Interests of abusive delay in personal loans

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The Supreme Court has confirmed that the default interest of more than two points on the remunerative interest on loans taken by consumers, son abusivos.

This was stated in its Judgment 8 September 2015, which mainly we include the two ideas:

1.- The limitation of the default interest within two points above the remunerative loans concluded by consumers.

2.- The impossibility of "moderation": the unfair term default interest should be set and implemented not only the remunerative interest, even if late payments.

Ms. Coro had taken a personal loan from the company "Asbury Park SA" (Asbury). This, He filed suit against the borrower on the derivative claim personal loan debt, in which the interest rate was remuneratorio 9% and which default interest It was to add twenty points percentage to remunerative interest.
The defendant denied any amount owed by excessive and challenged the default interest.
The Court of First Instance dismissed Full payment of the claim made by the defendant and He ruled that interest shall be an unfair term.
Ms. appealed Choir.
The Provincial Court held that the default interest was not abusive to not reach three times the agreed interest remuneratorio.

So the defendant appealed to the Supreme Court to consider that there needs to be a jurisprudential unification abusive treatment of clauses on interest for late payment.

Limitation of default interest

In the Judgment 8 September 2015, the Supreme Court He reiterates the view expressed in its judgment 265/2012 of 22 April the increase of two percentage points referred to in Article 576 of the Code of Civil Procedure for fixing the procedural default interest, It is best suited to fix default interest on loans concluded by consumers criterion.

The Chamber indicates that it is not necessary in the process, the borrower had filed a counterclaim, Being as both the ECJ unfair terms as the Supreme Court itself has stated that this condition is appreciable ex officio.

For the TS, Clause of default interest owed apply TRLGDCYU and must pass both the transparency control, as controlling abusiveness, checking if it goes against the requirement of good faith, to the detriment of the consumer and if it causes a significant imbalance in the rights of the parties.

Also, the clause is not included in the scope of Article 4.2 Directive 1993/13 / EEC, for being an accessory.

To determine if the default interest clause is abusive (Article 10.bis LGDCYU or art. 85.6 TRLGDCY the) keep in mind that are considered to be those involving the imposition of a disproportionately high compensation to the consumer fails to meet its obligations.

In our system there is no explicit legal limitations imposed a limitation on interest for late payment. So to fix your criteria, The Board reviews the following quoted below.

  • The default interest the consumer would accept if there really were able to negotiate.
  • Article 1108 the Civil Code which establishes default interest failing to act, legal interest (which is currently the 3.5%).
  • Article 20 of the Insurance Contract Act which establishes a default interest for insurance companies consisting increment a 50% legal interest.
  • The art. 7 Act 3/2004 of measures to combat late payment in commercial transactions which establishes a 7% above the ECB interest rate.
  • The art. 576 LEC that establishes interest on arrears the procedural legal interest rate plus two points.

In conclusion, para la Sala, default interest on personal loans without collateral taken by consumers should be limited to two percentage points above the interest remuneratorio.

Consequences of the invalidity

To the Supreme Court, It should be at the discretion of the ECJ: Article 6.1 Directive 1993/13 / EEC requires that run out issue of unfair term and the judges have no discretion to modify or integrate the content thereof.
The contract should survive if possible under the rules of domestic law, but abusive clause is not set.
If moderation were accepted by judges, the deterrent effect would be eliminated for professionals, they might be tempted to apply unfair terms, that in the event that they demand it, It would always be the possibility that the contract be integrated (STJUE de 14 June 2012 Case C-618/2010).

Moderation is only possible when necessary for the contract subsists in the consumer. But unless this situation, se debe tener por no puesta.

Ultimately, in this case, consideration as,es unfair term interest on arrears It leads to it is completely eliminated, without the possibility of moderation. The loan will be interest only apply remuneratorio.

So is clarified the jurisprudence of the Supreme Court in the sense that an interest of more than two points above the remunerative delay interest on personal loans concluded by consumers is an unfair term.

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