With its rulings of 28.10.14 (XI ZR 348/13 and XI ZR 17/14), the Federal Court of Justice (BGH) has finally confirmed the illegality of processing fees for loans. In the past, several state courts had already ordered various banks to repay processing fees for loans. However, other banks have not recognized these rulings for themselves. This is now an end.
To which credits the BGH judgement applies?
Processing fees for loans of all kinds (z.B. Car loan, furniture loan, real estate financing, etc.), which were concluded since 2004 until today, which were already pre-formulated in the loan application, must be refunded by the lenders. However, there is not much time left for this. The statute of limitations for loans from 2004 to the end of 2011 ends irrevocably on 31.12.14.
Processing fees plus interest
In addition to the processing fees charged for loans, interest may also be charged on the amount reclaimed. In the event that the processing fees were added to the loan amount and thus also charged with loan interest, the interest rate of the loan can also be used to calculate the interest for the repayment. Otherwise, however, 4% is appropriate for the entire term until the processing fees are refunded.
Observe the limitation period
In the past, banks had often rejected claims for repayment of processing fees for loans with the argument that the 3-year statute of limitations for the respective loan had already expired. In this regard, the BGH has now made it clear that the limitation period does not begin to run until the end of 2011:
"The u. a. XI responsible for banking law. In two rulings today, the 2nd Civil Senate of the Federal Court of Justice ruled for the first time on the question of the start of the statute of limitations for borrowers' claims for repayment in the case of ineffective loan processing fees agreed on the basis of standard terms and conditions. According to this ruling, the knowledge-dependent three-year limitation period under Section 195 of the German Civil Code (BGB* i. V. m. § 199 Abs. 1 BGB** for claims for repayment that arose earlier did not start to run until the end of 2011, because borrowers could not reasonably be expected to file a corresponding action for repayment before 2011."
Statute of limitations can still be suspended in 2014
If you write to your bank in the next few days, you should not engage in delaying tactics on the part of the banks. If, after a reasonable period of time (z.B. 14 days) do not respond, the statute of limitations at the end of 2014 can only be suspended by filing a lawsuit or a court order to pay a debt. The statute of limitations is then suspended until the judicial process is completed. If you wait until the end of the year for a reaction from the bank, you have lost your claims for good.
Sample letter for the recovery of processing fees
To
Address of the loan bank
Date: xx.xx.xx
Account number or character: xxxxx – xxxxxx
Recovery of the processing fee paid
Dear Sir or Madam,
in xxxx we issued the o.g. loan agreement concluded. In this contract, you have charged a processing fee in the amount of €, which is inadmissible according to the case law of the Federal Court of Justice.
In its judgment of 13.05.2014 with ref. XI 402/12, the Federal Court of Justice already concluded that it was inadmissible to charge such fees. With the current rulings of 28.10.2014 with Az: XI ZR 348/13 and XI ZR 17/14 the BGH has now also taken a position on the principles of the statute of limitations. A statute of limitations therefore only begins with the end of the year 2011 and has therefore not yet occurred.
I therefore request you to pay the amount stated below by xx.xx.xx (date of today plus 14 days) to refund.
Interest on the processing fee must be charged at the loan interest rate for the term of the loan until repayment. Therefore, I request reimbursement of the processing fee in the amount of xxx euros plus xxx % interest for the term of xx.xx.xx (contract date) by xx.xx.xx (date of o.g. deadline expires) .
Calculation of the total amount to be refunded:
xxx Euro (loan fee) * xxx % (nominal interest of the loan) * months (term in months until o.g. expiry of the period) / 12
Please transfer the total amount of xxx euros within the o.g. period to the following account:
Account holder: Your name as borrower IBAN: xxxxxxx BIC: xxxxxxxx
As a precautionary measure, I would like to point out that I will seek legal assistance immediately after the expiry of the deadline in order to prevent the statute of limitations from expiring on 31 December 2009.12.14 to suspend. I will also claim the costs for this by legal action. In the sense of a customer-friendly arrangement, however, I assume that this will not be necessary.
Yours sincerely
Our hints and tips reflect the author's opinion only and are expressly not to be construed as legal advice. It is advisable to consult a lawyer for the assertion of your claims, since it must be checked in each individual case whether the BGH case law applies there.