Mortgage multicurrency annulled in Valladolid
The Court of First Instance No. 6 Valladolid has declared partially invalid one multicurrency mortgage Bankinter sentence 8 April 2016.
Customers working as poultry carrier and as an administrative. They had the status of consumers and had no investment experience or financial market or currency.
With the intention of improving the conditions of a mortgage loan they had with the Caixa de Ahorros y Pensiones de Barcelona, They hired one multicurrency mortgage in September 2007 with Bankinter, por valor de 155.000 euros that became 24.961.200 yen.
Despite having spent eight years and have paid dues, in September 2015 should 183.152 euros
In October 2015 they presented demanda de nulidad de las cláusulas de opción multidivisa, by abusiveness and vice esencial en la prestación del consentimiento. In its, They requested
- La anulación parcial de los pactos multidivisas.
- La integración del contrato, so that the outstanding balance of the mortgage in euros would be the result of reducing the initial amount, the amounts paid in principal and interest in euro, the defendant must recalculate the outstanding contributions taking into account payments made in their euro. The interest rate would be fixed in writing for the euro, namely, Euribor plus differential agreed, and allocating the excess payment made after recalculating the early repayment of capital, statutory interest.
- La imposición de las costas al banco.
The applicants contend that It was not adequately informed about the economic impact that could have the multicurrency mortgage.
The bank alleges expiry in action and denies that there was defect in the consent because he had provided full information about the product , so that customers were fully aware of what hired.
Judge-Judge dismisses expiration, because it is a contract successive and citing the STS 12 January 2015, indica que el plazo de caducidad no empieza a correr hasta que se han finalizado por completo las prestaciones del mismo.
As to control of unfair terms, It refers to the jurisprudence (STS 24 March 2014) to indicate that double, on one side of incorporation (documentary or grammatical comprehensibility) and another transparent (understanding of the economic burden of the contract)
As it regards the nature and risks, (STS 30 June 2015), the multi-currency mortgages comprenden tanto el riesgo de variación del tipo de interés como el de fluctuación de la moneda. And, the latter affects not only monthly payments, but the total outstanding debt.
Regarding the applicable regulations, It indicated that it is not a peaceful issue, but what in any case, the bank is not exempt from offer customers the information necessary to understand the mortgage multicurrency based on the content of the article 79 of the Securities Market Act, before the entry into force of MiFID.
Also, the duty of information had been collected in the sectoral regulations (Law 26/1988 Discipline and Intervention of Credit Institutions Art.48, Order 5 May 1994, Law 36/2003 of 11 de noviembre y RDL 1/2007 approving the TRLGDCYU especially Articles 12, 18, 60, 80).
No evidence in the pre-contractual documentation it emerges risk of the operation.
In the contractual phase, explanations of the risks is also omitted, and reading of the contract are not allowed to rectify the lack of information.
Ultimately, the invalidity of clauses multicurrency abusiveness and consent vice error caused by the lack of information provided by the bank is declared. the abusiveness is appreciated both by lack of transparency, as the substantial and excusable error that the customer needed information and the bank was forced to give it.
As for effects of the judgment, pursuant to Article 83 RDL 1/2007, keep the contract is accepted, annulling the clauses mutidivisa. The loan is considered in euros, with the differential foreseen in the contract (0,60%) and the bank will recalculate the outstanding amount of amortizing, result of decreasing the amount borrowed (155.0000 euros) with the amounts paid in euros converted. Also, he condemns the bank to pay the costs.
Judgment courtesy of Asufin