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The Financial Ombudsman presented the Supreme Court with his position on the Swiss franc loans in case no. III CZP 11/21

24 June 2021

In response to the First President of the Supreme Court’s inquiry, the Financial Ombudsman presented his position concerning the directions of resolving legal issues presented by the Civil Chamber of the Supreme Court in cases related to loans indexed and denominated to foreign currency.

“Our position is congruent with the Financial Ombudsman’s views presented hitherto and adds further arguments arising from the latest case-law and legal scholarship,” explains dr hab. Mariusz Golecki, university professor and the Financial Ombudsman. “We consulted with a range of civil and consumer law communities and specialists in preparing our response for the Supreme Court. I would like to assure you that my office will continue to support consumers unreservedly, using all legally available instruments in all types of cases.”

In his position, the Financial Ombudsman recalled the CJEU’s extensive case-law on the protection of borrowers who concluded loan agreements on the basis of models containing unlawful provisions prepared by banks, and the primary aim of introducing EU law provisions on consumer protection. Furthermore, the Financial Ombudsman highlighted that, as a general rule, it is possible to fill a gap in a loan agreement after an unlawful provision is removed by a default rule, but the Financial Ombudsman does not find in Polish law any such a rule that would be applicable in cases of indexed and denominated loans.

The Financial Ombudsman emphasised that if it is impossible to establish a binding exchange rate in an indexed or denominated loan agreement, the agreement may remain in force only if the borrower, who is a consumer, consciously and voluntarily agrees to the continuation of unfair provisions concerning the establishment of such a rate. Moreover, the Financial Ombudsman pointed out that an agreement can be determined invalid for reasons other than the inclusion of unlawful provisions in its content.

The Financial Ombudsman also pointed to the Supreme Court resolution III CZP 6/21, adopted at the request of the Financial Ombudsman, according to which, in the case of invalidity or ineffectiveness of a loan agreement, the so-called theory of two condictions applies. According to this theory, both parties to the agreement have separate claims for the return of gained benefits.

The Financial Ombudsman resolved, in accordance with the case-law of the Supreme Court, that the statute of limitations on the bank’s claim for a refund of amounts paid out under a loan starts to run the moment the loan agreement becomes permanently ineffective. Permanent ineffectiveness occurs in case of a lack of conscious and voluntary consent to an unlawful provision expressed in the consumer’s first statement to the bank, questioning the validity of the agreement or indicating the abusive nature of its provisions.

The Financial Ombudsman clearly addressed the issue of lenders demanding remuneration for the use of funds made available to borrowers by the bank, i.e. the so-called remuneration for capital. In the Ombudsman’s view, such demands are contrary to EU law, i.e. Directive 93/13, and have no basis in national law. Adopting a different position would result in a situation where a bank that uses unlawful provisions would obtain an advantage at the expense of the consumer, instead of suffering the negative consequences of using such provisions.

The Financial Ombudsman expressed similar opinion in a request for a preliminary ruling in a pending case brought by a bank against a consumer. The Financial Ombudsman adopted a position that in consequence of the invalidity of a legal transaction (an agreement for a loan indexed or denominated to foreign currency), the parties are obliged to return their mutual benefits; however, the demand by the bank which is a party to such an agreement, for remuneration for the consumer’s use of the capital obtained under the invalid loan agreement is contrary to both EU law, in particular Directive 93/13, and Polish law.

The Financial Ombudsman is preparing his position for the Supreme Court.

24 May 2021

The Financial Ombudsman started work on his position on the legal issues covered by the motion of the First President of the Supreme Court in case III CZP 11/21.

The press spokesperson of the Supreme Court informed that on May 11, 2021, the composition of the entire Civil Chamber of the Supreme Court considering at a closed session the request of the First President of the Supreme Court of January 29, 2021, to resolve discrepancies in the interpretation of legal provisions in the case law of common courts and the Supreme Court concerning loans indexed and denominated in foreign currencies, decided to inform the Financial Ombudsman about the ongoing proceedings and asked for his position on the legal issues covered by the request of the First President of the Supreme Court.

According to the announcement, the composition of the entire Civil Chamber of the Supreme Court made this decision taking into account the social and economic importance of the issues presented to it for resolution.

The Financial Ombudsman has started work on his position. In the morning, a briefing took place at the Office of the Financial Ombudsman, during which a work plan was defined. In his work, the Financial Ombudsman places particular emphasis on the effects of the proposed solutions on the legal system.

“I have made a decision to review the existing positions,”says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman. “Due to the importance of the issue, I do not exclude a change of position with regard to individual issues, also bearing in mind the latest case law of common courts, the Supreme Court, and the Court of Justice of the European Union.”

The Supreme Court confirms the position of the Financial Ombudsman

7 May 2021

The Supreme Court, at a session of the Civil Chamber composed of 7 members, ruled that in the event of the invalidity of a foreign currency loan agreement, the parties to the dispute should settle accounts according to the theory of two claims [Polish: “teoria dwóch kondykcji”]. The resolution adopted today by the Supreme Court has the force of a legal principle and ensures greater predictability of case law in the so-called Swiss franc matters. The ruling of the Supreme Court is consistent with the position of the Financial Ombudsman, who also applied for the unification of judicial decisions.

– The adopted resolution confirms the trend in jurisprudence that is beneficial for consumers – says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, the Financial Ombudsman. – First, it ensures the predictability of the jurisprudence, and only in such conditions are customers able to estimate the possible financial consequences of specific actions. Therefore, the resolution is important both for those who wish to pursue their rights in court and for those considering the possibility of an amicable settlement of the dispute. Secondly, and equally important, the application of the theory of two claims is more beneficial for consumers, who are the weaker party in disputes with financial institutions and they bear the consequences of illegal provisions applied by banks in their loan agreements.

The balance theory and the two claims theory in practice

So far, common courts have presented divergent views on mutual settlements of the Swiss franc loan holders with banks. The Financial Ombudsman postulated that the Supreme Court unequivocally define the rules according to which the parties are to settle claims in the event that the loan agreement is deemed invalid. He pointed out that from a legal point of view it is justified to apply the theory of two claims.

– In practice, this means that if the contract is considered invalid, the borrower has the right to demand the bank to return the benefits in full, even if he has not yet repaid the loan. In this case, the key is how much the borrower has given back to the bank, and not how much he has borrowed from him. Moreover, in order to recover the amount of the disbursed loan, the bank should submit its own claim – explains dr. Ewa Skibińska from the Office of the Financial Ombudsman. – To facilitate the settlement, either party may submit a statement of deduction. For example, a customer who has so far repaid less than the amount of the loan granted can then only settle the difference between these amounts.

