Supreme Court doctrine on the early termination

vencimiento anticipado

The Plenum of the Civil Chamber of the Supreme Court sets its doctrine on the early maturity in home equity loans

 

 Consult your case now

The Plenum of Civil Chamber of the Supreme Court handed down last 11 September 2019, Case number 463/2019 It sets out his doctrine on early repayment clauses in mortgage loans consumer customers.

The Chamber has finally determined that early termination clauses are void if its wording does not give rise to an interpretation casuistry: It must be specific to each loan, depending on their duration and amount.

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 30 May 2008, D. Adriano and Ms. Fátima signed with NCG Banco SA, a deed of home equity loan amounting 100.000 euros.

It must be returned within thirty, through 360 Fixed monthly installments.

The contract contained a number of clauses considered abusive borrowers:

"3º bis. Interest rate applicable (…)

2.5ª. Expenses paid by the borrower part (…)

3.6ª. Interest on late payments (…)

4.6ª up. Early termination by the credit institution (…)”

D. Adriano, the 10 April 2013, filed suit against the bank. In it he exercised an individual action nullity of general contract conditions.

Primera Instancia

The 4 February 2014, the Commercial Court No. 3 Pontevedra gave judgment by substantially upheld the lawsuit.

They were declared null general conditions 3 to a, 5, 6,  and 6 bis of subscribed mortgage loan. He declared himself, that there was no refund of amounts paid in excess by the review clause interest rate.

Against that judgment, the representation of NCG Banco SA, interpuso recurso de apelación.

Provincial Court

The 14 May 2014 Section 1 of the Provincial Court of Pontevedra gave judgment confirming the decision instance, except to exclude invalid letter to) clause 5. But also it declared invalid, por abusiva, Letter e) 9th clause.

Supreme Court

The defendant filed an extraordinary appeal for procedural infringement and appeal against the judgment of the Provincial Court, who they were admitted.

The grounds of the appeal were:

First.- Infringement of arts. 1281 and 1288 the Civil Code and 6.2 LCGC and opposition of the jurisprudential doctrine.

Second.- Infringement of arts. 89.3, 82.1 and 82.3 the LCU, in relation to arts. 29 the RD-L 1/1993 and 68.2 of RD 828/1995 and opposition to the jurisprudential doctrine.

Third.- Infringement of arts. 89.2 and 89.3 LCU relative standard 6th of Annex II of RD 1426/1989 and Rule 8 of Annex II of RD 1427/1989 and opposition to the jurisprudential doctrine.

Fourth.- Infringement of arts. 85.6, 82.1 and 82.4 the LCU, existence of conflicting jurisprudence.

Fifth.- Infringement of arts. 1124, 1157 and 1169 CC, in relation to the doctrine of the Supreme Court to declare the abusiveness of early termination clause, and violation of doctrine.

Sixth.- Subsidiarily the previous plea, infringement of the principle of conservation of contracts relating to the determination of the effects of the invalidity of the early termination clause, justifying the cassation interest in opposition to this jurisprudential doctrine.

Seventh.- Infringement of the principle of conservation contracts under the doctrine of the Supreme Court regarding the determination of the effects of the invalidity of the clause assurance mortgaged and opposition to the jurisprudential doctrine estate.

After an initial discussion of the plenum of the Chamber, it was decided to raise a request for a preliminary ruling to the ECJ. This was resolved by STJUE (great Hall) the 26 March 2019, whose decision was as follows:

"The articles 6 and 7 Directive 93/13 / EEC, of 5 April 1993 , on unfair terms in consumer contracts, They are interpreted that, on the one hand, oppose a clause for early termination of a contract declared abusive mortgage loan is partially preserved by removing the elements that make abusive, when such deletion is equivalent to modify the contents of the clause affecting its essence, and that, moreover, those same items do not preclude the national court to remedy the invalidity of such unfair term substituting the new wording of the law that inspired the clause ... provided the mortgage loan contract ...can not survive in case of deletion of that clause and abusive cancellation of the contract as a whole expose the consumer to particularly harmful consequences“.

