OUR EXPERTISE
SERIAL LITIGATION
The firm is dedicated to serial litigation between several consumers and leading national or international companies.
LITIGATION OF LOANS IN SWISS FRANCS
Swiss franc loans have been marketed by French cross-border banks, particularly since the 2000s, to Swiss cross-border commuters who receive Swiss income from Switzerland but live in France.
BANKING AND FINANCIAL LITIGATION
The firm offers specialised litigation services in all areas of banking and finance law. It defends and litigates before all national courts.
REAL ESTATE LITIGATION - REAL ESTATE SEIZURE
Foreclosure proceedings should be handled without delay in order to avoid the judicial sale of real estate given as security for a home loan.
CRIMINAL BUSINESS LITIGATION
We ensure the defense of our clients before the courts of instruction or judgment...
The Firm offers a specialized litigation service in all areas of banking and financial law. He intervenes to defend and plead before all national jurisdictions.
The banking law activity practiced by the firm relates to relations between banks and borrowers in the context of real estate loans which turn out to be litigious.
The banking liability of financial institutions can be engaged in the event of excessive credit, toxic loans, foreign currency loans, variable rate loans, structured credits, credits in Swiss francs, bad investments and investments, etc.
The firm's financial law practice focuses on the relationship between investment service providers and investors in the context of investments that turn out to be contentious.
We therefore handle the following litigations :
Excessive real estate loans, provoking a situation of unpaid debts or a real estate seizure procedure: responsibility of the banker in case of failure to warn
When the banker grants a real estate loan, a bridging loan, a mortgage loan, a business loan or a consumer loan, he must ensure that the borrower will be able to repay it and warn him of the risks of non-payment that may arise in different circumstances.
If the banker does not warn his client of the risks of excessive indebtedness arising from the real estate loan, his liability may be incurred.
It may be ordered to pay damages to the borrower in the event of a breach of its information obligations and its duty to warn. These damages can amount to up to 95% of the borrower's debt and can be offset against it.
The borrower must therefore take the matter to court in order to hold the banker liable in case of fault in providing excessive credit.
Real estate foreclosure procedures
The pursuing creditor, usually the bank, may fail to conduct the foreclosure proceedings against the borrower.
L'action peut être prescrite ou la procédure peut comporter des vices de forme. Des recours judiciaires existent.
La procédure de saisie immobilière, spécialement l'audience d'orientation doit être suivie par un avocat dès la réception du commandement de payer valant saisie immobilière afin d'éviter la vente judiciaire et l'expulsion de l'emprunteur.
In some cases, the seizure procedure can be cancelled.
Prêts immobiliers in fine adossés à un contrat d'assurance-vie, prêts en devise étrangère, prêts structurés adossés à des swaps de taux, crédits relais
Les prêts in fine ou structurés peuvent se révéler particulièrement dangereux pour l'emprunteur.
The banker's warning must be reinforced in the case of complex financial arrangements. Otherwise, the bank may be held liable.
Loans denominated in Swiss francs
Swiss franc loans carry a foreign exchange risk if the borrower receives his or her income in euros and has to pay back in Swiss currency.
In 2007, the EUR/CHF exchange rate was around 1.60. Since 2007, the euro has depreciated against the Swiss franc. In January 2015, the EUR/CHF rate was around parity, with the euro having lost up to 60% of its value against the Swiss currency.
Given the depreciation of the euro against the Swiss franc, the amount of principal and interest to be paid to the bank has therefore increased by about 60% between 2007 and 2015.
For many borrowers, therefore, these loans have become excessive and ruinous.
Several legal means must be opposed to the bank: the abusive clause or the nullity of the loan.
If the loan contracts are declared null and void, the effect is to return the parties to the state they were in before the act. The borrower must therefore only return the funds received from the bank, without bearing the exchange risk and without paying the interest applied since the date of the contract.
Marketing of unsuitable or speculative complex financial products by the investment services provider to unsophisticated investors
The investment service provider, the banker, within the framework of private management, can be condemned if he markets insurance products unsuited to the profile of his clients or if these products are complex and dangerous, if the instructions and procedures for classifying clients are not respected and the investments turn out to be defective.
Apparent anomalies on bank accounts in the event of abnormal movements of funds following a fraud on the president, fraud notably by non-approved Forex brokers
Fraud on the president or false transfer orders constitutes a criminal offence. A criminal complaint must therefore naturally be filed against the crooks.
In addition to criminal proceedings, civil proceedings are possible against the bank that carried out the fraudulent transaction.
Many websites also offer individuals the opportunity to become a "trader" in the Forex or binary shares market. The offers proposed by these sites, which are on the AMF's blacklist, are scams carried out by swindlers hiding behind front companies domiciled abroad.