The balance theory [Polish: “teoria salda”] questioned today by the Supreme Court said that the subject of the claim could only be the difference between the value of the loan and the already repaid installments. In the opinion of the Financial Ombudsman, the balance theory is unfavorable for consumers, and there is no basis in applicable law. Applying the balance theory, the court would only admit the difference between the sum of the installments paid by the client and the amount made available by the bank. This would lead to a paradoxical situation. Although the court would have declared the contract invalid, the trial would have resulted in a loss for the consumer as regards the demand for reimbursement of the sum of the repaid installments. Most importantly, the balance theory did not lead to the goal of settling the matter in one process. In cases where the courts applied this theory, borrowers continued to face subsequent lawsuits from banks.

Positive effects of the Supreme Court resolution

– Indication of what rules should be applied to settle the contract, if it is deemed invalid, will improve the security of legal transactions and increase consumer confidence in the stability of the law. Due to the lack of predictability in this respect, when filing the claim, the customer had to take into account a number of contradictory legal views, which forced the formulation of possible demands in the claim. This resulted in an unnecessary extension and complication of court proceedings, which was detrimental to consumers. The instruments at the disposal of the Financial Ombudsman allow for a real improvement in the situation of consumers in Poland. If I notice similar problems in other aspects, I will use all available methods to support customers in disputes with financial institutions – declares Mariusz Golecki.

The importance of the Financial Ombudsman’s request

A request to the Supreme Court to resolve discrepancies in the case law is one of the powers of the Financial Ombudsman, which has a significant impact on the rights of consumers in our country. The resolution of the Supreme Court leads to ensuring the predictability of jurisprudence by unifying the jurisprudence of common courts and is an incentive to review the attitude of the banking sector. Since 2003, the Financial Ombudsman has filed 24 requests for a resolution of the Supreme Court (including the above). So far, the Court has adopted 22 resolutions, of which 21 times it shared the Defender’s view expressed in the request.

The Financial Ombudsman consistently supports the heavily injured.

27 April 2021

The Financial Ombudsman presented an ‘important view’ in cassation proceedings before the Supreme Court. The case concerns the amount of the social pension for a girl injured in an accident, who requires round-the-clock care. The decision of the Court will be important not only in this case, but also for other people who will find themselves in a similar situation.

– We are monitoring this case, not only due to the situation of the victim and her family. I have decided to present an ‘important view’ on this matter, as the decision of the Supreme Court may have a broader dimension. The issues resolved in this case are considered inconsistently by courts of different instances. The position of the Supreme Court may be a step in shaping a line of jurisprudence favorable for people who are seriously injured in accidents – says dr hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.

The dispute concerns the rights of a girl injured in an accident in February 2011. She was hit by a car as she was using a marked pedestrian crossing near the school. The result of the accident is tetraparesis. Currently, she is unable to function independently, to perform basic activities, and requires round-the-clock care.

The attorney of the injured girl demands a wider scope of reimbursement of the costs of care and questions the recognition of the social pension as a disability pension for increased needs. The Financial Ombudsman supports these claims with legal argumentation in three key issues in this case.

What is the time frame of care?

In particular, the Supreme Court will decide whether the 24-hour care and assistance, the costs of which are compensated under the disability pension for increased needs, may only cover the scope of physically performed activities helping the victim. Perhaps it should additionally include the time of care, supervision, readiness to help the injured person until the need to perform a specific physical activity, in particular at rest and at night? Consequently, should the calculation of the costs of round-the-clock care and assistance of third parties take into account 24 hours or less?

In the opinion of the Financial Ombudsman, the disability pension due to increased needs should cover a wider scope of activities performed, i.e. the time of care, supervision, readiness and vigilance with the injured person until the need to perform a specific physical activity, including during rest and at night.

Who determines the time frame of care?

Related to this issue is the question to what extent the condition for determining the length of care as an increased need in light of Art. 444 § 2 of the Civil Code are medical categories, i.e. the extent of bodily injury and health disorder and the related need for care in a specific dimension, such as in this case around the clock to maintain vital functions. The key is to decide whether this is special information in the scope of which the court should not make a determination – contrary to the opinion of an expert – based on its own conviction.

In the opinion of the Financial Ombudsman, in such a situation the Court should not do it. In the important view, he argues that if the court makes its own opinion on issues requiring special knowledge, ignoring evidence from an expert opinion, there may be a violation of Art. 278 § 1 of the Code of Civil Procedure.

Can the disability pension be reduced due to increased needs?

The third issue is whether the disability benefit due to the aggrieved party in accordance with Art. 444 § 2 of the Civil Code, shall be reduced by the amount of the social pension received by the aggrieved person.

According to the Financial Ombudsman, this is unacceptable. In the opinion of the Financial Ombudsman, both the purpose and function of the social pension (regulated in the Act on social pension) and the disability pension due to increased needs (regulated in Art. 444 § 2 of the Civil Code) are not identical.

Support for the whole family

It is worth emphasizing that the Financial Ombudsman supports the entire injured family by presenting relevant views at the stage of a court dispute. A few months ago, he presented an important view in cassation proceedings in which the girl’s mother is fighting for compensation for the violation of personal interests in the form of an emotional bond between relatives. The insurer believes that she is not entitled to such claims. The Financial Ombudsman is of the opposite opinion.

Important CJEU judgment for borrowers

23 April 2021

On April 22, 2021, the CJEU issued a judgment in the Profi Credit Slovakia case (C-485/19), which should be applied directly to the courts’ interpretation of the Polish provisions of the Civil Code regarding the commencement of the limitation period for consumer loans.

The case concerned a Slovak consumer who, after repaying the entire loan, was informed by a lawyer that the provisions of the contract were unfair. Therefore, he brought an action for the reimbursement of – in his opinion – unduly collected fees. On the other hand, the loan company raised the statute of limitations for his right to pursue claims. The Slovak limitation system applicable to consumer claims includes, among others, a three-year limitation period, starting from the time of unjust enrichment. The right to bring an action becomes time-barred even if the consumer is not in a position to judge for himself whether a contract term is unfair or was not aware that such a term was unfair. Therefore, the event that triggers the commencement of this period is the payment made by the consumer with the intention to perform the contract. This deadline should be calculated separately for each payment made by the consumer during the performance of the contract.

The Advocate General was apt to point out in pt. 72 that if the commencement of the three-year limitation period is each payment made by the borrower, it may be that, under a contract that is performed for more than three years, individual claims of that borrower are time-barred before the contract ends.

