The Supreme Court to resolve issue of co-participation in CHF cases

Two views on co-participation in cases of annulment of a loan agreement have been presented so far in the court case law. According to one of them – the lawsuit must be filed by all borrowers, as the judgment of invalidity should concern all parties to the agreement at the same time, otherwise the lawsuit is subject to dismissal.

The opposing view is that each person who was a party to the loan agreement can independently and independently of another borrower claim that the loan agreement is invalid.

The issue of co-participation in a suit for the annulment of a loan agreement has not yet been considered by the Supreme Court.

In view of the importance of the problem and the inconsistent case law, the legal issue on the subject was decided to be presented to the Supreme Court by the Court of Appeal in Warsaw when hearing the Bank’s appeal against the ruling of the District Court in Warsaw in the franking case.
In this case, in 2018, the Claimant brought an action against the Bank to declare the agreement invalid and to order the defendant Bank to pay the equivalent of the loan instalments paid to date. The court of first instance granted the Claimant’s claim in full. The Bank appealed against the judgment, alleging that the District Court in Warsaw had breached the provisions of civil procedure concerning necessary joint participation. The Bank explained its stance by the fact that the other borrower had filed a declaration of joining the case after the expiry of the statutory two-week period from the service on it of the notice of the pending suit.

Doubts were raised by the Court of Second Instance, which consequently asked the Supreme Court to interpret the legislation in this regard.

The subject of the legal issue will therefore be an answer to the question whether, in a case in which claims based on the abusiveness of contractual clauses are asserted to establish the invalidity of a credit agreement and the return of wrongful performances made thereunder, there is necessary co-participation of the borrowers. Is the entry into the case of a person notified of a pending action pursuant to Article 195 § 2 of the Code of Civil Procedure after the expiry of two weeks ineffective, or should it be treated as filing a new action? (case docket no.: III CZP 156/22). We will soon know the answer.