There are still a number of issues regarding Swiss franc loans which have not yet been addressed either by the national courts or the Court of Justice of the European Union.
These concern the clarification of possible divergences in Court case-law as to which interpretative approaches constitute an acceptable interpretation of a loan agreement and which approaches constitute a contested interpretative reduction based on which the agreement is maintained in force.
Polish case-law also still leaves unresolved the most pressing issue for parties to Swiss franc loan agreements, i.e. the consequence of the agreement being annulled.
The frequently repeated claim that annulment of the agreement is obviously favorable for consumers, is incorrect both because of the need to make settlements (return the monetary performances obtained, taking into account their nature and value), and due to the fact that the due bank’s claims, in such a situation are not in fact time-barred, as many erroneously believe.
Contrary to borrowers’ guides, media disinformation and the excessive optimism of borrowers, the decision as to whether clauses are abusive rests solely with the courts who must evaluate this on a case-by-case basis while taking into account the level of ambiguity of the indexation clause and other circumstances, including the issue of contractual balance.
The current case-law of both the Court of Justice of the European Union and Polish courts tends to consider indexation clauses as prohibited, leading to invalidation of loan agreements. It is estimated that claims of those who have loans denominated in Swiss francs may cost banks as much as PLN 25-30 billion, assuming that half of them will go to court.
In view of the high degree of uncertainty and high financial risk caused by the potential invalidation of many existing agreements as a result of court proceedings, a pro-business approach to legal issues is necessary.
Information, legal acts, advice on foreign currency loans in the context of the publication “Studies and Analyses of the Supreme Court. Scientific Materials. Foreign Currency Loans. Crucial Issues.” and the judgment of the Court of Justice of the European Union of 3 October 2019 in Case C-260/18
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Audit of model agreements
In order to guarantee the highest possible level of protection for the bank, we analyze model agreements in terms of their compliance with the law and current case-law. We help to prevent currently executed agreements from being declared invalid in the future. In addition, we verify which of the contractual clauses applied by banks may result in the invalidation of agreements.
Assessment of the validity of claims
We analyze which of the borrowers’ claims are well-founded and have a chance of being accepted in court proceedings. On this basis, we develop the most advantageous trial strategy for the bank and consistently implement it.
We support banks in all stages of settlement negotiations by developing a strategy, representing during the discussions, and ensuring the presence of a competent mediator – if necessary – until the court’s approval of the settlement agreement.
Representation in court
We represent banks at all stages of court proceedings, seeking the best possible outcome. We assess each case individually and develop a trial strategy based on the interests of the client and the profitability of bringing an action in a specific case. We guarantee support in preparation of the strategy, drafting pleadings and providing legal representation in court.