/ world today news/ Recently, we have been observing an attempt to solve the problem of the abuse of rights by banks towards borrowers. I call them the fifth power, the “power over the powers”, which is already clear to everyone – it has appropriated the top of the society’s power pyramid – the banking power.
Five draft laws have been submitted to the National Assembly, which should legislatively correct the rules currently in force, and above all, the unequal status of citizen borrowers vis-a-vis banks. The problem of bank arbitrariness and that of private bailiffs is represented in 3 of the 5 bills to amend and supplement the Civil Procedure Code (CPC). One of them belongs to a deputy from the left, the other 2 bills belong to the Patriotic Front.
Even at first glance, it is obvious that while in the PF bills the aspiration is indeed to achieve the main goal of a law – justice in legal regulation, the left’s project contains not just defects, but literally – treacherous texts that make the changes meaningless, with which, in fact, nothing changes.
Let’s clarify – yes, the necessity requires the repair of Art. 417 of the Civil Code, but not only. But it should also be clearly emphasized – only “repair” in the part privileging the banks (and not its complete cancellation, which is a legal absurdity, offered purely populist by some career public “activists” – note). In other words – besides abolishing the privilege of the banks, there must be an abolition of this madness “summons by sticking”, extremely harmful to the administration of justice in general, but most obviously in banking cases; and after we liquidated the one-sidedness of the procurement proceedings with an enforcement claim after 2008 – it is also necessary to ensure competent legal protection of the defendant in every phase of the order and enforcement proceedings; Undoubtedly, regulation of the powers of the PSI in the direction of limiting the lack of control of their actions and fees is also desperately needed.
This necessity did not just appear out of thin air, nor was it the result of textual ambiguities or brazen banking abuse of privilege. The truth is that all this was laid down, and with a clear awareness of the consequences, even by the “writers” of the new Civil Code in 2007. Our “legislators” were perfectly aware of what they were subjecting us, their employers, to in the coming years, and in whose interest (considering how many of the banks operating on the territory of Bulgaria are Bulgarian-owned – note).
And this – despite the fact that the entire current situation in the banking sector and all the problems not only surrounding the current, negatively popular Article 417, were analyzed and predicted back in 2004-2005 in an opinion of the Bulgarian Financial Forum. The analysis was submitted to the working group during the preparation of a new Civil Code back in 2005. And in 2013, a group of experts and organizations united, announced and submitted to the parliament a document with a Package of 7 legislative clear and precise measures to solve the problem deliberately created by the legislator, apparently following the markers from which – all parliamentary forces today practice “creating” draft laws. Unfortunately, once again distorted and meaningless – just like last year’s deformed amendments to the Civil Code.
The current propaganda raids on TV studios by MPs in an attempt to clean up the image ruined by their legislative transgressions towards the sovereign, explaining what “victory” they have achieved, is ridiculous. Again, palliative changes are proposed that can only mislead the legally incompetent average consumer, but not the day-to-day professional dealing with the law. And they cannot be called anything other than hypocrisy and dust in the eyes of the suffering Bulgarian citizens.
The PF bills are somewhat correct, as long as they make a few amendments to the proposals themselves. For example (non-exhaustive, but obvious at first glance): the proponents could refine their text on the determination of the cost of a claim, because the proposal they make – “the state fee is determined on one quarter of the cost of the claim””on claims for existence, for destruction or annulment of a contract with the object of real property rights”, automatically give the banks a shoulder to “create arguments”, and to some extent pre-determine the legal battle in their favor already at the stage of admitting the claim and its acceptance by the court for examination. I believe that it is necessary to explicitly, by legislative means, give a definition and rules for the evaluability of establishing claims, in order to cut off once and for all the possibility of “judicial interpretation” to “add to” the law. This is what we are witnessing today through persistent frantic attempts to push through and enforce standing case law to declare affirmative action for unfair clauses giving banks the right to manipulate to their advantage the method, the way interest is calculated (I emphasize – not the interest itself, but the method , on which they do it!) for assessables, and in the amount of the entire residual price of the contract until its end (minimum 15-20 years in the future!). And this is realized in the court, as through the adoption of “interpretations of the law” directed at the service of specific interests – insurmountable financial obstacles are placed before the administration of justice in the form of state fees for the initiation of cases, which are prohibitive for the average citizen, but sufficient “stronger” for the financial masters of the state. It is also necessary to more meaningfully and accurately correct a few more things regarding the summons and powers of the PSI, and to remove the request for the cancellation of the text of Art. 417, according to which order proceedings under the short procedure are carried out according to “an act that has entered into force for the establishment of a private state or municipal claim, when its execution takes place in accordance with the order of this code”. I know that this last “rejoinder” of mine to the importers will immediately provoke a violent reaction from them, and especially from some “activists” arguing for the cancellation of the entire Article 417. However, if they think about it, they will understand the legal failure of their request – the fact that the basis is an “act that has entered into force” means that the same has already been or has been subjected to any control permitted by law, incl. and judicial, or has not been disputed within the term, and is no longer subject to such. In the end, the removal of this text pushes things from one extreme to the other, and to the detriment of the public interest, using as a pretext the regulation of another, already violated one, in this case – of the citizens affected by the banking arbitrariness.
