Banks took advantage of our limited knowledge of loans and our lack of awareness of the consequences of borrowing in a foreign currency. At the time, WIBOR and LIBOR sounded to us like the names of cartoon characters. We cannot turn back time, but we can help ourselves and take the bank to court. The most important thing is to use a professional law firm that knows how to win against the bank and recover your money. Luiza Słychan and Marcin Zatwarnicki—owners and attorneys representing clients at ZS Adwokaci—are undoubtedly professionals in this field.
How long have you specialised in Swiss franc loan claims?
Marcin Zatwarnicki: As a lawyer handling court disputes with entities from the banking sector and insurance companies since 2013, I have been observing how the situation of Swiss franc borrowers has developed since the beginning of 2018.
Luiza Słychan: For several years, we have received many calls asking about the possibility of meeting regarding a loan agreement linked to the Swiss franc exchange rate. One theme dominated these conversations: “We do not want to entrust our case to someone from Wrocław or Warsaw whom we do not know. We want someone with whom we can speak face to face.”
Is that why you focus on clients from Bolesławiec, Jelenia Góra and Legnica?
Marcin Zatwarnicki: Yes. In our view, the open and direct-contact-oriented nature of our Law Firm is a significant advantage. In cases involving Swiss franc borrowers—whose trust in the so-called public institution has already been seriously exploited once—this is of key importance. At our Law Firm, we, the attorneys, are the people who handle the client’s case substantively “from A to Z”. We prepare the substantive position in the case and attend hearings with the Client. From our Clients’ accounts, we know that this is not standard practice at large entities with which other Swiss franc borrowers work.
Luiza Słychan: The fundamental issue is building a relationship based on honesty and trust, which can be established only through personal meetings and conversations. Such a relationship will not develop if the Client cannot contact the lawyer handling their case because they do not know who that lawyer is, or cannot reach them through the wall created by the company’s helpline and general email inbox after entrusting it with their case.
You mentioned a company entrusted with handling the case. Is that not the same as a law firm?
Luiza Słychan: Unfortunately, many Swiss franc borrowers do not work directly with law firms. They enter into agreements with companies that act as intermediaries between them and the lawyers representing them. In our view, this is highly disadvantageous for the client, because these companies are not subject to the same liability as attorneys. We are required to have civil liability insurance in case of an error made while handling the Client’s case.
What is the current situation of Swiss franc borrowers?
Marcin Zatwarnicki: There are two dominant issues that concern our Clients most. First, there is the issue of so-called remuneration for the use of capital and settlements proposed by banks holding portfolios of Swiss franc loans.
What does the term claim for remuneration for the use of capital mean, and why is it so important?
Marcin Zatwarnicki: A claim for remuneration for the use of capital was a kind of scare tactic used by Swiss franc banks, intended to discourage Swiss franc borrowers from going to court to have their loan agreements declared void. The banks said: “Fine, if the agreement is declared void, we will sue you for additional funds—a fee—for using for 20 or 25 years money that we once lent you.” It often happened that the banks’ claims in this respect amounted to more than 100% of what the client had received when the loan was disbursed. For example, if a borrower received capital from a bank in 2008 in the amount of PLN 150,000.00, the bank would state that after the agreement was annulled it would demand both the return of PLN 150,000.00 and an additional remuneration of, for example, PLN 200,000.00 for its use.
Are these claims justified?
Marcin Zatwarnicki: Of course not. We already have a number of rulings by national courts rejecting claims of this kind by banks. In recent weeks, this position has been reinforced by the opinion of the Advocate General of the Court of Justice of the European Union, who, in the opinion issued in case C-520/21, indicated that when a loan agreement concluded between a consumer and a bank is found to be void from the outset because it contains unfair contractual terms, the bank may not, in addition to returning money paid under that agreement and paying statutory default interest from the time of the demand for payment, seek any additional benefits from the consumer. This means that a bank’s claim for remuneration for the use of capital is unfounded.
How does the procedure for declaring a loan agreement void proceed?
Luiza Słychan: Proceedings concerning claims under a Swiss franc loan agreement are a process that takes time. The Client provides us with the available loan documentation, which we analyse free of charge. We then inform the Client whether, and what, claims they may have against the bank with which they took out a loan linked to the Swiss franc exchange rate. Only at the next stage is an agreement signed with us, ZS Adwokaci. After that, we submit a complaint to the bank—the lender—setting out the Client’s demands and the legal arguments supporting them. If the complaint does not produce the intended result, only then do we begin court proceedings, that is, file a claim with the Court.
What is the average duration of court proceedings?
Luiza Słychan: Unfortunately, there is no rule, but you should expect that a final, legally binding ruling in the case can be obtained within a year of filing the claim, although it may also take more than two years. Much depends on the procedural tactics adopted by the bank’s representative, which are often aimed at prolonging the proceedings, as well as on the efficiency of the Court that will rule in our case. But let us remember that we are fighting for substantial sums of money, and sometimes for our entire life savings, and I think it is worth waiting and being patient.
Would it therefore be better to accept the settlements now being proposed by the banks?
Marcin Zatwarnicki: It is always the Client’s choice. Not everyone is ready to place the resolution of their case “in the hands” of the Court. For many borrowers, court proceedings are a major source of stress. We offer each of them our support and advice. The area of loans linked to a foreign currency exchange rate is complicated and, regardless of the procedure through which we pursue the protection of our interests, it is worth having an attorney experienced in this type of battle on your side. Preferably an experienced lawyer.