Consequences of the invalidity of the clause of interest by abusive, Rafael Juan Juan Sanjose
DT does not apply the 2nd Law 1/2013 in conjunction with Article 114 LH for cases where the contracting parties are a professional and a consumer, nor shall any subsidiary application of national legal rule containing a forecast of interests and specifically, shall not apply and the legal interests Article 1108 CC, or procedural article 576 LEC.
This time I have the honor to publish a work of brilliant jurist Juan Juan Rafael Sanjose, Deputy Judge of the Provincial Court of Castellon. Su trabajo destaca por su rigor y detalle.
This “entry” It is longer than usual so it is especially recommended for legal professionals.
Here you have the work of Rafael Juan Juan Sanjose:
Consequences of the invalidity of the clause of interest by abusive
Rafael Juan Juan Sanjosé
Alternate Judge of the Provincial Court of Castellón
2.- Possible recalculation according to DT 2nd Law 1/2013
3.- Deviations from the DT 2nd Law 1/2013
3.1.- Interests Art. 1108 CC y 576 LEC
3.2.- No implementation of any interest
As it is peaceful today, After the pronouncements of the Court of Justice of the European Union, abusiveness declaration of default interest clause invalid and consequently determine the doctrine of the ECJ issued its expulsion from the contract without possibility of moderation and integration.
Nonetheless, this solution has not been interpreted or host equally by the doctrine and jurisprudence, finding ourselves in practice with diverse solutions ranging from the implementation of the DT 2nd Law 1/2013, to considering the impossibility of default interest where any.
Como acertadamente expone MUÑIZ ÁLVAREZ (1) si bien es cierto que a priori la imposibilidad de integración de la cláusula nula de intereses de demora nos llevaría a pensar que las cantidades adeudadas no devengarían cantidad alguna en ese concepto, the reality reveals that within the judiciary our courts have reacted to this with two very different criteria. You are leaving one completely to implement the clause and not applying any default interest (AAP Barcelona, 16th section of 9 November 2012; AAP Girona, Section 1 of 16 January 2013; AAP Vizcaya, Section 3 of 11 May 2013; AAP Castellon de 18 December 2013; SAP Madrid, Section 2 of 26 July 2013 SAP and Ciudad Real, Section 1 of 11 July 2013, inter). Another application of the statutory interest referred to in Article 1.108 Civil Code.
These two criteria set by Muñiz would add some more, defended by the lower case, the application of 576 DT LEC or even 2nd Law 1/2013, these criteria on which delve below.
Juridically, for, as we see makes PUIG SANFIZ (2), the real core of the discussion is to elucidate what happens specifically in cases where the default interest clause, is judicially declared null and void, and in this sense, as we said, no consensus, which it is endorsed in the conclusions of the Seminar on unfair terms of trade and control, organized by the General Council of the Judiciary in Madrid on 19 a 21 February 2014 (3), establishing, on the effects of the declaration of the moratorium interest abusiveness there are two positions that do not reach consensus:
* According to the judgment of the ECJ with 14 March 2013, abusive declared a clause must disapplied, leaving no room for judicial integration purging unfair terms entails a deterrent purpose, so you do not apply any default interest.
* It would apply the legal interest rate specified in 1.108 Civil Code, as a "substitute interest", since the elimination of clause supposed (Provincial Court Baleares 13 January 2014, Barcelona Provincial Court section 19 the 18 December 2013).
Also this discussion and was reflected in the conclusions of the Conference on the impact of the ECJ doctrine on unfair terms in foreclosure held by the CGPJ 8 May 2013 (4), in which it is stated that in the case of default interest clauses, nullity entail the removal of the clause and is considered the principal accrue interest provided by law, these effects exist two major positions: which defends the application of the Civil Code (Article interest 1108 CC) or holding the implementation of the Mortgage Law (interest new article 114 LH).
This dilemma has been observed even by the lower case and so Cars like the AP of Jaen 31 March 2014 (5) echoed the same are made to manifest in your second law basis "However the issue is not peaceful, exist about various doctrinal positions, between supporters not to apply any interest, They argue that declared their abusiveness not be null replace those by other unsolicited by the bank interests and also like a compensation for damages when he has sanctioned with invalidity, and those who make use of the power of integration of abusive clause, another interest rate fixing, without agreeing on what, because the procedural default interest Article 576 L. And. Civil (legal interest increased by two points), It operates only to arbitration proceedings and agreements enforceable mediation, so the choice would be limited either to apply the legal interest, conforme al artículo 1108 Civil Code , or lower interest rates up to the limit provided for in Article 114.3 LH modified. "
So things and in order to realize the different positions, both legal practice and doctrine less, They are maintaining about the effects of the declaration of invalidity of the clause of default interest, in the following sections we discuss each distinguishing between the following:
a) Possible recalculation according to DT 2nd Law 1/2013
b) Deviations from the DT 2nd Law 1/2013
i. Applicability interests of art. 1108 CC, 576 LEC or remunerative interest.
ii. Not possible to apply any interest.
2.- Possible recalculation according to DT 2nd Law 1/2013.-
Como avanzábamos y argumenta PUIG SANFIZ (6) parte de la jurisprudencia ha venido optando por recurrir a la opción del recálculo tomando como base legal la Disposición Transitoria Segunda de la reforma de 14 May 2013 in accordance with the new wording of art. 114.3 of the Mortgage Law.
Recall that the DT 2nd Law 1/2013 states that for those cases where default interest clause exceed the legal limit provided for in art 114.3 of the Mortgage Law, cabe la posibilidad de realizar el recálculo de los mismos con la finalidad de ajustar su importe final al límite máximo previsto en el precepto en cuestión, namely, no more than three times the legal rate in effect on the date the deed of loan was granted.
Follow this line of interpretation, including the Provincial Court of Cadiz, that the basis of the order for third 30 September 2014 (7) mantiene que “Con arreglo al régimen transitorio establecido, the implementation process will present applies the legal restriction imposed in relation to default interest rate payable by the mortgagor when the mortgage loan has been arranged for the purchase of residence and therefore ..., we understand that this rule should be applied by analogy. Default interest accrued after the entry into force of the Law 1/13, as well as those having accrued on that date had not been satisfied, They may not exceed three times the legal interest. Without prior declaration of invalidity of the clause, the clerk must grant within ten days of the performer to recalculate the amount due in interest on late payments, adjusting the limitation imposed by law. "
In the same vein pronounced the Audiencia Provincial de Sevilla in Auto 17 September 2014 (8), in which Second Law Foundation and the interest rate for late payment, mantiene que la Disposición Transitoria Segunda de la Ley 1/2013 of 14 May provides that the limitation of default interest on the mortgages of residence shall apply to mortgages after the entry into force of the Act also, such limitation shall apply to the default interest under the loans secured by mortgage on residence constituted before the entry into force of the Law, accrued after the same, as well as those having accrued on that date had not been satisfied. In proceedings initiated execution and not completed after the entry into force of the Law and those who had already set the amount by which requests execution is dispatched the Judicial Secretary shall within ten days of the performer to recalculate that amount as provided in the preceding paragraph.
