Early Termination clause for the Provincial Court of Valencia
Can you assess the number of defaults to declare the early maturity?
The Ninth Provincial Court of Valencia Section has issued on acceleration clauses the car 22 March 2016, on which we review the issue.
The case stems from an opposition to foreclosure by CaixaBank, which was dismissed by order of the Court of First Instance 1 of Gandia 6 May 2015 y que implicaba la continuación del proceso. Frente a dicha resolución, those executed have appeal reiterating the nullity liquidity covenant abusiveness, the provision of management fees for unpaid, clause floor, the provision of universal responsibility, the early termination clause, the credit assignment clause, determination and manipulation of Euribor, pluspetición for claiming legal costs and challenge the value given to the property for the purposes of auction.
The Chamber focuses on the analysis of issues that allow the opposition to the execution under Article 695.1.4º of the LEC form the basis of execution or have determined the amount due.
Early termination clause
Following the entry into force of the Law 1/2013 of 14 May, It is possible control trade on unfair terms office prior to execution, Article according to 552 the LEC.
Subsequently be one second control ex parte by the incident opposing the execution under Article 557.1.7º of the LEC.
In the case of dispute, Its about habitual residence of those executed also enjoy the character of consumers.
The clause "sixth bis" allowed to give by credit sold for nonpayment of any maturity.
Analysis due abusiveness support the Directive 93/13/EEC on unfair terms in consumer contracts and TRLGDCU, as well as the case law issued in its application.
The Sentencia del TWENTY 14/3/2013 and the need for the breach giving rise to the early maturity was referred "Sufficiently serious with respect to the duration and the loan amount".
For Hearing, It should assess whether early termination clause is based on a fundamental breach and serious nature, basis of the amount of borrowed capital and the time allowed.
The loan was 150.000 euros a 29 years old. Dar el préstamo por vencido anticipadamente por "Nonpayment of any of the maturities of equity interests and / or mixed quotas or other monetary obligations":
"It is absolutely disproportionate to the number of shares and outstanding capital" (…) "So, early termination clause, by ambiguity and let the mere discretion of the performer the right to deprive the defendant the benefit of the term, It is zero for abusive and such invalidity entails the dismissal of the process according to the wording of paragraph 3 Item 695 LEC ".
In this sense, it refers to Auto de 14 July 2015 in the same room, which refers to Auto part TWENTY the 11 June 2015: abusive clause, even though it has not been implemented, It should be expelled from the contract with all its consequences.
El hecho de que se haya impagado más de tres cuotas no permite el vencimiento anticipado. That question has already been resolved by the abovementioned order of 14 July 2015: Article 693.2 LEC as in force at the date of contract, no es un precepto imperativo sino meramente dispositivo. Also, picks up a procedural requirement for executive action, but does not qualify the abusiveness or not a pact between professional and consumer.
La posibilidad de enervación por la prestataria no impide la declaración de abusividad. For the sake, when the bank sent a burofax those executed, no unpaid assessments were claimed or reported on the possibility of enervation.
And the number of unpaid installments, does not prevent the declaration of abusiveness, therefore it should be assessed whether the clause has or has not exercised.
STS 25 December 2015 does not alter this conclusion, because as stated in the Ninth Auto Section of the Provincial Court of Valencia 9 March 2016, las apreciaciones incluidas en la fundamentación jurídica eran reflexiones dirigidas a las entidades bancarias, mere "obiter dicta" without binding force.
Besides must consider (although not binding), the Opinion of the Advocate General. Maciej Szpunar (presented the 2 February 2016): the fact that the bank initiated foreclosure when there have been seven defaults is merely a factual element, not to be taken into account in assessing the abusiveness of the early termination clause. The abusiveness implies the expulsion of the contract that the judge can not change their content. Moreover, early termination clauses are ancillary and separable from the remainder of the contract.
Ultimately, the appeal was partially upheld, the nullity of the clause declaring early maturity and discontinue proceedings remembers.