The Court of Appeal in Szczecin accepted the borrowers’ appeal and issued a final judgement concerning a PLN loan agreement. According to the court, the agreement concluded with PKO BP, under which the borrowers were granted the “Alicja” loan, is invalid in its entirety, and the bank must return the payments made in excess of the loan principal amount. The Financial Ombudsman joined this case at the request of the assigned ex officio attorney for one of the claimants. In the course of the proceedings the Financial Ombudsman presented, among other things, arguments concerning the abusiveness of many provisions of the agreement and, consequently, the invalidity of the entire contract.
In 1997, the claimants borrowed PLN 90 thousand from the bank. After 19 years of repayment of instalments totalling to PLN 206 thousand, they still had to repay the entire principal amount (PLN 90 thousand) and additionally capitalised interest (PLN 120 thousand). Thus, the total cost of the loan amounted to over PLN 400 thousand, which is over four times more than the value of the loan itself.
The loan taken out by the claimants was offered by PKO BP bank under the trade name “Alicja”. Through the mechanism of low-interest-only instalments, it was supposed in theory to facilitate the financing of housing goals in the inflationary conditions of the 1990s. In practice, unpaid interest was added to the capital, which – according to the Financial Ombudsman – in many cases made it impossible to repay the debt to the bank.
– The contractual method of determining the amount of credit instalments means that customers, despite regular payments under the agreement, still have no prospect of repaying the loan in full. What is important is that the court declared the agreement invalid, sharing our argument that the provisions therein are not only extremely unfavourable to consumers, but also illegal. This judgement creates an opportunity for other holders of this loan to assert their rights, says Prof. Dr. Habil. Mariusz Golecki, the Financial Ombudsman.
Furthermore, in the opinion of the Financial Ombudsman Office experts, the mechanism used by the bank to calculate the interest rate for the Alicja loan is so imprecise, unclear and unverifiable for borrowers that it raises far-reaching doubts as to its compliance with the law. It also creates the risk of the bank applying an arbitrary interest rate, which directly affects the amount of the repaid loan instalment.
– Reservations were aroused, among other things, by the provision stipulating the method of setting the loan interest rate, which was to depend on the interest rates on 12-month term savings deposits quoted by the head offices of domestic banks having the largest amounts of term liabilities to customers in Poland. However, in the agreement there is no detailed and verifiable for the consumer information on how the lender determines which banks and on what basis are taken into account in this mechanism. Thus, not only was the claimant insufficiently informed about the product he was using, but also the bank could unilaterally determine its parameters during the term of the agreement – explains Krzysztof Witkowski, attorney-at-law at the Financial Ombudsman Office.
The final judgement of the Court of Appeal in Szczecin means that borrowers no longer have to repay the “Alicja” loan. Furthermore, the bank must reimburse one of the borrowers the corresponding amount of payments made in excess of the loan principal amount plus accrued interest.
It is worth noting that the Financial Ombudsman has already supported holders of such loans in court disputes. In some cases, at the request of clients, he issued what he called a “substantial opinion” in the case. This is a legal instrument which consists in the Financial Ombudsman providing an opinion on legal issues which are the subject of a specific court dispute. The Financial Ombudsman then does not join the case and does not become a participant, but only expresses his legal opinion and submits it to the court.
Even greater influence on a favourable outcome of the case is given by the Financial Ombudsman joining a specific court case. In this case, the Financial Ombudsman becomes an active participant in the dispute with specific rights and obligations. The Financial Ombudsman may file pleadings, may appear at any hearing, and may actively participate and speak.
The Financial Ombudsman also supports clients of financial institutions by allowing them to appeal court judgements, conducting conciliation proceedings and providing support during court proceedings.