Law is therefore established the integration contract, both in relation to loans in execution as in relation to loans made before the entry into force of the new law , therefore, but the nullity is declared, Recalculation is possible to adjust the claim to the legally established parameters,…
Therefore, comes the resource estimate and maintaining the nullity of the clause, declare the office from execution requested by the request conform to the legal provision, the default interest to the new wording of art have been calculated in accordance with 114 LEC. "
Finally we highlight, regarding this position, the Order of the Provincial Court of Cordoba 30 April 2014 (9), to about, Legal Grounds in his sixth, states that en relación con la posibilidad de integración contractual tras la declaración de nulidad de la cláusula de intereses moratorios, especially under certain interpretations based on the doctrine of STJUE 14 June 2012, it was considered that declared invalid the general condition of recruitment on interest for late payment, You can not integrate by setting a not unreasonable delay interest ...
We, as we have done in previous resolutions, We consider the STJUE of 14 June 2012 technique prohibits only conservative validity reduction, but not the contract that can be integrated to allow compliance; namely, the sense of the ECJ ruling is to deny the possibility that the predisposing not placed at risk by setting unfair terms, but this does not prevent the cancellation clause, resulting in the application of the regulation resulting device or imperative law, which is not a mechanism for integrating prohibited by Community law, but a legal form of the supervening contractual supply gap by the declaration of invalidity. As we said in cars 3 July 2013 and 20 January 2014, In order to replace the formal balance of the contract with an effective balance between the rights and obligations of the parties, You can not disregard the principle of effectiveness that underlies the law of the Union, and more specifically in Directive 93/13, and so highlights the STJUE of 4 June 2009 when he says that “the judge hearing the case must ensure the effectiveness of the protection sought by the Directive”.
Adding that the statement abusiveness a default interest clause should not lead to the effect of equating compliant with the defaulting debtor, so glaring as deterrence evaporate a default interest clause has on potential violators, so the result, the impossibility of making a moderator integration of an unfair term because of the doctrine established in STJUE of 14 June 2012 , It must be to recognize that this is in fact a contractual lagoon.
Having understood this Provincial Court to remedy that gap contractual (especially if itself be within the meaning and scope of that common things over contractual intent it can be seen to the end of giving the bad debt situation more unfavorably than the situation appropriate and timely compliance), It must go into national law, and in this standard has expressly addressed the issue of the moratorium limit interest is contained in that Act 1/2013 of 14 May, by adding a third paragraph to Article 114 of the Mortgage Law ... (Cars Section 1 of 24 May 2013 and 20 January 2014 and Section 3 of 22 May, 3 July 20 December 2013); on whose retroactive applicability we have seen that there is no obstacle, but rather, legal duty to do so ( 2nd Transitional Provision of the same Act ).
This position, as is seen in transcribed resolutions, supports the application of the 2nd Law DT 1/2013 and therefore allows the recalculation of interests under Article 114 LH.
Now, Puig Sanfiz (10) aclara que aunque esta interpretación ha sido de profusa aplicación entre nuestros Tribunales, It is a stream on the wane, still growing detractors of it, toda vez que sus críticos consideran que la posibilidad de recálculo solo cabría valorarse para el caso en que, even though the interest rate for late payment was included in the writing above the legal limit provided for in art. 114.3 de la LH, the excess over the limit was too small to justify the existence of disproportion or abusiveness in the clause in question. Elaborating on this line, se entiende que recurrir al recálculo, declared invalid the default interest clause, infringe the prohibition of moderate or integrate abusive clauses declared invalid by.
3.- Deviations from the DT 2nd Law 1/2013.-
Contrary to the position taken in the previous section, the majority jurisprudence, and even before the STJUE of 21 January 2015, I was considering the DT 2nd Law 1/2013 could not be applied, since among other arguments, integration constituted a prohibited doctrine issued by the European Court and not, as advocated by supporters of his application, simply fill a gap caused by the annulment of the clause with national law extension, this issue, which otherwise is not correct, just as it would be if the invalidity of the stipulation supusiese the contract in full and this was against the interests of consumers.
So things like Car of the Provincial Court of Barcelona 19 November 2014 (11), vienen a defender esta postura y así en su Fundamento de Derecho primero mantiene que “No podemos aplicar una norma más gravosa, paragraph 3 of Article. 114 LHIP introduced by art. 3.2 Law 1/13, intended as limiting pattern in the way of creation of the mortgage by the parties to realize that subscribe, by both. In our view, It declared invalid if the clause by abusive authorize the fixation of default interest by the performer using 2nd Transitional Provision of Law 1/2013 of 14 May, Community legislation and case law proposed above inability to modulate a provision contrary to European Union law contravenes. Not proceed with that will erase the abusive provision of the contract but moderándola unilaterally by the performer to place it, logically, the maximum that the legislature provides for a different purpose: determine the limit for qualifying abusive ". (12).
Likewise it pronounced the Provincial Court of Lleida, inter alia, in Auto 20 October 2014 (13), manteniendo en su Fundamento de Derecho segundo que “tampoco es posible acudir al Art 114 LH and the DT 2nd Law 1/2013 of 14 May , to understand that default interest can be reduced to three times the legal interest rate when a default interest rate is abusive, as this goes against the effect of the sanction of absolute nullity and derogation clause. So, the Art. 695.3 and 4 the Lec, the seat of foreclosure, is clear about the result of the consideration of a clause as abusive is your “derogating”. It follows that, be accepted if the argument put forward by the appellant, different consequences would occur between default interest clauses deemed unfair, for any other contractual clause was also, because in the first case one vice and void produce the effect of recalculation, namely, his moderation, while in all other cases the effect would be its inapplicability, never moderation, although both are affected the same defect. Therefore when the DT 2nd Law 1/2013 of 14 May use the word “recalculate” It must be interpreted consistently and understanding that is recalculated based on the cancellation of the moratorium abusive type because otherwise it would incur a moderation proscribed by the ECJ. "
Both the Provincial Court of Valencia (14), como la de Castellón (15) y Alicante (16) siguen este mismo criterio que se podría resumir por lo expuesto en el Auto de la Audiencia Provincial de Castellón de 10 July 2014 que en el Fundamento de Derecho segundo expone que “(t)ampoco must therefore be a recalculation of default interest in fixing them 12% as has definitely made the performing party and despite the provisions of art. 114 LH regarding 2nd Transitional Provision of Law 1/13 . It is the opinion of this Court (inter alia, Autos de 31 March, 15 , 28 and 29 May 2014 ) that against that rule must prevail the content of Directive 93/13 / EEC, on unfair terms in contracts concluded with consumers, as it has been interpreted by the aforementioned case-law of the Court of Justice of the European Community, so as to default interest, if the clause that imposes is regarded as unfair, It can not apply a lower interest than agreed, the result being non-application, so there can be no moderation, which is ultimately what would the application of that standard.