In pt. 60 of this judgment, the Court held that, as regards the commencement of the limitation period in question, in circumstances such as that in the present case, there is a significant risk that the consumer concerned will not invoke the rights conferred on him by EU law within the time limit set for that purpose. This would therefore prevent the consumer from pursuing these rights (see, to that effect, judgment of 5 March 2020, OPR-Finance, C-679/18, EU:C:2020:167, paragraph 22).

In justifying its position, the Court referred to the fundamental assumption that consumers are in a worse position than companies, both in terms of negotiating power and the degree of information, and that it is possible that consumers are not aware of the scope of their rights under the Directive 93/13 or Directive 2008/48 or do not understand them (see, to that effect, judgments of July 9, 2020, Raiffeisen Bank and BRD Groupe Société Générale, C-698/18 and C-699/18, EU: C: 2020: 537, pts. 65 to 67, July 16, 2020, Caixabank and Banco Bilbao Vizcaya Argentaria, C-224/19 and C-259/19, EU:C:2020:578, pt. 90 and the case-law cited therein).

In pt. 64 of this judgment, the Court found that the procedural rules – which require the consumer to bring an action within three years from the date on which the unjust enrichment took place, where such enrichment may take place during the performance of the contract for a significant period – render excessively difficult exercise of the rights conferred on the consumer by Directive 93/13 or by Directive 2008/48, thereby infringing the principle of effectiveness (see, to that effect, judgments of 9 July 2020, Raiffeisen Bank and BRD Groupe Société Générale, C-698/18 and C-699/18, pts. 67 and 75, of 16 July 2020, Caixabank and Banco Bilbao Vizcaya Argentaria, C-224/19 and C-259/19, pt. 91).

The Court also noted that the intention of the company which applied a contract term deemed unfair does not affect the rights that consumers are entitled to under the provisions of Directive 93/13, just as Art. 10 sec. 2 of Directive 2008/48. Thus, the consumer cannot be required, in order to invoke the rights under these provisions, to demonstrate the intentional nature of the conduct of the company concerned.

In conclusion, the Court held that the principle of effectiveness must be interpreted as precluding national legislation providing that an action brought by a consumer for the recovery of amounts unduly paid on the basis of unfair contract terms within the meaning of Directive 93/13 or terms contrary to the requirements of Directive 2008/48 is subject to a three-year limitation period commencing on the day on which the unjust enrichment took place.

Families of seriously injured victims are waiting for new regulations.

23 April 2021

The President of the Republic of Poland submitted to the Sejm a draft law adding to the Civil Code a provision important for relatives who are in a vegetative state, e.g. as a result of a traffic accident or a medical error. It involves granting them the right to compensation for the harm they have suffered in the form of broken family ties as a result of serious and permanent bodily harm. This solution is needed due to the currently existing discrepancy in jurisprudence at the level of the Supreme Court.

The president proposes to add Art. 446[2] to the Civil Code. The provision would grant the immediate family members of the victim compensation for the harm suffered in the form of broken family ties as a result of serious and permanent damage to the body or health of the victim, as a result of which the victim is in a vegetative state.

– This is a necessary initiative, as it is about confirming that the family bond is a personal right, the violation of which deserves redress. Families of seriously injured victims have been living in uncertainty for several months now. The introduction of statutory regulations will prevent their rights from being questioned, for example, by the insurers of the perpetrators of damages, as a result of which the injured persons found themselves in a vegetative state – says dr. Mariusz Jerzy Golecki, professor at the University of Łódź, the Financial Ombudsman.

He reminds that insurers gained a basis for such a position as a result of the resolution of the Supreme Audit and Public Affairs Chamber of the Supreme Court of October 22, 2019 (reference number I NSNZP 2/19). It took a completely opposite position to that presented a few months earlier by the Civil Chamber of the Supreme Court. On March 27, 2018, it adopted a resolution on the motion of the Financial Ombudsman (III CZP 36/17) and in two other cases concerning the same problem (III CZP 69/17 and III CZP 60/17). The conclusion of all three resolutions was clear: The court may award compensation for harm to the relatives of the victim who suffered a serious and permanent health impairment as a result of a tort. On this basis, compensation could be paid, for example, from a motor third party liability insurance policy, if the aggrieved party suffered a car accident. The same rules would also apply to the relatives of people who suffered as a result of medical errors, e.g. those committed during childbirth.

The Financial Ombudsman acts to protect the rights of the victims’ families

Seeing this discrepancy and its negative consequences for the aggrieved parties, the Financial Ombudsman applied to the Supreme Court for a resolution. (more details in the link below). He emphasized that, in his opinion, such situations are undoubtedly an example of infringement of the personal rights of relatives, which undoubtedly deserves financial compensation. He noted that from March 2018, insurers began to change their approach, in line with the position of the Civil Chamber.

Some insurers still question such entitlement of the relatives of the victims. For example, the Ombudsman dealt with the case of a victim in 2005. He was 15 when he was hit by a car. The boy suffered injuries in the form of a contusion of the brainstem, which resulted in swelling of the brain and circulatory and respiratory failure. Among other things, a tracheotomy was necessary, i.e. cutting the trachea to ensure breathing. Currently the injured person is over 30 years old and is incapable of functioning independently, and requires round-the-clock care and assistance. He became permanently disabled, both mentally and physically, and was thus excluded from active life. There is no contact with him, he does not speak, does not give clear and understandable signs in response to questions.

In connection with this situation, the victim’s mother, who takes care of him on a permanent basis, applied to the insurer for compensation in the amount of 200,000 PLN. The legal basis is Art. 448 of the Civil Code in connection with Art. 23 of the Civil Code and Art. 24 of the Civil Code as compensation for the harm resulting from the violation of personal interests in the form of damaged family ties and relationships due to the son’s permanent and serious disability.

The insurer, who issued the motor third party liability insurance policy for the perpetrator of the accident, refused to pay compensation. He indicated that the injuries suffered by the injured person did not cause him to be in an irreversible state of a coma or a permanent vegetative state. Thus, in the opinion of the insurance company, the personal interest of the victim’s mother was not infringed.

The Financial Ombudsman also dealt with cases of people injured as a result of medical errors. In this case, the mere demonstration of the responsibility of a medical facility is very difficult and time-consuming. Even if this happened and the insurers paid out a number of other benefits due in such a situation, they would refuse the previously mentioned compensation. In one of the cases, a newborn was infected in a hospital. Currently, the child has hemiparesis, brain changes, epilepsy, and nystagmus. The child does not speak, does not walk, sits down with help, and its intellectual development is delayed. Nevertheless, the insurer did not pay adequate compensation here as well.

