The Public Prosecutor General brought an extraordinary complaint to the Supreme Court regarding a marriage, which the court ordered to pay PLN 260,000 with interest in connection with the so-called Swiss franc loan – PAP found out in the prosecutor’s office. As a result of the contested ruling, the couple’s house may be auctioned off.
In this case, in July 2008, the debtors concluded a mortgage loan agreement for the amount of PLN 435 thousand. 593 zlotys indexed to the Swiss franc. The married couple took out a loan to purchase the property, and the debt was secured by a mortgage on the property. In April 2010, the parties concluded an annex in which the bank agreed to suspend the loan repayment for five months. However, in September, the bank terminated their loan agreement, citing their failure to settle their arrears.
Enforcement proceedings and extraordinary complaint
In March 2016, an action was brought against the debtors for payment of PLN 260,000. PLN with interest. As a result, the District Court in Przemyśl allowed the claim in full and issued an order for payment in the writ proceedings. After it became final, enforcement proceedings were initiated. In January 2021, the bailiff announced the first house auction.
As the National Prosecutor’s Office informed PAP, the Prosecutor General Zbigniew Ziobro took care of the case. His deputy Robert Hernand brought an extraordinary complaint to the Supreme Court against the order for payment of the District Court in Przemyśl, in which he requested that the decision be quashed and the case remitted for re-examination. The prosecutor’s office also wants to suspend the execution of the appealed judgment for the duration of the proceedings before the Supreme Court.
The prosecution’s allegations
The complaint alleged violation of the principles of freedom and human and civil rights, constitutional principles, including social justice, legalism, binding international law, equality before the law, protection of consumers against unfair market practices and the right to a fair court procedure.
The prosecutor’s office pointed out that when issuing the order for payment, the court had failed to establish the consumer nature of the case at all. It was also noted that if the subject of the dispute is the content of contracts in consumer matters, it is the court’s duty to examine ex officio the potentially illegal nature of the provisions contained therein. In turn, according to the prosecutor’s office, the questioned contract did not limit the bank in the manner of determining the amount of the defendants’ liability, and thus is against the law.
According to the Public Prosecutor General, a cursory analysis of the contract indicated the need for the court to assess whether there were no prohibited clauses in the contract and whether it was absolutely invalid. As highlighted, the district court did not do so.
Without interfering with the content of the loan agreement
In turn, the marriage declarations show that they did not have the possibility to interfere with the content of the loan agreement before signing it. They were only given general information about the structure of the contract and the possible consequences.
“The Swiss franc exchange rate was presented to them as characterized by high stability among foreign currencies, therefore they decided to sign the loan agreement offered to them. The bank did not provide the defendants with a simulation of the influence of the currency exchange rate on the loan balance or the method of loan settlement and determination of its balance. It did not grant them also information on the essence of currency conversion and conversion, the risk associated with this type of loan, data on the stability of the CHF currency, or a time perspective of its stability, which would allow for a reliable assessment of its actual assessment. with the appreciation of the foreign currency to which the loan was indexed / indexed “- indicated the prosecutor’s office.
As it was added in the complaint, the decisions were not individually negotiated and the fairness should be checked by the court. According to the prosecutor’s office, the contractual mechanism prepared by the bank was completely non-transparent to the consumer. On the other hand – as noted in the complaint – the lack of unambiguity of contractual provisions, not only in the grammatical sense, but above all in terms of economic consequences for the consumer, determines their unfairness.
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