Thus it has to be, Under the principle of primacy of Community law, or European Union law, whereby it not is applied internal state regulations that are contrary to Community legal discipline ...
So, declared abusive clause governing default interest, comes the derogation, without having to integrate or moderate, with the result that a rule such as that contained in the Second Transitional Provision of Law 1/2013 , as long as an avenue for the recalculation of the default interest, It is contrary to Community law and jurisprudence, to the extent that allows the integration of abusive interest clause and therefore can be disapplied by the court. Arguably right, rather refrain from applying national law establishing the recalculation, It would be the approach by this Court of the question under Article. 267 the Treaty on the Functioning of the European Union , asking the Court of Justice in Luxembourg to rule on whether the Device. Second Transitional Law 1/2013 which enables recalculation of default interest is suited to the Community rules contained in Directive 93/13 / EEC. "
Following the lower case, the Provincial Court of Santa Cruz de Tenerife (17), In its order of date 11 July 2014 , es rotunda en este aspecto al exponer en su Fundamento de Derecho segundo que “ (the)a DT2ª, how could it be otherwise, regulates a transitional regime for some particular cases (mortgage loan for the purchase of residence), it only applies to cases in which it has declared void by abusive default interest clause. (.) The protection and defense of the mortgagor who has acquired a property as a residence is the basis and rationale for the limitation and default interest, and general, all the reform introduced by Law 1/2.013, and if that is the purpose, be counterproductive to impose the judge, by law, “integrate” Clause, setting the default interest in the legally maximum allowed. In this case, putting the legal provisions cited in relation to Article 695.1 the LEC, the next step is implementation dispatch without applying the default interest clause,…”
Finally we would like to highlight the SAP Pontevedra 27 February 2014 (19), that while following the criterion described in this sub-heading, It makes an important nuance and then, It has been confirmed by the ECJ in the Judgment 21 January 2015, to consider, Nonetheless, the DT 2nd Law 1/2013 It is not contrary to Directive 93/13 / EC.
Thus the Court of Pontevedra in the third Law Foundation of the judgment of 27 February 2014 mantiene que “ la mencionada Disposición Transitoria Segunda despliega sus efectos tanto hacia el futuro como, in terms of interest not satisfied, also the past, in the sense that both interest accrued and unpaid as those due after the entry into force of the Law (15 May 2013) They will be adapted to three times the legal rate of interest (12%).
But this rule is perfectly compatible with Art. 6.1 Directive 93/13 / EEC, since it is referred to cases of default interest clauses other than zero, by abusive or for any other reason.
It is a political decision of the legislature to set a limit to the rate of default interest when the mortgage loan is for the acquisition of the residence, but it should not affect the consequences of a declaration of nullity of a clause, whose sanction is to be taken and unwritten, therefore, the contract will be eliminated, without restraint or appropriate integration of any kind.
Indeed, the judgment of the Court of Justice of the European Union of 14 June 2012 (Banesto case / Calderón Camino), after recalling that the protection system established by Directive 93/13 It is based on the idea that the consumer is in a weak position vis professional and, precisely for this situation of inferiority, Article. 6.1 of the directive it provides that unfair terms are not binding on the consumer, devotes paragraphs 58 a 73 to resolve the question raised as to whether the art. 6, paragraph 1, Directive 93/13 It precludes legislation of a Member State, as contained in Article 83 the Royal Decree 1/2007 , it attaches to the national court, when it declared the nullity of an abusive clause in a contract between a professional and a consumer, the ability to integrate such agreement modifying the contents of the unfair term:
... This doctrine has been reiterated in the judgments of the Court of Justice of the European Union of 30 May 2013 (Erika JŐRÖS / Credit Aegon Hungary Ltd. ), and 3 October 2013 (Duarte Hueros/Autociba), recalling that it is for the national court to determine which national procedural rules applicable to proceedings before are now being referred, as well as, taking into account all of its domestic law and applying the interpretative methods recognized by the same, do everything within their powers to ensure the full effectiveness of the protection system established by the Directive and achieve an outcome consistent with the objective pursued by it (see, in this sense, Case 24 January 2012, Dominguez, C-282/10 , paragraph 27 and case-law cited).
Accordingly, Second Transitional Provision must be interpreted as applying to cases in which, a clause noting interest arrears than three times the legal interest, we are not facing an unfair term, inasmuch as, otherwise, namely, considering that it is a clause included in the scope of Directive 93/13 / EEC and that it is unfair, the immediate effect is the nullity of the contract and expulsion, without any possibility of moderation and integration. "
As we can see, most of our provincial courts take sides with the latter position and decide not to apply the DT 2nd Law 1/2013, at least in the sense intended by the other doctrinal sector exposed in the previous section.
Notwithstanding this, the final solution is giving the lower case following the annulment of the clause on default interest and the non-application of the DT 2nd Law 1/2013 It is not peaceful, and goes from the application of the statutory interest provided for in Article 1.108 CC, procedural interests 576 LEC, The remunerative interest, even those who defend the derogation resolutions of any interest.
So things, in the following we will try to show the different positions held by the jurisprudence and doctrine regarding the consequences of the declaration of invalidity of the stipulation of default interest.
3.1.- Interests Art. 1108 CC y 576 LEC.-
As it is clear from the title of this subheading, in the same we try a mix of responses that the law has been offering to solve the consequences of the declaration of invalidity of the clause abusive default interest, and so, first we examine the legal doctrine that advocates the application of interest for late payment provided for in Article 1108 CC.
Recall that Article 1108 CC expresa que “Si la obligación consistiere en el pago de una cantidad de dinero, and the debtor delays, compensation for damages, not there is agreement to the contrary, shall entail payment of the agreed interest, and lack of agreement, the legal interest. "
Those who defend the application of the interest provided for in Article 1108 CC sostienen como recuerda PUIG SANFIZ (20) que la aplicación ipso iure del referido artículo, It is not within the orbit and the application of moderation zero or contractual integration clause prohibited by Community law (21).
