The Prosecutor General has already filed 46 extraordinary complaints to the Supreme Court in cases of “francowicze”. In eight out of nine cases examined so far, the court has finally revoked the payment orders.
According to the spokesman for the National Prosecutor’s Office, Prosecutor Łukasz Łapczyński, in the repealed payment orders Supreme Court shared the Prosecutor General’s arguments and ruled in favor of consumers, stating that their rights under the Constitution and EU law had been infringed. In the complaints awaiting consideration, the prosecutor argues that the courts issued orders for payment without examining loan agreements, which very often they did not even have at their disposal, and sanctioned the illegal provisions contained therein.
Complaints to the Supreme Court – details
Among these cases, there are three complaints that have recently been submitted to the Supreme Court. The first one concerns the order issued in 2017 by the court in Kalisz for the payment of almost PLN 6.9 thousand. Swiss francs under a housing loan agreement indexed with the Swiss franc exchange rate, i.e. the so-called franc loan. The prosecutor’s office emphasized that the court accepted the claim in its entirety, having at its disposal only the extract from the bank books attached by the bank, indicating that the defendant’s debt was due and payable on the date of filing the claim, and a properly delivered request for payment. “Before issuing the judgment, the court did not require the plaintiff to submit a credit agreement from which the payment obligation resulted. In the absence of objections, the order for payment became final and constitutes an enforceable title in the current enforcement proceedings. As it was established in this case, the defendant was unable to make repayments in view of the death of her husband, with whom she took out the above loan together” – the prosecutor’s office argues. In another case, the Prosecutor General questioned the order for payment issued in June 2020 by the District Court in Gdańsk in writ-of-payment proceedings. This case concerns a loan taken out in 2006 for over PLN 30,000. francs, which was to be used for the purchase of a building plot. Due to the borrowers’ problems, the parties entered into further settlements, in which new terms and repayment dates of individual installments were specified. Ultimately, the contract was terminated due to the cessation of repayment of the liability. As a consequence, the bank filed a lawsuit, which the court in Gdańsk recognized in its entirety and ordered it to pay the bank PLN 30.5 thousand within two weeks. francs with contractual interest. “As it was established, after the lawsuit was filed, but before the order was issued by the District Court in Gdańsk, one of the defendants died. The court had no knowledge of this and continued the proceedings, and then issued a judgment against the defendant who did not have judicial capacity. The above court proceedings conducted in this case, as well as the payment order issued as a result, were affected by invalidity. The third complaint recently filed by the prosecutor’s office concerns a housing loan in francs taken out in 2008 by a married couple. In March 2019, the District Court in Bielsko-Biała upheld the bank’s claim and ordered the defendants to pay over PLN 269,000. francs with interest equal to four times the amount of the NBP lombard credit rate. On the basis of this payment order, enforcement proceedings are currently pending, in which the defendants are obliged to pay almost PLN 1.5 million. So far, they have already repaid over 156,000. zlotys.
Constitutional principles of consumer protection
In the extraordinary complaints filed with the Supreme Court, the Prosecutor General requested that the three payment orders be repealed and the cases be reconsidered. At the same time, the prosecutor’s office applied for suspension of the enforcement of the contested judgments. The complaints emphasized that the courts in these cases, even if they had loan agreements, did not examine their content in terms of the presence of prohibited clauses. “Thus, they did not assess their validity and effectiveness. Failure to conduct this study, in the complainant’s opinion, proved that the requirements arising from the constitutional principle of consumer protection against unfair market practices were not met. In these cases, as noted by the complainant, the adjudicating courts were obliged to assess not only whether the debt owed to the consumer existed and, if so, in what amount, but also whether the law was abused by bringing the action by a credit institution in relation to a non-professional” – the prosecutor’s office argues. The Prosecutor General also emphasized in his complaints to the Supreme Court that the loan agreements were drawn up on the basis of a formula developed in the bank and used by it, which unilaterally shaped the legal situation of borrowers. Thus, the challenged agreements allowed the banks to establish criteria affecting the amount of debt in an arbitrary and unforeseeable way for the consumer, which grossly violated the borrower’s interests and was undoubtedly contrary to good practice and undermined the contractual balance of the parties, the prosecutor’s office said.
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