Subsequently, the CJEU delivered three cars, all dated 3 July 2017, that solved three requests for a preliminary ruling on early termination clauses in contracts mortgage loan.

Finally, the 11 September 2019 the Supreme Court, the Plenary of the Civil Court delivered its judgment with resolution number 463/2019 resolving the dispute.

– The first and second plea.

In the development of the first plea he argued this:

(i) If clarity of the clause left no doubt about what was the contractual intent, I had to sit her literally and,

(ii) that that interpretation was not aware that, in the field of individual actions on the scope of the general conditions of contract, doubts should be resolved against the predisposing and in favor of the acceding.

In the second ground of development it is said to be "the allocation of taxes to the consumer operation does not involve the imposition of fees or taxes legally responsible for the employer (…) the only tax levied on the transaction to which the loan refers is the transfer tax and stamp duty ... whose taxpayer is the borrower ".

The Chamber found that the contested judgment did not violate the arts. 1281 and 1288 CC, or art. 6.2 LCGC. But it fits the art. 89.3 c) TRGCU he described as abusive stipulation imposed by the consumer to pay taxes on the taxpayer outside the employer. So, the clause was generic and ambiguous, incurring the prohibition of that provision, so it was abusive.

He added that the second plea, “If the only applicable tax out tax stamp duty... suffice it had said such a tax would be the customer ... But precisely because it says and in a way so broad and vague ... it's so ... no he is referring to that tax.

Therefore, the Chamber dismissed the first two grounds of appeal.

– The third plea.

The Chamber announced that the question of attributing the notary and registration fees to the borrower had already been results in full sentences 44/2019, 47/2019, 48/2019 and 49/2019, all of 23 January.

So, the indiscriminate attribution the costs of alteration of the loan He had no legal protection conforme al art. 82.2 TRLGCU.

The third plea was also rejected.

– The fifth and sixth plea.

The fifth plea alluded to make a correct interpretation of the clause. This is because the ability to anticipate expected maturity before non-payment of any fee if this was considered essential. Thus, the reason sixth in the alternative cited the principle of conservation contracts.

Hall set the jurisprudential doctrine of early maturity.

The Chamber referred the arts. 1129 and 1124 the Civil Code in connection with art. 693.2 LEC in the field of mortgage loans and credits.

ECJ case law, Case 14 March 2013, Case C-415/11 (Aziz) hinted that "a clause providing for the early termination for nonpayment of any of the deadlines, without being abusive per se, It could be considered as such in the circumstances of the case.

He added the sentence in contracts larga duración executed early termination was for the national court to check whether the or failure was not essential in the context of the contractual relationship. This statement was later confirmed by the ECJ Auto 8 July 2015 He is citing Article. 4.1 Directive 93/13 He is adding about: “abusiveness judgment should take into account the nature of the goods and services covered by the contract ... and considering all the circumstances surrounding his celebración”.

Therefore, for early termination clause exceeds the standards should modulate the seriousness of the violation depending on the duration and amount of the loan. And, thus allowing consumers to avoid their application by diligence conduct repair.

Regarding the Auto 11 June 2015 issued by the CJEU (Case C-602/13) “before the pact early maturity on a consumer contract and provided that the minimum conditions laid down in art are met. 693.2 LEC, courts must assess, also, en el caso concreto, if the exercise of the power due advance by the creditor is justified, based on the criteria outlined above: essentiality of the obligation breached, seriousness of the breach in relation to the amount and duration of the loan and consumer real possibility to avoid this result.

So good, in our legal system the nullity of early termination clause did not entail the complete disappearance of the powers of the mortgagee. But It entailed restricting the essential faculty of the right mortgage, which is attributed to the creditor that the power to force the sale of the mortgaged to meet his price the amount due (art. 1858 CC). In a contract of long-term mortgage loan,  If the warranty is denatured, loses its meaning.

