When to request the annulment of a foreclosure for abusive clauses?

nulidad ejecucion hipotecaria

Can Unfair Terms Be Overridden Through Post-Foreclosure Declaratory Procedure?

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The existence of abusive clauses in a mortgage loan must be alleged at the appropriate procedural moment. Missing this, the possibility of doing so is lost through a subsequent declaratory judgment.

It is inadmissible to request in a subsequent proceeding the nullity of a foreclosure proceeding due to the existence of abusive clauses in the executive title, when in the execution process, There were possibilities of raising opposition for the same cause and there was no.

In this sense, the judgment of the Civil Chamber of the Supreme Court of 22 October 2020, with No Resolution 550/2020, that we discuss below.

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 9 October 2003, D. Inocencio, Ms.. Gema and Mrs.. Guillerma signed with KUTXABANK, S.A., a mortgage loan that encumbered a property in Suances (Cantabria).

One of the clauses contained the early termination of the contract for non-payment of a single installment. Faced with the default of the borrowing party, KUTXABANK, S.A., He gave up on the loan and filed a foreclosure claim.

The foreclosure procedure continued with the auction of the property on 29 September 2011, award decree was issued on 5 January 2012.

After the reform of the LEC of 2013 the plaintiffs did not exercise any claim within the legally established deadlines.

D. Inocencio, Ms.. Gema and Mrs.. Guillerma filed a petition for a declaratory judgment on 9 December 2014 requesting the nullity of the foreclosure procedure that was followed before the Court of First Instance No. 6 of Torrelavega and that the expenses unduly charged were returned.

Primera Instancia

The Court of First Instance No. 4 of Torrelavega issued sentence on 26 September 2016, declaring the nullity of the sixth and sixth clauses bis to) of the loan contract that was granted by public deed on 9 October 2003 before the notary Javier Asín Zurita in Santander.

Condemned KUTXABANK, S.A. to return to the plaintiffs the delinquent interest charged improperly throughout the mortgage loan, o well, having to recalculate the debt, o well, ceasing to demand it in the foreclosure proceeding, or return it in cash.

He also condemned KUTXABANK, S.A., to return to the plaintiff 5.200 € improperly charged to your bank account.

Conversely, dismissed the claim for nullity of the foreclosure process, considering that the borrowers were able to enforce their claims within said procedure and did not do so.

Provincial Court

D. Inocencio, Ms.. Gema and Mrs.. Guillerma filed an appeal.

Section 4 of the Provincial Court of Cantabria passed sentence on 12 June 2017, dismissing it. It partially upheld the challenge to the KUTXABANK judgment, S.A. Partially revoked the judgment handed down in the first instance, leaving without effect the sentence of the return to the plaintiff of the 5.200 €.

Supreme Court

D. Inocencio, Ms.. Gema and Mrs.. Guillerma filed an appeal.

Nullity claim of foreclosure

For the Chamber, it was inadmissible to raise the nullity due to the existence of abusive clauses in the executive order through a new declarative procedure, because in the execution process they had the possibility to file opposition for said cause and they did not. Thus, they dismissed this reason.

For the High Court:

“3.- Accordingly, It is inadmissible to raise the nullity of an enforcement procedure due to the existence of abusive clauses in the executive order, cuando en el mencionado proceso de ejecución hubo reiteradas posibilidades de plantear oposición por esa misma causa.

Foreclosure expenses

The Chamber coincided with the pronouncement of the Provincial Court. It did not consider proven that the plaintiff had paid the amounts for expenses derived from the breach of its payment obligation, as were the expenses necessary for the claim of the debt of the mortgage procedure.

The Chamber also rejected this motive.

Conclusion

It is inadmissible to request in a subsequent proceeding the nullity of a foreclosure proceeding due to the existence of abusive clauses in the executive title, when in the execution process, There were possibilities of raising opposition for the same cause and there was no.

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