I do not think that is the purpose of the law.
There is one rational grain in the bill of the competitive political force – in the part about the reduction of the fees of private bailiffs. But apparently even there – its authors are either not aware of, or deliberately ignore the latest developments on the issues regarding debt payment within the period for voluntary performance – the recent Decision of the Court of Appeal of December 18, 2014, which is to be discussed at Article 5. composition, by which the PSI lost the case against Decree No. 215/14 of the Court of Justice (by which part of their fees are cancelled).
Overall – to my disappointment, regarding this bill, (if it claims to be professional and not the result of thoughtlessness), two words cannot be spared: hypocritical and lobbyist.
I will point out only a huge two of the defects at stake, without further comments, the conclusion is obvious to any open-minded person, even if he is not a professional:
Instead of removing the banks’ privilege from item 2 of Art. 417 – it is exported as a separate, new point in the same article. For such “solutions to a problem” in the colloquial Bulgarian language, the folk talent spoke very appropriately with a saying: “Not by the neck, but by the neck”.
Another of the proposals in this draft law concerns the “reserve move”, which banks already have since the summer of 2014 thanks to the Supreme Court, if their privilege under item 2 of art. if, when granting credit, they force people to perform notarizations of credit contracts, or, even without them – based on the notarized acts for established mortgages. And this – in sync with the “fresh interpretations” of some senior magistrates.
And because the “cost” of the cases that have already been lost by the banks – is already clearly in a non-negligible amount – now it is proposed to introduce a new ground for annulment of court decisions that have entered into force, when: “a different interpretation has been adopted by an interpretative decision of a provision of a normative act, on the basis of which the case was decided.”
This proposal by the left, instead of giving a clear resolution to the problem and blocking the attempts of the Supreme Court to lobby the law, in effect does the exact opposite: it opens the door to overturning all the cases won by borrowers and lost by banks the warrant proceedings, in which until June 2014, the court refused to issue an Order for immediate execution and a writ of execution on the basis of documents in notarized form and certification of signatures. And that – in connection with an extremely lobbyist interpretative decision of the Supreme Court from last 2014, issued after the changes in the Consumer Credit Act (Interpretive Decision No. 4/18.06.2014 – note). With it, in practice, according to the order of interpretation, the Supreme Court canceled all its previous, more than 50-60 years of practice of the Supreme Courts in Bulgaria in supplying writs of execution, and adopted the exact opposite of everything that the Supreme Court stood behind until now, namely – that if the amount is not precisely specified, but is “determinable”, entered in the contract only as a method of calculation (as is the case with interest – note a) – a writ of execution can be issued. The motives of the Supreme Court are a classic of mutual internal contradictions, and the “brilliant” proposal opens the door to unprecedented legal chaos and uncertainty for the future, not only in banking cases, but globally for all justice in Bulgaria.
If, nevertheless, the legislators leave loopholes for the banks to pressure their customers with unequal clauses in the contracts, can we talk about a real change or only a cosmetic one? I think the answer is self-evident, and this question is already rhetorical.
And is the reason for the MPs’ behavior in this case due to incompetence or lobbying?
I wouldn’t be able to make determinations with claims of authority on the strength of fact, I can only speculate, but if it’s out of incompetence, what on earth are incompetent people doing in this place? And if it is lobbying, I would not define it as “hidden” at all, on the contrary.
It is obvious that we are again witnessing a servile attitude of our legislator towards the 5th “power above all powers”, again and again – to the detriment of our interests, the ordinary citizens. And that – consciously and purposefully, as far as the continuity in this line of behavior, which has been shining since 2005-2007 when the new Code of Civil Procedure was created, is visible. I think further comment is unnecessary.
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Adv. Valentina Ivanova, Deputy Chairman of the Bulgarian Financial Forum.
#battle #borrowers #power #banking
