{"id":5231,"date":"2025-09-27T12:59:58","date_gmt":"2025-09-27T09:59:58","guid":{"rendered":"https:\/\/brisc.ro\/?p=5231"},"modified":"2025-09-27T13:00:00","modified_gmt":"2025-09-27T10:00:00","slug":"cluj-court-declares-variable-interest-clause-abusive-in-ing-loan-orders-refunds","status":"publish","type":"post","link":"https:\/\/brisc.ro\/en\/cluj-court-declares-variable-interest-clause-abusive-in-ing-loan-orders-refunds\/","title":{"rendered":"Cluj Attorney \u2013 Abusive Clauses ING BANK: Finding the Abusive Nature of the Variable Interest Rate and the Loan Origination Fee"},"content":{"rendered":"\n<h2 class=\"wp-block-heading\" id=\"h-case-study-abusive-clauses-in-a-2007-personal-loan-contract-with-ing-bank-n-v\">Case Study \u2013 Abusive Clauses in a 2007 Personal Loan Contract with ING BANK N.V.<\/h2>\n\n\n\n<h3 class=\"wp-block-heading\" id=\"h-objectives-achieved\">Objectives Achieved<\/h3>\n\n\n\n<p>The court found that the clauses regulating the interest rate and the origination fee in a personal loan contract were abusive. Consequently, the court ordered the bank to refund:<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>The amount of <strong>660 lei<\/strong> charged as a single origination\/approval commission;<\/li>\n\n\n\n<li>The amounts charged as interest exceeding what could be legally collected, namely interest in excess of:\n<ol class=\"wp-block-list\">\n<li>For the period from contract execution until 01.07.2010: 13% per annum;<\/li>\n\n\n\n<li>From 01.07.2010 to the end of the contractual period: reference rate (via 3-month internal financing rate) plus a fixed margin of 6% per year;<\/li>\n<\/ol>\n<\/li>\n\n\n\n<li>In addition, the bank was ordered to pay legal penal interest on each refunded sum, from the moment of original collection until repayment.<\/li>\n<\/ul>\n\n\n\n<hr class=\"wp-block-separator has-alpha-channel-opacity\"\/>\n\n\n\n<h2 class=\"wp-block-heading\" id=\"h-case-presentation\">Case Presentation<\/h2>\n\n\n\n<p>In <strong>2007<\/strong>, the plaintiff concluded a personal needs loan contract with <strong>ING BANK N.V.<\/strong> in the amount of <strong>33,000 lei<\/strong>, with a 10-year term. The loan was fully repaid by <strong>2016<\/strong>.<\/p>\n\n\n\n<p>Under the terms of the contract, for the first three installments the interest rate was fixed: reference rate of 7% + fixed margin of 6%, resulting in a fixed interest rate of <strong>13%<\/strong>. After these first three payments, the interest rate became variable, meaning it would be formed from the bank\u2019s internal 3-month financing rate plus a fixed margin of 6%. These variable interest formulas are contained in Annexes 1 and 2 to the contract, which are integral parts of it.<\/p>\n\n\n\n<p>Annex 2\u2019s Article 1 provides that the <strong>Annual Equivalent Rate (DAE)<\/strong> may change whenever one of the cost elements changes, including by unilateral modification of the interest rate by ING BANK under the conditions in Article 10.<\/p>\n\n\n\n<p>Article 10 of Annex 2 states that ING BANK may modify the interest rate or penal interest if the reference rate rises by at least 1.5%. Article 3 of Annex 2 defines the reference rate as ING BANK\u2019s internal 3-month funding rate.<\/p>\n\n\n\n<p>The contract also includes clauses on communication: pursuant to Article 6(2) of Annex 1, the bank may display each interest rate change at its offices, no later than the date the new rate is applied. The borrower agrees that this method is sufficient and waives claims regarding inadequate notification.<\/p>\n\n\n\n<hr class=\"wp-block-separator has-alpha-channel-opacity\"\/>\n\n\n\n<h2 class=\"wp-block-heading\" id=\"h-legal-and-court-reasoning\">Legal and Court Reasoning<\/h2>\n\n\n\n<p>The court held that\u2014<\/p>\n\n\n\n<ul class=\"wp-block-list\">\n<li>After the first three installments, the interest is variable (reference rate + fixed margin). But the contract wording does not clarify the criteria by which the reference rate varies. The bank only defines it generically as \u201cinternal financing rate for 3-month funds,\u201d without specifying objective rules or fixed parameters. Such vagueness prevents a consumer, even diligent, from forecasting their future payments.