The responsibility of the banker, the victim or the crook, may be engaged in the event of apparent anomalies.
The apparent anomaly is one that should not escape the sufficiently prudent and diligent banker in the face of abnormal, obviously contentious facts. E.g. large money transfers to a company used by swindlers, often domiciled in a tax haven, embezzlement of funds by an employee of the company, any movement of funds, of a manifestly abnormal amount
Investments in Forex or in the binary options trading market: liability of the licensed online broker in the event of a breach
Licensed online brokers offering individuals to invest in the Forex or binary stock market must comply with the rules set out in the French Monetary and Financial Code and the AMF General Regulations. If they fail to do so, they may be held liable.
Sureties disproportionate to the income or assets of the uninformed surety
Bonds can be cancelled if the surety did not have sufficient income at the time the bond contract was signed or when it is executed. Other recourses exist, notably for the surety-manager of a company.
Responsibilities of the investment services provider, of the financial investment adviser in case of breach of a rule of good conduct of the Monetary and Financial Code and the AMF General Regulation, unclear and misleading information
Asset and portfolio management companies and investment banks that offer investments to their clients must comply with the rules set out in the French Monetary and Financial Code and the AMF General Regulation. In case of breach, they may be held civilly and administratively liable. A criminal complaint may also be considered in case of criminal offences.
Unsuitable unit-linked life insurance contracts
Liability of the insurer or insurance intermediary in the event of unsuitable financial investments.
Bankers often offer bullet loans which must be guaranteed by the pledge of a unit-linked life insurance contract.
The objective is that the return on the life insurance contract allows the repayment of the loan in fine, at the final maturity.
When the returns on the investments are insufficient to pay off the loan at maturity, the borrower can go to court to hold the bank responsible for informing and warning him of this risk.
The prescription is 5 years from the unwinding of the operation if the proposed financial package proves to be deficient.
the starting point of the statute of limitations for a banker's liability action is the date on which the damage occurs or the date on which it is revealed to the borrower if the borrower establishes that he or she was not previously aware of it, i.e., in practice, the date of the final maturity of the bullet loan with the value in euros of the life insurance policy.
Under certain conditions, the insured may waive the life insurance contract in the event that the insurer violates the legal provisions. In some cases, stock market losses can be fully reversed.
Safeguard, reorganization or judicial liquidation
In the event of difficulty or cessation of payments, the company must make a declaration to the registry of the commercial court in order to place itself under a legal regime that protects its interests and those of its creditors.
The declaration of cessation of payments of a company requires the creditors to declare their claims within the required time limits, under penalty of foreclosure.
Proceedings will have to be conducted before the juge-commissaire for the purpose of admitting or rejecting the claims. The creditors can be appointed as the debtor's management controller. In the event of liquidation, creditors may take action for liability for insufficient assets, action to extend the procedure in the event of confusion of assets and misuse of corporate assets, if the conditions are met.
European law, private international law
European law requires the lawyer to verify the jurisdiction of the courts and the applicable law in case of international disputes. Some French laws may be in contradiction with European law which takes precedence over them.
The effects and enforceability of judgments rendered by a court of a Member State of the European Union must be verified by the national judge.
Le contentieux des prêts en franc suisse
Loans in Swiss francs have been marketed by French border banks, particularly since the 2000s, to Swiss border residents, who receive Swiss income from Switzerland but live in France.French border banks oblige Swiss border borrowers to open a Swiss franc account in their books, the opening having been facilitated by the disappearance of exchange controls.
Thanks to the opening of foreign currency accounts, cross-border workers were able to pay their debts in Swiss francs using their Swiss income, without having to make international transfers.
However, the operation of these accounts does not fit well with the case law rule, now enshrined in Article 1343-3 of the Civil Code, which requires the creditor to be able to accept payment in euros from the debtor, so that if a loan contract obliges the borrower to pay in Swiss francs, using his foreign currency account, the Swiss franc loan contract will be deemed void.
For Swiss franc loans to be legal, the borrower must be able to pay in euros by debiting his or her account in euros, without exchange fees.
La clause valeur monnaie étrangère
On parle de « clauses valeur monnaie étrangère » pour évaluer les dettes et de « clauses monnaies étrangères » pour la monnaie de paiement utilisée pour régler les dettes. Si l’emprunteur peut payer en euros, le prêt contient une « clause valeur monnaie étrangère ». S’il ne peut pas, le prêt contient une « clause monnaie étrangère » prohibée.The generic term "Swiss franc loans" is therefore unclear because it includes loans where the Swiss franc is used either as an account instrument, containing a "foreign currency value clause", or as a payment instrument, containing a "foreign currency clause".
