Is the bank correct in taking the position that it was allowed to transfer its legal relationship with its debtor to a third party?
Recently, the Oost-Brabant District Court had to answer this question. Since Dutch financial service providers more and more frequently decide to sell non-performing loans to Anglo-Saxon investors - who have the reputation of applying a more stringent accounts receivable policy than is customary in the Netherlands - it will likely not come as a surprise that over the past few years multiple legal proceedings have been conducted concerning this question. A recurring theme in such proceedings appears to be the phrasing of the applied general or other terms and conditions.
On 21 December 2016 the Midden-Nederland District Court rejected the claims of two property funds pertaining to the transfer of the legal relationship existing between them and the funder. In the opinion of the district court it expressly followed from the general terms and conditions applied by the funder that it could transfer its contractual position to another party and the property funds had already given their cooperation thereto in advance. The fact that the legal relationship was transferred to an Anglo-Saxon investor did not change this.
In the case before the Oost-Brabant District Court, the applied general terms and conditions were de facto the same conditions as the General Banking Conditions 2014, which specify that the debtor provides its cooperation to a contract takeover in advance in the event that the bank transfers part of its business. According to the district court the latter did not, however, apply in the case in question. The contract takeover was therefore declared invalid, with the result that the duty of care with respect to the debtor currently rests with the service provider again. However, the transfer of the money claims themselves – which had also taken place – was upheld, resulting in the Anglo-Saxon investor becoming the new creditor after all.
What is confusing in this matter is that another debtor part of the same portfolio, conducting proceedings at the Amsterdam District Court and the Amsterdam Court of Appeal, did not win the cases. Both the district court and the court of appeal ruled that there was, in fact, a transfer of a business within the meaning of the General Banking Conditions 2014. Textual clarity in the general terms and conditions to be applied is therefore not an easy matter. In the meantime the question is whether or not the newly published General Banking Conditions 2017 do provide the desired clarity, since they also refer to the transfer of a business of the service provider.
Another point of attention is which residual or other duty of care remains with the bank that transfers, now that the claims themselves have, in fact, transferred to the purchaser. Can liability or other legal proceedings be brought against the bank that transfers if the Anglo-Saxon investor proceeds to demand repayment of the loans and, in doing so, does not comply with the proportionality and subsidiarity requirements?
In any event, the service provider in question will benefit the most from avoiding this discussion. They would be wise to ensure that the general or other terms and conditions to be applied are drafted in such a way that leaves no room for interpretation.