Moderation clause interest by the Financial Institution, Rafael Juan Juan Sanjose

interes de demora

 

Cuando estemos ante un contrato celebrado entre un profesional y un consumidor, in no case can serve the DT 2nd Law 1/2013, in conjunction with Article 114 LH, to fill the gap caused by the contract to be eliminated default interest clause.

This is the conclusion of the work of Rafael Juan Juan Sanjose, Alternate Judge of the Provincial Court of Castellón, que publicamos a continuación.

_______________________

Moderation clause interest by the Financial Institution

Rafael Juan Juan Sanjosé
Alternate Judge of the Provincial Court of Castellón

Index

1.- Antecedentes.-
2.- Moderation of an unfair term.-
2.1.- Inability to moderate an unfair term.-
2.2.- Waiver of rights available.-
2.3.- Substitution by national law.-
2.4.- Fundamentals of the impossibility of integration.-

1.- Antecedentes.-

There have been several rulings of the Court of Justice of the European Union that have been aimed at the enforcement procedure in the Spanish legislation in relation to Directive 93/13 / EEC, whose function is to approximate the laws, regulations and administrative provisions of the Member States on unfair terms in contracts concluded with consumers, The two key measures of SSTJUE 14 June 2012, 14 March 2013, 30 May 2013, 16 January 2014 and the 21 January 2015.

The result of these resolutions, and in particular of the first, Law was enacted 1/2013, of 14 May, of measures to strengthen protection for mortgage borrowers, debt restructuring and social rent, the main consequences, with respect to this work, They are specified in the amendment to Article 695 LEC and Article 114 LH, and transient forecast DT 2nd.
With the amendment of Article 114 LH a third paragraph to it that reads as follows is added:

"The default interest loans or loans for the purchase of primary residence, secured by mortgages granted on the same housing, may not be more than three times the legal interest and may only accrue on the outstanding principal. Such default interest shall not be capitalized in any case, except in the case provided for in Article 579.2.a) of the Code of Civil Procedure. "

Also Law 1/2013, in his article 14 adds a new ground of opposition in foreclosure, by adding a fourth paragraph to Article 695 LEC: "The unfairness of a contractual clause that constitutes the foundation of implementation or had determined the amount due."

This implies, As rightly pointed Muniz (1), denaturation of summary nature which until now had this type of process, expanding the range of knowability of the judge and the items under discussion and therefore, test.

Last, as we have moved, Transitional Provision 2 of the Act 1/2013, with title "Interest on late payments of mortgages on primary residence" projected to “(the)a limitation of default interest on mortgages granted on residence under Article 3 Two section shall apply to mortgages after the entry into force of this Act.
Also, such limitation shall apply to the default interest under the loans secured by mortgage on residence, made before the entry into force of the Law, accrued after the same, as well as those having accrued on that date had not been satisfied.

In enforcement proceedings or extrajudicial sale initiated and not completed after the entry into force of this Act, and in which you have already set the amount by requesting that the extrajudicial execution or sale is dispatched, The clerk or notary shall within performer 10 days to recalculate that amount as provided in the preceding paragraph. "

Also, and given the consequences of the decisions of the ECJ, and insufficient solution provided by the Law 1/2013, the Spanish legislature enacted the Law 3/2014, of 27 March, approving the revised text of the General Law for the Protection of Consumers and Users and other complementary laws changed, approved by Royal Legislative Decree 1/2007, and in particular, single point in his article 27, The article is amended 83 TRLGDCU, which reads as follows:

"Article 83 Nullity of unfair contract terms and subsistence
Unfair terms are null and void and will not put. A estos efectos, Judge, after hearing the parties, declare the nullity of unfair clauses in the contract, which, however, It will remain binding on the parties on the same terms, provided that it can survive without such clauses. "

Product of the amendment in the conservative reduction of validity is banned, namely, the possibility is suppressed, previously planned, moderase that the judge and integrate the clause declared invalid.

As maintained Blanco Garcia-Lomas (2), earned the reform of article 83 TRLGDCU has led to the consecration in our legal system constantly three interpretative criteria set forth in the text of the ECJ rulings:

1º. The proscription of what the doctrine called "conservative reduction of validity" (3).
2º. The control of unfair terms of trade (4).
3º. The incorporation of a contradictory procedure (5).