An extraordinary appeal of the Financial Ombudsman in a dispute over car repair costs

8 April 2021

The Financial Ombudsman brought another extraordinary appeal to the Supreme Court. This time he is fighting for the right to reconsider the dispute between the injured party and the insurer for over 11,000 PLN. The dispute concerns the payment of compensation equal to the cost of repairing the car, calculated by experts. The Financial Ombudsman informs that the aggrieved party has the right to do so even if the damaged car has not been repaired and sold.

– I decided to file an extraordinary appeal, because in this case we are dealing with an incorrect, and grossly, incorrect interpretation of the law. By adopting the approach presented by the District Court, the second instance court would also violate the constitutional principle of equality before the law. Therefore, the revocation of the judgment under appeal is necessary to ensure compliance with the principle of a democratic state ruled by law implementing the principles of social justice. The violations in the complaint are so serious that they order the Supreme Court to interfere with the res judicata by upholding the complaint, setting aside the judgment under appeal and referring the case for reconsideration – says Dr. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.

The dispute between the injured party and the insurer, in which the Financial Ombudsman filed an extraordinary appeal, concerns the effects of a car collision in April 2013. The insurer of the perpetrator decided that the repair of the victim’s car was not worth it. This means that its costs would exceed the value of the vehicle on the day of the damage, estimated at 20,800 PLN. Therefore, the insurer declared the so-called total loss, estimated the wrecked vehicle at 13,400 PLN and paid out 7,400 PLN in compensation.

The court of first instance agrees with the injured party

The injured party did not agree with this position. He hired an expert, whose calculations confirmed that the repair costs were lower than the value of the car before the accident. The injured party asked for additional compensation covering the calculated repair costs. However, the insurer did not change his mind. The dispute continued and the injured party, unable to wait for the payment of compensation allowing for the repair, sold the damaged car. However, he retained the right to compensation equal to the cost of repairing the car, calculated by an expert. Therefore, he brought the case to court. The expert appointed by the first instance court confirmed that the insurer incorrectly assessed both the repair costs and the value of the vehicle on the date of the damage. According to these calculations, there was therefore no basis for considering the damage to be total. As a result, in March 2018, the court of first instance found that the insurer is obliged to pay an additional amount of almost 9,000 PLN for the cost of repairing the vehicle and the return of 450 PLN paid by the customer for the services of an expert. He also added default interest, so in total over 11,000 PLN were to be transferred to the customer’s account.

– The court of first instance, referring to the well-established line of jurisprudence of the Supreme Court and common courts, rightly pointed out that the compensation owed by the insurer under the compulsory third-party liability insurance of motor vehicle owners in the event of partial damage covers deliberate and economically justified repair costs. The obligation to repair the damage does not depend on the fact of repairing the damaged car, and even less on other subsequent events in the form of its sale. In the case of partial damage to the vehicle, the insurer’s indemnity is reduced to the payment of the amount necessary to restore the vehicle to its previous condition in all material respects – explains Andrzej Kiciński, Deputy Financial Ombudsman.

The second instance court is on the side of the insurer

The insurer fought on, raising the argument that after selling the damaged vehicle, the injured party cannot claim compensation for repair costs. It turned out that he found the understanding of the court of second instance, which in January 2019 changed the judgment and dismissed the injured party’s claim for payment of repair costs. The District Court took the interpretative position that in the case of selling a damaged vehicle, even if the repair costs are not excessive, the obligation to repair the damage is limited to the difference between the market value of the vehicle in an undamaged condition and the value of the accident remnants.

– The analysis of the justification of the judgment shows that the interpretation of the provisions of law made by the court of second instance with regard to the notion of damage and the amount of due compensation is unequivocally assessed in the jurisprudence of the Supreme Court as erroneous, and grossly at that. In our opinion, this justifies the submission of an extraordinary appeal by the Financial Ombudsman – says Andrzej Kiciński.

It is also reminiscent of Supreme Court judgments of 8 March 2018, II CNP 32/17; of April 12, 2018, II CNP 41/17, and of April 12, 2018, II CNP 43/17 (available at the website of the Supreme Court). In cases where, after causing partial damage, the damaged vehicle was sold and where the common courts limited the concept of damage to the difference between the market value of the vehicle in the state before the damage and the price obtained from the sale of the damaged vehicle, the Supreme Court clearly qualified this type of interpretation of the law as gross violation of substantive law (mainly Art. 363 of the Civil Code, Art. 361 of the Civil Code and Art. 822 of the Civil Code) and then found that the judgment was unlawful.

It is also impossible to ignore that in 2018 the Supreme Court refused several district courts to answer legal questions regarding the rules for determining compensation in the event of a partial repair of a damaged car or the sale of accident remnants. The Supreme Court in the justification of the decisions refusing to adopt a resolution consistently indicated that the jurisprudence of the Supreme Court is well-established and there are no grounds for making the amount of compensation dependent on the fact of repairing or limiting liability to the difference between the market value of the damaged vehicle and the value of the remnants in the event of the sale of the damaged car. In the case of partial damage to the vehicle, and in the event of the sale of an unrepaired car, the injured party may still claim compensation corresponding to the repair costs, and limiting liability to the difference between the market value of the undamaged vehicle and the wreckage is unjustified.

– This and other cases show that the dispute with the insurer can last for many years. It is difficult to expect victims to refrain from making decisions about the car until the case is settled by the court. If the insurer has not paid enough compensation to repair the vehicle, selling the remnants is often the only option. In this situation, it is difficult to accept the deprivation of the injured party’s right to demand an additional payment covering the full cost of repairing the damage – says Andrzej Kiciński.

He adds that such an approach would also violate Art. 32 of the Polish Constitution, the principle of equality before the law. Those who did not sell the wrecked vehicle would be treated better than those who did, although there is no legal basis for such a gradation of their legal situation.

Possible consequences of an extraordinary appeal

The setting aside of the judgment under appeal and the referral of the case for reconsideration will give the injured party the chance to obtain due compensation. It will also be a clear indication for those who find themselves in a similar situation that they may still pursue their rights, e.g. by submitting a request to the Financial Ombudsman for an extraordinary appeal.

Persons whose dispute on a similar background is currently pending in court have the option of submitting to the Financial Ombudsman a request to present a relevant court for the case.

Those who in the past have refused to pay for repair costs and have not decided to go to court can still pursue their claims against the insurer if they are not time-barred. In most traffic accidents, it will be three years from the receipt of the last decision in a given case from the insurance company. But in cases where the damage was a crime, it could be as long as 20 years. If such a complaint is rejected, the Financial Ombudsman can be asked to intervene.