Certain academic writers, póngase como ejemplo MUÑIZ ÁLVAREZ (22) defienden también esta postura y así argumentan que conforme a la Directiva Comunitaria y a la doctrina del TJUE que la interpreta, It is not feasible to integrate or moderate the default interest agreed in the contract if it is declared unfair and therefore null. Arrears incurred by the debtor and therefore is exempt from contractual sanction because our domestic law cited in art. 1108 Civil Code linked to such arrears "not having agreed otherwise in the absence of agreement" is the payment of legal interest.
Añadiendo que esta es la sanción que nuestro legislador expresamente prevé para el caso en que el deudor incurra en mora y no se haya pactado otro interés (in this case it has been removed Contract), and its application ... does not imply integrate clause, but simply apply the consequences that the Spanish domestic legislation tied to the delay in the fulfillment of the obligation.
No frustrating, thus the deterrent effect that the Community Directive aims, Since the legal interest is much lower than three times the same thing as a penalty for late payment it could have been included in the contract without problems abusiveness, nor is allowed without penalty or better condition is the default on a mortgage in respect of any other.
An important caveat regarding this position is introduced by Alastruey grace and LEDESMA IBÁÑEZ (23), They differ in that in the case of the abusiveness of clause full or only of the type, and thus specify that:
1.-If one chooses to consider the nullity only affects the rate of default interest but not to the clause itself seems that the appropriate response would be to understand that time is applicable statutory interest from the respective non-payment of each installment in declarative, executives and monitory, that will rise two points from the resolution of an executive nature (declarative or decree for payment).
This considering that, in the absence of agreement- what the invalidity of type- equates, It is applicable legal regime, for ordinary cases, It is the provisions of art. 1108 Civil Code, except in those cases where there is a specific rule otherwise legally regulate interest for late payment to the specific case.
2.- However, between those who interpret the nullity affects the regulatory default interest clause, on the understanding that this does not affect other contractual agreements and does not prevent, for example, the claim of principal plus ordinary interest due, These consequences are possible:
(i) the estimate that if we declare null default interest, there can be no delay granting other interests other than those agreed, or legal, or other, nor be the main interest continues to accrue remunerative, since any of these methods involve, ultimate, moderating interest rate.
(ii) to consider that, in any case, They are from the procedural interests but this raises the question whether there is the application of that rate of interest to non-judicial titles, Despite what is stated in art. 575 LEC.
(iii) to consider that, at least, would apply, Despite the early termination of contract, the agreed interest remuneratorio.
This balance by economic and performance reasons it does not seem worthy of consideration that the borrower consumer has a foreign money, not return and pay the agreed price even for borrowing money.
Although this nuance is very illustrative, we understand that, according to the ECJ case law cited above, what should be declared invalid clause is not simply the interest rate, so the argument from applying the Article 1108 CC, as we argue below is, how much less, questioned.
As for the application of the interest provided for in Article 576 LEC from executing the office, Judicial pronouncements are many who advocate this solution, jointly with the application of the legal interests Article 1.108 CC (these execution to said office), well without it being applied that legal interest.
So, the Provincial Court of Valencia in the Day of Unification of criteria 30 May 2014, exposed to discuss the nullity of the unfair term in foreclosure (interests: effects. Recalculation.), that:
* (The) DT 2nd Law 1/2013 (this is) applies only to mortgages granted on residence: The third paragraph does not allow the Bank to moderate the rate of default interest. If the clause is void for abusive, be eliminated from the calculation radically default interest.
* If not apparent that the clause is abusive default interest, It is then applied the recalculation provided in the standard (for example, in cases where applying three times the legal interest to be a 12% the maximum, and the agreed moratorium was a 13-14%: It would be disproportionate, but exceed the maximum provided by law. In such cases it is considered proceed recalculation, to set the legal limit.
* Interest applicable in case of default interest clause void: interest 576 LEC from dispatching auto execution, because the rule refers to "resolution" and no interest would accrue from any maturity date, also applied directly without parte.
As we see, the judgment of the Provincial Court of Valencia, although it is not prone to the application of Article 1108 CC, He understands itself as a firm implementation of the resolutions under Article 576 LEC, and determines their application in the event of invalidity of the stipulation of default interest.
As to the lower case, include the Order of the Provincial Court of Barcelona 19 November 2014 (24), which opts for the application of both legal interests Article 1108 CC, as procedural article 576 LEC, and this on the basis that, without involving the prohibited incur an unfair term moderation (Rollo 554/13), in the present case should enable the established legal provisions in case of default to the “Lack of agreement” and “agreement of the parties” contained in articles. 1.108 CCivil (from the default of each installment until the closing of the capital account and overcome advance of that date, until the issuance of dispatching Self execution) and 576.1 LECivil (From this moment): – conventional clause stating the applicable rate has been deleted from the legal world, no additional punitive consequences are foreseen by the Planning following the annulment and – It is clearly the will of the plaintiff to sue default interest from the maturity of each of the quota capital ahead and overcome advance…
Notwithstanding the provisions of art. 576.1 LECivil from dictation dispatching the Self which we consider applicable implementing this resolution involve a court order condemning the payment analogous to what happens in art. 816.2.II LECivil, the interest rate applicable delay on unpaid assessed contributions from their respective due date until the closing of the account and the principal due in advance of this date shall be the legal money ...
So things, Given the complete absence of default interest clause, it seems more respectful of the Community scheme go to the standards that the law provides a concrete and definite solution to the delinquency, which excludes the unilateral option of the parties: under the procedure of the arts. 1.108 CCivil and 576.1 LECivil that is the solution adopted by the Court in the contested decision -implícitamente regarding the procedural default interest from office- that is why it must be confirmed.
The same view is the Provincial Court of Jaén, that the basis of the order for second 31 March 2014 (25) expuso que si partimos de la consideración de que el interés por mora tiene por finalidad sancionar el incumplimiento del contrato por el prestatario y su declaración de nulidad no proviene de su existencia sino del exceso pactado, would not be a solution to the unpaid equity capital does not accrue any interest, and who do not unduly restored, in clear breach of contract, keep it free and profitably in its power by its own fruit, so under such issue Plenillo day 11 October 2013 It has agreed to apply the legal interest section 1108 the Civil Code and is corrected in the contested decision considering this Chamber that this is not carried out an integration of the unfair term but an integration contract, to safeguard the balance of benefits between the parties, so that the correction of the imbalance that pose a predatory interest arrears can not take shelter situations consecrate or unjust enrichment in favor of the defaulting debtor to the detriment of the bank that had some damage from the breach of contract.
