Summary of the Ombudsman´s Report 2011

112 ombudsmann der privaten banken – tätigkeitsbericht 2011
in ombudsman proceedings, the ombudsmen refrain from
handling such cases.
Claims for compensation often fail because they can no longer
be asserted: if the claim is already barred by the statute of
limitations and the bank pleads the statute of limitations,
ombudsman proceedings are not possible. Often, customers
do not realise that the statutory limitation period starts as
soon as they purchase securities and not only once they are
aware of a loss. This changed with the entry into force of the
German Bond Act on 5 August 2009, however. Under this
act, limitation of claims for compensation due to incorrect
investment advice provided after 31 December 2009 is no
longer based on Section 37 a of the German Securities Trading
Act but, instead, on the standard limitation period set out in
the German Civil Code (Sections 195, 199 et seq.). This means
that claims for compensation are no longer barred under
the statute of limitations after a period of three years from
the date of conclusion of the contract. Instead, the limitation
period only starts once the investor has learned about the loss.
Irrespective of this, claims become statute-barred no later than
ten years from the date on which the claim arose.
Complaints also include, for example, cases in which customers
claim that they were not informed by their bank in good time
about a corporate action, so that they could not participate in
it. In addition, customers contact the ombudsman to complain
about the delayed execution of securities orders.
portfolio, such as a delay in transferring a securities account,
closing a securities account, issuing the 2010 annual tax
certificate or cancelling credit entries for securities. The bulk
of complaints concerns portfolio management fees.
Lending business
Lending business accounted for a total of 1,680 complaints in
2011, i.e. around 40% more than in 2010. The proportion of
such complaints has thus increased strongly in a year-on-year
comparison. Part of the complaints filed from mid-December
2011 onwards concerned property financing. This was the
main reason for the increase.
At 67%, mortgage loans accounted for the bulk of complaints
relating to lending business. Regarding loan agreements
concluded for property financing purposes (so-called “tax
saving models”), customers complained in particular about the
size of collectable rents, misrepresentation of the intermediary’s
role and the commission paid. Complaints concerned mainly
so-called “old cases” in which loan agreements were mostly
concluded before 1 January 2002 (and going way back to the
1990s). These complaints had not yet been submitted to the
ombudsman for adjudication in 2011.
In addition, customers complained in the area of mortgage
loans about being charged processing and fiduciary fees by
the lending bank for repayment of a loan by another bank. The
ombudsmen take the view that such fees are not admissible.
Portfolio management is a complaints area that covers
everything connected with the management of a securities
Another recurrent issue in ombudsman proceedings is the
size of the fee charged for early repayment of a loan. As the