On the basis of the documents submitted to the Ombudsman, it was unclear whether the bank in the present case had respected the principles applied in fee disputes see case 2022/20 above. The Ombudsman therefore contacted the bank and asked it whether there was a fee agreement and, if so, if and how it had been adapted in the course of the client relationship. He also asked them whether the mortgage taken out by the client had a fixed term.
The bank was represented before the Ombudsman by an external lawyer. The lawyer informed the Ombudsman on behalf of the bank that the fee schedule accepted by the client by signing the General Terms and Conditions (GTC) at the time the mortgage was taken out in 2019 provided for a loan cancellation fee of CHF 350. According to the GTC, the Bank was entitled to adjust this fee schedule, which was available in its offices and on its website, at any time due to market conditions or for other objective reasons. The tariff of CHF 350 was no longer justified due to the economic circumstances, so that the bank had switched to a tariff calculated as a percentage of the loan amount as of 1 June 2021. This took better account of the real costs of the services in connection with the cancellation of the loan, which were also proportional to the loan amount. In the bank’s view, the borrower should have actively monitored any fee adjustments and, if he did not agree to the adjustment, should have cancelled his mortgage in good time.
In a first step, the lawyer was unable to answer the question of whether the client had taken out a mortgage with a fixed term. It turned out in a second step that the client had concluded a Libor mortgage in 2019 with a fixed term until 2022. In view of the replacement of Libor by SARON, a SARON mortgage was agreed in June 2021 for the remainder of the agreed term and a new contract was concluded. An early exit from this mortgage was only possible against payment of a substantial prepayment penalty. The adjustment from the Libor to the SARON mortgage did not give the client an early exit option.
The economic reasoning of the bank was difficult for the Ombudsman to comprehend. In this particular case, although the amount of the mortgage was high, only a debt certificate had to be delivered in exchange for payment of the redemption amount by the new bank. According to the Ombudsman’s observation, a percentage amount based on the loan amount with no upper limit is rather unusual for a loan termination fee. However, the assessment of the fee is a matter of business policy and is therefore outside his remit.
More serious for the Ombudsman was the fact that, in his view, the fee principles had been violated twice. Contrary to the client’s view, there was indeed a fee agreement. It was valid for the originally agreed amount of CHF 350. However, for the substantial adjustment claimed by the bank, there was no communication through the usual correspondence channel agreed with the client. In the Ombudsman’s view, a client cannot be expected to constantly monitor fee tariffs that are available in the bank’s offices or published on its website. Moreover, when the adjustment took effect, the client was locked into a fixed-term mortgage that could not be terminated without serious financial consequences. The Ombudsman did not consider it permissible to adjust the loan termination fee during this period.
The bank finally decided to repay the client the amount that exceeded the originally agreed CHF 350. The client agreed to the solution.