Unfair terms issued by the bank – Estimation οf the Actual Loan Sum – Resolution through Mediation

Published 15 November 2019 by OIKONOMAKIS CHRISTOS GLOBAL LAW FIRM

Review of the actual total of business, housing, consumer loans and other kinds of similar agreements having as counterparty a Banking institution – Legality review of the terms of the agreement – Unfairness of terms of the relevant agreements – Mediation as a means for arranging immediately the situation at hand, for forwarding negotiations with the Bank and for restructuring relevant agreements.

A. THE ALREADY RULED AS UNFAIR TERMS OF THE RELEVANT AGREEMENTS WITH BANKING INSTITUTIONS

From time to time it has been ruled that terms of loan agreements in which Banking institutions have been the creditors are unfair. Indicatively they have been ruled as unfair the following ones:

  1. Terms according to which added financial burden has been imposed
  • Funding expenses or commission on the loan’s file or expense in order to have the loan application reviewed
  • Commission or expenses regarding cash withdrawal through credit card
  • Expenses on issuance and circulation within sponsored or depositary accounts having a low balance
  • Expenses to have an application reviewed regarding the issuance of debt certification
  • Expenses due to immobility of banking accounts
  • Compensation of early payment of housing loans granted at a variable rate
  • Calculating interests on a 360 days base
  • Charging legal interest before the issuance of the loan
  • Commission on withdrawing or depositing cash or bank checks at the bank’s cashiers by the very owner of the bank account or a third person
  • Expenses on processing regarding trade abroad
  • Penalty for overcharging the credit limit of a credit card
  • Defining the order of imposing deposits according to article 432 CC
  • Rolling the according to law 128/ 75 levy on the debtor
  • Calculating the depositary interests from the next day of the deposit until the previous of the withdrawal
  • Commission on handling checks
  • Charging interests from the very day of the trade registration in the records of the Bank and charging the account of the credit card as well
  1. Terms of unilateral change of agreement as introduced by the Bank

Ι. Changes in interest rates

  • Change in variable interest rate of a housing loan
  • Change in interest rate of a credit card
  • Change in interest rate depending on the account’s balance
  • Change in the borrowing rate regarding a credit agreement of a current account

ΙΙ. Change in the sum of the yearly credit card contribution

III. Change in the valeur of depositary interests

IV. Change in the terms of operation and in the expenses of the depositary account

V. Automated renewal of cash withdrawal card from an ATM

  1. Terms on the final closure or the termination of the credit agreement
  • Final closure of the credit agreement at any time without any prior notice but at the Bank’s free judgement
  • Termination due to delayed installment -or more
  • Termination on breaching the terms of the credit agreement
  • Collection of claims not overdue but to be paid, deriving from non-bounced bank guarantee letters or letters of credit
  1. Procedural terms shifting burden of proof to the customer
  • Clauses of fictional knowledge or of recognition of the total sum of debt
  • Proof of the debt balance by having an excerpt from the Bank’s accounting records
  • Shifting the burden of proof regarding the non-execution of a trade
  1. Terms regarding the customer’s responsibility regardless of his/ her fault and respectively the Bank’s exemption
  • Theft or loss or illegal use of a credit card or of the savings account document
  • Restriction of the Bank’s responsibility regarding inappropriate withdrawal of money from bank account
  1. Terms of additional collateral of the Bank
  2. Choice-of-court clauses in favor of the Bank
  3. Guarantor resignation clauses from the objections raised according to 862-868 CC
  4. Clauses regarding the client’s consent to the processing and transfer of personal data from the Bank’ s side
  5. Loan agreements in Swiss currency

B. REVIEWING ALL AGREEMENTS INCLUDING LOAN ONES – PRODUCING TECHNICAL REPORTS – KNOWLEDGE FROM THE DEBTOR’S SIDE ON THE UNFAIRNESS OF THE CLAUSES – RECALCULATING THE REMAINING CAPITAL AS PER THE AGREEMENT IN ACTUAL TERMS (AND NOT IN AN UNFAIR WAY)

Have you ever considered whether the actual you have with your Bank includes unfair terms?

Would you like which are the unfair ones, whether you have been charged excessively and finally, which is the actual sum of your debt this current day?