As you see in the above so far, and as we remember the press release No. 9/15 del TJUE (6), issued following the recent ruling of 21 January 2015, Spanish legislation on consumer protection was modified for the sake of Aziz Court of Justice (7), And from there on, when enforcement proceedings the Court to assess the unfairness of one or more clauses, you may decide that the execution is inadmissible or ordering the execution without applying the clauses considered abusive.

By relating all legislative modifications, and the various resolutions of the ECJ, Spanish courts still had no clear impact of the DT 2nd Law 1/2013, especially when the bank, introducing foreclosure, own initiative and with the predictability of the clause is declared null, He lowered the interest at the limit laid down in Article 114 LH, ie three times the legal interest rate.

So things, by Auto 16 August 2013, the Court of First Instance and Instruction number 2 Marchena, He raised question to the ECJ, this issue resolved by STJUE of 21 January 2015, and concludes that "the directive does not preclude the Spanish Law whenever the application of the latter (i) not prejudge the assessment by the national judge of the unfairness of the clause and (ii) does not prevent the judge leave without applying the clause if considered to be unfair within the meaning of the Directive ".

2.- Moderation of an unfair term.-

2.1.- Inability to moderate an unfair term.-

As we advanced in the previous section, Judge, ex officio or ex parte, It is required, that no power, elucidate the abusiveness of clauses of a contract where the parties thereof are a professional and a consumer, but what concerns us here, It is to know what happens when the clause in question is regarded as unfair by the judge, and the consequences of that statement abusiveness.

Prior to the modifications described previously result of the doctrine established by the ECJ, Article 83 TRLGDCU stated that "Part of the question, adhering contract will be integrated under the provisions of Article 1.258 the Civil Code and the principle of objective good faith.

A estos efectos, Judge to declare the nullity of such clauses integrate the contract and will have moderating powers in respect of the rights and obligations of the parties, when the contract subsists, and the consequences of its ineffectiveness in case of significant damage to the consumer and user. "
Thus, the judge should, once the abusiveness and invalidity of the clauses established under study, moderate it and integrate it in the contract to equate the rights and obligations of the parties.

This moderating faculty that had the national court was abolished with the aforementioned legislative amendment Article 83 TRLGDCU established by Law 3/2014, of 27 March, what it echoes the STJUE in Sentence 30 April 2014 (Case C-26/13) (8).

As we are reminded BLANCO GARCIA-LOMAS (9), the reform operated by the single article, section twenty of Law 3/2014, of 27 March, approving the revised text of the General Law for the Protection of Consumers and Users and other complementary laws changed, approved by Royal Legislative Decree 1/2007, of 16 November and in particular its art. 83 the TRLGDCU, It involved the incorporation into Spanish law of consumer protection, From the day 29 March 2014, doctrine developed by the ECJ outlawing the doctrine called "conservative reduction of validity".

The STJUE of 30 April 2014, inter alia, He answered the question of whether in a situation in which a contract concluded between a supplier and a consumer can not exist after the abolition of an unfair term, Article 6, paragraph 1, Directive 93/13 It must be interpreted as precluding national legislation which allows the national court to the nullity of the unfair term substituting an extra provision of national law, as they prevented the amended Article 83 TRLGDCU.

In response, the ECJ responded:

“ 77 The Court has ruled that Article 6, paragraph 1, Directive 93/13 It must be interpreted as precluding a rule of national law allowing the national court, when it finds the annulment of an unfair term in a contract between a professional and a consumer, integrate the contract modifying the content of that clause (Spanish Credit Bank statement, EU:C:2012:349, paragraph 73)…

79 Well, if the national courts have the power to modify the content of abusive clauses in such contracts, this power could jeopardize the attainment of the long-term objective laid down in Article 7 Directive 93/13. Indeed, The aforementioned powers would help eliminate the deterrent effect upon professionals that, pure and simple, such unfair terms to consumers is not applied against, since professionals would still be tempted to use these clauses to know, even if they were to declare them invalid, the contract may nevertheless be composed of the national court as necessary, thereby protecting the interests of these professionals (Spanish Credit Bank statement, EU:C:2012:349, paragraph 69).”

