AUSTRIA Trends and Developments Contributed by: Markus Fellner, Stefan Sallat and Florian Henöckl, Fellner Wratzfeld & Partner Rechtsanwälte GmbH
The KKG does not affect restrictions on the trans- fer of a lender’s claims arising from a non-performing loan agreement or the non-performing loan agree- ment itself, which is not due or has been due for less than 90 days or has not been terminated in accord- ance with national civil law (Section 2, paragraph 3 of the KKG). Furthermore, the KKG does not affect the requirements for the provision of credit services with regard to a creditor’s claims under a loan agreement or the loan agreement itself if the credit purchaser is a securitisation special purpose entity within the meaning of Article 2, paragraph 2 of Regulation (EU) 2017/2402. A credit purchaser is defined as a natural or legal per- son who is not a credit institution and who, in the course of their commercial or professional activities, purchases a creditor’s claims arising from a non-per- forming credit agreement or the non-performing credit agreement itself in accordance with the applicable law of the European Union or the member states. A credit service provider is a legal entity that, in the course of its business activities, manages and enforces the rights and obligations relating to a lender’s claims under a non-performing loan agreement or the non- performing loan agreement itself on behalf of the credit purchaser and provides at least one credit ser- vice. Credit services are one or more of the following activities: • collection or recovery of payments due from the borrower in connection with the lender’s claims under a non-performing loan agreement or the non-performing loan agreement itself (debt collec- tion); • renegotiating the terms with the borrower in con- nection with the lender’s claims arising from a non- performing loan agreement or the non-performing loan agreement itself in accordance with the instructions of the credit purchaser; • managing complaints in connection with the lender’s claims arising from a non-performing loan agreement or the non-performing loan agreement itself; or • notifying the borrower of any changes in interest rates, charges, or payments due in connection with a lender’s claims arising from a non-performing
loan agreement or the non-performing loan agree- ment itself. A non-performing loan agreement is a loan agreement classified as a non-performing exposure in accord- ance with Regulation (EU) No 575/2013. A credit service provider requires authorisation from the Financial Market Authority (FMA) in order to carry out its activities (Section 4 of the KKG). Credit service providers may not accept or hold funds from borrow- ers when providing credit services (Section 6 of the KKG). Credit purchasers and credit service providers shall, in their relationships with borrowers: • act in good faith, honestly and professionally; • provide information that is not misleading, unclear or false; • respect and protect the personal data and privacy of the borrower; and • communicate with borrowers in a manner that does not constitute harassment, coercion or undue influence (Section 10 of the KKG). A credit institution must provide a potential credit pur- chaser with the information about a creditor’s claims under a non-performing loan agreement or about a non-performing loan agreement itself and about any collateral that the potential credit purchaser needs in order to conclude a contract: • on the transfer of the creditor’s claims under the non-performing credit agreement; • on the transfer of the non-performing loan agree- ment, the value of the lender’s claims arising from the non-performing loan agreement; or • for the value of the non-performing loan agreement itself and the likelihood that the contract value can be recovered, while ensuring the protection of the information provided by the credit institution and the confidentiality of business data (Section 15 of the KKG).
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