Remember! The right to demand coverage of the costs of the appraiser service

In this case, there is also a dispute over the return of 450 PLN – the remuneration of the expert hired by the customer. The consequence of an incorrect interpretation in the dispute concerning the surcharge was the rejection of this claim by the court of second instance. In the opinion of the Financial Ombudsman, customers have the right to use professional support in a dispute regarding the extent of the damage or repair costs.

It is worth remembering that the Supreme Court, in a resolution adopted at the request of the Financial Ombudsman, confirmed the right of injured parties and assignees to demand that the costs of the expert’s opinion be covered from the motor third party liability insurance. He also made a reservation that they must be proved necessary for the effective claiming of damages. In practice, this means applying the simple principle “who is wrong, pays”. It follows from the justification that if the expert’s opinion shows that the insurer has underestimated the compensation, the customer should have no problems obtaining a refund of costs. (more in the link below) Therefore, if in the past the injured person hired an appraiser to determine the cost of the repair, he or she can additionally submit a request for coverage of the costs of such a service by the insurer.

An information leak from Facebook can be used by criminals to commit fraud. The Financial Ombudsman’s warning.

8 April 2021

The personal data of 533 million Facebook users appeared on a hacking forum on the Internet. Among them were data of nearly 2.7 million users from Poland. Leaked names, phone numbers, home addresses as well as locations, previous locations, birth dates, biographies, account creation dates, relationship status, and sometimes email addresses. The Financial Ombudsman warns that such a large information base may be used by criminals for attacks using social engineering techniques or attempts to break into other profiles or accounts, including bank accounts. What steps are worth taking?

According to the Financial Ombudsman, the data leaked a few days ago may be used as a tool for identity theft or breach of other security measures. That is why it is so important to protect personal information and react appropriately to phishing attempts. The Ombudsman already recommends taking appropriate steps and creating a habit of protecting personal data by each of us.

Remember that if an unknown person is calling you, it may be a scammer. Even if the person provides you your data in order to authenticate the contact, this data may come from a leak. We should also pay more attention to emails and SMS messages we receive from strangers – these may also contain malicious software used for fraud or theft.

Leaking email addresses can allow scammers to impersonate real organizations, including the banks where our accounts are located. The Commissioner for Human Rights draws attention to the significant risk of the theft of funds from bank accounts. In order to minimize the occurrence of this risk, it is worth checking whether the bank uses strong authentication for all possible types of activities.

One of the most common forms of attack is a message to update your confidential data. Another form of fraud is the so-called “surcharge” fraud involving the impersonation of couriers, energy companies, debt collectors, or government offices in order to persuade you to pay by clicking on a link leading to a fake payment gateway. Be vigilant if you receive such a link. It will be much safer to enter the bank’s website address in the browser yourself or to use a tab you created yourself.

The Financial Ombudsman informs that in the event of an unauthorized payment transaction, this fact should be immediately reported to the bank together with the request for a refund, and a parallel notification of the possibility of committing a crime to the nearest police unit should be submitted. In accordance with the current legal status, the bank should return the amount of the unauthorized transaction to the customer’s account no later than by the end of the business day following the finding of the unauthorized transaction or after receiving the notification from the customer. A step that is worth taking preventively today is reviewing the data we share on social media platforms. In the era of increasingly common identity theft scams, it is worth presenting your data on the web with caution. Information that is not necessary for the creation and functioning of social media profiles is best to be left offline.

The court prevented aggrieved farmers from fighting the bank – an extraordinary appeal of the Financial Ombudsman.

1 April 2021

In 2009, a married couple – farmers from the Podlaskie Voivodeship – took a working capital loan for several dozen thousand zlotys from a bank. In their opinion, the payments made for the repayment of the loan were booked against other liabilities towards the same bank, which – as they declared – they did not incur. The bank, using the regulations in force at that time, issued a bank enforcement order, which the farmers tried to challenge in court. The district court dismissed their claim, and – according to the Financial Ombudsman – the errors of the second instance court closed the court to pursue their rights. The only solution for them is an extraordinary appeal, for which they asked the Financial Ombudsman.

The Financial Ombudsman therefore filed an extraordinary appeal to the Supreme Court dismissing the complaint against the decision rejecting the appeal concerning the deprivation of enforceability of the bank enforcement order issued by the bank in 2010.

The basis for issuing the bank enforcement order by the bank was the agreement for a working capital loan borrowed by the married couple of farmers from the Podlaskie Voivodeship. The bank enforcement order (which was in force in Poland until 2016) made it possible to conduct civil enforcement after the court had given it an enforcement clause. This, however, was actually granted automatically, as the court examined the bank enforcement order only in formal terms. In the present case, the bank appropriated a slurry tanker belonging to the farmers under the bank enforcement order. In 2017, the couple filed a lawsuit for deprivation of enforceability of the bank enforcement order. In it, they alleged, among others, that the claim was met and the bank’s enforcement title itself is time-barred.

In the judgment of November 4, 2019, the district court dismissed the claim of the farmers, finding that the bank enforcement order met all formal conditions, the claim was not time-barred, because the limitation period was interrupted by concluding settlements with the bank and that the debt, contrary to the clients’ claims, was not paid off.

The farmers, as plaintiffs, appealed against the decision of the court of first instance that was

unfavorable for them. The appeal was filed by them in person – without the participation of a professional attorney. Along with the appeal, they also applied for an exemption from the appeal fee. The court acceded to the submitted application for exemption from paying the appeal fee and partially released the clients from the obligation to pay it. The clients were therefore required to pay the remainder of the appeal fee.

However, a copy of the court’s decision on partial exemption from costs was delivered to the farmers’ attorney instead of to them. The court did not summon plaintiffs acting personally to pay the rest of the fee. As a result of a court error, the court did not recognize the appeal, rejecting it as unpaid within the deadline. The court hearing the appeal against the decision to reject the appeal duplicated the error of the court examining the appeal. Both courts found that the lack of a summons to pay the rest of the fee was due to the fact that the clients were represented by a professional attorney who signed a letter supplementing formal deficiencies previously submitted by the clients in person for an exemption from the appeal fee, in terms of declarations on assets and family.

In the opinion of the Ombudsman, the court acted incorrectly by not calling the clients to pay the missing fee, but only by sending the decision on partial exemption from it to the attorney who did not appeal.

The court did not make a subjective distinction between bringing an appeal together with an application for exemption from court costs personally by the clients and their representation in the proceedings by a professional attorney, which resulted in the irreversible effect of closing the clients’ way to control the judgment issued in the first instance.

