BBVA clauses declared unfair by the Supreme Court
The Supreme Court has declared the abusiveness of a number of clauses in contracts bank BBVA.
The judgment of the High Court, Date 23 December 2015 abusiveness declares several clauses in some contracts bank BBVA and Banco Popular.
At our entry of 26 January 2016, We discussed the part of the ruling concerning the People's Bank. In this we focus on statements relating to the clauses of the BBVA bank contracts.
The Board considers that its pronouncements 9 May 2013, 25 March 2015 and 29 April 2015 estimating the abusiveness of the land clause in the BBVA mortgage loans are "res judicata" conforme al artículo 222 the LEC: There petitum identity and cause of action. Bank's claim is dismissed.
Default interest on mortgage loans
The bank established a late interest at 19% annual nominal: The limit the default interest in mortgage loans for the purchase of residence, It is limited to maximum of three times the legal interest rate (art. 114 Mortgage Law, amended by Law 1/2013 of 14 May). The contract can not be integrated, but must have unwritten clause (STJUE de 11 June 2015, STJUE de 21 January 2015 and 22 April 2015.
Also, el auto part TWENTY they 11 June 2015 indicates is zero but "has not been implemented".
The clause allowed the bank to demand early repayment of capital with interest and costs in case of payment "In any part of the loan principal or interest".
Para la sala, While the early termination is legal, It is provided for in Articles 1129 and 1124 the Civil Code and Article 693.2 the LEC, It should take into account the jurisprudence of the ECJ: In its judgment of 14 March 2012 (Case C-415/11) he understood that early termination clause in contracts of long duration can be abusive if the customer breach is not sufficiently serious, regarding the "duration and amount of the loan".
The Chamber adopts this approach and considers that the clause, such control fails, not modulate the severity of the violation or the amount, or allow the consumer "Avoid its application by diligent conduct repair". Indicates:
"And anyway, it seems clear that an early repayment clause that allows the resolution to the breach of a single term, even partially and for an accessory obligation, It must be esteemed as abusive, given that a serious quantitative or parameters are temporarily not bound ".
Namely, the Criteria for assessing the abusiveness of the early termination clause are:
- Essentiality of the obligation breached.
- Seriousness of the breach in relation to the amount and duration.
- Consumer real chance to avoid this consequence.
The Chamber also It rejects the possibility that the early termination clause can be integrated by the Court.
The contract of the bank collected on an extensive clause that absolutely all expenses will be charged to the borrower.
Such a clause is contrary to Article 89.3 the TRLGCU, as well as other provisions relating to expenses (art. 8 the revised text of the Law of stamp tax, art. 14 Law of Insurance Contract, articles 32.5, 394, 398 559 and 561 and 562 LEC). So abusiveness your return is confirmed.
Professional or business destination of the mortgaged property
The clause requires the borrower to not change the fate of the property without the express written consent of the bank.
The Chamber considers that such a clause "For its lack of precision and uncertainty leaves full discretion of the lender interpretation" and therefore it is abusive.
For the Board, said general condition directly contravenes the provisions of Articles 6 a 9 Act 22/2007 of 11 July on the distance marketing of consumer financial services: Consumer imposes a manifestation of tacit accordance with the reception conditions that could not have received and involves a reversal of the burden of proof on one end whose accreditation should weigh on the bench.
The highlight of this judgment is the judgment of the High Court on the nullity of the early termination clause, which he had raised no few arguments in court.