multicurrency mortgage declared void in Cartagena
Are clauses may be declared unfair representation in foreign currency mortgage contract multicurrency?
In the words of the First Chamber of the Supreme Court (Judgment 20/08/2012), the multicurrency mortgage is a derivative financial instrument. Nonetheless, banks have offered to the consumers as if it were a simple understanding and contract easily foreseeable consequences for a person who is not trained in financial operations, when in fact it is a complex and unpredictable consequences even contract for financial professionals. This is an abusive practice, really, You can receive the appropriate and forceful response of Justice.
paradigmatic example of this possibility is the Judgment of the Provincial Court of Cartagena No.. 143/2016, of 28/06/2016, whose commentary we bring in this post:
The 07/05/2007 Ms.. Angels and Catalonia Bank held contract multicurrency mortgage (the multicurrency equity loan) with a capital of 47.269.325 ¥ (yenes japoneses), equivalentes a 287.980,00 €. A date 20 August 2012, on the occasion of currency fluctuation, It was outstanding principal 396.349,49 €.
The 11/06/2013 Ms.. Angels filed suit against Catalunya Banc in which, among other claims, He requested to be declared abusive, null and not put clauses multicurrency option and those relating to the resolution of the mortgage contract.
The Court of First Instance No. 02 San Javier delivered judgment dated 15/05/2015, by which it estimated that claim.
Against this Judgment, the procedural representation of Catalunya Banc filed appeal, based on the following arguments:
1) expiry of the term of nullity Article 1301 Civil Code;
2) knowledge by Dña. Angels nature of the contract and the financial implications involved;
3) the multicurrency option clause is part of the essential features of the contract;
4) as to the causes of resolution, referring to the modification of specific circumstances of the loan, and the only one that could produce imbalance between the parties has not been used by the borrowing entity.
As the first of its arguments, relative to the expiration of term of rescission, the appellant alleges that between the date of the contract (07/05/2007) and the filing of the complaint (31/07/2013) They have passed over 4 years old, so it has expired the deadline for bringing an action of nullity under Article 1301 Civil Code.
Against this, the Provincial Court reminds the appellant that, according to the jurisprudential position consolidated (STS 11/06/2003), rescission within begins to run from the time of completion of the contract (namely, when they are performed all obligations and satisfied the interests of both parties), and not from the moment of perfection. Thus, as it not yet has been repaid in full the loan principal, it should be understood that the limitation period of four years of nullity has not even started running.
As to the second of the arguments, relative to Dña. Angels knew or should have sufficient knowledge of the nature and consequences of the contract, the appellant contends that anyone understands that, if a loan is signed in a foreign currency, the refund amount will depend on the fluctuation of the currency field.
Against this, the Provincial Court refers to the judgment 30/06/2015, of the First Chamber of the Supreme Court, He defined the contract multicurrency mortgage, as a home equity loan, floating rate, in the currency in which reference delivering capital and repayment installments is a currency, among several possible, at the option of the borrower, and in which the benchmark on which the differential is applied to determine the interest rate applicable in each period is usually different from Euribor. And that, also, the risk of changes in the interest rate is added to the risk of currency fluctuation […] that, also, not only affects the euro amount of the fee periodic amortization, but also in the euro amount of the outstanding capital, so that the currency fluctuation is a constant recalculation of borrowed capital. […] It may be that after several years the currency has appreciated against the euro, and the borrower […] owe the lender a capital in euros more than was delivered to arrange the loan.
For the sake, the Provincial Court also refers to the judgment of 20/08/2012, of the First Chamber of the Supreme Court, that multicurrency mortgage qualifies as a derivative financial instrument included in the scope of Article 2.2 of the Securities Market Act and which, therefore, the borrowing entity is required to fulfill some specific duties of information and transparency, in this case, He was not satisfied.
As the third of the arguments, the clause on the multicurrency option is part of the essential features of the contract, the appellant claims that the essential nature of this clause excludes abusiveness control, Article according to 4.2 Directive 93/13.
Against this, the Provincial Court, appointment of numerous minor jurisprudence (Cars Provincial Court of Madrid, 12th section, of 9 denoviembre of 2.015, 14 January 2.016 the 7 April 2016), and STS 24/03/2015 y STJUE 30/04/2014, recalls the appellant the following:
1. That the court has the faculty of its own motion the possible abusiveness of clauses in general conditions of contracts between a professional and a consumer.
2. That the name of a loan in a currency a Foreign It is part of the essential features of the contract.
3. The clauses relating to the essential features of a contract They are excluded from a possible review of abusiveness "Provided that such terms are in plain intelligible".
4. That that requirement of clarity or transparency in turn split into two (Dual control transparency): documentary or grammatical transparency and transparency referred to the adherent to know simply the economic and legal burden the contract.
5. That the appellant did not endowed these clauses sufficient transparency (in the double sense) allowing abusive declare, null, and not having them put.
On the fourth of the arguments, relative to the causes of resolution, the appellant alleges that all causes least one refers to the modification of specific circumstances of the loan, and the only one that could produce imbalance between the parties has not been used by the borrowing entity.
The Provincial Court responds, in obvious logic, that the fact that it has not applied a specific clause no longer determines that abusive, and the fact that it has not applied does not mean that the appellant not to be applied in the future.
For all the above, the Provincial Court dismisses the appeal brought by Catalunya Banc and confirms Instance Judgment.
What we can conclude from this course, ultimately, is that even if the clauses relating to essential elements of the contract, must overcome the transparency control: If they do not, the Multi clauses podrán declararse abusivas y por tanto nulas, not having them put.