You should prepare a technical report be it for judicial use (defensively or offensively) and/ or extrajudicial negotiation process with the bank:

  1. By underlining and supporting the unfair terms
  2. By preparing charts with numeral data after having checked thoroughly the banking agreements and the records of the loan transactions, in combination to the respective expenses due to unfair terms

Therefore it is necessary to comment on possible unfairness on part of the bank, as per the transactions registered in the banking records according to any bank’s non-contractual responsibility due to the provision of commercial banking services, the code of banking ethics and the standards set by administrative organizations

Indicatively, the said technical report might as well be used in the following occasions:

  • Revocation Plea against an order of payment
  • Negative Declaratory Lawsuit
  • Negotiation with bank
  • Estimating the damages that the investor/ depositor might have suffered from banking investment products

Our Firm – not only could provide all of the aforementioned in terms on a judicial level or negotiation-wise in the whole of Greece – but we could assist you even in the process of Mediation by making use of the following:

C. MEDIATION

Mediation is defined as a short and lawful process in which in a willing, confidential and strict way the involved parties participate along with their representative lawyers, and a third neutral person, the Mediator.

Mediation might lead to a written agreement – Mediation Records – which in turn, and given that any of the parties might ask for such a thing, and with the Mediator’s due diligence is submitted to the Secretariat of the Court Of First Instance where the actual Mediation had taken place so as for the Mediation Records to be executed in a compulsory way as if an executable court decision had been in place.

The third neutral person to which the parties have turned has to be an accredited Mediator, i.e. he/ she has been trained accordingly, has concluded successfully the mediation exams and has been included in the list of Accredited Mediators

The parties could turn to mediation even before turning to Court Houses, but still even after having turned to Court Houses given that they themselves have decided to do so or the Court has ruled in such way, or in some cases it could be because by law such mediation process has been provided for as compulsory. When parties decide to turn to mediation both the waiver process and the limitation-period process apply accordingly.

Mediation as a means of dispute resolution is:

  • A voluntary process; in particular, the parties decide to take their dispute to such a process by signing a written agreement to that specific end
  • A confidential and discreet process; the parties, the representative lawyers and the Mediator all part of this procedure, are not to be summoned to testify as witnesses before Authorities or any Court, regarding incidents of which they are aware during the mediation process. In addition, anything revealed to the Mediator during the one-on-one meeting with each of the parties, remains confidential and it is not to be communicated to the other side without any prior explicit and written consent
  • Non-binding process; it is a non-binding process, given that the parties are only bound if they solely decide to sign a commonly accepted agreement, a private contract
  • Non- judgmental – Non-evaluational process. The Mediator does not express an opinion, does not evaluate the stances, the opinions and the actions of the parties not even the content of the agreement. His/ Her role is the facilitation of communication and negotiation between the parties in a way that it will lead to a final agreement
  • Neutrality. The Mediator is a neutral and unbiased person, who handles parties in an equal way, by giving the same opportunities and the same time of communication to both sides, by cultivating trust and by confirming throughout the whole process his integrity and his impartiality

Mediation is a short and not time-consuming process. Mediation is concluded in a short period of time, usually a day until an agreement is reached. Extremely short is also the process of the agreement confirmation by the Court House, in contradiction to the exceptionally time-consuming dispute resolution in the Courts. The litigants give up the distant court hearing date, the insecurity of postponements, the long period of time until a decision has been reached, judicial means such as appeal, revocation etc

It is a money-friendly and not-money- consuming process given that the parties are offered the option to resolve their dispute without being obliged to deposit a judicial fee, the judicial means fees, the judicial expenses and have their claim further burdened with extra interest. It only takes each of the party to pay the fee for his/ her lawyer and split the expenses of the Mediator compensation and his/ her fee

It is a confidential process, given that it ensures the resolution of the dispute without exposing the case to eyes of third parties, by avoiding negative publiucity which in turn brings with it the exposure of the litigants to Court Houses, and thus safeguarding the dignity of the parties

It is a process that ameliorates the quality of human relationships, safeguards the psychology of the involved parties and, thus, the social peace and the social cohesion by bringing forward social civilization.

D. CONCLUSIONS

  1. Review the unfairness or not of the terms of the loan agreement where you have been involved (as a debtor, or a guarantor)
  2. Make sure that the final sum of the unpaid capital is properly calculated until today
  3. Negotiate with the bank the terms of the agreement the whole amount of the debt, the way to be paid in total, make sure that the Mediation process has been a necessary tool or (as a final means) claim your rights judicially
  4. Defend yourselves against unfair tactics launched by the banks, or against judicial actions issued against you by keeping in mind and by making use of all of the above