Withdrawal of consumer credit and car finance
The revocation of the related business after the deadline, which is actually only two weeks, is the basis of many legal proceedings before regional courts and higher regional courts. Among other things, the cancellation is successful if the cancellation information to be given to the consumer by the bank in the contract is not clear and understandable and at the same time does not correspond to the legal model. The legislature made the model available so that banks can achieve legal certainty. This two-stage check, which is difficult for laypeople to understand, therefore contains the paradoxical variant that the legal model may not be clear and understandable, but revocation information given in the same word must be considered legally compliant and thus a revocation is no longer possible after the two-week period has expired.
Cascade reference: unresolved legal issues
Part of the legal model is the so-called cascade reference. The cascade reference refers to a standard, which in turn refers to other standards, etc. and is therefore incomprehensible for consumers and also for many lawyers: “The period begins after the conclusion of the contract, but only after the borrower has given all the mandatory information according to Section 492 (2) BGB ( e.g. information on the type of loan, information on the net loan amount, information on the contract period) “.
The ECJ (European Court of Justice) has ruled that the cascade reference does not meet the requirements of the Consumer Credit Directive. The guideline is merely aimed at the German legislature. He should have passed German laws that adequately serve consumer protection. Nevertheless, German courts should at least use the guideline to interpret German laws. However, the BGH has already decided that the cascade reference is irrelevant if the entire Cancellation information corresponds to the legal model. His argument is probably correct: The German legislator has clearly regulated that the full use of the pattern protects banks and that adoption leads to the fiction of legality. There is no room here for interpretation. A court should not disregard a clear law and play legislature itself.
Cascade reference and deviation from the pattern
But what if the bank has not adopted the model in full?
There is a dilemma here for the jurisprudence. On the one hand, the cascade reference is part of the model and apparently the legislature has considered the formulation to be sufficient at least if the model is used in full. On the other hand, it is also clear that the legal fiction only takes effect if it is completely adopted. Most of the regional courts and higher regional courts have sided with the bank.
But now there is a first judgment by a higher regional court, which has ruled in favor of the consumer. According to the court, the revocation was effective because the cascade reference contained in the revocation information is not clear and understandable and the bank cannot claim any legal fiction due to some deviations from the model (OLG Frankfurt, ruling of 22.09.2020 – 10 U 188 / 19). Thus, in my opinion, there is also a diverging case law at the higher regional courts, which no longer empowers other OLGs to reject appeals by consumers without admitting the appeal in accordance with § 522 ZPO. Legal protection insurers also have to provide cost coverage if argued accordingly. Congratulations to the successful colleague Andreas Paul.
Revocation actions therefore have a chance of success in a very large number of cases.
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