Loan resolution loan
In most cases, the interest terms of the lender are more favorable than those of the lender to terminate the contract, which is in writing in the form of a notice of termination.
Good day M. Schatz, we have no comparable, but exactly the same mistake. I have not sent the resignation letter yet, but I’m afraid the same statement. I’m pretty sure it’s NOT an internship response. In my opinion, it is about putting all kinds of obstacles in the way of resignation.
I think, as you understand, this is the deadline for the resignation. You can force the house bank to resubmit the letter of termination for many calendar months and then cancel it on the “correct” date (10 years after full payment) with a notice period of 6 months, or you must ensure that you receive the notice on the day X send?
Probably the amount of cancellations will not arrive exactly on day X, but some “days” before at the house bank. So it should not matter if it’s a few days or a few weeks ago.
Claim for damages by the lender in the event of premature termination of the loan agreement
In the event of an unscheduled termination of a credit agreement due to late payment by the non-consumer borrower, the lender is entitled to claim damages from the borrower under 280 (1) and (3), 281 BGB instead of early redemption, the basis of assessment at the time the termination takes effect.
The parties are in disagreement over the claims for damages of the accused house bank because of the unscheduled termination of several loan agreements. Applicant is the estate administrator of Franz Karl B., who died on 24 May 2012. For real estate financing, owners B. and N. had four loans from the Respondent in the amount of 410,000 and 390,000, respectively, at the end of the morning, at a rate of 5.39% and a fixed interest rate of ten years (loan numbers 87 and 88) A loan of 410,000 and 390,000, respectively, at a rate of 5.39% and a fixed interest rate of ten years (loan numbers 87 and 88).
The loan became available on June 24, 2007 with a loan amount of 610,000 at a loan interest rate of 6.15 percent and a fixed term of 15 years (loan end number 89) and on March 15/1. April 2009 with a loan amount of 198,000 euros at a loan interest rate of 5.25 percent and a ten-year fixed-interest period (loan end number 90).
The 88 loan was due in January 2042, while the other loans were annuity loans. All loans were secured by mortgages on the property of the two borrowers. The Respondent, in a letter of default dated 21 January 2012, terminated the 89th loan unscheduled and at the same time withheld two and a half percentage points above the reference interest rate for the outstanding loan and refinancing damages amounting to € 104,242.52. The defendant was entitled to demand interest on the outstanding loan amounting to 104,242.52 euros.
By way of a statement of 17 May 2012, the defendants also terminated the other loans due to a significant aggravation of the economic situation unscheduled and five percentage points above the base rate and the replacement of refinancing losses in the amount of 61,108.77? (End number 87), 59,913.93? (End number 88) and 20,437.96? (End number 90) for the outstanding residual value date required.
As part of the compulsory sale of land pledged by the defendant, they were sold in Sept. 2015. The purchase price was paid to the defendant. In addition to the default interest of 106,246.06 required by it for the period between the termination and the repayment of the loan, it has deducted another value of 245,703.18 from this value to compensate for the refinancing losses.
It had calculated this for the interest claim on the basis of realizable reinvestment interest and discounted it to the closing date of the termination. The plaintiff claims in the application of the defendant a payment of 245,703.18, which was withheld as premature redemption, plus interest on lis pendens. The four loans are consumer credit agreements, which is why the defendant has not granted a premature repayment penalty because of the block effect of section 497 (1) BGB.
However, even if there had been no consumer credit, the defendant would have been prevented from claiming damages for non-execution because it could not be cumulatively asserted in connection with the damage caused by the delay claimed by the defendant. In response to the defendant’s complaint, the appeal panel dismissed the appeal in its entirety and rejected the applicant’s subsequent appeal.
The plaintiff continues his reminder with the appeal lodged by the appeal court. The appeal court has approved the appeal without restriction. BGH, decisions of 11 October 2004 – V ZR 42/04, NJW 2005, 894, 895 and of 28 January 2010 – VI ZR 7/09, VersR 2010, 683, Reasons 7).
The admissibility of the appeal was explained by the Court of Appeal with the fundamental significance of the case in the basis for decision-making concerning the cumulative existence of advance payments as a result of early repayment of entrepreneurial loans and compensation for the loss sustained by the repayment delay and the early repayment penalty.