Faced with such overwhelming response, our judges and magistrates, in the conclusions of the Conference on the impact of the ECJ doctrine on unfair terms in foreclosures, held on 8 May 2013 (10), They asserted that “5.- According to the European Court null unfair terms are not binding on any effect. The judge can not integrate or moderate such clauses, that must be taken by non-existent. ", which he led to the legislative change set out above.

This same doctrine has been reiterated by the ECJ in subsequent resolutions, as in STJUE (First Chamber) of 21 January 2015 (11), which expressly states that

“28. …, as it regards the consequences to be drawn from the assessment of unfairness of a clause in a contract between a consumer and a professional, the wording of Article 6, paragraph 1, Directive 93/13 It is that national courts are obliged only to renounce the unfair contract term, so that it does not produce binding on the consumer, without being able to modify the contents thereof. Indeed, the contract must survive, in principle, no other changes resulting from the elimination of unfair terms, to the extent that, under the rules of domestic law, maintenance contract that is legally possible (Spanish Credit Bank statements, C 618/10, EU:C:2012:349, paragraph 65, and Asbeek Brusse and Man Garabito, C 488/11, EU:C:2013:341, paragraph 57).”

He adds, regarding default interest

“29. In particular, that provision can not be interpreted as permitting the national court, when you appreciate the unfairness of a penalty clause in a contract between a professional and a consumer, reduce the amount of the contractual penalty imposed on the consumer, instead of fully exclude the application to it of the clause (Asbeek sentence Brusse and Man Garabito, EU:C:2013:341, paragraph 59).”

As a corollary to the foregoing, the ECJ recalled that Article 6, paragraph 1, Directive 93/13 It precludes a rule of national law which they attributed to the national court, when it declared the nullity of an abusive clause in a contract between a professional and a consumer, the ability to integrate such agreement modifying the contents of the unfair term (Spanish Credit Bank statements, EU:C:2012:349, paragraph 73, and Käsler and Káslerné Rabai, EU:C:2014:282, paragraph 77).

In the same way, and once completed the amendment of Article 83 TRLGDCU, our Provincial Courts, quasi unanimously have spoken so strongly about it and so, inter, AAP Barcelona 19 November 2014 (12) mantiene que "We must take into account the inability to quantitatively modulate considered abusive clause ... must eliminate completely the legal world to discourage future practices contrary to Community law."(13)

Por consiguiente, a clause void for being abusive, it remains to determine its nullity, without having it start not fit its moderating integration.

2.2.- Waiver of rights available.-

Notwithstanding the above, and as we have seen above, DT 2nd Law 1/2013 It states that the limitation of default interest on mortgages granted on residence under Article 3 Two section (14) It shall apply to default interest under the loans secured by mortgage on residence, made before the entry into force of the Law, accrued after the same, as well as those having accrued on that date had not been satisfied.

Given that financial institutions legislative provision, when filing a foreclosure against a consumer, moderate delay interests foreseen in the contract, and most likely they will be declared void by abusive, adapting to the discussion in the DT 2nd Law 1/2013 in conjunction with Article 114 LH, which constitutes the essential core of this work, namely, if the bank can unilaterally moderate default interest to avoid the annulment of the clause and its economic consequences.

What is really making the financial institution in these cases is to give up an acquired right to establish the legal relationship with the consumer, that is none other than the payment of a certain default interest to the breach of obligations by the counterparty, replacing them with others who are determined by a legal provision.

Regarding whether or not the waiver of rights available by the parties, AGÜERO ORTIZ (15) It states that the rights available admit their express or implied waiver,es, as indicated by the TS in its STS No.. 385-2008 of 21 May (RJ 2008\414) “[the]you are right, in principle, waivable, según su naturaleza, under the terms provided for in Article 6.2 Civil Code, namely, when the resignation is not contrary interest or public order or prejudice the rights of third, and the right of defense must be borne by waived with full effect when, as in the case, the controversial issue affecting patrimonial rights ", or its STS No.. 139-2013 of 8 March (RJ 2013\2416) "It applies the waiver does not affect other rights of resigning themselves to".

And more specifically the STS 15 October 1986 (RJ 1986\5791) "Abdicate resignation call, It implies a unilateral legal act, as loss of it, It can not be considered valid when the right arises from bilateral contract and affects the rights of others to own the resigning, for the obligations arising from contracts have the force of law between the contracting parties and must be complied with under the same (article 1.091 Civil Code), It is valid only when the resignation does not harm third (article 6.2 the own legal text)”.