Using the assistance of an attorney by clients in the first instance does not exclude the possibility of submitting an appeal by clients themselves. This was the case in the present state of facts. In such a situation, in the event of formal deficiencies, the court should instruct the clients to supplement them as if the clients had acted independently. However, this was not the case.

In the appeal, the clients raised the objection that the court did not recognize the essence of the case, the limitation of claims, erroneous recognition by the court that in the case there was an interruption of the limitation period for receivables resulting from the bank enforcement title and incorrect accounting of the amounts paid to the technical account, indicating

that, according to them, the loan in question had long since been paid off, while the amounts were posted for loans which the plaintiffs, they say, had never taken. For these reasons, they cannot be prevented from verifying the judgment of the court of first instance.

The Financial Ombudsman considered it necessary to take action and submit an extraordinary appeal in this case in order to open the way for clients to substantive examination of their case by a court of second instance. The issued decision unreasonably deprived the clients of the right to substantive review of the judgment of the court of first instance. The intervention of the Financial Ombudsman may cause the court of second instance to consider the appeal filed by the clients and to substantially refer to all the allegations raised in it.

A warning from the Financial Ombudsman – watch out for cryptocurrency loans

19 March 2021

The Financial Ombudsman’s office receives client complaints about entities that require prepayment in exchange for a loan promise. Recently, they concern a company that promised a loan using cryptocurrencies.

In the past few weeks, the Financial Ombudsman has received over a dozen requests from clients complaining about the activities of one of the loan companies. It makes granting a loan dependent on the client’s payment of certain funds. They are to be used to cover the costs of the loan-related fees. Most often, these are amounts of about 1,000 PLN, but one of the persons paid as much as 19,000 PLN. Additionally, the company requires the establishment of collateral, e.g. in the form of a promissory note. Despite the fulfillment of these conditions, the money does not go to clients, and contact with its representatives is difficult.

– The case is particularly worrying because in many cases it can be people who are in a poor financial situation, often already excessively indebted and with an unfavorable credit history. These people are particularly vulnerable to unfair practices of lenders, because they often operate under pressure and do not have sufficient knowledge to analyze the concluded contract. After reviewing the clients’ explanations and the documents provided, we can see that the company’s actions can be considered unfair or even fraudulent. Therefore, we informed the relevant state authorities – says dr. hab. Jakub Szczerbowski, director of the Banking and Capital Market Customer Department in the office of the Financial Ombudsman.

The contracts analyzed by the experts of the Financial Ombudsman contain a number of questionable provisions regarding activities preceding the granting of the loan. The mechanism of transferring funds to the clients is also surprising.

– The borrower is allegedly reserving funds in the Bitcoin cryptocurrency. Bitcoins are converted into US dollars. Then the US dollars are converted into Polish zlotys. Funds in Polish zlotys – in accordance with the provisions of the contract – should be made available to the borrower via a prepaid payment card – describes Paulina Tronowska, legal advisor at the office of the Financial Ombudsman.

In its view, this method of performance has no economic justification. It may in fact provide a facade for the actual actions of the subject, obscure the true picture of the situation and distract the consumer, preventing him or her from making a rational decision.

– If anything raises your doubts, you should refrain from signing such an agreement. You have the right to obtain an information form to read the terms and conditions. It is also worth searching the Internet for information about the company and the way it operates. If you have already decided to conclude such an agreement and during its implementation you have doubts as to the fairness and lawfulness of its provisions, a complaint should be submitted to the financial market entity. If it is not examined in accordance with our expectations, you can ask the Financial Ombudsman for and intervention or an amicable settlement. When you suspect that you have fallen victim to fraud, you should contact the Police or the Prosecutor’s Office as soon as possible – says Paulina Tronowska.

It encourages immediate action by people who feel disadvantaged by the actions of financial market entities or other entities offering financial services.

– This will allow the competent authorities to react quickly to possible irregularities in the financial market. It can also help protect other market participants from unfavorable disposal of their savings – says Paulina Tronowska.

CJEU on the banking and capital market in 2020. Analysis of the Financial Ombudsman.

18 March 2021

Legal issues relating to financial products and services are hotly discussed in both case law and public debate. This issue is also taken up by the EU Court of Justice, which sets the directions for the interpretation of EU regulations. This directly translates into the jurisprudence of the courts of the Member States, including Polish courts. Noticing the importance of the above interpretations for customers of financial market entities, the Financial Ombudsman analyzed the rulings of the CJEU issued in 2020.

– Following and analyzing the jurisprudence of the CJEU is of great importance due to the legal nature of these judgments and the rules of their application. The Court very often emphasizes the leading role of the national court in consumer cases. According to the judges of the CJEU, the inequality between the consumer and the company can only be offset by the active intervention of a third party, independent of the parties to the contract, which is the Polish court. A good example is the judgment in the case of the Medius Law Firm, C-495/19. It emphasized that it is the court that is obliged to interpret national provisions in line with EU law – says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.

In the opinion of the Financial Ombudsman, among the issues raised in the jurisprudence of the CJEU in 2020, two issues should be highlighted. Firstly, the problem of the effects of unfair terms in consumer contracts (defined in Polish law as prohibited contractual provisions or abusive clauses), especially in loan agreements denominated and indexed in a foreign currency. Secondly, there is the question of the cost of the loan for the consumer.

Taking into account the national legal context of each of these cases, which are part of this study, it should be noted that the position of the Court of Justice always concerns the interpretation of EU law and thus this interpretation should be binding when judging by Polish courts on the basis of Polish provisions.

The Financial Ombudsman in defense of the Dziubak family

4 March 2021

The Financial Ombudsman joined a court case in which the Dziubak family will defend themselves against Raiffeisen’s claim for remuneration for using capital. In total, the bank demands from them almost twice as much as they borrowed, i.e. around 800,000 PLN.

– I have been saying for a long time that neither Polish nor EU law has a legal basis for such expectations on the part of the bank. In addition, I believe that in this case the size of the claim is to act as a deterrent to other customers from pursuing their claims. That is why I decided to join the case initiated by Raiffeisen Bank International AG Branch in Poland against Justyna Dziubak and Kamil Dziubak. I hope that our support and arguments will allow them to effectively defend themselves against the bank’s claims – says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.

The case concerns a mortgage which was taken 2008. The bank’s customers borrowed 400,000 PLN and the loan value was indexed to CHF. After several years of paying installments, the borrowers filed a lawsuit against the bank for the cancellation of the loan agreement and the return of the undue benefit in the form of the sum of their installments.

