Abusive clauses of a mortgage loan agreement

We review unfair terms that most often appear in mortgage lending

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The Court of First Instance No. 1 Arrecife, in Case 12 December 2019, It has estimated the lawsuit filed by the borrowing party, who he signed a home equity loan the 15 November 2007 with the bank Banco Santander, S.A., determining invalidity of various clauses consider abusive, whichever note, including, a clause soil with minimum ordinary interest of the 4% and the other concerning the payment of premium life insurance, which ignored the borrower, designated the bank as beneficiary tomadora and own it.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The 15 November 2007 a mortgage was signed between the plaintiff and the entity Banco Santander, S.A.

For the plaintiff it filed suit in an ordinary lawsuit against the entity, exercising nullity action for abusive consider some general conditions of contract and claiming the amount corresponding to payments made by the obligational content of the provisions whose annulment is sought.

The applicant considered that the bank defendant failed to fulfill the criteria of transparency and incorporation and pre-contractual information, necessary for the valid application of the clauses referred, having inserted the same in the contract unilaterally without be negotiated individually, should be declared null and void by abusive, to violate the rules of the consumers and users and existing case law on the subject. There was no a valid contractual agreement thereon.

After admission, It was forwarded to the defendant. In that period, the plaintiff lodged a supplementary application. After the deadline for reply, the defendant did not, declaring in absentia, but later personó.

The 4 December 2019 the preliminary hearing was held, presenting both sides without reaching agreement. The plaintiff was ratified in its expansion. the facts were established where there was, both compliance and controversy, and she agreed to receive from the lawsuit-proof. Both proposed documentary evidence, which they were admitted, cars being seen for sentence.

Primera Instancia

The 12 December 2019, el Juzgado de Primera Instancia nº 1 Arrecife gave judgment. He estimated demand. In addition to award costs against the defendant, He declared invalid by abusiveness of the following clauses:

  1. stipulation financial 3.3, to establish a minimum rate of interest of the ordinary 4%.
  2. stipulation financial 4.3, fee for claiming liability positions.
  3. stipulation financial 5.1, for having charged to the borrower payment of all expenses and taxes generated by the mortgage.
  4. stipulation financial 6, by imposing a higher interest delay by four percentage points to the current ordinary interest at that time.
  5. stipulation financial 1.2, for the payment of life insurance premium.

The Court of First Instance No. 1 Arrecife It was based on the following arguments to estimate demand:

Concept unfair terms

First of all, the article 82.1 TRLGDCU ha establecido que "They shall be deemed unfair terms all those terms not individually negotiated and all those practices not expressly consented to, against the requirements of good faith, cause, detriment of consumers and users, a significant imbalance in the rights and obligations of the parties arising from the contract ".

For his part, the article 83 has determined that "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 ".

The Law 44/06, to improve the protection of consumers and users, complete catalog of unfair terms contained in Additional Provision 1 Th of said standard.

The STS plenary 9 May 2013 determined the requirements for not consider abusive clauses negotiated: a) That it be predisposed general conditions and intended to be imposed in several contracts, not individually negotiated; b) That contrary to requirements of good faith, cause a significant imbalance in the rights and obligations under the contract; and c) Imbalance that harms the consumer (the possible harmful abusiveness of clauses is rejected for professional or entrepreneur).

Clause soil

Both the TS jurisprudence of the CJEU as demanding bears, not only they are drafted in a clear and understandable manner, but also that the adhesive can have a real knowledge of them, namely, that may provide, based on specific criteria and understandable, legal and economic burden of the contract.

In this particular case, clause came wrapped between a cluster of stipulations, references and data that hampered the effective understanding of the resulting reality. I hired was not a loan at variable interest, but a fixed interest contract, only variable rising, so the consumer could not benefit from the downward fluctuations of the market interest rate below that percentage, but only be affected by fluctuations in the rise.

In fact, the STS 24 November 2017 He stressed that, even if "Clause floor is a single paragraph within a large paragraph referred to the interests of the loan, which is offered as a variable interest loan, referenced to an official rate such as the EURIBOR, (…) completely changes the economics of the contract. "

In this case, the Court concluded that it could not be estimated ground that the information was provided at the time by the bank, allow borrowers perceive the clause as defining the principal object of the contract, their relationship with the content of its payment obligation, and, ultimately, they acquire a real and reasonably complete understanding of how impinged on the economy of the contract, to suffer, therefore, lack of clarity and transparency.

