The Auxmoney loan brokerage portal from auxmoney GmbH from Düsseldorf offers loans for borrowers that, according to its own account, come about through the brokerage of private and institutional providers.
In fact, in numerous cases of the loan agreements brokered, Süd-West-Kreditbankfinanz GmbH (SWK Bank) from Bingen am Rhein acts as the lender.
In a preliminary calculation of the offer, Auxmoney shows an interest rate of just over 5% for personal loans. Regardless of the question of whether this information appears realistic if an “expected return of 5.0%” is stated for private investors on the same platform, “possible defaults are already taken into account”, there are numerous loan agreements that contain significantly higher interest rates . There are already several loan agreements with high double-digit interest rates such as something like 19.9% known. According to the interest rate statistics of the Deutsche Bundesbank, the usual market interest rates for newly concluded loan agreements in various categories have been well below half of this value in recent years.
Some of those affected ask themselves whether such an interest rate is justified and whether such a contract is effective at all. A legal review is required to determine whether a reduction in the interest rate, a reversal of the contract or, in extreme cases, even a refusal to repay the loan is possible.
In recent years, some courts have taken the view in such cases that the respective interest rate statistics of the German Bundesbank are not applicable to the special business model of brokering private lenders on the one hand and consumers as borrowers on the other, or that the interest rate series for overdrafts should be used as a benchmark. The argument is usually made that these are borrowers with particularly poor creditworthiness, which is why the interest rate statistics are not a suitable benchmark.
The Saarbrücken Regional Court has now opposed this view with its judgment of September 18, 2020, 1 O 79/20, and stated in the guiding principle of its judgment:
“1. The MFI interest rate statistics provide a suitable basis for
Determination of the customary market interest rate as part of the assessment
a possible immorality of a loan agreement
but.
2. This also applies to the granting of a particularly risky one
Loan to a lowest credit borrower;
the formation of a special market in this regard is to be rejected. “
This judgment is to be welcomed in the interests of the borrowers concerned. The interest rate statistics of the German Bundesbank used by the Federal Court of Justice and the higher regional courts are in fact a valid benchmark for examining immorality. To deny this would practically mean leaving profit-hungry providers with loan models that deviate from classic bank financing a legally free space in which the immorality and thus the applicability of § 138 BGB would practically no longer occur.
In the case of Auxmoney, there is another aspect on the factual level of the advertised business model:
In fact, Auxmoney has been working for several years with major investors who provide the financial means for the defendant’s loans brokered by Auxmoney, or buy up the loan receivables. On the website of Auxmoney you could recently read:
“At auxmoney, private and institutional investors invest directly in pre-checked borrowers of various score classes.”
Apart from the fact that the conveyed impression that there are direct investments in borrowers is in any case incorrect insofar as a bank, namely often the SWK Bank, is still interposed here, mostly institutional investors invest in Auxmoney. The management itself confirmed in an interview that institutional investors such as insurance companies have been investing in Auxmoney for several years, such as the insurance group Aegon since 2015.
In the interview, the management also announced that 1.5 billion euros have now been committed by just one investor. For comparison: Auxmoney, according to its own account, issued loans with a volume of 181 million euros in 2016. The brokerage of private investors with comparatively small sums should then no longer play a major role.
These factual circumstances presented in proceedings before the Mainz Regional Court prompted the court to point out that in the event of a loan being granted by commercial investors, the interest rate statistics of the Deutsche Bundesbank should be the relevant comparison parameter. In the oral hearing on March 10, 2021, the court literally issued the following information:
“The case law of the BGH, the higher regional courts and the regional courts cited by the defendant should, however, only be relevant if the investors are private investors. Something different is likely to apply to investors who participate commercially in the loan projects. In this respect, there should be a comparison with the financial transactions of a bank. It should therefore be possible to follow up the plaintiff’s submission that at least in 2018 the funds for the investment projects came predominantly from commercial investors. Should the plaintiff be successful with his offered witness evidence, the immorality should result from the effective interest rate of the specific loan agreement in relation to the interest rate statistics of the Deutsche Bundesbank. “
For commercial lending, the interest rate statistics of the German Federal Bank must be used for the immorality check, regardless of the specific design of the provider’s business model.
Affected borrowers who are exposed to loan receivables with double-digit interest rates of more than 10% should therefore check whether the contract with the objection of immoral overpricing can be adjusted or reversed on favorable terms. Lawyer and specialist lawyer for banking and capital market law Ingo M. Dethloff offers borrowers with such contracts a free initial assessment of the legal options for action.
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