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 a bank and recover your money. Luiza Słychan and Marcin Zatwarnicki—owners and attorneys representing clients at the Zatwarnicki Słychan Adwokaci law firm—are undoubtedly professionals in this field. And the last three judgments of the Court of Justice of the European Union are clearly working in borrowers’ favor.
How long have you specialized in Swiss-franc claims?
Marcin Zatwarnicki: As a lawyer, since 2013 I have been conducting court disputes with entities from the banking sector and insurance companies.
Luiza Słychan: We have specialized in Swiss-franc claims for many years and focus primarily on clients from Lower Silesia. We receive many calls asking about the possibility of meeting to discuss a loan agreement linked to the Swiss-franc exchange rate. One theme dominated these conversations: clients do not want to entrust their case to someone from Poznań or Warsaw. They want someone they could speak to face to face.
So you focus on clients from Bolesławiec, Jelenia Góra and Legnica?
Marcin Zatwarnicki: Yes. We are open and focused on direct contact with the client. This is very important in Swiss-franc cases, where borrowers’ trust in the so-called public institution has already been seriously exploited once. At our law firm, as attorneys, we personally handle the client’s case substantively from beginning to end. We prepare the legal position and attend hearings with the client. From clients’ accounts, we know that this is not standard practice at large entities cooperating with other Swiss-franc borrowers. At ZS Adwokaci, there is no call center—there is a real attorney.
You are referring to the company entrusted with handling the case. Is that not the same as a law firm?
Luiza Słychan: Unfortunately, many Swiss-franc borrowers do not establish a direct relationship with law firms. Instead, they enter into agreements with companies that act as intermediaries. They are not subject to the same liability as we attorneys are. We are required to hold civil liability insurance in case of an error made while handling a case. Moreover, as a law firm, we have far more options for resolving a dispute than a commercial agency.
What is the current situation of Swiss-franc borrowers?
Marcin Zatwarnicki: It is better than it was two or three years ago. In addition, the Court of Justice of the European Union has issued three important judgments concerning Swiss-franc cases in total.
What do these judgments mean for borrowers?
Luiza Słychan: The first concerns the definition of a consumer. This is significant because there is a sizeable group of Swiss-franc borrowers who took out loans while using part of them to finance business liabilities. Until now, these borrowers had not attempted to invalidate their loan agreements because there was doubt as to whether they qualified as consumers and therefore benefited from the protection associated with that status. The Court adopted a broad definition of a consumer.
What does this mean?
Luiza Słychan: The protection guaranteed to Swiss-franc borrowers under European law required the borrower to be a consumer—that is, to have entered into the loan agreement for private needs, unrelated to business activity. For example, they may have bought an apartment to meet their housing needs. However, we know of cases where, in order to purchase such an apartment, a borrower had to refinance earlier credit liabilities with a Swiss-franc loan, and these could include, for example, small business loans or leases. Now such a borrower will also be treated as a consumer.
Another judgment concerned what is known as remuneration for the use of capital. How did the Court of Justice of the European Union address this issue?
Marcin Zatwarnicki: A claim for remuneration for the use of capital was a kind of scare tactic used by Swiss-franc banks to discourage Swiss-franc borrowers from going to court to invalidate their loan agreements. Banks would say: “Fine, if the agreement is invalidated, we will sue you for additional money—a fee—for using for 20 or 25 years the money we once lent you.”
Are these claims justified?
Marcin Zatwarnicki: The Court confirmed what representatives of Swiss-franc borrowers have been saying for a long time—of course they are not. The Court confirmed the emerging line of decisions by Polish courts, which reject this type of claim by banks. The Court of Justice of the European Union stated that when a loan agreement concluded between a consumer and a bank is found to have been invalid from the outset because it contained unfair contractual terms, the bank may not, in addition to returning the money paid under the agreement and paying statutory interest for delay from the date of the demand for payment, seek additional benefits from the consumer.
And the third judgment?
Luiza Słychan: This judgment concerns whether it is permissible to suspend loan-installment payments for the duration of proceedings to invalidate a loan agreement. The issue was controversial because, across the country, some courts granted such suspensions—for example, the Swiss-Franc Division of the District Court in Warsaw—while others dismissed such applications. This led to the Swiss-Franc Division becoming so overwhelmed with lawsuits that changes to the law were necessary; borrowers can now bring an action to invalidate an agreement before the court in their place of residence. Ultimately, the Court resolved the issue and stated that courts should suspend loan-installment payments while awaiting the conclusion of court proceedings to invalidate a Swiss-franc loan.
How does the procedure for invalidating a loan agreement proceed?
Marcin Zatwarnicki: The client provides us with the available loan documentation, and we analyze it free of charge. We then tell the client whether they have claims against the bank from which they took out the loan, including a loan linked to the Swiss-franc exchange rate, and what those claims are. Only at the next stage do they sign an agreement with our law firm. We then 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, meaning we file an action with the Court.
Would it therefore not be better to accept the settlements now being proposed by 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 extremely stressful. We offer each of them our support and advice. The area of loans linked to foreign-currency exchange rates is complicated, and regardless of the procedure through which we protect our interests, it is worth having an attorney experienced in this type of battle on your side. Preferably an experienced lawyer.
Can you give an example of a case in which you won against a bank? What did the client—the borrower—gain?
Luiza Słychan: The client received a refund of the overpayment. They took out a loan of PLN 45,000.00. During the loan term, they repaid approximately PLN 120,000.00 to the bank. After winning the case with final effect and settling with the bank, they received a refund of the overpayment—approximately PLN 75,000.00—plus interest on that amount for the duration of the proceedings, an additional approximately PLN 25,000.00. PLN 100,000.00 in total.
And what did successful negotiations with the bank conducted by ZS Adwokaci look like when they ultimately did not lead to filing a court action?
Marcin Zatwarnicki: We had negotiations that meant no lawsuit was filed. The client took out a loan of approximately PLN 50,000.00, which, on the agreement date, was converted into approximately CHF 25,000.00. During the loan term, the client repaid approximately PLN 75,000.00. According to the bank, approximately CHF 10,000.00 still remained to be repaid. Ultimately, thanks to our efforts, the loan was converted into PLN at a rate of 1 CHF = PLN 0.50, and the loan balance fell to PLN 5,000.00, which the client repaid in a lump sum after concluding the settlement. We encouraged the client to go to court. However, the client decided that a settlement under which a PLN 50,000.00 loan would have a total repayment cost of PLN 80,000.00 was fair and satisfactory. The client wanted to close the matter as quickly as possible. The client always decides whether to settle. The law firm provides advice and always explains the advantages and disadvantages of the proposed settlement.
Contact
ul. Kaszubska 1/5, 59-700 Bolesławiec
email: kancelaria@zsadwokaci.pl
tel. (+48) 535 969 403
