For years, the borrowers of ADAXIO AMC GmbH or its legal predecessor have been in dispute. GMAC-RFC Bank GmbH, as the legal predecessor of ADAXIO AMC GmbH, concluded thousands of real estate purchase contracts with consumers until it returned its banking license to GMAC-RFC Bank GmbH in 2008.
Important note: this article was published in German in 2019. The contents there are no longer up to date, especially because in the meantime courts assess the legal situation differently and in favor of ADAXIO.
Current developments: Revocation of loan agreement possible
The revocation of a real estate loan agreement concluded between GMAC-RFC Bank GmbH and a borrower is possible due to the absence of information obligations under distance selling law, according to the Wiesbaden Regional Court and now also the Berlin Regional Court.
The courts ruled that a loan agreement concluded with GMAC-RFC Bank GmbH was effectively revoked and that this was possible because the then GMAC-RFC Bank GmbH had not properly fulfilled its pre-contractual information duties under distance selling law. This breach of duty leads to a right of revocation.
History: from GMAC-RFC Bank GmbH to ADAXIO AMC GmbH
After returning its banking license in 2008, GMAC-RFC Bank GmbH first changed its name to GMAC-RFC Servicing GmbH, then to Paratus AMC GmbH. This Paratus AMC GmbH merged with AMC Deutschland Holding GmbH. This merged company was then in turn renamed “back” to Paratus AMC GmbH before the change to ADAXIO AMC GmbH.
Claims from a large number of the thousands of closed loan agreements were probably transferred together with the collateral provided to foreign companies, such as E MAC DE 2006 I B.V. or E MAC DE 2009 I B.V.. Thus, GMAC-RFC Bank GmbH is likely to have resold a large part of these loans, so that ADAXIO AMC GmbH, as its legal successor, is no longer the claim holder of the respective loan debts to be sold. It is further worth noting that for the closing balance sheet of the “old” Paratus AMC GmbH as of August 31, 2014, which was prepared in the course of the merger of Paratus AMC GmbH into AMC Deutschland Holding GmbH, only EUR 297,381.81 was reported under “Trade receivables”. In connection with the fact that in the sales prospectus of E MAC DE 2009 I B.V. the loan receivables to be sold added up to almost EUR 300 million, it is quite possible that the remaining EUR 297,381.81 does not contain a single loan receivable at all.
Unauthorized execution by ADAXIO AMC GmbH
ADAXIO AMC GmbH attempts to execute from the loan security agreement or the registered land charge into the real estate or other assets of the loan debtors and property owners. In the cases to be decided by the courts, it was of decisive importance whether ADAXIO AMC GmbH was (still) the holder of the claims under the respective loan agreement or at least whether it was authorized to execute on behalf of the current holder of the claims. It must therefore be clearly verifiable who is ultimately the holder of the claims from the respective loan agreements and thus entitled to compulsory enforcement.
Attorney Sascha C. Fürstenow. therefore advises borrowers against whom foreclosure is being pursued to have it verified whether the foreclosure is permissible. In 2015 and 2016, several courts declared the foreclosure proceedings to be inadmissible.
For example, the Higher Regional Court of Celle confirmed in a judgment that the foreclosure action taken by ADAXIO AMC GmbH against the loan debtor was invalid because the debtor lacked the authorization to collect money and therefore also to enforce the loan. The Higher Regional Court was unable to establish a validly granted collection authorization entitling ADAXIO AMC GmbH to levy execution. Following the rejection of the appeal against non-admission by the BGH, this judgment is final.
What can borrowers do against foreclosure?
In each case borrowers concerned should let examine whether the execution led against it is permissible, so attorney Fürstenow. With inadmissible operation of the execution the borrower can set itself with an execution counter suit (execution defense suit) to the defense.
Revocation of loan agreement also possible in principle after 21.06.2016
With the decisions already mentioned above, the Wiesbaden Regional Court and the Berlin Regional Court confirmed in a decision from 2018 the possibility of revocation due to improper fulfillment of pre-contractual information obligations under distance selling law, resulting in the following:
Even today, it is still possible to revoke loan agreements concluded between 01.08.2002 and 20.06.2010, if the statutory regulation applicable from 21.06.2016 on the expiry of the “perpetual” right of revocation precisely does not apply due to specific facts.
This regulation only applies “if the continued existence of the right of withdrawal is based on the fact that the information on withdrawal provided to the consumer did not comply with the requirements of the Civil Code applicable at the time of the conclusion of the contract.” In the cases described and decided by the courts, the revocation was possible because the statutory pre-contractual information obligation was violated.
Attorney Sascha C. Fürstenow will be pleased to advise you on this matter and offers a free and non-binding initial assessment of your facts in advance.