<\/li>\n\n\n\n<li>The clauses defining the reference rate are non-transparent, unclear, and unintelligible, because from reading them alone one cannot determine objectively the criteria for variation.<\/li>\n\n\n\n<li>The combination of clauses (Annex 1\u2019s Article 6(2) along with Articles 3 and 6 in Annex 2) gives the bank the power to change the reference rate in unpredictable fashion, to the consumer\u2019s significant disadvantage. This unbounded unilateral modification power is incompatible with good faith and constitutes an abusive clause (see letter l of Annex to Law 193\/2000) which prohibits clauses that limit the consumer\u2019s legal remedies.<\/li>\n\n\n\n<li>Therefore, the court declared the clause in Annex 2 Article 3\u2014defining the reference rate formula\u2014as absolutely null.<\/li>\n\n\n\n<li>As to interest after 01.07.2010, the bank switched to a new formula: COBOR\/ROBOR 3-month + fixed margin of 6%, plus a fixed 1.25% component. The court found that aligning to the legal framework post-2010 was valid but the 1.25% fixed component was new and not legally mandated and thus required an additional signed addendum; lacking that, it was null under OUG 50\/2010 art. 40(3).<\/li>\n\n\n\n<li>Consequently, the sums collected via the null 1.25% clause must be refunded.<\/li>\n<\/ul>\n\n\n\n<h3 class=\"wp-block-heading\" id=\"h-conclusions\">Conclusions<\/h3>\n\n\n\n<ul class=\"wp-block-list\">\n<li>From 01.07.2010 onwards, the court fixed the interest formula as <strong>ROBOR 3-month + margin 6%<\/strong> (transparent, objective).<\/li>\n\n\n\n<li>Before that date, the interest remains the original 13% (7% + 6%) agreed by the parties\u2014that part is not nullified.<\/li>\n\n\n\n<li>The court ordered restitution of all amounts collected under the declared-abusive clauses.<\/li>\n\n\n\n<li>Because the declared-abusive clauses are deemed never to have existed (retroactive effect), the contract remains valid but under the legally correct interest formula.<\/li>\n<\/ul>\n","protected":false},"excerpt":{"rendered":"<p>Case Study \u2013 Abusive Clauses in a 2007 Personal Loan Contract with ING BANK N.V. Objectives Achieved The court found that the clauses regulating the interest rate and the origination fee in a personal loan contract were abusive. Consequently, the court ordered the bank to refund: Case Presentation In 2007, the plaintiff concluded a personal &#8230; <\/p>\n<p class=\"read-more-container\"><a title=\"Cluj Attorney \u2013 Abusive Clauses ING BANK: Finding the Abusive Nature of the Variable Interest Rate and the Loan Origination Fee\" class=\"read-more button\" href=\"https:\/\/brisc.ro\/en\/cluj-court-declares-variable-interest-clause-abusive-in-ing-loan-orders-refunds\/#more-5231\" aria-label=\"Read more about Cluj Attorney \u2013 Abusive Clauses ING BANK: Finding the Abusive Nature of the Variable Interest Rate and the Loan Origination Fee\">Vezi articol<\/a><\/p>\n","protected":false},"author":2,"featured_media":1410,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"inline_featured_image":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-5231","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-uncategorized","masonry-post","generate-columns","tablet-grid-50","mobile-grid-100","grid-parent","grid-50"],"_links":{"self":[{"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/posts\/5231","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/comments?post=5231"}],"version-history":[{"count":1,"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/posts\/5231\/revisions"}],"predecessor-version":[{"id":5232,"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/posts\/5231\/revisions\/5232"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/media\/1410"}],"wp:attachment":[{"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/media?parent=5231"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/categories?post=5231"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/brisc.ro\/en\/wp-json\/wp\/v2\/tags?post=5231"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}