Meanwhile sixth Section of the Provincial Court of Valencia, but you understand that it is not applicable statutory interest provided for in Article 1108 CC, as expressed in its Decision of 6 February 2014 (26), He does understand that interest will accrue on the procedural article 576 LEC, from the office of enforcement and this, as expressed in the basis of the order for third 17 July 2014 (27), because (d)eclarada the nullity of the clause fixing the penalty interest, pending settlement thereof, Nonetheless, They are to be applied, by law, Article interest 576 LEC, which accrue from any resolution condemning is issued to pay certain amount-which we understand has to include the dispatching auto execution- without his specific request, to accrue ope legis. This is not a null clause integrate itself-which would occur in the event of default interest reduction to accommodate the maximum legal limit- but refrain from applying it, accruing, instead, legally provided interests. The reason for such an assessment is simply to prevent the same treatment in cases of compliance or noncompliance, what would happen if, with a declaration of invalidity produced, not established, however, the application of a legal interest, as the LEC itself indicates, does not require, at least, express request to that effect. The appeal is to that effect.
As it is clear from the discussion in this section, the lower courts have chosen, Until now, by giving different solutions to the same problem, trying to understand a solution equity in order to save for abusive annulment of the provision of default interest and the equation of the defaulting debtor achiever.
Last, in the next section, We expose another of the solutions proposed by the lower case, and we understand it more in line with current legislation and especially with the doctrine of the ECJ issued.
3.2.- No application of interest.-
This position is defended by those who understand that as a result of the statements made by the ECJ in Case referred above, it is not possible to moderate or integrate a contract when it has declared void by a clause abusive penalty interest, even accepting as valid the solution to cover the gap in the contract suffered by national law extension, since in any case would mean a loss of deterrence for professional predisposing involving Article 7 Directive 93/13 CEE.
En este sentido se posiciona BALLUGUERA GÓMEZ(28) al entender que la previsión legal, either the Art. 1108 CC, either the Art. 114 LH, whether the procedural default of art. 576 LEC, It operates as a course of integration under the contractual arts. 1258 CC y 65 TRLGDCU, but it is vetoed such integration for the benefit of predisposing or professional, It stuck that criterion and the answer is that the amounts due shall not earn any interest on arrears nor for remunerative interest, concorde only solution to the deterrent effect of the rules in Spanish law prohibiting unfair terms.
Añade BALLUGUERA GÓMEZ (29) that reducir automáticamente un interés de demora superior a tres veces el interés legal del dinero en hipotecas anteriores a la entrada en vigor de la Ley 1/2013, that ceiling, It is a contradiction, since no interest contrary is supplied to delay by one lower limiting agreed, but it is supplied or integrated with the legal maximum to the detriment of the debtor.
To reach that legal integration has been taken to remove the default interest clause of the contract and if it is removed because it is contrary to the legal limit, so it is a case of unfair term null Art. 8 LCGC, can not then be subject to consolidation according to the new art. 83 TRLGDCU.
Afirma el autor que el sentido de la limitación no puede ser la reducción de los intereses moratorios al límite legal sino la nulidad de la cláusula con imposibilidad de integración, so the rehabilitation of it requires a new covenant, result of negotiations, between creditor and debtor.
Similarly RUIZ DE LARA (30), to analyze the Advocate General of the ECJ the question thread C 482/2013 raised by the Court No. 2 Marchena, mantiene que la Directiva 93/13 It implies that the court should remove the offending terms of default interest, can not replace the kind of abusive interest rate no lower, including those identified by the regulatory provisions of national law. Ie the court should delete the clause of default interest, without being able to replace the abusive type for the resulting article 1108 the Civil Code or by any other legally established interest.
La misma conclusión extrae MORENO TRAPIELLA (31) al analizar las palabras del Abogado General Nils Walhl, incidiendo en que una vez la cláusula sobre interés moratorio ha sido declarada abusiva, las facultades de los jueces nacionales se circunscribe a que «dejen sin aplicación una cláusula contractual abusiva, so that it produces no binding effect on the consumer, but it does not authorize them to modify the content of it '. Therefore, If the ECJ confirms the opinion of the Attorney General, Provincial Courts, Once accredited the unfairness of a default interest clause, they wont be able, as they had been doing, integrate the null clause abusive with art. 1108 CC.
Por su parte BLANCO GARCÍA-LOMAS (32) hace una observación que nos parece del todo acertada y según la cual quedaría totalmente inoperativa la aplicación del artículo 1108 CC in these cases, y es que el artículo expresamente expone que “Si la obligación consistiere en el pago de una cantidad de dinero, and the debtor delays, compensation for damages, not there is agreement to the contrary, shall entail payment of the agreed interest, and lack of agreement, the legal interest ".
As you see, the application of this type of interest it will only and according to the law itself sets "not having agreed otherwise", y como apunta Blanco García-Lomas el pacto existe, although the effect of the partial annulment of his statement abusiveness, no effect and is expelled from the bargaining Life.
Consequently does not share, or we do, the art applicable. 1108 CC, because this one is in default of agreement. Namely, if the parties have established, in exercise of its autonomy, the obligation to repay a sum of money, but do not establish the consequences of late payment, would apply Article 1108 CC. But in the case of the declaration of nullity of the relative clause abusive to default interest, the parties themselves have stated that the consequences of the delay in repayment of a sum of money. There the covenant. Another thing is that to be declared invalid, this covenant is excluded from the contract and has not built solely for the purposes of the judgment on the effectiveness of the remaining contractual terms of the contract, you must survive without this covenant, without additions or modifications, integration without any.
Therefore, as White says, if we apply the art. 1108 CC, we are integrating the device under contract law, that is what the ECJ to be eradicated, to prevent the persuasive effect pursued by the Community rules remain disabled.
The lower case has also been positioned in favor of this position and thus the Ninth Section of the Provincial Court of Madrid in Auto 27 November 2014 (33) expuso que the contract clause deleted moratorium interest and prohibited the integration contract in this aspect, the default of the debtor can not earn any interest, which consequently void by abusive clause inserted in the contract and contributes to the deterrent purpose of the Community court refers”…. You can not moderate or agreed interest recalculated because , as previously discussed, the case law contained in the judgment of the Court of Justice of the European Community, and the doctrine of the Supreme Court which declared the nullity of an abusive clause can not moderate it…Thus it has to be, Under the principle of primacy of Community law, or European Union law, whereby it not is applied internal state regulations that are contrary to Community legal discipline.
