Los intereses de demora no permiten la calificación como usurario de un préstamo

usura

Default interest in isolation, do not allow the cancellation of a loan application of the Usury Act

 

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Remunerative interest and late payment of mortgage loans are subject to different legal regimes. While remunerative interests can be individually qualified as usurious, the only moratory may be understood as such, when analyzed in conjunction with other circumstances.

D. Juan Miguel signed with D. Aureliano a mortgage. They agreed a remunerative interest and late payment of the 10% and 30%, respectively. Following the cancellation of the mortgage loan and after more than four years, D. Juan Miguel filed a complaint. He requested the annulment of the loan considering it usurario.

Antecedentes

The 14 November 2007, D. Juan Miguel signed with D. Aureliano a mortgage.

D. Juan Miguel intervened as borrower and mortgaged a farm back guarantee loan. D. Aureliano acted as lender.

In writing one remuneratorio loan interest was set for the 10% and interest for late payment of the 30%.

The 17 November 2009, D. Aureliano gave mortgage loans to Mrs. Salvadora.

The 1 July 2010, D. Juan Miguel sold the mortgaged property and the amount obtained canceled the mortgage loan.

The 25 September 2014, D. Juan Miguel filed suit against D. Aureliano and Mrs. Salvadora. He requested the annulment of the loan and its subsequent assignment is declared and, is condemned to D. Aureliano and secondarily to Mrs. Salvadora, to pay him 94.502 euros, statutory interest. He based demand in the loan era usurario, for he was not given by the lender all the money reflected in writing, and he had interests disproportionate.

Mrs. Salvadora answered the demand. He requested that the expiry of the action alleged by Juan Miguel declared and, secondarily, integrates demand dismissal.

Primera Instancia

The 21 January 2015, by measure of organization, He declared in absentia to D. Aureliano. He was not himself at term to answer the demand.

The 12 November 2015 el Juzgado de Primera Instancia nº 2 de Bilbao, gave judgment. He dismissed the lawsuit, acquitted the defendants and imposed costs to the actor. The judge understood the action for annulment expired, because when the lawsuit was filed had been more than four years since the completion of the contract (1 July 2010).

Provincial Court

D. Juan Miguel appealed against the judgment at first instance.

The 26 May 2016 5th Section of the Provincial Court of Vizcaya gave judgment. It dismissed the appeal and imposed costs to the appellant.

However, the Court noted that la acción de nulidad, user-based nature of the loan, not expired. He concluded that remunerative interests were not disproportionate, it did not exceed twice the normal interest of money at the time they were agreed. And, with respect to interest arrears, Audience said that although they were higher than the average for the financial sector, there was no evidence to justify the user character (as it would be the plight of the borrower).

Supreme Court

 D. Juan Miguel appealed to the Supreme Court.

The reason for the appeal was "infringement of arts. 1 and 3 Repression Act of Usury of 23 July 1908, and the case law that interprets ". The appeal focused on non-usurious consideration of remunerative interest of the 10% and the Moratorium 30%. The appellant understood that these interests were markedly higher and disproportionate to the circumstances of the case.

The Chamber rejected the plea. For this, He analyzed the jurisprudence on usurious loans. He distinguished between the remunerative interest and the delay.

The Chamber noted the STS 628/2015, of 25 November. This article was collected. 1 Act 23 July 1980 Repression of Usury (LRU), whereby, “so that the loan can be considered usurious need to, in addition to being <<significantly higher than normal money>>, the interest is stipulated <<manifestly disproportionate to the circumstances of the case>>.” Thus, must be the case. So, at the time when the mortgage loan was agreed, mortgage operations in a year, the average was 5'99% interest and mortgage operations over 10 years was the 5'76% (TAE 6,18%). The Chamber found that the interest of the 10% Annual agreed I could not be understood as significantly higher and disproportionate just to exceed the average rate.

The Chamber recalled the STS 132/2019, of 5 March, concerning the applicability of the LRU to interest arrears: "As a general rule, the jurisprudence of this Court (STS 869/2001, 430/2009 and 709/2011), considered, given the different nature of remunerative interest and late payment, It is the latter are not to be applied Usury Act, because when it is spoken of interest referred to retributive. (…) While the default interest penalize a breach of the legally objectionable debtor and its application both for repairing (…) the damage that the creditor has received, to constitute an incentive that will encourage the debtor to voluntary compliance, given the seriousness of the injury that would produce the default or delinquency ". He added that, “however, in some case (sentences 422/2002 and 677/2014), They have also been reputed usurious interest on arrears, but not in isolation, but as one more fact from a set of circumstances that lead to qualify as usurious loan agreement itself”.

The Chamber concluded that, in the case treated, the usurious nature of the loan does not depend solely on interest for late payment, but the actor based on various data: which he received less than the amount agreed in writing loan (It was not proven), the remunerative interest of the 10% It was higher than the normal money and, that at the time of signing of the loan the borrower was in a situation of economic distress (It was not proven). So that, the mention of default interest only used as one more fact to argue the loan usury.

The Chamber ruled that the remunerative interest was usurious, so that the penalty interest, in itself and considered in isolation,It was not enough to declare the nullity of the usurious loan.

The appeal was dismissed and condemned the recurrent costs generated.

Conclusion

A default interest agreed in a loan agreement, not applicable to them Suppression Act of Usury, referred to in isolation.

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