were ordered by the court to jointly and severally repay the bank almost CHF 25 thousand. The Financial Ombudsman requested that the contested judgement be reversed and the case be referred back for reconsideration and that enforcement proceedings be suspended.

In 2005 Mr and Mrs X took out a loan in order to finance, among other things, the extension and furnishing of their home, from EFG Eurobank Ergasias S.A. Branch in Poland, with its registered office in Warsaw. Due to fortuitous circumstances, after several years of repayment, the spouses were unable to settle further obligations. The loan was secured by a promissory note and the bank decided to assert its claims based on that document. The case was brought by the legal successor of the lender, Raiffeisen Bank International AG (Spółka Akcyjna) Branch in Poland. The Regional Court in Legnica, when considering this case, did not decide to examine the loan agreement, which was not even in the file. The clients have to repay jointly and severally almost CHF 25 thousand.

The Financial Ombudsman, having regard to the interpretation of Article 76 of the Constitution of the Republic of Poland in conjunction with the interpretation of Directive 93/13/EEC provided by the CJEU in case C-176/17, alleged that the Regional Court in Legnica before which the promissory note proceedings were brought, in addition to the provisions of the Civil Procedure Code, failed to take account of provisions aimed at protecting consumers.

The Financial Ombudsman pointed out that if a national court had doubts as to the legitimacy of a claim based on a promissory note, it should, ex officio, ascertain whether there were no unfair terms in the agreement, which it failed to do in this case, especially as the bank’s claim arose from a mortgage loan agreement linked to the CHF currency. Such action by the court in the present case violated the principles of consumer protection under Article 76 of the Constitution of the Republic of Poland.

The need to ensure effective consumer protection as provided by EU regulations means that irrespective of whether court injunction proceedings are initiated on the basis of a promissory note, the court is obliged to verify ex officio whether the promissory note constituted security for a consumer contract, and this requires knowledge of the basis for issuing the note.

In the opinion of Prof. Dr. Habil. Mariusz Golecki, the Financial Ombudsman, the judgement is contrary to the current line of jurisprudence, both domestic and presented by the CJEU. – Assuming that examination of a loan agreement is possible only in the event of a statement of opposition to an order for payment would make it excessively difficult for consumers to avail themselves of the legal protection afforded to them by Community law and would not attain the objective of consumer law, which is to place the parties to a consumer contract on an equal footing. In practice, therefore, applying the provisions of the Civil Procedure Code and interpreting them in the light of the CJEU jurisprudence, the court was obliged to refer the case to ordinary proceedings if the defendant is a natural person who, in the light of the lawsuit or evidence attached thereto, should be deemed a consumer, the Financial Ombudsman explained.

Having familiarised himself with the case file, the Financial Ombudsman decided to lodge an extraordinary complaint and requested that the contested judgement be reversed and the case be referred back for reconsideration. In view of the pending enforcement proceedings, he requested that execution of the contested decision be stayed pending the outcome of the extraordinary appeal proceedings. The Regional Court in Legnica accepted the Ombudsman’s motion and decided to suspend the execution of the final order for payment until the extraordinary complaint of the Financial Ombudsman was examined.


The Financial Ombudsman’s website in Ukrainian
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