The bank, without waiting for a final decision of the nullity of the agreement by the court, called on the Dziubak family to pay for the use of its capital. Next, the bank filed a lawsuit with the court for the payment of the nominal amount of the loan with an additional demand for its indexation by the court and the amount constituting, in the opinion of the bank, remuneration for using its capital. In total, the bank demands from the Dziubak family almost twice the amount of financing provided. In the opinion of the bank, in the event of a final court ruling on the invalidity of the agreement, the Dziubak family will be unjustifiably enriched, which justifies the filing of a lawsuit.

An increase in problems with unauthorized transactions.

1 March 2021

In 2020, almost 1,200 requests for intervention in a dispute regarding an unauthorized banking transaction were submitted to the Financial Ombudsman. The scale of the problem during the pandemic is growing dynamically.

The preliminary summary of the impact of requests for the intervention of the Financial Ombudsman in 2020 shows that 1163 of them concerned so-called unauthorized transactions. This means that on average, almost 5 people per working day reported to the Ombudsman for help in resolving disputes. Most often they concern situations in which the victims lost money from an online bank account or a payment or credit card as a result of fraud.

– The scale of the increase in the number of requests of this type, observed in 2020, is worrying. There were almost twice as many requests as in 2019. We have not recorded such dynamics in any of the previous years of our activity. There is no doubt that this is the result of the pandemic and greater activity of criminals. In the first half of 2020, we recorded slightly more than 400 requests for intervention in cases of a bank’s improper operation in connection with unauthorized transactions. In the second six months, there were nearly 750 such requests. Unfortunately, some banks still do not comply with EU and Polish regulations that define the rules of conduct in such cases. Hence, the number of such disputes is growing – says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.

Apart from intervention procedures, he also undertook other activities permitted by law. In one of the cases, he filed an extraordinary complaint to the Supreme Court. In the case of a farmer who lost approx. 140,000 PLN, which was stolen by criminals from his account, filed a lawsuit against the bank as it did not act in this case in accordance with the provisions.

– We are aware that only some of the victims come to us asking for help. Customers trust the banks’ explanations provided in response to their notification or complaint about this type of transaction. We can see, however, that the banks’ interpretation of the regulations is different from ours. That is why I made a decision that one of the topics of our free educational webinars should be the issue of customers’ rights in such a situation. Customers need to know their rights and know how to get our help in enforcing them against banks – says Mariusz Golecki.

When should the bank return the money stolen from your account?

The regulations define the deadline for the return of funds resulting from an unauthorized transaction based on the so-called D+1 rule. According to it, the money should be returned to the customer’s account no later than the end of the business day following the detection of the unauthorized transaction or the date of receipt of the customer’s request. The only exception to the rule of returning the amount of the unauthorized transaction within this period is a justified and duly documented suspicion of fraud attempted by the customer. At the same time, the bank is obliged to inform law enforcement authorities of such suspicion in writing. In practice, this means that the bank is first obliged to immediately return the money to the customer, and then – if it has reason to believe that the customer is fully or partially responsible for the unauthorized transaction – claim this amount from the customer, for example in court. (details in the diagram: How to proceed after detecting an unauthorized transaction?)

Important activities of the Financial Ombudsman regarding unauthorized transactions in 2020

October 2020 – extraordinary complaint for refusal to refund the amount of an unauthorized transaction

September 2020 – a lawsuit by the Financial Ombudsman on behalf of a customer who lost 140,000 PLN as a result of an unauthorized transaction

September 2020 – an analysis by the Financial Ombudsman on unauthorized transactions

June 2020 – applying to banks for information on the scale of the problem and explanations on the procedures to be followed in such situations.

How has the number of requests for the intervention of the Financial Ombudsman in disputes related to unauthorized transactions increased?

In 2016, i.e. the first full year of the Financial Ombudsman’s activity, there were 147 requests. In the next year there were 250, which means an increase of 70%. In 2018, there were 47% more requests – 367. In 2019, this number reached 612 (a 67% increase). 2020 brought a record 1,163 requests – 90% more than in the previous year.

The Financial Ombudsman defends Swiss franc loan holders who may lose their homes.

25 February 2021

The Financial Ombudsman filed an extraordinary complaint to the Supreme Court regarding the default judgment in the case of Swiss franc loan holders. By the decision of the court, the bank’s customers may lose their homes. In the opinion of the Financial Ombudsman, the court should not make such a decision solely on the basis of an extract from bank books. It should have previously examined the provisions of the contracts in terms of prohibited clauses.

Customers who signed a 360-month mortgage loan agreement in 2008 requested the assistance of the Financial Ombudsman. They had borrowed 288,000 PLN, which was converted into approx. 150,000 CHF. The borrowers have been repaying the loan for over 10 years. Unfortunately, at some point they could not pay the installments on time. As a result, the bank terminated their loan agreement. Next, it filed a lawsuit demanding immediate payment of over 468,000 PLN. The amount was about 180 thousand PLN higher than the amount borrowed by customers due to the mechanism of indexation of the loan amount to CHF. During this period the exchange rate of this currency in relation to the zloty increased significantly.

As proof of the validity of the claims, it presented an excerpt from the bank books. The court decided that the circumstances of the case did not raise any doubts and allowed the claim. The defendant consumers did not have the support of a professional attorney at this stage. As a result, they failed to challenge the judgment effectively. Thus, the default judgment became final. At present, the borrowers are required to pay the entire amount requested, and based on the judgment the bank is carrying out execution of the release of their real estate.

The customers turned to the Financial Ombudsman for help. After reviewing the case files, the Ombudsman made a decision to file an extraordinary complaint.

– I believe that the ruling in this case is inconsistent with the principles of a democratic state ruled by law, violates the principles of consumer protection against unfair market practices and indicates a gross violation of procedural law – says dr. hab. Mariusz Jerzy Golecki, Financial Ombudsman.

In the opinion of the Ombudsman, conversion clauses referring to exchange rates tables set unilaterally by the bank, without indicating objective criteria, are non-transparent, leave room for the bank to act arbitrarily and thus burden the borrower with unpredictable risk and violate the equality of the parties. Therefore, they grossly infringe the interests of the consumer and are contrary to good practices.

– There is no doubt that in the present case the court should ex officio examine whether the provisions of the CHF-indexed mortgage loan agreement are unfair, which it undoubtedly did not do – says Mariusz Golecki.

If the court upholds the position of the Financial Ombudsman, it will reverse the judgment under appeal. Then the borrowers will have a chance to take legal proceedings in which the court will examine the contract in terms of abusive clauses and the consequences resulting therefrom. This may mean that they will have to pay several times less than the amount currently requested by the bank.

