In rejecting Commerzbank’s non-admission appeal (Ref.: XI ZR 320/20) against the judgment of the Higher Regional Court of Frankfurt (Ref.: 17 U 810/19), the Federal Court of Justice confirmed the protection of bank customers in the event of an exit from real estate financing without an early repayment penalty if the customer was not sufficiently informed about the calculation method of any VFE when the contract was concluded. We already reported on the previous decision in our article Auswege aus der Immobilienfinanzierung – Keine Vorfälligkeitsentschädigung bei unzureichender Information über die Berechnung der VFE. Now, the Federal Supreme Court (BGH) has also strengthened the rights of consumers and thus confirms its previously expressed legal opinion (see BGH, judgment of 28 July 2020 – XI ZR 288/19).
In its decision, the BGH agrees with the content of the OLG Frankfurt and does not consider further clarification of the matter to be necessary. While this represents a significant setback for banks, borrowers find themselves in a strengthened position.
In the previous decision, the Higher Regional Court of Frankfurt came to the conclusion that there was no legal ground for the early repayment penalty. The information on the basis of calculation had not complied with the legal requirements, therefore the bank had lost its claim to an early repayment penalty, cf. section 502 (2) no. 2 BGB. As a result, it could be reclaimed from the borrowers. We have numerous other formulations on the calculation method that are to be considered insufficient.
The ruling, which has now been confirmed by the BGH, will also have considerable significance for the clients of other banks. Although the contract forms of many banks have already been revised, they are often still vulnerable. Consumers now have the possibility, if necessary, to escape an early repayment penalty by invoking the new case law. This applies to all contracts from 22.03.2016 onwards, because from this date at the latest, the banks were in principle obliged to properly instruct their customers.
If you have any questions on the subject of early repayment fees, please contact us. We are happy to advise you!

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