Loan fee

from Wikipedia, the free encyclopedia

Loan or loan fees, including processing fees , are bank charges that are payable in connection with loans by borrowers in addition to the agreed loan interest .

Economic background

The lender (z. B. banks , building societies or insurance companies ) carry the risk costs and the refinancing costs that the credit of the height, the loan term , the credit and bargaining power of the borrower dependent. The interest paid by the borrower also depends on this. These costs are covered by the credit margin .

In addition, the bank incurs costs that are independent of the term and loan amount. This includes sales costs and loan processing costs when the contract is concluded, during the contract period and when the contract is terminated ( loan servicing ). In the interests of cost allocation based on the originator and better transparency , it made sense to charge these costs to the customer with separate fees instead of including them in the loan interest.

For example, lenders charge fees for ordering or releasing loan collateral or flat-rate loan fees that cover the one-off costs of loan processing.

species

Credit or loan fees can appear in different forms (also combinable):

  • at the beginning of the loan term ( english upfront fee )
  • as a permanent (e.g. monthly) fixed fee,
  • at the end of the loan term.

They can be specified as a fixed amount or as a percentage of the loan amount.

Legal situation in Germany

In Germany, loan fees can be effectively agreed neither with consumers nor in the corporate sector through general terms and conditions. The III. In 1981 the civil senate ruled that loan fees up to 2% were effectively compatible through AGB 1981. In 2007 the chairman of the XI. Civil Senate Gerd Nobbe gave a lecture published as an article in 2008 at the World Cup conference on banking law, which led to a complete turnaround in case law.

consumer

With the Price Indication Ordinance in 1985, credit institutions were obliged to include such charges in consumer loan agreements when calculating the effective interest rate .

In two rulings of October 28, 2014, the Federal Court of Justice (BGH) ruled that credit or loan fees for consumer loan contracts could not be effectively agreed in the general terms and conditions of the credit institutions and thus prohibited credit or loan fees for consumer loan contracts. The main argument for the ineffectiveness of such clauses after this decision is that with the processing fee

"" ... only costs for activities (such as making the loan amount available, processing the loan application , checking the customer's creditworthiness , recording customer requests and customer data, conducting contractual discussions or submitting the loan offer) are passed on to the customer, which the credit institution either provides in its own interest or has to provide based on existing legal obligations. ""

- Press release from the BGH

As a result, borrowers who had paid a processing fee in the past were able to claim a reimbursement from their lending institution retrospectively until 2004. The rule limitation period of § 195 BGB of three years only began in 2011, allowing for so-called. Old cases (entitlement to repayment) at the end of 2014, the statute of limitations occurred. Thus, for all repayment claims that arose up to and including 2013, the standard limitation period has already expired; for claims from 2014, the end of the standard limitation period is December 31, 2017, if measures are not taken to prevent the limitation period.

Entrepreneurial area

Whether or not to extend this case law to the area of ​​loans to entrepreneurs was controversial; Numerous judgments by the courts of instance denied this, while numerous legal scholars anticipated a corresponding case law by the BGH.

Also in two rulings announced on the same day, July 4, 2017, the Federal Court of Justice ruled that the general terms and conditions of the banks cannot agree to credit or loan processing fees with entrepreneurs either.

The Federal Court of Justice bases these decisions on the fact that also in the business area

"" ... the agreement of processing fees that are independent of the duration [...] cannot be reconciled with the essential basic ideas of the statutory regulation The fact that the protective purpose of § 307 BGB, to limit the use of unilateral creative power, also applies to the benefit of an - informed and experienced - entrepreneur is overlooked an increased economic understanding of entrepreneurs does not matter with the present clauses, because they are to be understood by a consumer as well as by an entrepreneur without further ado. ""

- Press release from the BGH

With regard to the statute of limitations, the Federal Court of Justice expressly refers to its judgment of October 28, 2014 and a possible statute of limitations beginning in 2011, so that in many cases the statute of limitations for claims from 2013 and before came into effect.

In anticipation of the change in case law, the German Savings Banks and Giro Association removed the option of charging loan fees from the template for business loans held for their members in February 2017; Until 2017, fees of 0.5 to 3% were customary for banks. It is estimated that the German credit institutions wrongly received 1.5 billion euros annually, corresponding to around 6% of the total balance sheet profit of the German banks and savings banks.

Austria

In Austria, the loan fee was paid to the responsible tax office for fees, transfer taxes and gambling. According to GebG § 33 SP 8, it was 0.8% of the financing amount. This provision was repealed by the 2011 Budget Accompanying Act without replacement on January 1, 2011.

Web links

Individual evidence

  1. ↑ BGH, judgments of July 2, 1981 - III ZR 17/80 = NJW 1981, 2181 = WM 1981, 838 and III ZR 8/80 = BGHZ 81,124 = NJW 1981, 841 = WM 1981, 839.
  2. ^ Gerd Nobbe : Admissibility of bank charges . In: WM . tape 2008 , no. 5 , February 2, 2008, p. 187-194 .
  3. ↑ a b Jens Koch : Processing fees in the lending business - A look ahead . In: WM . tape 2016 , no. 16 , p. 717-725 .
  4. ↑ BGH, judgments of May 13, 2014 - XI ZR 170/13 = NJW-RR 2014, 1133 and XI ZR 405/12 = BGHZ 201, 168 = NJW 2014, 2420.
  5. ↑ Press release of the BGH on the judgment of the XI. Civil Senate of May 13, 2014, Az: XI ZR 170/13; Judgment of the XI. Civil Senate of May 13, 2014, Az .: XI ZR 405/12, online
  6. ↑ Loan processing fees: Billion reimbursement for credit customers , test.de , January 2, 2015, accessed on January 21, 2015
  7. ↑ BGH, judgment of October 28, 2014 - XI ZR 348/13 = BGHZ 203, 115 = NJW 2014, 3713.
  8. ↑ BGH overturns processing fees . In: Handelsblatt . July 4, 2017 ( [1] ).
  9. ^ A b Marc Gericke: Federal Court of Justice declares processing fees for corporate loans to be ineffective . In: KapitalRecht . Siegburg July 4th 2017.
  10. ↑ For example LG Stuttgart, ruling v. June 22, 2016 - 4 S 259/15; LG Braunschweig, decision of 30.09.2015 - file number 8 S 341/15; LG Augsburg, ruling v. 12/16/2014 - 31 O 3164/14.
  11. ↑ BGH, judgments of July 4, 2017 - XI ZR 562/15 = BB 2017, 2058 and XI ZR 233/16 .
  12. ↑ a b Also no processing fees from companies . In: Legal Tribune Online . 4th July 2017.
  13. ↑ BGH: Federal Court of Justice decides on the admissibility of processing fees agreed in the form of business loans - judgments of July 4, 2017 in proceedings XI ZR 562/15 and XI ZR 233/16 , press release No. 104/2017 of July 4, 2017 online .
  14. ↑ a b Harald Freiberger and Meike Schreiber: Banks threaten billions in repayments because of processing fees . In: Süddeutsche Zeitung . 20th July 2017.
  15. ↑ Federal Law Gazette I No. 111/2010