It is worth emphasizing that the action of the Financial Ombudsman in this specific case may affect other consumers. Other persons who are in a similar situation will have a chance to change final judgments by means of an extraordinary appeal.

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.

Extraordinary action regarding the settlement of a previously repaid loan.

22 February 2021

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.

Important decisions in disputes regarding Swiss franc loans.

18 February 2021

Bank customers who have foreign currency loans should wait for the position of the Supreme Court, which is to be expressed on March 25 in a comprehensive resolution of the Civil Chamber, and then evaluate specific settlement proposals submitted by banks in these circumstances – says the Financial Ombudsman. In his opinion, this will allow them to assess the financial consequences more accurately and make an informed decision.

In recent weeks, a lot of information has appeared that is important for the holders of foreign currency loans. On the one hand, we have a number of reports of work on the terms of settlements that banks are to offer their customers. On the other hand, the First President of the Supreme Court presented to the full composition of the Civil Chamber six inquiries about key legal issues concerning such contracts. In this situation, the Financial Ombudsman has received questions about what actions should be taken in the current situation.

– Bank customers who have foreign currency loans should wait for the position of the Supreme Court, which is to be expressed on March 25 in a comprehensive resolution of the Civil Chamber, and then assess the specific settlement proposals submitted by the banks in these circumstances. This will allow for a more accurate estimation of the financial consequences and making an informed decision – says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.

He adds that he does not know the details of the settlements aimed at solving the problem of the foreign currency loans. It is not known whether this will be a solution adopted by the entire industry or only by some of the banks. It is also difficult to predict how they will potentially affect the legal position of the customers.

– Undoubtedly, it is worth analyzing any ideas for an amicable solution to these disputes. Therefore, I am pleased with the recently expressed NBP declaration as to the involvement of the central bank in solving this socially important issue – says Mariusz Golecki.

In the opinion of the Financial Ombudsman, in order to make a decision on a settlement, information is needed on the possible line of jurisprudence in courts. Therefore, the position of the Supreme Court on the application submitted on October 19, 2020 by the Financial Ombudsman (file number III CZP 6/21) regarding the resolution of discrepancies in the jurisprudence concerning the method of settlements between the parties after the cancellation of a loan agreement will be important.

– I expect it to be obtained in parallel with the announcement on March 25 by the full composition of the Civil Chamber of the Supreme Court of the answers to six legal issues formulated by the First President of the Supreme Court. One of these issues, defined in the fourth point, is the same as our application – says Mariusz Golecki.

He points out that on February 16, the Supreme Court, composed of three members, ruled that in the event of the cancellation of a foreign currency loan agreement, the so-called rule of two claims applies. This is in line with the arguments consistently presented by the Financial Ombudsman. Such an approach is a good omen for further resolutions of the Supreme Court on this issue. (more on this from the information available at the following link: the Supreme Court decides in accordance with the position of the Financial Ombudsman)

The decision by the full composition of the Civil Chamber on all the issues mentioned by the First President of the Supreme Court will be comprehensive. It will also concern the issue of the legitimacy of banks’ claims regarding remuneration for using capital.

– In my opinion, this matter is obvious. I find neither in Polish nor EU law any legal grounds to formulate such an expectation. I expressed this by filing a lawsuit against Raiffeisen Bank and joining the case of Santander Bank customers defending themselves in court against this type of claim. We are still waiting for these cases to be resolved and the judges will certainly refrain from ruling until the Supreme Court’s position on this issue is known – says Mariusz Golecki.

At the same time, he announces that the experts of the Financial Ombudsman will analyze the position of the Civil Chamber and its justification, and then present their conclusions as to the legal situation of Swiss franc loan holders.

The Supreme Court decides in accordance with the position of the Financial Ombudsman.

17 February 2021

The Supreme Court decided that in the event of the cancellation of a foreign currency loan agreement, the so-called the rule of two claims applies. This is important for Swiss franc loan holders because it is a more advantageous way of settling the cancelled contract. Such an approach is a good sign against the concept of the Supreme Court’s resolution resolving discrepancies in the jurisprudence requested by the Financial Ombudsman.

Information on the application of the Financial Ombudsman for a resolution of the Supreme Court – click the link

The Supreme Court composed of three members yesterday (February 16, 2021) dealt with a legal issue presented by the District Court in Warsaw. It concerned the principles of mutual settlements resulting from Swiss franc indexed loan agreements, which were deemed invalid due to its abusive clauses.

In the resolution (file no. III CZP 11/20), the Supreme Court opted for the application of the theory of two claims in such a situation, therefore each claim by both the borrower and the bank for issuing enrichment should be treated separately and independently of the other. The court referred to, among others, Art. 405 of the Civil Code, according to which, if the contract is deemed invalid, there is unjust enrichment on both sides of the contract. In such a situation, the borrower may effectively demand from the bank the return of the benefit in the form of principal and interest installments paid in the Polish currency or in a foreign currency. At the same time, the bank cannot refuse to pursue such a claim, arguing that the borrower has not returned the loan amount paid by the bank in the nominal amount.

– The position of the Supreme Court is an important step towards a fair solution to the problem of foreign currency loans. This problem is also related to one of the questions addressed to the full composition of the Civil Chamber by the First President of the Supreme Court. An unequivocal resolution of this issue is important for all litigants pending before the court. It is also important for those who withhold filing a lawsuit while awaiting a settlement proposal from the bank. Having knowledge of the rules of settlement of the contract, it is possible to more accurately estimate the financial effects of specific actions and make an informed decision – says dr. hab. Mariusz Jerzy Golecki, professor at the University of Łódź, Financial Ombudsman.

The Financial Ombudsman consistently presents arguments similar to those expressed in yesterday’s position of the Supreme Court. They can be found e.g. in his important views issued at the request of customers or courts at the stage of court proceedings. The Ombudsman also presented the same position by submitting an application for the resolution of discrepancies in the case-law by the Supreme Court (reference number III CZP 6/21) on October 19, 2020.

– After the annulment of the foreign currency loan agreement, both parties are obliged to make mutual settlements and return all benefits related to the implementation of this agreement, based on the provision of 410 of the Civil Code. Therefore, the bank may seek reimbursement from customers of a sum equal to the amount paid under the loan agreement. In turn, customers can claim the return of a sum of money corresponding to the sum of the amounts paid by them. Both of these claims are independent – explains dr. Ewa Skibińska from the Office of the Financial Ombudsman.