Also it is noteworthy, for its clarity and depth of analysis, the Auto 11 July 2014 de la Audiencia Provincial de Santa Cruz de Tenerife (34) en el que mantiene que con respecto a los intereses moratorios, it should be noted the following:
(i) even though it is obvious, They remain the conceptualization of default interest, so whatever their origin, convencional o legal, STILL BANNED;
(ii) in this connection, we must add that the annulment has an enforcement component that should not be neglected, and it is not fair that the professional offender that predisposes an abusive pact default interest can obtain legal interest in applying Article 1108;
(iii) moreover, the rate of default interest under Article 1108 the Civil Code is designed for a situation (in the absence of agreement) it is not comparable to that here are prosecuted (considered null pact).
In any case, the issue has become quite clear after the recent STJUE of 30 April 2.014, pointing to the possibility of integration would only be permitted in a situation where, having removed a clause after the declaration of unfairness of it, I can not stand the contract, in which case, the national court, applying the principles of contract law, You can replace it with an extra provision of national law ...
Ultimately, the solution given by the Court constitutes a disguised integration, leading to the declaration of invalidity of the clause in which an abusive default interest is established have limited effects, This not only contravenes the jurisprudence of the ECJ in the strict terms of the prohibition of integration, but to further the interests of professional detriment of the consumer, also violates another axiom of the jurisprudence, which is that the system of protection established by Directive 93/13 It is based on the idea that the consumer is in a weak position vis professional, as regards both his bargaining power and his level of knowledge.
Regarding procedural default interest, only it can say that everything that applies to default interest Article 1108. En realidad, Article 576 LEC is, partly, -and pure transcription application- Item 1108 Civil Code , both founded on the same philosophy, sanction which does not fulfill its obligations, a plus when there's a sentence that so declares. This philosophy is not applicable to this case, where what is involved is to sanction acts in legal abusing its dominant position.
In any case, Article 576 LEC has three options with respect to the interest rate applied, totally independent of each other:
(i) the legal interest of money increased at two points,
(ii) or appropriate by agreement of the parties,
(iii) or special provision of the law.
In this case, to which it should apply the third option, so the above mentioned legal provisions prescribe categorically is not applying any interest on arrears or replacement thereof. Accordingly, The Board understands that the interests referred to in Article 576 the LEC, nor the 1108, They are applicable to this case, because apart from being a form of integration of a clause declared invalid, proscribed by the jurisprudence of the ECJ, contravenes the provisions of the said Article 561.1, 3º LEC, whose effect is categorical”.
The Provincial Court of Alicante is very explicit and emphatic in this case and so, in Auto 30 May 2014 (35), his ninth section, expone que los intereses declarados nulos por abusivos no pueden ser sustituidos por los del artículo 1108 civil code , in order, nor can only apply for an unfair term replaced by an extra provision of national law, when as STJUE to say 30 April 2014 , to the detriment of the consumer attends “a situation such as that in the main proceedings, in which a contract concluded between a supplier and a consumer can not exist after the abolition of an unfair term, that provision does not preclude national legislation which allows the national court to remedy the invalidity of that provision replacing it with an extra provision of national law.”, that is not the case at hand.
Nor does the article 576 the LEC, to consider this Section Nine, that is not subsumed dispatching the car running between the decisions or resolutions condemning expressly said that procedural provision relates, but we are in this case to the special case of Article 816 the LEC, specifically provided for payment trial. (36)
Finally we would not fail to mention the arguments made by the Provincial Court in Auto Castellon its third section 18 June 2014 (37), en el que claramente se posiciona por la no aplicación de interés alguno y así expone que en cuanto a los intereses previstos en el art. 576 LEC and art. 1.108 of C. Civil arrived at the same solution ultimately not be the budgets for the implementation of those rules, Since in the first case it is not timely ordered (as is well known device are fastened to the top) while in the second we are not legally referred to the situation and determines without any intimation corresponding accrual ...
... It can not be applied in this case Article 576 LEC because it is intended for the case that the judgment or order contains a statement condemning the payment of an amount of liquid money, and this foreclosure, their special characteristics, No such pronouncement of sentence required under that provision by which it is ordered to pay an amount of liquid money. Auto unable equated by which implementation is dispatched and the debtor is required to pay the amount due to the pronouncement of sentence that requires that article amount of the Procedural Law.
With regard to the interests of Article 1.108 the Civil Code, which establishes the legal interest in arrears when the obligation consists in the payment of a sum of money and the debtor delays, apply in this case by way of damages the legal interest, in the absence of agreement, it may not be applicable to this case because, unlike the procedural default interest provided for in Article 576 the LEC , which they can be applied automatically by the court without the express request of the party, legal default interest Article 1.108 Civil Code require the express request, what is not interested in its application the plaintiff, having requested the agreed interest, both remunerative as arrears, No Article 1.108 Civil Code . Therefore, He had dispatched for execution by such legal default interest he should have applied instead of the agreed moratorium, since the legal interest on arrears is due to lack of agreement as to that class of interest.
In conclusion to the above so far regarding the consequences of the invalidity of the clause of default interest by abusive, once all positions held views about, we understand that not apply the DT 2nd Law 1/2013 in conjunction with Article 114 LH for cases where the contracting parties are a professional and a consumer, nor shall any subsidiary application of national legal rule containing a forecast of interests and specifically, shall not apply and the legal interests Article 1108 CC, or procedural article 576 LEC.
This we say, first and as Article 1108 CC, since there are several issues that arise if we compare the declaration of invalidity of the clause of interest by abusive and that provision, and so the first thing we face is that the interests of that provision, as all pretense of private law, They are subject to the principle device and therefore must be ordered expressly by the party in the beg of demand (SSTS 9-7-1991, 30-3-1993 and 17-2-1994, inter), an issue that in practice we see that does not happen, limited financial institutions to apply the agreed interest or at most reducing it to the parameters set by the DT 2nd Law 1/2013, which will lead, sin más, not to be applied, the judge can not, ex officio, I impose.
Also, the application of such interest, We would understand that integration vetoed by the ECJ, since a null clause by abusive may only be replaced by an extra provision of national law when, as STJUE of said 30 April 2014, there is a detriment to the consumer, question that hardly happens when what is being done is annul the default interest.
Finally we must add that also apply the interest provided for in Article 1108 CC, since the same, as the article itself provides, only take place in the absence of agreement between the parties, and in cases, as we are now examining, whether there has been agreement, but it has been declared invalid by abusive.
