Banks liable for hidden commissions in closed-end investment funds
The Federal Supreme Court has ruled: Banks owe with closed participation unsolicited a customer clearing-up, if the acquisition price is also by hidden commissions scarcely twice as high, as the value of the participation. And the practice shows that hidden commissions are up to today at the agenda! In all other respects a clearing-up obligation of the financing bank exists, if it is positively known that apart from the selling expenses proven in the folder further commissions are paid: This applies also with payment over third, approximately a establishment partner of the fund, if these hidden commissions affect the value of the investment and are in the long run in other means use costs calculated in. *
Usury in real estate and closed investments
It has been known for decades from the case law of the higher courts that (junk) real estate is usurious if the purchase price is around 190% of the objective market value. The Federal High Court (BGH) decided by judgement of 10.07.2007 (Az. XI ZR 243/05) that the fund-financing bank is obligated of itself to the clearing-up of the customer, if it comes (partly causally) also by hidden commissions to the fact that the acquisition price is scarcely twice as high, as the value of the portion of the closed participation. The financing bank must then assume an immoral overreaching.
Duty of disclosure in the case of positively known hidden internal commission
If the bank is aware that additional commissions are paid for the brokerage which are not shown as sales costs in the prospectus, it shall also be obliged to provide information. Because also thereby the investor is deceived over the Werthaltigkeit of the fund portion. Incidentally, capital investment fraud also comes into question here. The decisive factor here is whether the hidden commissions were paid “out of the investor’s contribution”, for example by including them in other expenditure items (e.g. land acquisition costs). The positive knowledge of the credit institution is rebuttably presumed if there is an institutionalised cooperation with the fund prospectus managers. More information and questions on this topic will be answered by the law firm of Dr. Johannes Fiala, Ms. Weiler, in a question and answer session sponsored by Halstenbeker Magazin on Tuesday, 13 November from 17:00 to 19:00 on the hotline 089-17 90 90 35.
(Halstenbeker Magazin 11/2007, 30)
Courtesy ofwww.halstenbeker-magazin.de.
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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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