In the first case, the loans are lawful, while in the second, they are unlawful because they are contrary to public policy and must therefore be cancelled.
In the first case, the loans are lawful, whereas in the second, they are unlawful because they are contrary to public policy and must therefore be cancelled.
The French border banks all indicate that the Swiss franc is used in their loans as an account instrument.
Depuis 2018, la Cour de cassation a tranché
Now, since 2018, the Court of Cassation has ruled that the banks Crédit Mutuel and Crédit Agricole lied to their customers by claiming in their contracts that the Swiss franc was used as an account instrument when it was used as a payment instrument.Other border banks did not specify anything in their contracts, but it appears that the Swiss franc was also used as a payment instrument, so they marketed illicit loans.
In order to make this distinction, it is necessary to check whether the borrower can pay his instalments in Swiss francs, usually by debiting his foreign currency account at the border bank, but also in national currency, i.e. in euros, by debiting his euro current account, without any exchange transaction or by being able to convert the loan into euros.
If this payment in euros is prohibited or if it is subject to a mandatory exchange transaction in Swiss francs, the Swiss franc is then used as a payment instrument and the loan is illegal because it undermines the legal tender and forced exchange rate of the national currency (the French franc, and since 2001 the euro), established in France by the law of August 12, 1870.
According to a case law of February 11, 1873, enshrined in Article 1343-3 of the Civil Code since 2016, In France, a creditor may not refuse to be paid in national currency.
If a loan agreement requires the borrower to pay in Swiss francs, the loan agreement will be deemed void.
Si le paiement des échéances en euros est en revanche, possible, les prêts seront assimilés à des prêts indexés sur le franc suisse et sont licites. Depuis 2016, cette catégorie de prêts en franc suisse, c’est-à-dire ceux remboursables en franc suisse ou en euros, est encadrée par l’article L. 313-64 du Code de la consommation, ne peuvent être souscrits que par les frontaliers. Si le franc suisse est utilisé par une banque française comme unité de compte et l’euro est utilisé comme monnaie de paiement, le contrat sera licite, le paiement étant alors indexé sur le cours EUR/CHF.
If the Swiss franc appreciates against the national currency, the debt will rise and vice versa. In this case, the information on the risk of exchange rate loss must be clear and not misleading. Otherwise, the information may be deemed insufficient and the clauses relating to this information may be deemed unfair.
With regard to the Helvet Immo loans, which fall into this category, the bank BNP Paribas Personal Finance was convicted of deceptive marketing practices in the first instance.
Toutes les banques frontalières et celles ayant commercialisé des prêts en franc suisse soutiennent que leurs prêts entrent dans cette seconde catégorie. Néanmoins, ceci est faux et une analyse des contrats permet de démontrer l’inverse au moyen des critères définis par la Cour de cassation dans les arrêts ayant annulé des prêts en franc suisse.
De nombreux frontaliers sont concernés
In 2007, the EUR/CHF exchange rate was around 1.60. Since 2007, the euro has depreciated against the Swiss franc. In January 2015, the EUR/CHF rate was around parity, with the euro having lost up to 60% of its value against the Swiss currency.Given the depreciation of the euro against the Swiss franc, the amount of principal and interest to be paid to the bank has therefore increased by about 60% between 2007 and 2015.
Pour de nombreux emprunteurs, ces prêts sont donc devenus excessifs et ruineux
Plusieurs décisions de justice favorables aux emprunteurs ont été récemment rendues. Par 15 arrêts rendus le 6 avril 2017 et tous confirmés par la Cour de cassation par 15 arrêts rendus en date du 11 juillet 2018, la Cour d’appel de Metz a annulé des prêts en franc suisse, remboursables exclusivement en franc suisse, en jugeant que :the contracts at issue are domestic contracts, being loans concluded between parties all domiciled in France, intended to finance operations carried out in France, for which the capital lent was made available in France and for which repayments were also to be made in that country;
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- – les échéances des prêts portaient non sur des sommes en euros mais sur la contre valeur en francs suisses d’une certaine somme d’argent en euros et que le remboursement des prêts tant des échéances qu’à titre anticipé était expressément prévu comme devant intervenir en devises étrangères ;
- – le franc suisse a été utilisé comme monnaie de paiement et l’emprunteur n’avait pas le droit de se libérer à son choix en euros mais devait impérativement le faire en francs suisses ;
La nullité des contrats de prêt a pour effet de remettre les parties dans l’état où elles étaient avant l’acte
This means that the borrower will have to return to the bank the capital borrowed in euros at the initial EUR/CHF rate minus all the funds remitted by him since the effective date of the loan, i.e. all amortizations, interest, insurance premiums and fees.Cette jurisprudence permet d’en annuler ses effets « toxiques ».