The reason for this is that the legal issue raised by the Appeals Tribunal covers both damages instead of payment and damages caused by default. Therefore, it can not be assumed that the Appeals Tribunal intended to restrict the review of the complaint. He annulled the judgment under appeal and referred the case to the Court of Appeal. In support of its assessment, the Board of Appeal found, in essence, that the applicant was not entitled to payment of the early repayment withheld by the defendant, because they were granted to the restitutor.
Against the two borrowers B. and N. the defendant had a claim for damages under section 280 (1), (281) and (252) of the BGB, because they were in breach of their obligation to provide the mont. The defendant was therefore entitled to terminate the four loans after prior warning, with which he sets the borrowers in accordance with 281 paragraph 1 BGB vain grace period for performance.
The breach of the installment payment obligations from the loans was the responsibility of the borrowers. As a result, the defendant acknowledged the claimed early repayment penalty, which he calculated correctly for the period between the effective date of the reversals and the end of the fixed interest periods. The enforcement of the early repayment is in the opinion of the applicant not in § 497 para. 1 in conjunction with § 497 para. 1 GG regulated.
However, the four loan agreements concluded by the borrowers are not consumer loans within the meaning of §§ 491 ff. Of the German Civil Code. BGB, because the borrowers had not completed the loans as consumers, but in the course or for the purpose of taking up business. The fact that the property belonged not to the management companies but to the borrowers is irrelevant.
In addition to the settlement of the damage caused by the delay, the defendant may also demand the early repayment penalty calculated on the day of termination. There was no overcompensation as the default in this case was calculated using the asset-liability method, including the theoretical reinvestment interest and discounting on the cut-off date. For the reasons given by the appeal court, an application by the defendant for early repayment of compensation of the alleged magnitude can not be confirmed.
1. However, in contrast to the appeals, the Appeals Tribunal was right in assuming that the defendant had applied for the payment of an early repayment allowance under Article 280 (1) and (3), Paragraph 281 of the BGB concerning all four loans in question. a) If a temporary loan agreement is terminated without notice by the financing bank group for important reasons because the borrower culpably fails to meet its payment obligations, the banking group has the right to compensation for the loss suffered as a result of the premature termination of the contract.
Borrowers B. and N. have violated their obligation under Section 488 (1) sentence 2 BGB to pay the agreed interest and principal payments, and thus against the defendant announced on 21 January 2012 special termination of the loan agreement with that of the defendant Final number 89 and the finality of the loan agreement with the final number 89 announced on 15 January 2012.
On August 1, 2012, the Company announced the unscheduled termination of the three other loan agreements ending in 87, 88 and 90. On the other hand, it is not true that the Respondent attributed the termination of the proceedings on or after 2 May 2012 to a substantial deterioration in the creditworthiness of the borrower pursuant to § 490 (1) BGB and No. 19 (3) of the General Terms and Conditions of the Respondent.
According to 488 (1) sentence 2 BGB, the borrower is only obliged to pay the contractually agreed interest and principal payments, but not to maintain his creditworthiness. By letter of termination of 6 May 2012, the Respondent justified the significant impairment of the economic conditions of the borrower with the unsuccessful expiry of the notice period of 16 May 2012 and the continued default of borrowers.
Thus, the criminal breach of duty of the borrower, which led to the termination of the loan agreement with the number 89, also sufficient for the termination of the other loan agreements cause. With the termination on 3 May 2012, there is not only an external connection to the late payment, but also an internal connection.
b) According to the permanent legislation of the Senate, the lender in this case is no longer entitled to contractual interest for the period after the effective termination (Senate decision of 28 January 2000 – BGB 313/98, WM 2000, 718, 719). The reason for this is that the contractual interest is set as compensation for the fact that the lender grants the borrower the right to use the provided credit capital.
If this right expires by expiration or termination, and the lender requires payments in a manner that puts the borrower in default and precludes the acceptance of an implicit credit agreement, the lender’s claim for continuation of the contractual interest for the subsequent period lapses (see BGH, Judgments of 27. 4. 1988 – III Zu 57/87, BGHZ 104, 337, 338 f.).