Therefore, the author maintains that the bank may unilaterally renounce their rights arising from the contractual relationship and thus unilaterally reduce the default interest 12 %, if and only if such waiver does not affect the rights of its counterpart.

Nonetheless, the author wonders if, Does the consumer a right acquired in virtue of art. 114.3 LH in connection with the Second Law DT 1/2013 and European doctrine- to default interest the 0 % when the contract provides for a higher penalty interest at three times the legal interest rate?

Given this dilemma we share with Aguero Ortiz the consumer does have a vested right to the reduction at 0 % for the sake of those laws, for:

1º. the consumer is fully applicable limitation is the set of Law 1/2013 to default interest accrued after the entry into force of that law; and
2º. the consequence that such interests were agreed more than three times the legal interest rate, based on the principle of supremacy of European Union law, It is deletion (reduction to 0 %).

Also, the author clarifies that, even if we rejected the proposition that the consumer holds a right to the reduction at 0 %, the fact is that such action by the bank would not be transparent to maintain the survival of default interest clause in the contract, abusive clause would, can benefit from it in case of defaults than those involving early maturity and foreclosure, and only eligible for partial waiver to go to court to foreclose.

It is also to highlight the discussion in this matter by Aguero Ortiz, and we share fully, since a separate question will be whether the bank could make such a waiver out of context of foreclosure, before any sign of default, with the benefit of such reduction if the consumer timely delays that do not bear couple foreclosure proceedings.

At this juncture, We share with the author that the bank "If I could perform transparently, for example, a massive reduction of default interest on all mortgages, as it would be clear to the consumer and bank default interest clause applicable in any case, and allow consumers to benefit from a reduction, in another way, it could only benefit the credit institution ".

Similarly pronounced much of the lower case, and so the AAP Madrid 27 November 2014 (16), in its first Legal Grounds, states that "While the plaintiff under the so-called principle device, You can limit or reduce the amount of existing credit claim in his favor, it does not prevent the courts do not come subject to the limitation or reduction when the claim of an unfair term whose consideration as such results in its non-application, no a su “moderation”, and ultimately aims (limiting the claimed default interest at the statutory limit 12%), it is reiterated the view of the Court of Justice does not fit “moderation” the “modification” unfair terms as well reasons the national court in its resolution reproducing ECJ rulings….”

In consequence of the above we understand that while the bank may waive their rights to claim them judicially time, what it can do to save a more than possible nullity of the unfair term default interest to the detriment of the consumer, and therefore the court should be limited to declare the provision invalid by abusive and inaplicarla without any possibility of moderation.

This does not preclude the bank, in a time before any default, decides to renounce the interests of delay and agreed to adapt the same legislation, avoiding, hence, the nullity of the same, acting, Yes now, transparently and without prejudice to the consumer.

2.3.- Substitution by national law.-

Despite the clarity with which is pronounced the ECJ and subsequent resolutions of the lower case, another point that emphasize financial institutions, when enforcing the DT 2nd Law 1/2013 and as a result the expected interest in applying Article 114 LH, is that, to the lake suffered by the contract to be removed the stipulation concerning default interest, it must be replaced by an extra provision of national law.

In this regard the Court of Justice of the European Union has already stated STJUE 30 April 2014 (Case C-26/13) (17), in the sense that It can only be replaced by an extra clause provision of national law, when the suppression suppose the contract can not survive and this goes against consumer interests.

For this, the ECJ stated that does not mean "Article 6, paragraph 1, Directive 93/13 you object to in a situation like the main proceedings the national court, applying the principles of contract law, abolish the unfair term and replace it with an extra provision of national law.

81 Conversely, the replacement of an unfair term by a provision of that kind, it is presumed not contain unfair terms, as it expressed by the thirteenth recital in the preamble 93/13, It is fully justified by the purpose of the Directive 93/13, and getting the result that the contract can survive despite the deletion of clause III / 2 and continue to bind the parties.
82 Indeed, the replacement of an unfair term by a national default provision consistent with the aim of Article 6, paragraph 1, Directive 93/13, as consistently held that provision aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them, and not annul all contracts containing unfair terms (see, in this sense, especially, Pereničová and the judgments Perenič, C 453/10, EU:C:2012:144, paragraph 31, Spanish and Credit Bank, EU:C:2012:349, paragraph 40 and law cited).

