multicurrency mortgage declared void in Madrid
The Court of 1st Instance number 2 Madrid has declared the invalidity of a multicurrency mortgage loan, in sentence 8 February 2016.
Customers, They had signed a multicurrency mortgage with Deutsche Bank in June 2008.
In 2015, in view of the result of the operation lawsuit filed against the bank.
In its, requested main way, the multicurrency loan invalidity of errors and / or fraud as invalidating the consent. Se pidió la recíproca restitución de las prestaciones, with their legal interests.
Subsidiarily were asked the annulment of the clauses relating to foreign currency, by abusive.
The bank, alleged expiration of the action, conocimiento de lo que contrataban por parte de los clientes e inexistencia de cláusulas abusivas.
The Judge, forfeiture rule, because the period runs from the completion of the contract, (which had not occurred, because multicurrency mortgage continues to deploy its effects). No se puede emplear la fecha de la perfección del contrato (or signature) for the start of the four-year period provided for in Article 1.301 Civil Code (STS 12 January 2015).
Add to the risks of mortgage multivisa, exceed a variable rate mortgage loan in euros, pues además del riesgo por la variación del tipo de interés, se añade el riesgo de fluctuación de la moneda. Al apreciarse el yen, las cuotas resultaban mucho más altas y llegan a deber una cantidad en euros mayor que la que suscribieron al principio del préstamo, y absolutamente desproporcionada al valor del inmueble (citing the STS de 30 June 2015).
The Honourable Member also refers to the STJUE of 3 December 2015, to indicate that although we can not stand before an investment service, it:
“(…) no significa que no deba ser informado como consumidor de los riesgos que asume”.
To understand the functioning of a multicurrency mortgage, It is necessary to know the operational references such as LIBOR, on which an average citizen lacks information, and the factors involved in changes in exchange rates in the forex market.
Accordingly, is necessary to analyze the Applicant profile: In this case, customers lacked the information necessary to understand what they were hiring.
Although the bank claims that the initiative was customer, and they were the ones who asked the multicurrency mortgage, the evidence taken is that was a collaborator of Deutsche Bank which captured as clients. And:
"It had to inform them, Also in the Bank, that market forecasts forex (….) They were to continue the depreciation of the yen against the euro, because if they are warned that the forecast is contrary and that the economic consequences would be unfavorable to them, it is clear that would not have hired ".
And the documentation provided, it follows that el banco en enero de 2007, ya había pronosticado una depreciación del euro frente al yen.
However, not the actor was informed about the risk of currency elected.
Por consiguiente, the defendant caused the error by not informing customers that the forecasts were the yen and thus encareciese, acabaría aumentando su deuda. Los actores tenían estudios básicos y carecían de formación financiera, so his mistake should be considered excusable.
Ultimately, demand is estimated, the annulment of the multicurrency mortgage is declared, mutual restitution of benefits ordering their legal interests and condemned the bank to pay the costs.