Instead, the lender is entitled to compensation for damages according to 280 para. 1 and 2, 286 BGB or a claim for damages instead of the fulfillment of 280 para. 1 and 3, 281 BGB. Insofar as the Federal Court of Justice does not comply with this claim for damages – so called in the period prior to the enactment of the Law on the Modernization of the Law of Obligations – for non-compliance with a corresponding implementation of the legal interpretation of § 628 para. 1 BGB.
Contrary to what the new version means, the claim for damages can not be ruled out in the version valid until May 11, 2010 instead of the fulfillment of § 497 (1) BGB (in the following: AV, see Article 229 § 22 para. 2, § 38 EGBGB). The loan agreements concluded by the borrowers B. and N. with the defendant are not to be regarded as consumer credit agreements within the meaning of section 492 (1a) second paragraph of the Civil Code (BGBf).
(b) On the basis of those principles, the Board of Appeal did not err in law in finding that the activities of Borrowers B. and N. constituted the commercial management of their own assets and that they did not operate as consumers when the loan agreements in question were concluded. Rightfully, the Higher Regional Court has decidedly focused on the field of property management.
Borrowers B. and N. held four real estate objects. In addition, the brief annual report submitted by the defendant, primarily to the tax consultant commissioned by the borrowers, also proves the necessary scope of accounting, especially since it only covers GbR B. & N., which manages the lease. The fact that the parcels were in personal (co-) ownership of the two borrowers was rightly considered by the Higher Regional Court to be irrelevant.
The Court of Appeal has also correctly assessed the applicant’s argument that all the leases of the properties by the borrowers were carried out from home and that no large facility is necessary for this purpose, so that the maintenance of an office would be evidence of the proposed enterprise could but not be a mandatory requirement.
Finally, it remains to be seen whether the appellate court rightly did not allow the plaintiffs’ submissions in the grounds of the later appeal concerning the scope of activity under section 531 (2) ZPO. According to the information provided by the defendant, which the plaintiff has not objected to, these relate only to the rental agreement handled by GbR B. & N.; there is also no substantiated objection by the complainant that this information is representative for the relevant period in this case.
The fact that the defendant in the letter of termination of January 27, 2012 demanded interest rate for consumer credit agreements of two and a half percent above the base rate (497 para. 1 sentence 2 BGB aF) does not support the existence of a consumer credit agreement. With a letter of resignation dated 6 May 2012, the defendant then also claimed interest due in the amount of five percent above the base rate.
3. By way of derogation from the view of the Court of Appeal, the Appeals Tribunal was right to use as the reference time for the calculation of the early repayment penalty the day on which the loan ceased to take effect and not the day on which the loan was repaid. The dates of discounting are based on the calculation method selected by the beleaguered lender.
In the event of early unscheduled termination of a credit agreement due to the default of the borrower, this may be the time of the settlement of the early termination penalty or the date on which the termination takes effect. a) In the case of non-acceptance or early maturity of a loan, the Federal Council has decided that the due date of the early repayment amount or the maturity of the non-receipt amount is decisive (cf.
The same applies to the premature extraordinary termination of a credit agreement due to default of the borrower. According to the general principles of compensation for damages, the point at which the injured person receives the full economic equivalent value for the injured right (BGH, judgments of 16 Oct 2006 – VI ZR 249/05, BGHZ 169) is decisive for the assessment of the amount of the damage , 263 marginal 16 mwN).
(b) On the contrary, the creditor – whom the appellate court has rightly accepted – can also calculate his request for early repayment at the time the termination ceases to be effective. This results from the possible transformation of the settlement claim into a claim for damages instead of fulfillment by virtue of 281 (1) BGB. In the case of – as in this case – criminal damage determination, the date of origin of the claim for damages, ie the elimination of the deadline and the transfer to the damage instead of the fulfillment is decisive (see Erman / Ebert, BGB, edition 15th.
281 (1) BGB, 281 (1); probably BGH, decision of 12 January 2009 – VIII ZR 328/07, JZ 2010, 44 para. 23; to determine the early repayment in the event of termination according to 490 para. 1 BGB also OLG Frankfurt am Main, BKR 2012, in the years 2002, 2012, 18, 2002; Believer in Schimansky / Bunte / Lwowski, Bank Law Manual, fifth edition.