83 In return, whether in a situation such as the present case does not allow an unfair term replaced by a default provision and the judge was forced to cancel the entire contract, consumers could be exposed to particularly harmful consequences, so that the deterrent effect arising from the cancellation of the contract would be frustrated.

84 Indeed, such annulment has in principle the effect of making the payment immediately payable outstanding loan repayment,…”

And the European Court concluded that Article 6, paragraph 1, Directive 93/13 debe interpretarse en el sentido de que, in a situation in which a contract concluded between a supplier and a consumer may not exist after the abolition of an unfair term, that provision does not preclude national legislation which allows the national court to remedy the invalidity of that provision replacing it with an extra provision of national law.

A cursory reading it would appear that it can be supplied with an extra lagoon provision of national law, but in this case, and most, the nuances are what give meaning to the development of the issue, and is that, as the ECJ says this will only happen when the suppression of unfair term to produce denaturation of the contract and provided it, also, generate losses in the consumer.

The latter qualification is recognized by the same ECJ in the Judgment 21 January 2015 (18), in that paragraph 33 It explains the issue in a clear and unequivocal manner, and thus exposes the court “(and)It s true that the Court has also recognized the national court the power to replace an unfair term by an extra provision of national law, provided that such substitution is setting the objective of Article 6, paragraph 1, Directive 93/13 and will restore a real balance between the rights and obligations of the contracting parties. However, This possibility is limited to cases in which the declaration of nullity of the unfair term would require the judge to cancel the entire contract, consumers being exposed thereby to consequences such as to represent a penalty for it (see, in this sense, Case, Kásler y Káslerné Rábai, EU:C:2014:282, sections 82 a 84).”

2.4.- Fundamentals of the impossibility of integration.-

As we have advanced above, the Court of First Instance and Instruction number 2 Marchena, by Auto 16 August 2013, He filed a preliminary ruling from the ECJ in which the problem arose that is analyzed in this paper, namely, whether or not the DT 2nd practical application of the Law 1/2013 or if instead it goes against Directive 93/13 / EEC.

The Court raises the question Marchena and highlights the impossibility of integrating the interests of abusive delay and declared invalid based on the jurisprudence of the ECJ, as well as Article 6.1 Directive 93/13/EEC (19) and the deterrent effect of the impossibility of integration pro predisposing the null clause by abusive default interest.

In this sense BALLUGUERA GOMEZ (20), whose conclusions we share, understands that these arguments, in particular the penultimate, pudieran dar a entender que en caso de lagunas del contrato por adhesión nunca podría integrarse el contrato, what it is not exact, because without going further, integration to the benefit of the consumer and it should be lawful and feasible, both under Spanish law as the European. To understand no more than the lyrics of art. 65 TRLGDCU.

Matiza el autor que lo que se dispone en la STJUE 14 June 2012, It is that integration does not fit in predisposing benefit if the gap generated by abusive annulment of a general condition.

Hence, with important arguments that these fundamentals provide auto, and the embroidery, we want to draw the attention of the impossibility of integration of the null clause by abusive default interest is based generally on the way of being or semiimperativo nature of the rule of balance and particularly in the art. 65 TRLGDCU.

Balluguera, en cuanto a la imposibilidad de integrar la cláusula nula por abusiva de intereses en beneficio del acreedor lo justifica en que el pacto de intereses en el préstamo o crédito da lugar al nacimiento de una obligación accesoria, that is not a natural element of the contract, the interest charge to consumers persons should be viewed with disfavor and integrating credit agreements with consumers and adherents only people fit in its sole reason for the benefit of the standard predicable semiimperatividad balance, but that integration can not be in favor of predisposing or professional.

The rules protecting the weaker party to the contract, as a reaction against social inequality, are standards that are integrated into what the doctrine known as public order protection, and generally it is understood that they may be revoked if the interest target for which protection is guaranteed by other means.

Therefore, and in conclusion to the discussion in the preceding subsections, we understand that in any case can serve the DT 2nd Law 1/2013, in conjunction with Article 114 LH, to fill the gap caused by the contract to be eliminated default interest clause, as long as we are in a contract between a professional and a consumer.