Having analyzed the issue concerning the application of Article 1108 CC, we will discuss, en segundo lugar, the possibility of imposing procedural interests Article 576 LEC.
Unlike some sector of the lower case, previously mentioned, also we understand that interest should be imposed Article 576 LEC, y ello, since the same way and by the same arguments previously, integration would be vetoed by the ECJ.
Also, They should not be applied, because as is clear from the wording of that provision, únicamente procederá su aplicación “(d)ince it be given at first instance, any judgment or decision ordered to pay an amount of liquid money ... ", Of course we understand this can not be assimilated to Auto dispatching execution, since it is not conviction and also contains an amount of liquid money to pay.
Do not forget that the car shipped execution, what it does is give the option to pay an amount that the performer says he is due, or conversely oppose such payment. By giving the possibility to oppose payment, It will inevitably follows that the amount can be discussed, and that, unlike a conviction, there is no order to pay an amount no possibility of any claim.
The defendant may oppose execution and prove that what is claimed is not what you really should, so it can not be assimilated to the cases provided for by Article 576 LEC, in which, procedural interests are foreseen for cases where the amount is already determined and has been a previous trial by an impartial and predetermined judge who issued a resolution condemning, prior claim and defense of the parties.
If asimiláramos the office of a resolution condemning execution, We would leave the defendant (consumer), in a total state of helplessness and would be applying a presumption of guilt that does not correspond with reality because the executed, according to the procedure established by law rituaria can defend themselves demand performer.
Also, Nor is it determined the amount claimed, since this "determination" has been made by the applicant himself and thus may be subject to contradiction and be altered, so we understand that in such a case would be far from being able to have the same effect as a conviction.
For these reasons we believe that, in the same way as with the article 1108 CC, it can not be successful implementation of procedural interests provided in Article 576 LEC.
Juan Juan Rafael Sanjose
Alternate Judge of the Provincial Court of Castellón.
(1) MUÑIZ ALVAREZ, I., "The interests ...", on. cit.
(2) PUIG SANFIZ, A., "Consequences of the invalidity of the clause of default interest: Sentencia TWENTY the 21 January 2015 ", The right, 22-1-2015, http://www.elderecho.com/tribuna/www-elderecho-com/declaracion_de_nulidad_de_la_clausula_de_intereses_de_
(3) SANCHEZ GALVEZ, F., "Seminar on unfair terms of trade and control - conclusions", Conclusions Seminars 3, 2014, CGPJ
(5) AAP Jaen, Civil section 1 the 31 March 2014 ( ROJ: AAP J 1/2014 – ECLI:ES:APJ:2014:1A) – Sentence: 73/2014 | Resource: 207/2014 | Speaker: JURY JESUS MARIA CABRERA
(6) PUIG SANFIZ, A., "Consequences of invalidity ...", on. cit.
(7) AAP Cádiz, Civil section 8 the 30 September 2014 ( ROJ: AAP CA 9/2014 – ECLI:ES:APCA:2014:9A) -Sentence: 163/2014 | Resource: 160/2014 | Speaker: MARIA DEL CARMEN GONZALEZ CASTRILLÓN
(8) AAP Sevilla, Civil section 6 the 17 September 2014 ( ROJ: AAP SE 6/2014 – ECLI:ES:APSE:2014:6A) – Sentence: 181/2014 | Resource: 9594/2013 | Speaker: TORRECILLAS FRANCISCA MARTINEZ
(9) AAP Córdoba, Civil section 1 the 30 April 2014 ( ROJ: AAP CO 13/2014 – ECLI:ES:APCO:2014:13A) – Sentence: 185/2014 | Resource: 317/2014 | Speaker: CRISTINA MIR RUZA
(10) PUIG SANFIZ, A., "Consequences of invalidity ...", on. cit.
(11) AAP Barcelona, Civil section 11 the 19 November 2014 ( ROJ: AAP B 480/2014 – ECLI:ES:APB:2014:480A)-Sentence: 271/2014 | Resource: 421/2014 | Speaker: ANTONIO GOMEZ CANAL
(12) In this sense, the following resolutions have spoken of our provincial courts: AAP Castellon, Sec. 3ª, of 18/12/13, SAP Girona, Sec. 1ª, of 3/3/14 SAP and Cadiz, Sec. 2ª, of 28 March 2.014 in which we read: "In some rulings of our courts the thesis of three times the legal interest is defended by analogy with art. 114 of the Mortgage Law in the version given by Law 1/2013, razonándose that this is the type that the legislature has recently considered abusive reference interest. The argument is hardly convincing from the perspective of the above Community case law: if the boundary of the abusive type stands at three times the legal interest, whatever superior in principle could be, so that at that level I minorarlo, would in many cases clearly an equivalent operation to simple moderation banished by the judgment of 14 / June / 2012 (TJUE).”
(13) AAP Lleida, Civil section 2 the 20 October 2014 ( ROJ: AAP L 23/2014 – ECLI:ES:APL:2014:23A)- Sentence: 173/2014 | Resource: 115/2014 | Speaker: ALBERT MONTELL GARCIA
(14) At. AAP Valencia, Civil section 6 the 24 July 2014 (ROJ: AAP V 110/2014 – ECLI:ES:APV:2014:110A)- Sentence: 146/2014 | Resource: 310/2014 | Speaker: JOSE FRANCISCO LARA ROMERO
(15) At. AAP Castellon, Civil section 3 the 10 July 2014 (ROJ: AAP CS 49/2014 – ECLI:ES:APCS:2014:49A) – Sentence: 153/2014 | Resource: 262/2014 | Speaker: RAFAEL RAMON GIMÉNEZ
(16) At. SAP Alicante, Civil section 9 the 30 May 2014 (ROJ: SAP A 1396/2014 – ECLI:ES:WHAT:2014:1396) – Sentence: 277/2014 | Resource: 713/2013 | Speaker: JOSE MANUEL VALERO TEN
(17) AAP Santa Cruz de Tenerife, Civil section 4 the 11 July 2014 ( ROJ: AAP TF 109/2014 – ECLI:ES:APTF:2014:109A) – Sentence: 135/2014 | Resource: 232/2014 | Speaker: FERNANDO SUAREZ EMILIO DIAZ
(18) At. in the same sense the AAP Jaen, Civil section 1 the 31 March 2014 ( ROJ: AAP J 1/2014 – ECLI:ES:APJ:2014:1A) – Sentence: 73/2014 | Resource: 207/2014 | Speaker: JURY JESUS MARIA CABRERA and SAP Girona, Civil section 1 the 03 March 2014 ( ROJ: SAP GI 254/2014 – ECLI:ES:APGI:2014:254) – Sentence: 68/2014 | Resource: 1/2014 | Speaker: MARIA ISABEL NAVARRO SOLER
(19) SAP Pontevedra, Civil section 1 the 27 February 2014 ( ROJ: SAP PO 429/2014 – ECLI:ES:APPO:2014:429) – Sentence: 70/2014 | Resource: 73/2014 | Speaker: MANUEL ALMENAR BELENGUER
(20) PUIG SANFIZ, A., "Consequences of invalidity ...", on. cit.