Insofar as the lender assumes the possibility of overcompensation and the associated risk of undercompensation depending on the further development of the interest rates, this is, on the one hand, the consequence of his freedom of disposal as an affected party and, on the other hand, the consequence of facilitating the taking of evidence according to srp2. 2 BGB. This type of damage assessment must also be allowed, so that the lender can calculate his legitimate early repayment penalty and enforce it in court, even if the borrower does not provide services and the lender otherwise can not compensate for lack of (sufficient) security.
In such a case, it is not possible to calculate the prepayment penalty with discount deduction on the payment date. The appeal, on the other hand, successfully calls into question the assessment of default interest by the defendant, which was approved by the Appeals Tribunal. It rightly complains that the allegation of damage caused by default and the claim for damages have been intermingled in an inadmissible manner rather than fulfillment.
a) If the lender is induced by a negligent breach of duty of the borrower to terminate the loan for good cause, he is entitled to the permanent legislation of the Senate either the damage caused by the delay in accordance with 280 paragraphs 1 and 2, 286 BGB to demand or damages instead of the fulfillment in accordance with 280 Abs. 1 and 3, 281 BGB to demand (see senate decision of 281 BGB – Senatsentscheid of 28 February 2000 – ed. 313/98, WM 2000, 718, 719).
aa) If the lender makes the loan due for payment and demands the full repayment of the outstanding loan proceeds, he can – in addition to any late payment – only claim these and, in the case of default, in accordance with the general provisions, the interest due. bb) On the other hand, if the lender, in addition to the default in payment due to it and a claim for compensation for such limited delay damage, asserts instead of fulfillment, it may claim the equivalent economic position.
For the calculation of the damage, therefore, a comparison is required between the financial situation that would have resulted if the debtor’s obligations had been properly fulfilled and the financial situation created by the non-fulfillment (see only BGH, decision of 12 January 2009 – VIII ZR 328 / 07, JZ 2010, 44 marginal 20 mn). According to this, the early repayment penalty is to be calculated on the basis of the previous contractual interest rate, which means that this claim is subject to two restrictions, as the Federal Council has decided on the existing law and is also applicable to the applicable law, as it extends only to the outstanding debt capital and limited insofar as the lender had a legally secured interest rate expectation (see Senate Resolution of 9 January 2000 – ZR 313/98, WM 2000, 718, 719).
The reason for this is that the lender must be brought into the economic result of success by the early repayment of the debt (outstanding in the case of contractual execution) and the payment of the premature repayment penalty, as would have been the case if the loan for the secured agreed fixed Duration continued and would have been met with interest (see Senate Resolution of January 1, 1997 – II SR 267/96, BGHZ 136, 161, 166).
According to the permanent legislation of the Senate (judgments of the Senate of June 1, 1997 – II 267/96, BGHZ 136, 161, 168 ff. And II 197/96, WM 1997, 1799, 1801 and of January 1, 2000 – II 27 / 00, BGHZ 146, in the years 2000 to 2000), a credit institution can determine the loss which it could incur as a result of the non-acceptance or early maturity of a loan both under the asset-liability procedure and the asset-liability procedure.
In the asset-liability method chosen by the defendant, the lender’s economic detrimental factor is the difference between the interest payments the borrower would actually have made on borrowing and the interest rate resulting from the reinvestment of the released funds in maturity matching Capital market paper calculated. In the case of a precautionary unscheduled termination of a loan agreement, the lender can therefore set the damages instead of the payment so that in a first step, the total amount of interest and principal payments to be paid from the effective date of the termination on the basis of the proper contract interest payments and the reduction of amounts due to the saved risk provision and the annual administration costs saved.
(b) The appellant’s calculation of the defendant’s allowance does not meet these requirements by claiming damages caused by the delay in relation to the residual credit balance due in the non-discounted range and claiming (only) damages instead of performance for the lost interest. Instead, instead of settling the compensation, the compensation is based on the sum of the future cash flows from interest and principal payments still due from the effective date of the termination.
Only then will the defendant be placed in the same position as if the credit agreements could have been fulfilled until the end of the legally guaranteed interest expectation, but on the other hand they would not be overly favored to the detriment of the borrowers. (c) Contrary to the claim of the applicant, the defendant has not made use of his right to claim damages for delay so that he could not assert any damages instead of performance.
Because the matter is not ready for decision, it must be referred back to the Higher Regional Court for further clarification of the facts about the amount of the lead time (563 (1) sentence 1 ZPO).