In the mortgage loan, the cause of the loan and the cause of the mortgage are intertwined and can not be broken. Both respond to both obtaining consumer loan on more favorable economic conditions, as collateral that has the lender in case of default.

Thus, as the Advocate General referred Matter Perenicová, “proceed total nullity of the contract because the business would not have done without the null clause... because the purpose or the legal nature of the contract are not the same ".

To avoid invalidation of the contract that would expose consumers to particularly harmful consequences could be replaced the annulled by the application of art clause. 693.2 LEC. But not in its literalness, but according to the interpretation of that provision by STS 705/2015 and 79/2016.

He considered the Chamber, whether early termination considerations applied to the clause, is did not exceed the established standards. This is because not modulate the severity of noncompliance depending on the duration and amount of the loan, nor allow consumers to avoid their application by diligent conduct repair.

He added the Chamber, “early termination clause that allows the resolution with the failure of a single term, even partially and for an accessory obligation, It must be reputed abusive, since it is not linked to quantitative parameters temporarily or serious.

Doctrine of early maturity

“They should jointly interpreted STJUE of 26 March 2019 and ATJUE of 3 July 2019 on Case C-486/16 , with STJUE of 14 March 2013, case C- 415/11 ( Aziz) , and our jurisprudence, such that, provided that the minimum conditions laid down in art are met. 693.2 LEC (in amended by Law 1/2013), the courts must assess, en el caso concreto, if the exercise of Faculty anticipated due by the creditor is justified, depending on the essentiality of the unfulfilled obligation, the seriousness of the breach in relation to the amount and duration of the contract loan and consumer real possibility to avoid this result. Casuistry is an interpretation that remains to be seen how many monthly payments have stopped pay in relation to the life of the contract and the possibility of consumer reaction.”

(….)

“11.- Under the above, It is applied the following guidelines or orientations jurisprudence foreclosure procedures in progress, in which it has not yet produced the delivery of possession to the acquirer:
a. Processes that, prior to the entry into force of the Law 1/2013, He gave up the loan by application of a contractual clause reputed null, They should be dismissed without further ado.
b. Processes that, after the entry into force of the Law 1/2013, He gave up the loan by application of a contractual clause reputed null, and the failure of the debtor does not meet the requirements gravity and proportionality set out above, They should also be dismissed.
c. The processes referred to in paragraph, in which the debtor's default severity magazine under the LCCI, may continue its processing.
d. Dictations cars dismissal pursuant to paragraphs to) and b) above have no effect of res judicata for a new executive lawsuit based, not anticipated at maturity forecast contractual, but in the application of laws ( ATJUE of 3 July 2019, Case C-486/16 ). Solution that does not conflict with the art. 552.3 LEC , since it is not about a second execution office on the basis of the same title, but executions based on different titles (the contract, in the first case, and the law in the second).
and. It should be understood that the legal provisions mentioned in the preceding paragraph are those contained in Contract Law Real Estate Credit, although resolutions refer expressly to ECJ art. 693.2 LEC as amended by Law 1/2013 and there may be some disagreement with the provision First transitional 4th of Law 5/2019 . And this, because:
The art. 693.2 LEC , in its previous wording of the Law 5/2019, It was a rule of law device, While the art. 24 LCCI, which now refers, It is imperative.”

Conclusion

For all these reasons the Chamber dismissed the extraordinary appeals for procedural infringement and NCG Banco brought by S.A.

Early termination clauses in mortgage contracts are not abusive, and therefore null, Leg. But to be valid, They should be able to vary according to the seriousness of the breach and the circumstances.

 Consult your case now

Leave a Reply

Language


Set as default language
 Edit Translation


Subscribe to receive a book PDF


Just for signing up receive via email the link to download the book "How to change lawyers" en format digital.
Sign up here

Sígueme en Twitter



Subscribe me

* This field is required