Annoyance Bonus

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As Lästigkeitsprämie in the legal vernacular a premium is called, which is required for the task of formally existing but economically worthless legal position. Such a claim usually violates secondary contractual protection and fiduciary obligations and can trigger claims for damages due to illegal behavior.

Examples

foreclosure

The most common example is the demand for a nuisance premium from a subordinate secured mortgage creditor (so-called chimney mortgage ). Due to the subordination, these creditors often have no realistic prospect of generating proceeds from a foreclosure sale of the property concerned. However, through their formal position they are able to prevent a potentially more profitable private sale of the property. In such cases, the subordinated secured creditor can demand a nuisance premium from the senior secured creditor in order to agree to the private sale.

However, the OLG Schleswig decided that subordinate creditors u. Under certain circumstances, they may be obliged not only to repay the required nuisance premium, but also to pay compensation if they make their consent to a private sale of a property dependent on the payment of a cash premium. The mere enforcement access establishes a special legal relationship of a private law type between debtor and creditor and triggers duties of consideration. In the present case, it was about the sale of a property, which was secured by a first-rate mortgage and also a second, second-rate mortgage. The private sale failed due to the lack of consent from the secondary registered creditor, so that it finally came to the foreclosure auction. Only a fifth of the market value was achieved here. The OLG Schleswig accused the lower-ranking creditor of being inconsiderate and sentenced him to compensation in the amount of the difference between the auction proceeds and the expected private sale proceeds.

By considering the payments of a nuisance premium from the bankruptcy estate to be invalid and contrary to the purpose of bankruptcy, the Federal Court of Justice is sanctioning the unfair efforts of creditors, whose mortgage liens are obviously worthless, to achieve priority satisfaction of mere insolvency claims in a manner that clearly contradicts the principle of equal treatment of creditors by using formal legal positions. It is to be assessed differently if the amount is exclusively borne by a senior mortgagee who has agreed to it.

The obligee of the obligee to release collateral out of good faith and to consider the interests of the debtor is derived in other high court decisions and in the literature from contractual relations between debtor and obligee.

However, the subordinated secured creditor is not obliged to approve the deletion of his security interest.

Corporate law

So-called professional plaintiffs try to obtain nuisance bonuses by threatening to take legal action against resolutions of general meetings of stock corporations.

Individual evidence

  1. ↑ OLG Schleswig, decision of February 22, 2011 - 5 W 8/11
  2. ^ BGH, decision of March 20, 2008 - IX ZR 68/06
  3. ↑ Higher Regional Court Nuremberg, judgment of November 19, 2013 - 4 U 994/13 No. 2 d
  4. ↑ BGH, judgment of March 20, 2014 - IX ZR 80/13
  5. ↑ OLG Karlsruhe, judgment of September 29, 2009, BeckRS 2009, 27250; OLG Cologne, judgment of June 12, 1995, WM 1995, 1801; Munich Commentary on the Insolvency Code, 2nd edition, § 165 Rn. 107, 179
  6. ↑ BGH, judgment of April 30, 2015 - IX ZR 301/13
  7. ↑ Frank Wenzel: The legal validity of the chimney mortgage. At the same time, a discussion of the BGH judgment of April 30, 2015 - IX ZR 301/13. DZWIR 2015, 436
  8. ↑ Thomas Werres: Billion Magic: The Wild Businesses of Lars Windhorst Manager Magazine , May 12, 2016