New rules for acquiring non-performing loans from banks
On 19 February 2025, the Act on Credit Servicers and Credit Purchasers, which implements the provisions of Directive (EU) 2021/2167 of the European Parliament and of the Council of 24 November 2021 on credit servicers and credit purchasers and amending Directives 2008/48/EC and 2014/17/EU, entered into force.
The provisions of the Act apply only to non-performing loan agreements, i.e. loan agreements that have been classified as non-performing exposures. The Act provides for exclusions of entities that are important from the point of view of the debt collection business. It does not apply to the servicing of rights or claims provided by, among others, national banks, credit institutions, credit unions and lending institutions. Investment fund companies, entities managed by investment fund companies (TFI) and managers of alternative investment companies (ASI) are also excluded from the Act. Interestingly, the Act also does not apply to activities relating to the exercise of the creditor’s rights accruing to purchasers, carried out by lawyers, legal advisers or bailiffs. The Act applies to credit purchasers within the meaning of the Act, i.e. natural persons, legal entities and unincorporated entities that acquire rights or claims under a non-performing loan agreement in the course of a business or professional activity. It appears that doubts as to whether the Act applies in a given situation arise from the question of whether the purchaser acquires the rights or claims in the course of a business or professional activity or otherwise.
Acquisition under the Act
If the acquisition of a non-performing loan is deemed to have been made in the course of a business or professional activity, the acquirer is required to enter into a credit servicing agreement, unless the acquirer is itself engaged in the business of credit servicing and has been authorized to do so by the Financial Supervisory Authority. This means that if the purchaser acquires a right or claim under the regime of the Act, it may not itself service such a loan unless it has the relevant authorization. Servicing a loan means taking steps to collect amounts due from the borrower, generally – renegotiating the terms of the credit agreement, receiving and dealing with complaints and appeals against such complaints, or informing the borrower of changes in the method of repayment of the loan or the interest rate, or of fees and charges payable directly by the borrower.
The Act also allows an entity servicing loans to entrust the performance of credit servicing activities to a credit servicer by means of a written agreement.
Information obligations of purchasers
The Act imposes an obligation on the purchaser of a loan or the credit servicer to inform the borrower within 21 days of the acquisition of rights or claims of, inter alia, the date of the acquisition, the amount owed, broken down into principal, interest and other costs under the credit agreement as at the date of the acquisition, the bank account number to which the borrower is obliged to pay amounts owed under the credit agreement and the procedure for receiving complaints and appeals against such complaints.
Application of the new provisions to transfers and acquisitions of rights from 19 February 2025.
If the transfer of the creditor’s rights or the acquisition of claims took place no later than 18 February 2025, the previous provisions apply. The previous provisions also apply to the servicing of the creditor’s rights if the acquisition of rights or claims took place no later than 18 February 2025. Thus, if the acquisition of rights or claims took place after the entry into force of the Act, the provisions of the Act will apply to the rules for the acquisition and servicing of the creditor’s rights.
How can we help?
As Andersen in Poland, we can offer you the following support and assistance:
- analysis of the facts with regard to the application of the provisions of the Act to the acquisition of a non-performing loan,
- preparation of acquisition documentation in accordance with the requirements of the Act,
- verification of compliance with the information requirements by the purchaser or credit servicer.
KONTAKT
E: mariusz.aleksandrowicz@pl.Andersen.com
T: +48 22 690 08 88
M: +48 601 250 765
E: tomasz.srokosz@pl.Andersen.com
T: +48 32 731 68 52
M: +48 512 286 226