New invalidity of multicurrency mortgage by the Court of Madrid
A new ruling of the Provincial Court of Madrid 20 April 2016, declares the invalidity of the clauses of a multicurrency mortgage loan.
In other inputs we discussed earlier judgments of the Provincial Court of Madrid.
In this case, It has been the Thirteenth Section which has confirmed the favorable ruling to customers.
The plaintiffs hired the 4 January 2008, the multicurrency mortgage by the intervention of the director of the branch of Bankinter, who told them they could buy a new house without selling his previous floor, and in case of risk, for a minimum fee may change your mortgage currency to euros. However, It was not informed that the first provision determined the currency of its debt and the change of the currency affected both the monthly and the equivalent of the outstanding principal. In this manner, debt could become more than the initial loan.
The Court of First Instance No. 26 Madrid estimated demand of customers in sentence 20 October 2014. He declared the partial annulment of the mortgage loan "All content related to multicurrency option". Namely, the amount owed by the plaintiffs is the outstanding balance of the mortgage referenced to euros, decrease resulting from the initial loan (168.000€) the amount paid to date in euros as principal and interest. The contract will subsist without the null declared contents, entendiendo que el préstamo fue en euros y que las amortizaciones deben hacerse también en euros, using as a reference interest rate that came attached to the writing itself for currency Euro (Month Euribor plus a spread of 0,40%). Bankinter was sentenced to pay the costs.
Bankinter filed an appeal. He alleged that the vice of consent may not lead to a partial annulment of the loan, consent is presumed valid and correctly reported. Next we get the criteria of the Board.
partial annulment of the contract
Although not expressly stated our legal system partial invalidation, the Court has accepted the maintenance of reduced business efficiency, eliminating illicit clauses (SSTS 18 May 2012, 23 October 2012).
And in contracts containing null general conditions, special legislation provides for partial annulment: In LCGC, Article 9.2 relative to 12.2 allow integration of the contract "Determining or clarifying, as needed, the content of the contract to be considered valid and effective ".
The LCU in its original form also admitted the partial annulment (article 10.4 LCU) in line with the provisions of Directive 93/13 / EEC.
More recently, the Supreme Court has admitted the partial annulment of contracts in its judgments of 10 de noviembre y 23 December 2015.
The duty of disclosure
The Court cites the STS 30 June 2015 to highlight the risks of mortgage loans as multicurrency "It represents an added difficulty for the customer to get an exact idea" Product Risk. This implies a duty of information strengthened by the financial institution. And the breach thereof, to presume the error on the client.
Section considers the doctrine applicable to the case: Contracting are consumers without financial knowledge (cook and proofreader profession respectively). The information was insufficient to know the risks: Only the advantages were reported without indicating the risks and forecasts of interest rates. Notary simply read the content writing.
In December 2008, Bankinter tried that customers sign a waiver clause, what the plaintiffs refused.
The lack of transparency and the imbalance in performance of the contract tripping over themselves to declaration of invalidity of the clauses of the mortgage multicurrency, confirming the judgment of the first instance, and imposing the costs of the appeal to the bank.