News

SNS Bank and Rabobank liable for damage due to violation of special duty of care

January 18, 2016
Mick Hurks, Höcker Advocaten, The Netherlands

Hocker-logoIn two rulings on 29 December 2015, the Arnhem-Leeuwarden Court of Appeal concluded that SNS Bank and Rabobank were liable for violating the special duty of care which the banks had. Both banks had provided very large mortgages to the aggrieved parties, who, it turned out, were unable to make the payments. The rulings represent another success in the battle waged by the Foundation for Victims of Home Equity Products (GOWP) and Höcker Advocaten against four different banks. Marc Wolters and Koos van den Berg of Höcker Advocaten represented the victims in these cases. These rulings attest to the prominent position which these two lawyers occupy in financial liability law.

A previous article explained the financing scheme which the victims had entered into. Essentially, the victims had been advised by the intermediary Wagner & Partners to use the dormant equity in their homes to take out large mortgage loans and then use the borrowed money for a complicated investment scheme. Though the monthly payments under these mortgage loans were very high, the idea was that the victims would be able to pay these amounts from the investments. According to the investment scheme, the investment returns should exceed the financing payments. This assumption proved to be completely wrong. Because of the disappointing investment results, the aggrieved individuals faced huge payments and towering mortgage debts.

Excessive lending
GOWP asserted that the banks had engaged in excessive lending, providing more borrowed money to these customers than was responsible, given their financial position. The payments under the financing scheme were so high that these customers spent between 60% and 110% of their employment income on the payments. Yet, because the flow of funds was not transparent, they did not realise this. The banks, GOWP claimed, had failed to fulfil their duties to investigate if these customers where able to make the payments and warn in connection with providing excessive mortgage loans.

Judgment by the Arnhem-Leeuwarden Court of Appeal
The Court of Appeal ruled that the banks should have reviewed, in a sufficiently clear manner, whether the mortgages offered were appropriate for these customers. The banks should have independently examined whether the financing scheme payments were in fact appropriate for these customers and whether these customers properly understood that the ability to pay  the financial expenses arising from the investment scheme would depend on the results of this investment scheme which carried major risks. By not doing this, the two banks had violated their special duty of care and had acted wrongfully towards these customers. Consequently, the banks are liable for the damage suffered.

Conclusion
The Arnhem-Leeuwarden Court of Appeal’s ruling can be seen as a great success for the victims of this financing scheme, as it lays a strong foundation for awarding them damages.