Juan Juan Rafael Sanjose

Alternate Judge of the Provincial Court of Castellón.

__________________________________________

Notas:
(1) MUÑIZ ALVAREZ, I., "The default interest on mortgage loans. Current problems and future prospects ", Legal News - Doctrinal Articles - Civil, November 2014 http://noticias.juridicas.com/articulos/45-Derecho-Civil/748-los-intereses-de-demora-en-los-prstamos-hipotecarios-problemtica-actual-y-perspectiva-de-futuro.html

(2) BLANCO GARCIA-LOMAS, L., "Adapting the legal regime of the nullity of unfair terms to European Union law (Art. 83 TRLGDCU)”, Commercial law, No. 3, Commercial Contracts Section, e-commerce and ICT, June 2014, Editorial LAW

(3) The STJUE of 14 June 2012 (Banesto case against Joaquín Calderón Camino), referring to the Spanish rules, and STJUE of 30 May 2013 (caso Dirk Frederik), Dutch regulations concerning, conclusively they established what should be the effect of the invalidity of an unfair term, in no case allows moderating, integrate or replace the contractual clause by another clause under the right device

(4) The STJUE of 27 June 2000 (If Ocean), the STJUE of 26 October 2006 (Mostaza Claro case), the STJUE of 4 June 2009 (Pannon caso), the STJUE of 6 October 2009 (event to Asturcom), the STJUE of 9 November 2010 (caso VB Leasing Finance), the STJUE of 14 June 2012 (Banesto case against Joaquín Calderón Camino), the STJUE of 21 February 2013 (caso Banif Plus Bank), the STJUE of 14 March 2013 (caso Mohamed Aziz), the STJUE of 21 March 2013 (caso RWE Vertrieb AG) and STJUE of 30 May 2013 (caso Dirk Frederik) enshrine the obligation, that no power, judges to control unfair terms of trade, to guarantee the effective implementation of Community legislation protecting consumers.

(5) The STJUE of 4 June 2009 (Pannon caso), the STJUE of 14 June 2012 (Banesto case against Joaquín Calderón Camino) and STJUE of 21 February 2013 (caso Banif Plus Bank), with full respect for the procedural autonomy of the Member States, They affect the need for national procedural law allows for a hearing procedure to the parties before the Court to rule on the unfairness of a clause, especially as this statement comes from its positive intervention and occupation.

(6) Court of Justice of the European Union – PRESS RELEASE No 9/15 – Luxembourg, 21 January 2015 – http://curia.europa.eu/jcms/upload/docs/application/pdf/2015-01/cp150009es.pdf

(7) Court of Justice 14 March 2013 in Case C-415/11 (see, equally, CP No. 30/13). In that judgment, the Court held that the Directive on unfair terms opposed the national legislation did not allow the judge to declare the unfairness of a clause suspending the foreclosure proceedings, where necessary to ensure the full effectiveness of the final decision.

(8) http://curia.europa.eu/juris/document/document.jsf?docid = 151524&doclang = EN

(9) BLANCO GARCIA-LOMAS, L., "Adapting the legal regime of the nullity of unfair terms to European Union law (Art. 83 TRLGDCU)”, Commercial law, No. 3, Commercial Contracts Section, e-commerce and ICT, June 2014, Editorial LAW

(10) http://www.poderjudicial.es/cgpj/es/Poder_Judicial/En_Portada/
Conclusiones_de_la_Jornada_sobre_las_repercusiones_de_la_doctrina_del_

TJUE_en_materia_de_clausulas_abusivas_en_ejecuciones_hipotecarias

(11) http://curia.europa.eu/juris/document/document.jsf?text=&docid =
161545&pageIndex = 0&doclang = EN&mode=req&dir =&occ=first&part=1&cid=117188

(12) AAP Barcelona, Civil section 11 the 19 November 2014 (ROJ: AAP B 480/2014 – ECLI:ES:APB:2014:480A)- Sentence: 271/2014 | Resource: 421/2014 | Speaker: ANTONIO GOMEZ CANAL - Legal Grounds 1.

