9 lis pendens grounds for dismissing claims clause in soil
We analyze the main reasons for contesting the claim prejudicialidad or lis pendens lawsuits clause in soil.
A while now, a view of the rotundas that come resulting decisions of the Supreme Court in cases of placement of financial products, the defense of financial institutions is striving to suspend or extend processes. In lawsuits ground clause very often that you try the suspensión by prejudicialidad the lis pendens.
In this post we analyze the main reasons to challenge that argument.
1.- No identity parts
Although the processes that bring up by the defendant comprise the majority of the entities (for example, in those before the Commercial Court No. 11 Madrid under the car ordinary trial 471/10), Some financial institutions were not defendants in this process, so there would be identity of parties.
2.- literal application of Article 11 the LEC
The art. 11 LEC so express safeguard the exercise of individual action for annulment against the collective. Says the same:
“without prejudice to the individual legitimacy of the injured, consumer associations and users are legally constituted entitled to defend in court the rights and interests of its members and the association, and the general interests of consumers and users”
Therefore, the law itself guarantees the possibility of individual exercise of action even when legitimate entities collectively pose a similar claim.
3.- La doctrina del Tribunal Supremo
The High Court, in its judgment of STS 17 June 2010, resource 375/2010, (after examining the provisions of Articles. 11.2 and 15 LEC, and remember that stakeholders called for collective action could make themselves subject to the arts. 221 and 519 LEC) states if a declaration of illegality occurs, its effects should be restricted to cases available to the judgment itself, because only then it makes sense to art. 221.2 LEC. The allegation of financial institution is usually supported in the proceedings before the Commercial Court of Madrid number 11 under the ordinary trial cars 471/10, in which, so far it has not fallen sentence, so do not be relied on to effect in another process in which the individual consumer demands for their particular contract and does not participate in it.
4.- This is different actions
Not the same collective action that an individual action: As for collective action is carried out an abstract validity check, in consideration of what can be understood as an average consumer and the characteristics of standardized guidelines for mass recruitment, individual action in consideration of the circumstances of the case, based on the individual position of demanding consumer. One thing is the overall assessment of the validity or otherwise of such a clause used as a general condition for many Spanish banks, and other than in response to specific circumstances concurrent in hiring taking on a precise subject or not observed the requirements of transparency of the financial conditions of the mortgage loan.
5.- The legal system is different
The legal regime of both actions is different: It has different lengths, effects and legitimation. As for the duration, It is imprescriptible according to art. 19 LCGC in the case of collective. The legitimization of art. 16 LCGC is more limited if the action is collective. The effects are ex nunc collective injunctions and ex tunc in individual nullity (Arts. 12.2 and 8 LCGC). Therefore, being different actions, although part of the same nature, should not interfere or the intended effect of improper lis pendens or prejudicialidad occur.
6.- Produce different effects
As shown in Caceres SAP, Secc. 1ª, 19 February 2012 (judiciously reiterated in Case 14 December 2012, and 13 February 2013), “the consumer has standing to sue in their own interest, although the eventual positive outcome of the class action, by nature, the beneficiary will, but the possible negative outcome will not prevent you litigate”.
In the same vein, the SAP Gijon 17 December 2014 indicates that while “which it is pending in the Commercial Court of Madrid , is generally involving, the demand is accepted, the expulsion of that clause contracts who arrange mortgage lenders there demanded, The ruling handed down in the process now affecting only examine the applicants here”, “to invoke the injunction there would be articulated more data to evaluate the trial course. Now, be rejected not condition the result of this process, because it is subject to the particular circumstances concurrent in the recruitment of trial course and especially to ascertain whether the applicants met and agreed the inclusion of such a clause in the contract and that awareness of their modus operandi and economic consequences involved in the development of that contract”. While petitum be the same, the factum that based on two processes may differ.
And we must not forget that the declaration of invalidity does not imply the disappearance of the ground clause the individual contract if the bank refuses to do so, but the effect of res judicata in any subsequent trial, but it does not prevent the customer the corresponding judicial action
7.- purposive interpretation of the rules
If the suspension is admitted in these cases lis pendens or prejudicialidad, any consumer, He would have to await the outcome of a process, long and outside where it is not part. Namely, a collective action, introduced in our legal system to ensure the protection of consumers, hurt everyone affected by ground clauses. It does not seem plausible that the legislature intended this effect, namely, a standard that is incorporated in favor of consumers produce the opposite effect, harming them by an action which has not been added and which they have not even been called.
8.- The right to an effective remedy
Estimating the existence of improper lis pendens would violate Article 24 of the Constitution, to deprive the exercise of an action, granted subject to a collective in which it does not participate and can not get to affect the applicant individually.
In fact, The latest case is smaller majority in rejecting the suspension of the process by existence of lis pendens or criminal prejudicialidad. Without being exhaustive, these are some of the most recent judgments.
SAP Gijón 11 December 2015
SAP Burgos 23 October 2015
SAP Pontevedra 21 October 2015
SAP Jaén 1 October 2015
SAP Oviedo 1 October 2015
SAP Sevilla 30 September 2015
SAP Badajoz 22 September 2015
SAP Murcia 17 September 2015
SAP Santa Cruz de Tenerife 11 September 2015
SAP Vitoria 30 June 2015
SAP Ourense 22 June 2015
SAP Soria 28 May 2015
9.- El criterio part TWENTY
Since the STJUE of 24 January 2002 It stated that collective injunction is independent from the specific individual complaints because it is a complement to the system of protection for consumers, but it does not replace or preclude individual action, so that should be discarded interpretations that cause this result. Any other interpretation would be contrary to art. 7 Directive 93/13 / EEC on unfair terms in consumer contracts.
In fact, el pasado 14 January 2016, Advocate General of the Court of Justice of the EU (TUE), Maciej Szpunar, He has delivered an opinion in which it concluded that whether to automatically suspend individual action until there is a final judgment in collective action, this would be contrary to Article 7 Directive 93/13 / EEC. Therefore, the suspension should be optional (It may not be mandatory nor automatic) and the consumer must opt out of collective action.
Ultimately, despite attempts by the authorities to suspend and prolong claims ground clauses, there are more than enough reasons to dismiss lis pendens or prejudicialidad and continue the process, allowing the consumer to obtain a solution to your problem.