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Financial Commissioner: Exempted guarantor from a guarantee contract due to an abusive clause

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Financial Commissioner: Exempted guarantor from a guarantee contract due to an abusive clause

The Financial Commissioner Pavlos Ioannou with a decision issued on August 6 exempts the guarantor from a guarantee contract, due to an abusive clause and a series of violations by the former Cooperative Credit Institution (Cooperative Credit Company of Strovolos Bank) and Strovolos Bank.

A note issued on Saturday states that the guarantor (natural person) filed a complaint with the Office of the Commissioner on 08/04/2021, against the Hellenic Bank of the Public Company Ltd for a loan granted by a former Cooperative Credit Institution and transferred to Elliniki T It is added that a series of serious violations by API and Hellenic Bank, led the Financial Commissioner to fully substantiate the submitted complaint and his decision to release the complainant from his guarantee obligations.

The guarantor asked to be released from the guarantor and his Guarantee obligation, including the deposit commitment of € 225,000, stating that until the submission of his complaint he had not received any notice of any “default or default by the Debtor” under the Loan Agreement ”and therefore the Financial Company failed to inform him without delay as it should, for the non-payment of installments by the Borrower.

In his complaint, he stated that the delay constituted a gross violation of his legal rights as a guarantor.

In the note, the Commissioner states that on the basis of the evidence before him, as provided by both parties, the loan agreement relates to a credit facility of a legal entity, which, however, does not set monthly repayment installments, hence the loan suffered from existing, as it includes an abusive clause.

He clarifies that the determination by the API of the repayment of the loan on first demand, when it becomes due and payable, without specific conditions by the guarantor, who is a natural person, is a clearly abusive clause.

It further states that on 31/05/2021, Hellenic Bank informed the complainant in writing that the loan in question was not in arrears and that the guarantee and the pledge agreement remain in force as collateral for the loan and notes that while on 31/05 / 2021 there was an assurance for the absence of delays, on 02/06/2021 the complainant received from the Hellenic Bank, through notification, the letter sent to the first debt company, for the full and complete repayment of the loan.

The Commissioner adds that the move of the Hellenic Bank on 08/07/2021 to proceed with the use of the pledged amount for the repayment of the loan raises great concerns, without first informing the complainant about the non-compliance of the first debt with its demand for repayment and emphasizes that the letter, dated 08/07/2021, of Hellenic Bank to the Complainant, was sent after the completion of the said transaction.

The Commissioner finds that the above omission constitutes a violation of the complainant's rights as a guarantor and an circumvention of Article 12 of the Law on the Protection of a Certain Category of Guarantors, due to the fact that the complaining guarantor was not previously informed its obligations.

It further notes that the letter notified to the complainant on 02/06/2021 was not accepted as an update, as in that letter the Hellenic Bank called on the first debtor to comply and it was not subsequently found that any notice of non-compliance was sent to the complainant. concludes that this unlawful omission makes the complaining guarantor, exempt from his guarantee obligation, as interpreted by Articles 37 and 97 of Chapter 149, always taking into account the data relating to the poor granting and management of the loan , as a result of omissions and abusive terms in the loan agreement.

The Commissioner further notes that the use of the frozen time deposit appears to have been made irregularly and / or unconventionally and / or illegally, as the procedure followed was neither correct nor reasonable under the prevailing circumstances subject to the complaint and states that it considers the inadmissibility the fact that while there is an out-of-court settlement procedure, ie a complaint submitted for examination to the Commissioner, additional aggravating measures should be taken against the complainant.

The Commissioner emphasizes that the problematic situation, as described above, should be attributed, to a very large extent, to the very problematic structure of the contract documents, which the complainant was forced to sign with the API, ie the former Cooperative Credit Strovolos Company and states the position that SEDIPES / KEDIPES should assume a very important part of the responsibility for the damages suffered by the complainant.


Source: politis.com.cy

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