The role of the lawyer in banking law is to find a solution in all the disputes which oppose an individual or a company to a bank or to a credit organization.
These disputes may relate to:
- The management of your bank accounts and your means of payment (current account, deposit account, savings account, joint account, checks and bank card) when the operation of the bank account is incomprehensible and the bank charges unjustified fees .
- The subscription of credits (real estate loans, consumer credit, bridging loans, interest rates, overdrafts, overdraft facilities, equipment or real estate leasing). It is a question of checking that the bank has respected its obligations of advice and warning, that this credit is not granted under too onerous conditions, and that the calculation of the banker’s remuneration (interest) is understandable.
- Guarantees (mortgage, joint surety, first demand guarantee, business pledges). Credit is based on the lender’s confidence in the borrower’s ability to repay, which implies an economic and legal risk for the lender compensated by guarantees.
It will therefore also be a question of looking for the contractual, tort, criminal liability of the bank with regard to the customer or the guarantor in the granting and the breach of credit when the latter leads the company to receivership or even liquidation.
Let us examine the classic case of a person who does not manage to cover his account overdraft contractually limited to 600 Euros with a bank which delays for several months in issuing a summons to him to regularize his account and then finally assigns him before the Court of proceedings in order to order him to pay the debit balance.
Article L 311-3 of the Consumer Code provides that credit transactions involving a repayment period not exceeding three months which are not accompanied by any interest or any costs or only costs of a negligible amount do not fall within the scope of the chapter on consumer credit.
Also, by interpreting this article on the contrary, an overdraft of more than three months necessarily constitutes an opening of credit subject to the provisions relating to consumer credit.
Thus, in the event of an overdraft of more than three months, the Bank is obliged to provide its client with a prior loan offer in accordance with the provisions of Article L 311-8 of the Consumer Code. Otherwise, the bank will lose its right to interest. This forfeiture of interest applies to all accrued interest on the debit balance of the account.
Indeed, Article L 311-52 of the Consumer Code provides that actions for payment brought before it on the occasion of the default of the borrower must be formed within two years of the event which gave them barely foreclosure birth.
The Court of Cassation has considered in several judgments that when the amount of the overdraft was conventionally limited, the non-regularized overrun of the amount of the overdraft authorization was analyzed in an unpaid due date manifesting the default of the debtor and the starting point of the period. . It thus set the starting point of the two-year foreclosure period.
On the other hand, it is necessary to distinguish the particular case of the overdraft granted tacitly, without contractual limitation of its amount. In this case, if the overdraft exceeds three months, the two-year period will not begin to run until the account is closed by the bank.
In conclusion, it is advisable to carefully monitor the deadlines for actions for payment initiated on the occasion of the default of the borrower, which must be formed within two years of the event which gave rise to them on pain of foreclosure.