Cologne Higher Regional Court, 06 November 2015, Ref.: 13 U 113/15
If the bank does not provide proper information about the cancellation of a mortgage, the loan agreement can be revoked. The Higher Regional Court of Cologne has now strengthened the consumer rights of borrowers in a further legal dispute in this regard.
The court once again confirmed the so-called perpetual cancellation period because the statutory 14-day cancellation period could never begin due to the incorrect information in the cancellation policy. A cancellation could therefore still be made years after the contract was concluded.
However, it should be noted that consumers only have until 21 June 2016 to cancel their contracts, as the Bundestag decided on 18 February 2016 to phase out the "perpetual right of cancellation" for older contracts from 2002 to 2010.
Facts of the Case The plaintiffs in this legal dispute had taken out two loans with the defendant on 21 December 2005. One loan agreement amounted to a net loan of € 105,000, which was subject to interest of 4.15 % p.a.. A further loan was granted for € 25,000, which was subject to interest of % 3.95 per annum.
Two land charges were entered in the land register in favour of the defendant to secure the loans. A land charge for DM 40,000 had been entered on 16 February 1965 and a further land charge for DM 260,000 on 8 October 1985.
The cancellation instructions used when the loan agreements were concluded with the plaintiffs, which were identical in content for both agreements, had a footnote 1 next to the heading "Cancellation instructions", the text of which read: "Description of the specific transaction concerned, e.g. loan agreement dated ...". The number of the loan agreement and the loan amount were also stated in a field.
After the phrase "You can cancel your contractual declaration within two weeks (...)" there was a further footnote 2, which stated: "Please check the deadline in each individual case". Furthermore, the cancellation period begins "at the earliest upon receipt of these instructions".
Before stating the addressee of the cancellation, the following addition was made in brackets: "(name, company and summonable address of the credit institution, fax number, e-mail address and/or, if the consumer receives a confirmation of his declaration of cancellation, also an Internet address)".
The special instructions for financed transactions read in part as follows:
"This is to be assumed in particular if we are also your contractual partner under the other contract or if we utilise the cooperation of your contractual partner in the preparation or conclusion of the loan agreement. In the case of a financed acquisition of real estate or a right equivalent to real estate, an economic unit can only be assumed if we are also your contractual partner within the framework of the other contract or if, in addition to the provision of loans, we promote through co-operation with the seller by fully or partially adopting his interests in the sale (...)".
In a letter from their lawyer dated 25 August 2014, the plaintiffs informed the defendant that they were of the opinion that their loan agreements could be revoked, which the defendant rejected in a letter dated 9 September 2014, as did negotiations regarding a new/rescheduled debt. In a further letter from their lawyer dated 29 October 2014, the plaintiffs revoked the two loan agreements and their direct debit authorisations and announced that they would pay the outstanding loan amount "step by step against release of the collateral (...)". In a letter dated 30 September 2014, the defendant again rejected the right of cancellation. At the time of cancellation, the debit balance from the two loan agreements totalled € 114,966.06.
The plaintiffs were of the opinion that the cancellation policy was not effective, as it did not meet the clarity requirement with regard to the start of the period. The defendant could also not invoke protection of legitimate expectations on the basis of the model instruction in accordance with the BGB-InfoV; the Federal Court of Justice requires complete conformity in terms of content and external design, which was not the case here. There were deviations here with regard to the footnotes, the addition in brackets and the special instructions for financed transactions. Finally, the salutation had been personalised.
The regional court initially appealed to followed the plaintiffs' view and ruled that the cancellation policy did not meet the requirements set out by the Federal Court of Justice in its decision of 28 June 2011 (XI ZR 349/10) with regard to the information on the start of the deadline (Regional Court Aachen, 25 June 2015, Ref.: 1 O 365/14).
The defendant bank appealed against this decision to the Cologne Higher Regional Court.
Cologne Higher Regional Court: The Higher Regional Court of Cologne has now announced in a decision that the Regional Court ruled correctly. The appeal's criticism of the regional court's opinion on the "fiction of legality", i.e. the question of the protection of legitimate expectations in the event of deviations from the model instruction, was also unfounded.
The legal opinion of the Regional Court is in line with the established case law of the Senate, which continues to adhere to this even after a new review, and of the Federal Court of Justice (e.g. III ZR 83/11 and the ruling of 28 June 2011 - XI ZR 349/10 cited by the defendant).
Accordingly, an entrepreneur can rely on the protective effect of the § 14 para. 1 BGB-InfoV from the outset only if it had used a form vis-à-vis the consumer that fully complied with the model in Annex 2 to Section 14 (1) BGB-InfoV in the relevant version, both in terms of content and external design.
The only decisive factor is whether the trader has subjected the text of the model instruction drafted by the legislator to its own editing when drafting the cancellation policy. However, if the trader interferes with the model text provided to him, he cannot invoke any protective effect associated with the unchanged adoption of the model instruction. This applies irrespective of the specific scope of the change made by him, especially since, in view of the variety of possible individual changes to the model, no generalisable specific limit can be drawn, at which a protective effect should still apply and beyond which it should already cease to apply. The further decision of the BGH of 20 November 2012 (II ZR 264/10), to which the defendant would refer, does not indicate otherwise either.
Ultimately, the legal question raised by the defendant is not even relevant, because in the present case, both cancellation notices at issue contain not only an editorial deviation from the model notice, but a clear deviation in terms of content, as far as the footnote addition to the stated cancellation period is concerned. This deadline ("two weeks") is relativised by the addition ("Please check the deadline in each individual case."), which would constitute an editing of the content. Insofar as the defendant, on the other hand, would argue that this was a completion notice addressed only to its employees, this is not comprehensible. The wording at least suggests an interpretation in the sense that it is the borrower who has to carry out the check, because the cancellation instructions are obviously not addressed to the defendant's employees but to the borrower. It is also not clear from the pre-printed text whether the period stated (two weeks) is the result of the individual case review or only the indication of the standard period that has not (yet) been reviewed.
The right of cancellation had not been forfeited, as the Regional Court had correctly decided, because the loan agreements had not yet been completely fulfilled. The corresponding statements of the Regional Court follow the case law of the Senate on this issue, to which it adheres without reservation. The circumstances required for the assumption of forfeiture were therefore lacking. The pre-trial "correspondence" cited by the defendant in this context (which consisted only of the letter from the plaintiffs' legal representative dated 25 August 2014) also provided no evidence of any potentially relevant motivation on the part of the plaintiffs to revoke the contract in breach of trust from the point of view of the inadmissible exercise of rights.
With regard to the amount of the defendant's repayment claim in the course of the pronounced concurrent payment judgement, the decision of the Regional Court was also not objectionable. In the absence of specific facts regarding a default interest rate that did not reach the regional court's approach - the defendant had not made any statements on this either at first instance or in the grounds of appeal - the reference figure used by the court (5% above the base rate) was decisive. No further objections had been raised in this respect.
Source: Higher Regional Court of Cologne
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