Loan repayment
Under credit repayment the transfer of a loan, including any purpose appointed it is colloquially collateral from a lender (usually a credit institution ) to another. In this sense, the term corresponds to the English refinancing and is closely related to that of debt rescheduling .
In case law and literature, loan repayment is more strictly defined as the early repayment and termination of a loan, but not as a transfer to another bank. This early redemption can trigger a prepayment penalty .
General
As a rule, the credit relationship based on a credit agreement between borrower and lender is maintained until the loan falls due . However, there are situations that require a change of lender (mostly credit institution) during the term of the loan. This includes, in particular, the borrower's change of residence, the borrower's house bank or more favorable loan terms at another bank after the fixed interest period has expired as part of follow-up financing .
Legal issues
In the legal sense, credit redemption is a change of creditor, which takes place by way of assignment according to § § 398 ff. BGB. To this end, the transferring credit institution (assignor) and the accepting credit institution (assignee) agree within the framework of a redemption agreement at which time a certain loan amount, along with any interest, ancillary costs (transfer fee) and any loan collateral, is to be transferred to the assignee. The participation of the borrower is not required here; at most, he has commissioned his bank to repay the loan. The credit claim is transferred to the new bank through the redemption agreement with all security rights ( § 401 BGB) and disadvantages ( § 404 to § 407 BGB). If there is therefore collateral, Section 401 BGB requires the simultaneous transfer of ( accessory ) collateral to the accepting bank. This includes guarantees , pledging of property and rights and the mortgage , which are transferred to the new bank by law. Non recognition of collateral (such as transfer of ownership , transfer of ownership of motor vehicles , land charge , assignment or guarantee , however) require explicit transmission.
execution
The starting point is the customer's order to his bank to redeem a certain loan. The accepting bank is mentioned here. The transferring bank contacts this bank and concludes a termination agreement, which also regulates the fate of existing loan collateral. Their transfer usually takes place with the help of a trust mandate. The core of this trust mandate is the agreement that the bank to be replaced may only dispose of the transfer fee if it has legally transferred the collateral to the new bank.
Transfer fee
The so-called transfer fee is the amount that must be paid to completely redeem the loan. It is calculated as follows:
Aktuelle Restschuld + Kreditzinsen bis zum Ablösetermin + Vorfälligkeitsentschädigung (*) + Bearbeitungsgebühren (*) + Transaktionskosten für die Übertragung von Kreditsicherheiten (z. B. Notar- oder Grundbuchkosten) (*) - anteilige Erstattung von Disagien (*) - Zinsen und laufzeitabhängige Kosten, die auf die Zeit nach dem Ablösetermin entfallen (§ 498 Abs. 2 BGB) (**) - Rückkaufswert von Restschuldversicherungen (*) = Ablösesumme
Footnotes:
(*) if applicable
(**) in case the lender terminates
Repayment of non-performing loans
When the loan is redeemed, the original loan agreement is fulfilled by the borrower and his security agreement (due to the loan collateral provided) with the transferring bank is terminated. This is different with problem loans. Here the borrower is not fulfilling the loan agreement because he is in arrears with interest and / or repayments or does not pay them at all. The loan repayment does not come from the borrower, but from the lending bank. It sells non-performing loans - sometimes in larger packages - as part of the loan trade . The legal fate of the borrower in this process is regulated in the Risk Limitation Act of August 2008. In March 2010, the BGH declared submission to compulsory execution in the land charge deed to be permissible. If a loan sale takes place at the same time as the assignment of the land charge , it is necessary for the new creditor to provide evidence of his entry into the security agreement within the scope of the description of the enforcement clause in order to preserve the original earmarking of the land charge.
Web links
See also
Individual evidence
- ^ BGH, judgment of March 30, 2010, WM 2010, 1023 ff