Seven arguments about the invalidity of early maturity
When filing an opposition to foreclosure, the invalidity of the clauses of early maturity is one of the main resources for the debtor.
The Provincial Court of Palma de Mallorca has made a detailed study of the abusiveness of early termination clause In its order of 24 November 2015.
The resolution rejecting the abusiveness, based on four arguments.
However, Doña Catalina Moragues Judge issued a dissent with three reasons to the contrary.
For, Cajamar began the implementation of a mortgage loan for the purchase of the residence customer. Dona Marta filed opposition to the execution. The opposition was based on two grounds: abusiveness invalid by the covenant of liquidity and the early termination clause.
The Court of First Instance number 2 de Manacor Opposition partially estimated.
Against that decision, Cajamar appealed.
The Provincial Court, revises the criteria for estimating the abusiveness of the covenant of liquidity and early maturity clause.
The liquidity agreement
The settlement agreement empowers the lender to determine the balance subject to such clauses agreed by the parties.
Later, that assessment is verified by the notary public so there is a first control of formal validity. It would be very difficult to avoid the liquidity covenant to be the bank that has the necessary documentation to justify the quantification of debt.
Also, it is a mere accreditation of the amount of debt that can be contradicted by the executed portion having the way of cause second article 695.1 of the Code of Civil Procedure and may request an expert examination of liquidation (art. 558.2 LEC).
Moreover, the calculation of debt is a simple operation that results from the simple realization of a mathematical operation.
Last, Liquidity covenant is legal under Article 572.2 the LEC.
In summary, para la Sala, liquidity covenant not considered as unfair.
The early maturity
Although the three sections of the Provincial Court of Palma de Mallorca had followed criteria reject the unfairness of the early termination clause, in view of the Order of the ECJ (Room Friday) of 11 June 2015, the Plenum of the Provincial Court civil fail to establish requirements for the consideration of the abusiveness of such clause.
Recall that the abovementioned ECJ Auto sets:
“… la Directiva 93/13 debe interpretarse en el sentido de que, where the national court has found the "abusive" character in the sense of Article 3, paragraph 1, of the Directive 93/13 – a clause in a contract between a consumer and a professional, the fact that such a clause has not come to be applied does not preclude alone the national court to deduct all the necessary consequences of the unfair nature of the clause in question” .
Citing paragraph 43 Car of the ECJ 11 June 2015, the STJUE of 14 March 2013 (paragraph 73), Car of the ECJ 14 November 2013 and Directive 93/13 / EEC -Article 3 sections 1 and 3 and point 1 letters e and g and 2 letter to its Annex- concludes that parameters to consider when examining the unfairness of a clause for early termination are:
1.- Nature of the goods and services covered by the contract.
It was a mortgage loan in the case of the residence. However, para la Sala, this condition is not sufficient in itself to declare abusiveness.
2.- Essential whether or not the breach, assessing the duration and amount of the loan.
For the Board, the essential character of the failure can be assessed when it comes to contracts with reciprocal benefits, and that is not the case.
Qualitatively, the breach is fundamental that affects the principal obligation of the contract.
Quantitatively, Room deemed ineligible to make a comparison between the default and the loan amount.
And the claim fee to share, end up increasing costs for the debtor.
3.- National legislation to determine whether the consumer can avoid the effects of early maturity.
If after the loan, the debtor can rehabilitate the contract by paying the unpaid fees, early termination clause does not produce imbalance.
And this is the provision of Article 693.3 the LEC: It provides that in the case of a foreclosure on your primary residence to avoid the consequences of early termination paying overdue fees and costs.
4.- It is not considered abusive any provision to establish a period of less than three months is abusive.
The Chamber rejected the opposition and considers that in the case, early termination clause is abusive.
However, resolution, Judge Doña Catalina Moragues makes a particular vote that reflects the reasons why it considers that the early termination clause is abusive:
1.- The loss of the residence is considered a serious breach of the rights of consumers (STJUE 10 septiembre 2014).
2.- The early termination of the loan, without prior formal notice for non-payment of maturity, It would be a general clause, the negotiated individually, which may be regarded as unfair if contrary to the requirements of good faith, It will cause consumer detriment, a significant imbalance (art. 82.1 TRLGDCY the).
3.- The STJUE of 14 March 2013 He recalled that the Court to check whether there has been a fundamental breach, sufficiently serious regarding the duration and amount of the loan. And to incorporate this doctrine to our system, Act 1/2013 of 14 May amended the wording of Article 693 the LEC, breach introducing three months.
Judge comes to pick arguments Auto n1 202/2015 General Board of Judges of the civil order of AP. Pontevedra.
In summary, the abusiveness of clauses for early termination is an issue that is far from peaceful and should be reviewed in view of the competent Provincial Court, in each specific case.