Unfortunately, it will be a sibling battle Swiss clients from this bank. First of all, the position of borrowers who have lawsuits in the courts should be separated from those who have not yet decided to sue the bank.
People with a pending trial will have to take into account that their trial proceedings will be suspended until the restructuring process is complete. Having experience with cases related to the GetBack scandal against Idea Bank SA, I can say that this suspension will last 1-2 years. At Idea Bank SA, the restructuring process took just over 1.5 years. Then, in a court case, only the court will be able to take urgent action, but it certainly will not issue a verdict. instead of Getin Noble Bank SA will enter the Bank Guarantee Fund as the respondent And the official, while the current representatives of the bank will lose their power of attorney which expires when the BFG decision is made.
Importantly, many franchisees in trials against this bank have obtained so-called escrow orders under which the courts relieve their obligation to pay loan installments for the duration of the trial. What about these decisions now? Will they stay in force?
Here you need to refer to the provisions of the Bank Guarantee Fund Act, and specifically to Art. 135 of the law. Does 1 of this provision indicate that actions related to securing the assets of the entity under restructuring that began before the forced restructuring, i.e. as in the case of Getin Noble Bank SA, are subject to cancellation, but the decision exempts the borrower from the obligation to pay loan installments strictly to the assets of the bank? Here I have my doubts. This is because the guarantee relates specifically to a claim, which is ultimately financial but not financial. In addition, such a judgment is directed directly to the assets of the owed person, that is, the borrower, and not the bank. In short – redemption should apply to a situation where a certain amount of money has been or will be seized, and we are not talking about such a situation in the case of franchisees. The adoption of such an interpretation is also possible thanks to a broader reconstruction of the base through the prism of the entire art. 135 and the proportion of legislation from the law. The point is, first of all, not to underestimate the assets already in this entity, not future debts that are not yet due, although the practice in this area is not yet developed, and the regulations are very vague.
However, it is clear that at this stage it is impossible to seize the assets of Getin Noble Bank SA, including, for example, confiscation of an account with the National Bank of Poland.
Certainly, the best situation is for customers who have not yet paid their capital, that is, the total repayment installments to the bank are less than the available loan amount, because in fact they owe the bank all the time. On the other hand, customers who have so-called overpayments, i.e. customers whose total premiums exceed the amount of capital. The recovery of these overpayments will be very difficult and will depend only on time conditions, that is, who wins the trial first may depend on the recovery of these funds, although it must be remembered that enforcement procedures are currently impossible. On the other hand, people at the end of the queue are less likely to charge this money, because they may simply run out of this money in the bank.
However, what about customers who have not yet decided to sue Getin Noble Bank SA? Here, I can only recommend that they consult a lawyer to consider all the options available to them in relation to their actual situation.
Finally, the topic of enforcement of the Swiss Franc ruling against Getin Noble Bank SA should be discussed. If the borrower finally manages to obtain such a ruling, its implementation may be problematic. Certainly, no execution will take place during the restructuring process, because it is excluded by law (the execution procedures are stopped during the restructuring). Fortunately, money changers in these trials fight primarily to invalidate their loan agreements, which means that the final ruling will permanently release them from the obligation to pay loan installments, and the debt balance will be voided. This means that the obligation in the form of a loan will simply cease to exist and this is the only positive circumstance, but it remains so, in the whole situation.
*The author of the text is Karolina Bilawska – attorney and partner at the law firm Pilawska Zorski Adwokaci. Specializes in consumer disputes with banks. For many years he represented the interests of concessionaires in Polish courts
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