Clause floor: The renegotiation does not validate the contract
The renegotiation with the bank does not preclude the claim in the courts of the amounts paid over by the terms floor.
In view of everything that happened in relation to the ground clauses mortgage loans, some financial institutions have been renegotiated or made some concessions to customers, allowing a reduction of fees. It raises the Whether this "renegotiation" impedes the viability of a complaint to the courts of the overpayment due to the application of the clause floor.
This topic has been reviewed by the judgment of the Provincial Court of Valencia (section 9) of 23 September 2015.
D. Cesar and Ms.. Salvadora had signed two mortgage with Caja de Ahorros de Castilla la Mancha (Today Liberbank) in the year 2007.
In September 2009, Customers requested that the ground clause of its mortgage loans were reduced from 4% to the 3.25% and the bank agreed to it.
However, later los clientes reclamaron la cantidad pagada de más por motivo de la cláusula suelo, a lo cual el banco se negó.
The Commercial Court 3 dismissed the claim, to understand that there was a renegotiation and that customers were aware of the existence of the ground clause. The renegotiation would be a "sort of recognition 'of the ground clause.
So customers appealed to the Provincial Court.
For the hearing, we face a consumers exercising an action for annulment of a provision considered general condition of hiring: The aim is a nullity Article 8 of the Law on General Conditions of Contract.
Therefore, and according to the provisions of Article 1310 Civil Code:
1.-Null and void clauses can not be validated or even tacitly confirmed.
2.-The time to assess whether the act is invalid (ignorance of the economic consequences of the contract) It is the signature, and two years later no.
3.- The fact that the bank, to customer demand downgraded ground clause, it is not a confirmation or a waiver to enforce the vices that might contain business, or evidence that the clause was known when he was hired.
So the resource and enters the room is estimated to analyze the merits of the claim.
The ground clause indicated "The maximum rate of interest shall not exceed 11% nominal, or less than 4% nominal anual”.
Customers, They had been subrogated to the mortgage loan arranged by the promoter entity. But subrogation, does not exempt the bank from fulfilling its obligation of information about the terms soil.
This criterion is based on the items 3,6 and 9 of RD 515/1989, the Order of Transparency of Financial Condition and criteria of the Bank of Spain in the memory of your Claims Service 2012 expressly states:
"Since the change in the conditions of the loan implies, necessarily, the existence of prior to the date of execution of the deed negotiations, between the borrower and the new entity resulting from the substitution part, diligent performance it requires is able to prove that he has informed his client of all the s financial conditions (modificadas o no) operation in which it is subrogated ".
Is a general condition of hiring. The burden of proof of individualized bargaining corresponds to the bank (art. 82.2 2nd paragraph of TRLGDCU) y nada se ha aportado por el mismo al respecto.
That customers had other alternatives exist or binding offer, It does not indicate that there had been negotiations on the ground clause.
By targeting an essential element of the contract, It can not be subject to abusiveness control (art. 4.2 Directive 93/13 / EEC).
But it should be clear and understandable for consumers: The customer must really understand (not just formally) the consequences of the contract (STS 8 septiembre 2014).
La cláusula suelo puede ser válida, pero necesita superar los siguientes controls:
- Control of incorporation: information by the entity must comply with the provisions of Ministerial Order 5 May 1994.
- Transparency Control: That adherents know or may know the economic and legal burden of the contract.
They are characteristic elements of the lack of transparency (SAP collected in Madrid 26 July 2013):
- Creating an appearance of floating rate loan when it really is a "fixed up," loan.
- The lack of information that is an essential element of the contract.
- The appearance of the floor has a roof as consideration.
- The location clause floor between an overwhelming amount of data.
- The absence of simulations with different scenarios in the pre-contractual phase.
- the lack of comparisons with other products of the entity.
For, It has no binding offer. Sí se hizo una minuta de las condiciones del préstamo, it did not meet the necessary requirements. In the scriptures they are highlighted only the percentages. No customers shows that they had sufficient knowledge of the clause floor,es. El hecho de que no se tratase de adquisición de vivienda habitual, does not eliminate her as a consumer.
We conclude that la cláusula suelo no supera ni el control de incorporación ni el control de transparencia.
Ultimately, the nullity of the clause declaring floor and he condemns Liberbank to eliminate it and to pay the sums paid from 4 June 2013.