Multicurrency mortgage: New annulment by the Court of Barcelona
The Provincial Court of Barcelona has declared the invalidity of the clauses of a multicurrency mortgage loan Sentence 26 April 2016.
The 28 May 2008 los clientes concertaron con Bankinter a multicurrency mortgage, by the amount of 221.000 euros initially was formalized by value 36.394.391 yen japoneses. Se pactó la devolución en 300 months from the date of writing.
The Court of First Instance number 39 Barcelona gave judgment on 4 December 2014 estimating demand. Se declaró la nulidad de las cláusulas multidivisa y por tanto, que la cantidad adeudada sería el saldo vivo del préstamo referenciado a euros, resulting from lower capital borrowed 221.000 euros, la cantidad amortizada en concepto de principal e intereses, also it converted to euros and ordered the bank to recalculase outstanding repayment installments taking into account payments made in euros and the equivalent to setting the outstanding principal in euros, also running with all expenses. There was no order for costs.
Bankinter interpuso recurso de apelación. The bank claims that consisted mainly of, as this, It was adequately informed customers, clauses were not abusive but conforming to the law, the essential nature of the terms of the contract concerning currency and the inability to declare a partial annulment of the contract.
La Sección Decimotercera de la Audiencia Provincial de Barcelona desestima el recurso y confirma la nulidad de las cláusulas multidivisa del préstamo hipotecario declarada en la primera instancia. The judgment is expressed with extension but we will try to summarize the ideas we consider most noteworthy.
1.- The multicurrency loans were not designed to be an instrument of consumer credit, sino para ser utilizados fundamentalmente por empresas que comercian en el ámbito internacional, as indicated by the judgment of the Provincial Court of Madrid (section 28) of 16 March 2012. Un consumidor minorista, usually you do not know the operational references such as LIBOR or have easy access to your information, and the factors involved in the exchange rate variations in the currency market.
In this line, brings up the STS 30 June 2015 establishing:
“The risks of this financial instrument exceed own mortgage variable rate loans requested in euros. The risk of changes in the interest rate is added to the risk of currency fluctuation. But, also, the risk of currency fluctuation affects not only that the euro amount of the periodic redemption fee, comprehensive principal and interest, can vary upwards if the chosen currency appreciates against the euro”.
2.- Risks should be explained to the customer:
Operation and the legal and economic burden must be understood by the client.
Among these include:
- Interest rate risk: The Spanish retail customer no readily available information on the LIBOR, unlike what happens with the Euribor. Also, It is a notorious fact that Barclays Bank was fined 2012 by manipulation of LIBOR between 2005 and 2009.
- Risk of currency fluctuation: The customer receives his income and has its assets in euros, but you will have to make payments in the currency of choice. They can increase their quotas and may increase the principal due in Euros, despite payments.
- monthly variability: The fees, the type and payment currency (optionally) each month are determined, forcing the customer to be aware of information that is not easily accessible.
3.- Implementation of the MiFID rules:
El criterio de la STS de 30 June 2015 It is that the lender is required to perform the duties of information required by the Securities Market Act, Act 47/2007 and RD 217/2008.
The STJUE of 30 May 2013 states that for the exception of Article 19.9 of the directive, it is necessary that the investment service has been subject to other legal provisions relating to risk assessment. Not exist when the operation was concluded specific regulations on the reporting obligations on loans in foreign currencies and allow customers the appropriate risk assessment, the Chamber considers that "The regulations governing these ends was the MIFID". The duty to act in accordance with the requirements of good faith (C.Civil art.7 and art. 1:201 Principles of European Contract Law) It implies the need to assess the knowledge and financial experience of the customer and provide information about the financial risks of the product to be hiring.
4.- Customer Profile:
Article 79 and) LMV required of financial institutions, learn about your customers and keep them informed. And the RD 629/93 establecía la obligación (art.4) to ask their clients all the information necessary for proper identification, situación financiera y experiencia inversora. In this case, no existe prueba alguna de que los clientes fuesen avezados inversores pues sus profesiones son las de mecánico y administrativa.
5.- Information obligation of the bank:
Information required obligations are reflected in the following rules:
a) Law 26/1988 of 29 July on Discipline and Intervention of Credit Institutions (art. 48.2).
b) Order 5 May 1994 on information in hiring mortgage loans.
c) Law 36/2003 economic reform measures.
d) Securities Market Law, amended by Law 47/2007.
and) Directive 2014/17 / EU on credit agreements concluded with consumers for residential real estate (the deadline for transposition has not yet elapsed).
f) RD 217/2008 on the legal regime of investment services firms.
g) Royal Decree 1/2007 approving the revised text of the General Law for the Protection of Consumers and Users.
Además de debe tener en cuenta la STJUE de 30 April 2014.
6.- The burden of proof:
The financial institution rests the burden of proving that the information provided to the applicants was sufficient and effective.
However, in the present case:
- Pre-contractual information written is simply nonexistent.
- The information that the bank collected from customers is also nonexistent.
- The statements of the bank employee did not have enough credibility.
- Although the initiative outside the plaintiffs, that does not exonerate the bank from fulfilling its duty to inform, especially considering the profile of the applicants, your age, profession and inexperience in this type of product.
7.- Legal consequences of nullity:
Para la sala se infringieron por la demandada normas imperativas y hubo además dolo omisivo y error en el consentimiento. the existence of error is presumed consent (STS 20.1.2014) por el incumplimiento del deber de información por la entidad financiera y el banco no ha desvirtuado dicha presunción.
The legal consequences of nullity can not be appreciated affect the entire contract because:
- It would be contrary to the jurisprudence of the ECJ and to consumer protection.
- TS doctrine is applied in its judgment of 9 May 2013 on partial nullity of contracts.
- The non-application of clauses multicurrency is perfectly possible in practice.
- Total invalidity of the contract would be contrary to the purpose of consumer protection enshrined in Directive 93/13 / EEC and TRLGDCU.
Ultimately, the Court rejects the appeal of Bankinter and confirms the invalidity of the clauses of the mortgage multicurrency, with the bank to pay costs.