Two unfair terms key: Interest on late payments and early maturity
In the extensive catalog of unfair terms that appear frequently in mortgage loan contracts, They stand out for their importance relative to interest on arrears and early maturity.
On the one hand, the amount of intereses de demora You can greatly increase the amount the lender claims in the event of default. The removal of this clause reduces the debt in a major way. Alternatively, the declaration of abusiveness of the early termination clause, You can allow the dismissal by filing a demand for execution.
The Supreme Court, It has spoken on these two unfair terms in Judgment 18 February 2016.
Customers had signed a equity loan with BBVA in July 2006, amounting 180.000 euros (expanded and novated in 2007 and 2008). Among other provisions, He remembered one interest on arrears 19% annual and one early termination clause that allowed the bank's unilateral termination of the contract with the mere default share.
En junio de 2013 They filed lawsuit seeking the annulment of the provisions "sixth" and "sixth bis" from his contract.
The Court of First Instance No. 2 Zamora gave judgment on 20 February 2014, and he declared the invalidity of both clauses, ordering the repayment of the amounts that would have been able to overcharge for late payment interest.
BBVA appealed to the Zamora Provincial Court, which partially upheld the appeal: He considered that the annulment was limited to early maturity.
So BBVA filed appeal to the Supreme Court, around the issues of effects of the declaration of invalidity of the clause default interest and the abusiveness of the early termination clause.
Default interest on mortgage loans
The High Court refers to its judgment of plenary 23 December 2015: The Law 1/2013 of 14 May amended Article 114 of the Mortgage Law, establishing a maximum for default interest on loan agreements for the purchase of residence three times the legal interest. Previously concluded contracts, It was due to such legal ceiling mold (Second Transitional Provision of the Law).
One time abusive clause declared default interest, It must be completely removed from the contract (STJUE 21 January 2015, relative to the STS 22 April 2015, Auto part TWENTY the 11 June 2015). The national court may not integrate the contract, and late payment interest shall be deemed not put.
For the Board, the limit to consider the abusiveness not only reference Article 114.3 of the Mortgage Law (three times the legal interest). That would be a limit to, even they can be elevated public write access the registry or contracts that infringe.
The criterion for both, is that established by the STS 262/2015 of 22 April, for personal loans (It is abusive non-negotiated clause sets a default interest involving an increase of more than two percentage points from the agreed interest remuneratorio).
The High Court indicates that the issue has been resolved by the judgment of the Full 23 December 2015.
Early termination clauses are valid, provided they are clearly identified in the contract assumptions that may give rise to such expiration, without leaving to the discretion of the lender.
Referring to STJUE of 14 March 2013, para la Sala, the anticipated maturity clause in question is abusive because although you can rely on Articles 1125 and 1129 CC, not modulate the severity of noncompliance depending on the duration and amount of the loan, nor allows the consumer to avoid its application by diligent conduct repair:
“And, in any case, it seems clear that a clause expiration I anticipated that the resolution allows the failure of a single term, even partial and in respect of a Havingaccessory ligation, It must be esteemed as abusive, since it is not linked to quantitative parameters or temporarily grave”
Ultimately, the abusiveness of this writing early termination clause is confirmed, and therefore it becomes zero.
The fact that a clause has not come to be applied does not oppose itself to the national court to deduct all appropriate consequences of unfairness of the clause (Auto TWENTY 11 June 2015).
However despite estimate the abusiveness, the Board opts for the application of 693.2 the LEC. the nullity of the clause is declared but no discontinuance of the execution process, indicating connection that would prevent the consumer will benefit from the advantages the law gives the mortgagor (fundamentalmente 693.3 LEC, 579 LEC and 681 y ss LEC).
In the judgment of the High Court the dissenting opinion of Judge is issued D. F.J. Orduña Moreno, which calls for the declaration of nullity of the clause must necessarily plunge the discontinuance and file. He considers that this doctrine conceptually distorts control clashes with abusiveness and the jurisprudence of the ECJ in this matter.
We will have to wait for the judgment that follows each provincial hearing the CJEU final judgment and consider, to know what to expect with the acceleration clauses.