The multicurrency mortgages are subjected to transparency control

hipoteca multidivisa

 

The AP has condemned Bankinter Valladolid S.A. to settle back a loan in foreign currency for lack of transparency, according to the doctrine of STS 15 November 2.017

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The resolution has been adopted in the judgment No. 55/2018, of 8 February 2.018.

The 22 August 2.008, D. Hannibal and Ms Tatiana hired a mortgage loan in foreign currency 170,608.39 francs BANKINTER suizos- S.A., that replacing previously signed a mortgage entre las partes.

They tried to challenge the currency clause before the Court of First Instance and Instruction No. 2 Medina del Campo, that Judgment 15 May 2.017, entirely dismissed his claim. By turning on appeal, It hearing analyzed the following legal elements.

Doctrine later multicurrency mortgages 15.11.2017

The Chamber adopted the new approach of the Supreme Court, introduced in its judgment of 15 November 2.017.Ésta partially reformulated previous teaching in the following sense:

1.- Currency loans do not wake the system of obligations of the LMV.

2.- If all other legislation applies. For example, if the borrower is a consumer, It is protected by Directive 93/13 / EC.

3.- Failure to comply with the duties of information is relevant for purposes of determining the transparency of the terms negotiated in consumer contracts.

Variable interest clause

TS repeated doctrine identifies as requirements the existence of a general condition of recruitment:

  • Contractuality: insertion in the clauses of the contract, but not for legal reasons.
  • Predisposition: writing outside a negotiating process.
  • Imposition: on one side, which limits the possibility of action of the other accession or rejection.
  • Generality: statements intended to discipline a series uniformly business.

Conversely, its irrelevant:

  • The perpetrating clause.
  • His external appearance.
  • The a consumer or acceding.

Nor is it relevant clause that regulate essential elements or contract. In this sense, Hearing cites STJUE of 10 May 2.001:

<<That clause in a contract concluded with a consumer regulate an essential element of the contract does not preclude having legal consideration of general condition of the contract if the conditions for it (contractualidad, predisposition, taxation and generality)>>.

Conversely, it is relevant negotiating capacity of the acceding. Capacity is not limited to the choice between a plurality of offers.

Multicurrency control transparency clausulado

Settled law, the clauses should be drafted in clear and comprehensible manner and also, enable consumers to make decisions "based and prudent" (see STJUE, caso Andriciuc).

About him Dual control transparency, reminds the audience that:

<<further filter incorporation provided for in arts. 5 and 7 LCGC, general conditions in contracts with consumers should apply transparency control, as an abstract parameter validity of the clause prearranged, when the general condition refers to essential elements of the contract>>.

The objective of such controls is that the adherent knows the economic and legal burdens of the contract.

Duty of information about the risks of multicurrency

Within the transparency required to consumer contracts, a duty of information is established which aims to:

<<allows consumers to its decision to contract with full knowledge of economic and legal burden that will conclude the contract, without the need for a thorough and detailed analysis of the contract.

This exclude that it can worsen the legal position or aggravated the economic burden the contract is for the consumer, as this had perceived, by including a general condition that exceeds the requirements of incorporation, but whose legal or economic significance went unnoticed consumer because it was not provided adequate and clear information on the legal and economic consequences of such a clause>>.

Multicurrency mortgage risks

STS 30 June 2.015 He explained "why the risks of foreign currency mortgage loans exceed own mortgage variable rate loans requested in euros”.

Basically, the risk of interest rate variation (unusual, as LIBOR), is added to currency fluctuation, with all its consequences. Including, the chance to meet the consumer who has been paying religiously, the currency appreciation may lead to a greater need to arrange the loan received equity.

Conclusion

The conclusion of the above is:

1.- MiFID regulations do not affect mortgage lending in currency.

2.- But, by being complex products, a plus of information including specific risks required.

3.- A general clause it is when presents notes contractuality, predisposition, taxation and generality. As such, is subjected to filter incorporation.

4.- If you also regulates an essential element of the contract, It is applied twice transparency control.

5.- These disclosure requirements are anticipated to pre moment.

Based on the doctrine of the Supreme Court, and as outlined, Section 3 of the AP of Valladolid considered the appeal of the plaintiffs, en Sentencia n.º 55/2018, of 8 February 2.018. Accordingly:

1.- He declared the partial annulment of the contract multicurrency mortgage loan for lack of transparency.

2.- He condemned the bank to repay the loan based on borrowed capital.

 

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