Clause floor with several debtors: Who can claim?


clausula suelo


In a mortgage loan any joint debtors can claim the elimination of the clause floor, although the rest is not involved in the process.

It is settled case law in this regard. Among the most recent judgments, we mean dictated the 17 March 2016 by the Provincial Court of Palencia.

The plurality of debtors on a home equity loan is relatively common. On the one hand, are cases where debtors are marriage, but on the other, There are situations where several debtors hire a loan to buy a home between several or even build their own homes.

In the case of marriages, the Civil Code expressly provides that either spouse can exercise the defense of common goods and rights, in his article 1.385.

What happens when there is a plurality of debtors on a mortgage loan that are not spouses?

In these cases, It applies the arrangements provided for in the Civil Code for joint and several obligations in Articles 1137 ff.

In the case of the sentence 17 March 2016 of the first section of the Provincial Court of Palencia, two customers took a mortgage loan for the purchase of a local.

One of them, filed suit against the Bank Ceiss, requesting the deletion of the clause floor of the loan, which it had been established in the 3.50%. El otro deudor no intervino en el proceso.

The Court of First Instance granted the application and declared the nullity of the clause floor.

So the Ceiss Bank appealed to the Provincial Court, claiming “lack of standing”, to have claimed one of the joint debtors.

The room dismisses the appeal and confirmed the judgment of the first instance.

For Hearing, one of the debtors, He is doing through its court claim, a performance that is useful to others: If you are able to eliminate the clause floor, It will benefit the rest of the joint debtors. And this legitimation, It is expressly provided for by Article 1141 Civil Code:

“Each of the joint creditors can do anything useful to others but not what is harmful to them”.

Also, Article 1143 se refiere a “any of the debtors”.

The Judgment of the Supreme Court 25 February 1998 expressly states that:

“But there is no active joinder necessary: no one can force another to be co-plaintiff; different is the issue of the effects of the judgment, pero queda bien constituida la relación jurídico procesal en que uno o varios demandantes, with legal standing, as the case, exercise an action, not to bring, or they can bring, other interested parties as co-plaintiffs.”

In the same sense, se pronuncian las SSTS de 23 October 1989 and the 22 December 1993.

Any of the commoners (or in this case, solidarity mortgagors) You can stand trial for exercise or defend rights that affect their community “in which case the judgment in his favor shall benefit the other participants without adversely affecting them adverse or contrary” (SSTS 18.12.1933, 5.7.1954, 29.12.1967, 24.10.1973, 21.09.1987, 8.02.1994).

In conclusion, in cases of mortgage loans with several joint debtors, any of them can claim the elimination of the clause floor, without it being necessary the presence of the rest in the process, because it is an action that is in their benefit and not harm him.

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