by Johannes Fiala, lawyer
The Munich banker and attorney Johannes Fiala evaluates the proceeding of the former Bayerische Hypotheken- und Wechselbank AG as highly risky: The European Court of Justice had decided on 13.12.2001 in a procedure against the HVB (legal successor of the Bayerische Hypotheken- und Wechselbank AG) that also without instruction over the right of revocation, the credit customer can still dissolve after years from the loan contract. A decision is expected from the BGH in the coming week. However, this is apparently nothing new for HVB, but has been known internally as a risk for years: This follows from recent publications of the ARD as well as in DIE ZEIT of 9.4.2002. One may be curious how the management board will want to explain this endangerment of the bank’s assets to its shareholders. These events do not only mean a dark chapter in the company’s history and an enormous damage to HVB’s image. The president of the consumer protection association VfE (Dachau near Munich), Hans Tillich, knows thousands of affected small investors. Daily reach it also recent cases of “misfinanced real estate purchases”. In these, loans were offered by HVB in connection with industry-known sales companies in a similar manner. Tillich has the impression that the bankers at HVB continue to offer loans for overpriced tax-saving models (e.g. in the east or as part-ownership) to the man. The management does not know obviously, what is played at the basis, because Tillich: ?we call the HVB head office, and there one wonders only, why we have such information earlier than the management… over the right of revocation with credit agreement conclusion in a doorstep situation the BGH will decide in the next days: Does HVB have to bear the damage (retroactive applicability of the ECJ ruling of 13.12.2001) or do those affected have to hold the Federal Republic responsible (state liability, as already known due to non-timely implementation of the EC directive on travel contract law): If necessary, the investor could invoke a liability claim directly under European constitutional law and sue the state! But not enough: While there are lawyers, who wait for the BGH and puzzle, who will probably pay the bill, the OLG Munich decided long ago – the bill pays the bank and not the state (Az. 20 U 2836/01): The Knüller is that the OLG Munich makes itself in principle the arguments of the EuGH tooeigen and states thereby in the consequence that the bank cannot require a loan repayment. For the bank this becomes particularly expensive, means RA Fiala: ?in comparable cases the consumer gets its money (interest and repayment) back after the iurisdiction and must then only the (nearly worthless?) object of purchase for it of the bank deliver? The judgement of the OLG Munich of 16.01.2002 remained still nearly unknown in the specialized public. Tillich comments: The farewell of the old management board team of the former Bayerische Hypotheken- und Wechselbank AG may not have been sufficient. Also the fine of the criminal justice i.H.v..700.000 DM for the ex-board Martini was possibly still not clear enough. His association would now keep a closer eye on the criminal side, because not only had there been suicides by customers of this bank out of desperation, but the shareholders’ assets were also at stake. Tillich wonders whether the bankers have learned nothing: “Every further case of this kind on our table raises the question of where the management is rowing the bank?
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About the author
Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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