He stressed in this regard the STS plenary 9 May 2015, namely that "Providing consent to a prearranged clause must be regarded as imposed by the employer when the consumer can not influence its suppression or its content, in such a way that, or adheres and consents contract with the clause, or he must renounce hire ".

"A general conditions that deal with essential elements of the contract are required a plus information (precontractual) which allows the consumer to take a decision to contract with full knowledge of the legal and economic burden that will conclude the contract, without the need for a thorough and detailed analysis of the contract. " (STJPI Arrecife 367/2017).

Ultimately, the Court found that the treated clause is a clause not transparent, and, therefore, imbalance contrary to the requirements of good faith, detriment of borrowers, giving conditions wrongfulness of consumer and user rules for the annulment of the clause it was prearranged as a ceiling / floor remunerative interest.

The clause declared null and void, por abusiva, and he ordered the respondent company to proceed to recalculate the amortization of the mortgage from the time the clause applied soil, returning the collected excess actora each payback period for the application of the clause floor.

Commission clause claim liability positions

TS ruled for the first time in STS 25 October 2019, stating that "Under the Order EHA / 2899/2011, of 28 October, transparency and protection of client banking services, Circular 5/2012 of the Bank of Spain 27 June, credit institutions and payment service providers, Transparency of banking services and responsibility in lending, and the Order EHA / 1608/2010, of 14 June, on transparency of conditions and information requirements for payment services, governing the transparency of payment services subject to the Act 16/2009, of 13 November, payment service, so that companies can charge their customers must be met two requirements: allowance for an actual service provided to the customer, and service costs have been made effectively. Namely, banks may not charge for services not requested or accepted customers, that must have been personally informed in advance of the amount they will have to pay for that service. "

In fact, the Bank of Spain It is demanding the following minimum requirements: i) the fee accrual is linked to the existence of effective efforts complaint made to the debtor client; ii) that the Commission can not be repeated in the same balance claim for additional efforts made by the entity with the same purpose, even when, in the case of default in time, This continues in successive settlements; iii) their amount must be unique, not admitting percentage rates; iv) which can not be applied automatically.

In this case, the Court held that the clause in question did not meet these requirements. In fact, It provided that it could be repeated, considering as an automatic claim. Also, not discriminate periods of arrears, sufficing the ineffectiveness of the share on the payment date scheduled for, plus default interest, the accrual should occur for a fee. Nor it identified what kind of management was to be carried out, It can not deduct an expense that would generate cash.

He concluded that the Court "The simple abstract requirement in a contract with consumers, a fee for communicating late payments, detached from any particular expenditure justifying and breach of the requirements set by the Bank of Spain, It is abusive,, hence, null. "

Clause of the case was not linked to an effective and concrete management, contemplated automatically and repeatedly each time the default receipt occurred to, plus default interest, It is entitled to commission.

He ordered the bank to reimburse the plaintiff the sum collected for this item if there had been such a charge.

Expenses clause

At this writing loan, He knew that would be exclusive account of the borrower all costs incurred in the preparation and execution of public deeds, as well as those generated by the constitution, modification, conservation and void your warranty: appraisal, notary and registration fees, taxation, insurance, as well as the expenses and costs for breach of contract, including lawyers' fees and rights attorney.

The Court considered that "These clauses had the specific characteristics of unfair terms, They were treated as stipulations not individually negotiated, namely, predisposed by the employer, it enjoyed at the time, an upper position of negotiating, causing, against the requirements of good faith and to the detriment of the consumer, an obvious and significant imbalance between the rights and obligations of the parties, since consumer imposed on the borrower paying all expenses and taxes related to the operation (including future), regardless of who corresponded payment in accordance with regulations. "

It is the Supreme Court which 23 January 2019 it ruled on the following expenses:

notarial

“(…) Public notary interest to both, so the costs of writing matrix mortgage loan must be distributed by half. The lender's interest lies in obtaining an enforceable title and a document that allows the registration of the mortgage in the Land Registry to make it quorate, while the interest of the borrower lies in obtaining the loan, by having mortgage, It is awarded to an interest rate usually lower than that prescribed in loans without the guarantee. "

The Court considered, therefore, it was reasonable to distribute by half payment of expenses generated by the granting of the public deed mortgage. However, in a deed for the cancellation of the loan, He considered that the interest in releasing the lien was the borrower, such spending accounting for him. Copies of notarial deeds, pay them if requested.

