Acceleration of a loan

According to point 18 of Supreme Court of Cassation Interpretative Decision No. 4 of 18.06.2014 in interpretative case No. 4/2013, a claim arising from a bank loan agreement containing a clause that the entire loan becomes immediately due upon non-payment of a specified number of instalments or in other circumstances, and that the creditor may collect the debt without notifying the debtor, becomes due upon the non-payment or occurrence of those circumstances, but only after the bank has also exercised its right to accelerate the loan and notified the debtor of the acceleration. Acceleration constitutes a modification of the agreement and takes effect through a declaration of intent by just one party, provided the relevant conditions are met. The reasons for the cited interpretative decision explain that a declaration of acceleration within the meaning of Article 60(2) of the Credit Institutions Act (ZKI) requires a statement by the creditor under the agreement that it will regard the entire loan or its outstanding balance as immediately due, including instalments whose maturity dates have not yet arrived and which were not due at the time of the statement. The creditor bank’s declaration must be expressed in a written document and contain a clear, specific and precise reference to the circumstances under Article 60(2) of the ZKI or to circumstances agreed in the contract which entitle the creditor to exercise this right. In all cases, the declaration of acceleration must be express and unambiguous. The creditor may also set a period for the debtor to perform the obligation. The debt becomes immediately due on the date when the document containing the creditor’s declaration is served on the debtor, provided the objective facts required for acceleration have occurred by then. At that point, the entire loan or its unpaid balance is due in relation to both the borrower and the guarantor. This is also reflected in case law under which the statement of claim initiating proceedings may constitute the creditor’s declaration that it considers the loan immediately due; service of a copy on the defendant then notifies the debtor of the acceleration. See Supreme Court of Cassation Judgment No. 114 of 07.09.2016 in commercial case No. 362/2015 and Judgment No. 161 of 08.02.2016 in commercial case No. 1153/2014. In this situation, although there is no express declaration of acceleration by the bank preceding the filing of the statement of claim, the declaration is regarded as implicit in that statement and as having reached the debtors when they receive a copy.

If a bank or credit institution has declared your loan immediately due, it is best to consult a lawyer experienced in litigation against banks for advice on the most appropriate procedural steps in your situation.