The bankruptcy of Getin Bank, Swiss franc loans – what next?

A franking-franking borrower only has until the declaration of Getin Bank’s bankruptcy, time to file a lawsuit for payment and to establish the invalidity of the Agreement (non-existence of the legal relationship of the loan agreement).

Once the Bank is declared bankrupt, suing the Bank will not be possible. The court will dismiss such a lawsuit due to the Bank’s lack of standing. A lawsuit filed after the declaration of bankruptcy may be treated by the court, at most, as an application for a claim and the court may refer the lawsuit to the bankruptcy judge. (Articles 200, 201 KPC and 229 PrUp).

Thus, the only exclusive mode for pursuing claims against the Bank, after the declaration of bankruptcy, will already be the filing of claims on the so-called “list of claims”. (245 PrUp). It will not be possible to assert claims against the Receiver or the Bank in a lawsuit. The only way to assert them is by filing a claim! (174 and 180 CCP).

All Borrowers should therefore be entered on the list of claims, regardless of whether a lawsuit has been previously filed. No one will enter a claim ex officio. The deadline for filing a claim on the list is 30 days from the day the court declares bankruptcy (art. 21 para. 1 PrUp). The claim must be reported electronically through the National Debt Register.

From the date of the bankruptcy declaration, proceedings against the Bank will be suspended until a list of claims is created. If the claim is included in the list, the litigation will be discontinued (art. 355 CCP). Refusal to include the claim on the list, will result in the commencement of suspended court proceedings against the Receiver (art. 145 PrUp.). Persons who do not file lawsuits until the declaration of bankruptcy will therefore no longer have a chance to sue the Receiver. A final refusal to recognise a claim on the list closes the way for the claim to be asserted until the bankruptcy proceedings have come to a final end(art. 144 PrUp).

It should be mentioned that before the proceedings are resumed, the Borrower may, in the form of an objection, challenge the refusal to recognise its claim on the list of claims. However, it is not necessary to exhaust this procedure in order to resume the court proceedings. However, the possibility of starting a lawsuit is conditional on the claim being filed!

As already mentioned, the Borrower cannot litigate the assets of the bankruptcy estate against the Bank. On the other hand, the Receiver has the right to assert claims against the Borrower in favour of the Bank, e.g. for repayment of the loan principal. In view of the above, it is important that, together with the notification of the claim, the Borrower should submit a possible allegation of a set-off of its claim against a possible claim (and if any) of the Bank (Article 96 of PrUp.).

In order for the statement of set-off to be effective, the Borrower should put its claim on the table. To this end, he must call on the Bank to pay any sums he has transferred to the Bank for the performance of the Agreement within a specified period, e.g. 7 days. Only after this deadline has passed will the set-off be effective. The Borrower should be able to prove the amount of his claim, so he should have, for example, a certificate from the Bank about the repayment of the loan, an account statement, etc.

Set-off is important because if the Receiver decides to pursue a dispute against the Borrower for payment of the principal, set-off will not be possible. There is therefore a risk of losing the lawsuit for payment. The above can be extremely painful because the Borrower, on the other hand, will not recover the amount of the overpaid loan due to the lack of money in the mass.

In view of the above, Borrowers should closely watch and follow the Bank’s bankruptcy process.

Author: Mateusz Kołodziejak, advocate