(21) We would, for, before the intermediate thesis recognized by a broad spectrum of our Provincial Courts mention -pudiendo, among other resolutions, the following: Auto nº 521/2013 9th Section of the Provincial Court of Valencia 20 November; Auto nº 93/2013 2nd Section of the Provincial Court of Guipuzcoa 19 November; Judgment No. 85/2014 2nd Section of the Provincial Court of Albacete 12 May; Judgment No. 337/2014 Section 1 of the Provincial Court of Pontevedra 13 October or No. Auto 104/2014 Section No. 6 the Audiencia Provincial de La Coruna 30 September.
(22) MUÑIZ ALVAREZ, I., "The interests ...", on. cit.
(23) ALASTRUEY GRACE, R. and LEDESMA IBÁÑEZ, P., "Judicial control of unfair terms, especially default interest. STJUE consequences of 14 June 2012 – Workshop on STJUE scheme of 14 June 2012 ", Digital Training Notebooks, No release 21, Year 2014, CGPJ
(24) AAP Barcelona, Civil section 11 the 19 November 2014 ( ROJ: AAP B 480/2014 – ECLI:ES:APB:2014:480A)Sentence: 271/2014 | Resource: 421/2014 | Speaker: ANTONIO GOMEZ CANAL (Legal Grounds 1)
(25) AAP Jaen, Civil section 1 the 31 March 2014 ( ROJ: AAP J 1/2014 – ECLI:ES:APJ:2014:1A) -Sentence: 73/2014 | Resource: 207/2014 | Speaker: JURY JESUS MARIA CABRERA
(26) AAP Valencia, Civil section 6 the 06 February 2014 ( ROJ: AAP V 108/2014 – ECLI:ES:APV:2014:108A) – Sentence: 16/2014 | Resource: 634/2013 | Speaker: JOSE FRANCISCO LARA ROMERO (Third foundation of law): What is not permissible is that, indirectly, by invoking the absence of an agreement on interest on late payments , that did exist and was declared void, seeking to establish, indirectly such interest again , even in the legal amount, because the pact on interest did not reference any such provision , y ello, as outside we reiterate what I can, hereafter, determining the accrual of procedural interests . The appeal must be dismissed, and confirmed the contested.
(27) AAP Valencia, Civil section 6 the 17 July 2014 ( ROJ: AAP V 105/2014 – ECLI:ES:APV:2014:105A) – Sentence: 140/2014 | Resource: 330/2014 | Speaker: MARIA RAMOS MASTER
(28) BALLUGUERA GOMEZ, C., "NULL default interest ..." op. cit.
(29) BALLUGUERA GOMEZ, C., "Integration of unfair terms of contractual penalty, delay and early maturity – The reform of the integration of unfair terms in specific cases ", Law Journal, No. 8344, Section Doctrine, 1 July 2014, Year XXXV, Editorial LAW
http://www.laley.es/Content/Documento.aspx?params=H4sIAAAAAAAEAO29B2AcSZYlJi9tynt/SvVK1 B0oQiAYBMk2JBAEOzBiM3mkuwdaUcjKasqgcplVmVdZhZAzO2dvPfee 999577733ujudTif33/8/XGZkAWz2zkrayZ4hgKrIHz9 fB8/IorZ7LOnb3bo2dvd27/38Bde5nVTVMvP9nZ293c 3f0UHxTn10 r6ZvrVf7ZeVY2 S/MJ1X1Nnjv9zft/x/05vcBUQAAAA==WKE
(30) RUIZ DE LARA, M., "Reflections on Advocate General of the ECJ the question thread C 482/2013 No. 2 raised by the Court of Marchena ", LAWYERPRESS, Madrid, 27 October 2014 – http://www.lawyerpress.com/news/2014_10/2710_14_003.html
(31) MORENO Trapiello, P., "Review of office of the possible existence of unfair terms, new grounds for opposition after Law 1/2013 – (Review of the Advocate General Nils Walhl to the question of the Court No.. 2 Marchena)”, Law Journal, No. 8435, Section Doctrine, 4 December 2014, Year XXXV, Ref. D-410, Editorial LAW
(32) BLANCO GARCIA-LOMAS, L., "The adaptation of the legal system ...", on. cit.
(33) AAP Madrid, Civil section 9 the 27 November 2014 ( ROJ: AAP M 250/2014 – ECLI:ES:APM:2014:250A) – Sentence: 322/2014 | Resource: 678/2014 | Speaker: JUAN LUIS ALVAREZ-VALDES GORDILLO (First Legal Grounds)
(34) AAP Santa Cruz de Tenerife, Civil section 4 the 11 July 2014 ( ROJ: AAP TF 109/2014 – ECLI:ES:APTF:2014:109A) – Sentence: 135/2014 | Resource: 232/2014 | Speaker: FERNANDO SUAREZ EMILIO DIAZ (Grounds as Derecho)
(35) SAP Alicante, Civil section 9 the 30 May 2014 ( ROJ: SAP A 1396/2014 – ECLI:ES:WHAT:2014:1396) – Sentence: 277/2014 | Resource: 713/2013 | Speaker: JOSE MANUEL VALERO TEN (Grounds as Derecho)
(36) At. in the same sense the SAP Girona, Civil section 1 the 03 March 2014 ( ROJ: SAP GI 254/2014 – ECLI:ES:APGI:2014:254) – Sentence: 68/2014 | Resource: 1/2014 | Speaker: MARIA ISABEL NAVARRO SOLER: The result of the application of this criterion to the case is that, the contract clause deleted moratorium interest and prohibited the integration contract in this aspect, the default of the debtor can not earn any interest, which consequently void by abusive clause inserted in the contract and contributes to the deterrent purpose of the Community court refers.
(37) AAP Castellon, Civil section 3 the 18 June 2014 ( ROJ: AAP CS 36/2014 – ECLI:ES:APCS:2014:36A) – Sentence: 124/2014 | Resource: 76/2014 | Speaker: ADELA BARDÓN MARTINEZ (Grounds as Derecho)