Acting for one of the largest banks in Romania, STOICA & Asociații’s lawyers won a complex litigation regarding the cancellation of the mortgage constituted by a criminal group organized in order to defraud the bank. Thus, in the period 2005-2012, 59 people acted through more than 40 companies, most of them of the “shell” type, fraudulently obtaining numerous loans or leases for luxury cars from 10 among the largest financial institutions on the Romanian market. The value of the total damage caused to all defrauded financial institutions was approximately EUR 20,000,000.
After a criminal trial that lasted over 10 years, the criminal court confirmed this huge fraud, but also ordered the “cancellation” of several credit contracts, including those concluded by the client. One of the companies participating in the fraudulent scheme – which had secured one of the fraudulent loans with a real estate mortgage – tried to take advantage of this solution. Invoking the accessory nature of the mortgage to the credit contract “cancelled” by the criminal court, this company requested the civil courts to cancel the mortgage contract. If this request had been accepted, the bank would have been left not only with the money taken, but also without the possibility of foreclosing the mortgage, in order to recover at least part of the damage.
In the first procedural phase, the Călărași Court admitted the request, giving the claimant company a win. Taking the case on appeal, STOICA & Asociații lawyers overturned this unfair solution, the Bucharest Court of Appeal upholding the bank’s mortgage. The solution was recently confirmed by the rejection of the appeal by the High Court of Cassation and Justice.
STOICA & Asociații’s team of lawyers was formed by Dragoș Bogdan (Managing Partner), Mihai Stănescu (Managing Associate) and Cornelia Deaconescu (Senior Associate).
Dragoș Bogdan: “The stakes of this litigation were very high, with economic and legal implications, both for the client and in terms of jurisprudence. Economically, the cancellation of that mortgage contract could have generated disastrous consequences, not only for the client, but also for the other damaged financial institutions, triggering a whole avalanche of legal proceedings to cancel all the mortgages used in the criminal scheme. From a legal perspective, the case is particularly interesting because, making the correct application of some principles of pure civil law, but also of the relevant ECHR jurisprudence, the judges of the Bucharest Court of Appeal decided two essential issues for these types of cases faced by the system banking.
Thus, on the one hand, the decision of the civil court to read in the criminal judgment the correct meaning of the institution of the termination of the contract only as written, and not as a legal act, deserves to be emphasized for its fair character and very well argued, especially in the context in which the jurisprudence criminal law is still not sufficiently coherent and consolidated in this regard.
On the other hand, the Bucharest Court of Appeal decided that the principle of annulment of the subsequent legal act – the mortgage contract – because of the annulment of the main act (credit contract) could not be applied, it being blocked both by the application of tortious civil liability and ECtHR jurisprudence on the protection of property. This important success is also due to the extraordinary people in the client’s legal team, together with whom we established the entire procedural strategy in the smallest details.”
Founded in 1995, STOICA & Asociații has gained national and international recognition in the world of law and the business environment, through its entire activity of legal assistance and representation of a vast portfolio of clients. Currently, the lawyers from STOICA & Asociații have proven that they are a strong team, based on the observance of its principles: Fidelitas, Integritas, Fortitudo. STOICA & Asociații has acquired an excellent national and international reputation. Its professional achievements are recognized in the most important international legal guides: Chambers Europe, Legal 500, WTR 1000, IAM Patent 1000.