Registro de la Propiedad

In this case, the Court has held that the registration fees corresponding to the lender, namely, to the bank, for being in favor of whom he scored enrolled or right.

In the event of cancellation, the interest the borrower registration, accounting for him this expense.

gestoría

The STS Pleno nº 44/2019, of 23 January 2019, He has indicated that "When you have used the services of a manager, efforts have been made in the interest or benefit of both parties, the expenditure generated by this concept must be borne by half ".

Estate appraisal

The judgment highlighted the SAP Asturias 29 September 2017, which established that "Based on the premise that the beneficiary of the loan is the consumer and the offer of real estate collateral is essential legal requirement for obtaining the type of loan here (art. 5 Law 211/1981, of 25 March, Regulation of the Mortgage Market, renovated in 2007). (…) Namely, who chooses the form of mortgage loan is the one who must prove the sufficiency of the guarantee offered to the bank, and, therefore, no injury is derived from the allocation of that spending. In fact, does not prejudge whether the assessment will be made by self service financial institution or duly authorized professional designated by the customer, as legally allowed. "

Por consiguiente, for the Court, the controversial condition is not limited the autonomy of the consumer to choose the appraiser deemed more convenient, not proceeding declaring invalid clause.

Seguro de daños

In this case, Nor did the Court has considered unfair term, for, as he determined the STS Pleno de 23 December 2015, "As regards the costs of hiring damage insurance, This forecast does not seem to be unreasonable or abusive, as it derives from a legal obligation (art. 8 Lanः), given that any loss of good direct impact on reducing warranty. Namely, This is not a disproportionate warranty, in the sense prohibited by Article. 88. 1 TRLGCU, but a consequence of the obligation to diligently keep the mortgaged property and secure it against all risks that could affect. But, in any case, It is an inane forecast, since the obligation to pay the insurance premium corresponding to the policy of the same, conforme al art. 14 of the Law of Insurance Contracts. "

Community expenses and IBI

The Court concluded that this clause was valid because "The payment are required to holders of the property on which such expenses and tax impact".

Costs and expenses of judicial and extrajudicial procedures

The Court has made clear in the judgment that the abusiveness of this clause resulted from the obvious all, for "Imputing to the borrower's attorney fees and attorney fees which has served the lender, even when their intervention is not mandatory, flat contravenes Article. 32.5 LEC, excluding such expenses possible for costs, unless the court considers recklessness or the domicile of the party represented or defended in court is in a place other than that in which the judgment has been processed. So that, Besides the lack of reciprocity between the rights and obligations of the parties and the difficulty for the consumer to assess the consequences for not knowing at the time of the signing of the contract the cluster of performances which could eventually avail the contracting entity of such professionals without being prescriptive (acts of reconciliation, payment procedure, verbal judgment claim amount less than the legally established, etc.), which would in itself be sufficient to consider the clause as abusive, It is correct declaration of invalidity of the same, according to Art. 86 TRLCU and 8 LCGC. "

taxes

The Court has brought up the Article 89.3.c) TRLGCU, calls for abusive "The stipulation that imposes on the consumer the payment of taxes in which the taxpayer is the entrepreneur".

In this case, on the loan the borrower beat the duty to pay all taxes and excise taxes that hamper the mortgaged property, so indiscriminately and without specifications.

It was the STS Pleno, Living room 1 ª, of 15 March 2018, which has established that "It is abusive in full the clause conferring, indiscriminately and without distinction, payment of taxes to the borrower because, without any negotiations, it attributed to the payment of taxes arising from the operation, when the law considers taxpayers to the lender or the borrower based on different taxable events ".