(13) Regarding the faculty moderator, Following the thread of the above, it is settled case law of the Provincial Court of Valencia, about the impossibility of this is carried out by Judge, and thus the SAP section 7 the 12 March 2014 ( ROJ: SAP V 1517/2014) (Sentence: 99/2014 | Resource: 50/2014 | Speaker: PILAR MARIA EUGENIA CERDÁN VILLALBA), in his 2nd Legal Grounds reasons, following decisions of the ECJ and Article 6.1 Directive 93/13, aforementioned, that if the national courts have the power to modify the content of abusive clauses in such contracts, the deterrent effect of consumer protection regulations would be eliminated, to the extent that professionals might be tempted to use unfair terms to know, even when declaring invalid, the contract for the national court will be integrated as necessary.
This same approach is followed, inter, SSAP by Valencia, section 8 the 14 July 2014 ( ROJ: SAP V 3276/2014) (Sentence: 291/2014 | Resource: 264/2014 | Speaker: MARIA FE ORTEGA MIFSUD); section 11 the 28 March 2014 ( ROJ: SAP V 2080/2014) (Sentence: 123/2014 | Resource: 454/2013 | Speaker: JOSE MANUEL LOPEZ Orellana); section 7 the 12 March 2014 ( ROJ: SAP V 1517/2014) (Sentence: 99/2014 | Resource: 50/2014 | Speaker: PILAR MARIA EUGENIA CERDÁN VILLALBA); section 6 the 28 February 2014 ( ROJ: SAP V 1092/2014) (Sentence: 70/2014 | Resource: 64/2014 | Speaker: Ferragut MARIA EUGENIA PEREZ); section 7 the 08 January 2014 ( ROJ: SAP V 966/2014) (Sentence: 2/2014 | Resource: 643/2013 | Speaker: PILAR MARIA EUGENIA CERDÁN VILLALBA); section 6 the 21 May 2013 ( ROJ: SAP V 3692/2013) (Sentence: 280/2013 | Resource: 246/2013 | Speaker: VICENTE ORTEGA LLORCA) and section 11 the 27 January 2014 ( ROJ: SAP V 646/2014) (Sentence: 17/2014 | Resource: 425/2013 | Speaker: JOSE MANUEL LOPEZ Orellana).

(14) Article 3 Act Two 1/2013. A third paragraph is added to Article 114 which reads as follows: "The default interest loans or loans for the purchase of primary residence, secured by mortgages granted on the same housing, may not be more than three times the legal interest and may only accrue on the outstanding principal. Such default interest shall not be capitalized in any case, except in the case provided for in Article 579.2.a) of the Code of Civil Procedure. "

(15) AGÜERO ORTIZ, A. "Can the bank to reduce the interest on arrears 12 % on its own initiative in its foreclosure lawsuit?”, Center for Consumer Studies, University of Castilla-La Mancha, 7 April 2014, (Work done within the research project "Regional impact of the recent regulation on consumer law: the regime of consumer arbitration and mediation, the TR LGDCU and Directive 29/2005, of unfair commercial practices ", the Regional Government of Castile-La Mancha.) http://blog.uclm.es/cesco/files/2014/04/Puede-el-banco-reducir-los-intereses-moratorios-por-propia-iniciativa.pdf

(16) AP Madrid, Civil section 9 the 27 November 2014 ( ROJ: AAP M 250/2014 – ECLI:ES:APM:2014:250A) -Sentence: 322/2014 | Resource: 678/2014 | Speaker: JUAN LUIS ALVAREZ-VALDES GORDILLO

(17) http://curia.europa.eu/juris/document/document.jsf?docid = 151524&doclang = EN

(18)http://curia.europa.eu/juris/document/document.jsf?text=&docid = 161545&pageIndex = 0&doclang = EN&mode=req&dir =&occ=first&part=1&cid=117188

(19) Member States shall not binding on the consumer, under the conditions laid down by their national rights, abusive clauses in a contract concluded between it and a professional and provide that the contract remains binding on the parties on the same terms, if it can survive without the unfair terms.

(20) BALLUGUERA GOMEZ, C., "NULL default interest by abusive: SHOULD reduced or eliminated? – PRELIMINARY RULING BY COURT TO ECJ MARCHENA – Review summary of urgency and car 16 August 2013 Court of First Instance and Instruction No.. 2 Marchena (Sevilla)

http://www.notariosyregistradores.com/CONSUMO/ARTICULOS/2013-intereses-demora-abusivos.htm

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