On same resolution, TS has determined that, "By the Constitution of the loan, payment incumbent on the borrower, referring to the jurisprudence of the Sala Tercera, Contentious-Administrative, Supreme Court, which has established that the taxpayer of the IAJD is the borrower. "

The Court declared "Invalid content clause spending, but without that declaration of nullity will lead to a conviction of the bank to reimburse the plaintiff the amount of the IAJD that, in his day, paid, it is one thing that a clause should be declared void, which inevitably result not having it start, and one that necessarily the consequence of that declaration of invalidity should be condemning the lender to pay these amounts. "

In fact, was noted in the judgment that the 10 November 2018 It entered into force on RDL 17/2018, and amended the wording of thearticle 29 of the RDLeg. 1/1993, indicating "It will be the purchaser of taxable good or right and, failing, people who urge or request notarial documents, or those in whose interest are issued ", and stating that "when it comes to deeds equity loan, It shall be deemed taxable to the lender ".

Ultimately, el Juzgado de Primera Instancia nº 1 Arrecife, about everything contained in the clause declared null costs the same, It can not be healed, ni, therefore, take effect, so the confirmation of those clauses was discarded based on the acts of the actor (for paying unopposed), because what is null can not produce effect, ni, accordingly, it can be corrected or confirmed.

He condemned the Banco Santander, S.A. to pay the plaintiff "The amount of 543.48 € (expenses Property Registry and half of the notary fees and Agency; all relating to the formation and registration of the loan and the payment of which is accredited by the attached documentary demand), plus interest accrued on that amount from the date on which the expenses were paid which has been declared invalid (STS Pleno de 19 December 2018).”

Clause concerning the default interest

He has also declared abusive, therefore it imposed a higher interest delay by four percentage points to the current ordinary interest at that time.

According to STS 364/2016, of 3 June, "Interest for late payment set out in clauses not negotiated in consumer contracts should consist, not to be abusive, in an additional percentage not exceed two percentage points above the interest remuneratorio. If default interest is fixed above this percentage, the clause established is abusive. "

To know the consequences of this clause has been declared abusive, He went to the STS 3 June 2016, which expressed that "The invalidity of the unfair term implies their total elimination, namely, the elimination of disproportionate compensation for the delay in repayment of the loan (The surcharge on the interest rate remuneratorio), but not remunerative interest. "

Given this, He ordered the bank to refund to the plaintiff, than paid for this concept, plus legal interest from each payment, if any.

Credit repayment insurance death

The Court considered in this case, that the obligation to purchase insurance repayment could not be considered, In herself, and in principle, as abusive.

The provision of the loan agreement read that "by the present, the borrowing part transfer order given from said account (that of the borrower which has paid the amount of the loan, it adds) amounting to twenty-five thousand and seventy-eight hundred euros and eighteen cents (25.278,18€) in favor of EURO LIFE, S.A., to the account of the entity, in concept of insurance premium credit repayment death”.

We are facing a clause imposed by the lender, the hiring and payment of such insurance. And not only that, since the Court concluded that "The decision of assurance and, ultimately, all conditions, It was outside the scope of the lending decision part, despite the economic burden posed, since a loan was agreed by a principal that is not so, because of the same with immediate effect detracted nothing less than 25.258, 18€ for the payment of insurance premiums and, however, the borrower had to pay interest on the total of the principal (250.278,18€), which entailed a considerable increase in the financial cost of the operation. Assurance of the certificate revealed that it is the bank which is designated as beneficiary and tomadora, reducing borrowers insured passive condition. "

Ultimately, the Court concluded that, in this case, the clause was unfair, and null, therefore, condemning the bank, to return, of 25,258.18 €, subtracting the proportional part of the premium could be understood “consumed”, increasing the resulting amount to the legal interest of the money came from that payment (art. 1303 Civil Code).

Conclusion

In order to declare the nullity of a clause included in a deed of mortgage, it is necessary to determine whether, besides not exceed transparency control, It is abusive within the parameters required by Articles 82.1 and 82.3 TRLCU, namely, it causes a significant imbalance between the rights and obligations of the parties to the contract, detriment of consumers.

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