Usury Act also applies to mortgage loans

Usura

You can apply the Usury Act to a mortgage loan agreement and declare invalid

 

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The agreed interest on a loan agreement that are significantly higher than the normal interest of money and manifestly disproportionate and have been accepted by the borrower special circumstances, They are null.

The judgment of the 11th Section of the Provincial Court of Barcelona 4 April 2019 (No.. resolution 22/2019) He has solved one of these disputes in favor of the borrower. Ms.. Soledad signed three currency mortgages for the granting of a loan by a commercial. Interest were notoriously abusive and disproportionate in the circumstances of the case. The company called for the implementation of the amount borrowed while Dña. Soledad he requested invalid currency mortgage loans by applying the Ley de Usura.

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 March 2011 loan contract verbally held 150.000 euros between Dña. Soledad and D. Demetrio (the latter acting on behalf of Albmarserg Inversions, SL). That amount was delivered to Mrs.. Loneliness by check.

On the same date they were held three currency mortgages guarantee of that loan and on three farms owned by Dña. Soledad. Mortgages guaranteed the full amount of the obligation.

Also, on the same date he was conferred, on behalf of the merchant, be able to sell such properties. The power was effective from 8 March 2012 and expired on 9 September of the same year.

three private contracts were also signed by that:

1.- the defendant was authorized to collect rents from the floor until the amount borrowed be referred back and guaranteed mortgage in exchange.
2.- The plaintiff undertook to deliver to the defendant the certificate of occupancy of the three farms.
3.- possession of the apartment is handed situated in Palamos.
4.-The defendant would receive the amount of € 270,600 before 12 months from signing the contract, in payment and settlement of exchange mortgages. That is to say, a type of interest to 100%.

The 2 March 2012, D. Demetrio sent a burofax Dña. Soledad, even if the payment obligation had not been breached.

The 5 March 2012 Ms.. Soledad revoked the power it gave authorization to D. Demetrio to sell their farms.

The 6 March 2012 Ms.. Soledad sent a burofax to the merchant to renegotiate the repayment of the amount actually received from 150.000 euros.

Then, D. Demetrio filed a request for execution against one of the farms amounting to 144.000 euros.

Given these facts, Ms.. Soledad brought an action for which he requested be declared the invalidation of loan contracts signed,es. also he noted the plaintiff's application Usury Act so disproportionate interest to return.

The company alleged that defendant was not before loan contracts, but to acknowledgments of debt in connection with the acquisition and sale of a work of art. And, therefore, It was not applicable Usury Act. There was no errors or ignorance by the plaintiff.

Primera Instancia

The 31 May 2016, the Court of First Instance No.,,es,of Almería dictated auto initiating the phase of liquidation of Construcciones Nativen S.L,,es,the insured initiated payment proceeding against the insurer in the amount of € 161,086.24,,es,the insured filed ordinary lawsuit for the same amount against the insurer,,es,who opposed, alleging the prescription of the action brought against him,,es,de Madrid ruled in favor of the insurer. & nbsp; The judge understood the action prescribed based on the art,,es,LCS that establishes a term of two years,,es,The dies a quo would be the,,es,two years after MELV was able to take action against the debtor,,es,The claim filed,,es,the action was prescribed,,es. 5 Vic gave judgment estimating demand full.

The ruling declared void the three contracts currency mortgage signed on three different farms. Accordingly, the plaintiff must reimburse the defendant the amount of 200.000 euros.

Judging did not accept the argument that the defendant was a reconocimiento de deuda by “acquisition of a work of art”. The will of the parties was a purpose of funding, the benefits obtained both.

He considers ground that the plaintiff recovered a personal check for 150,000 € and a check to bearer
50.000€, that although the plaintiff does not recognize, certification consists of the Bank and a witness.

Against that judgment appeal was filed by both parties.

The defendant claimed, which had not taken into account the legal business reconocimiento de deuda documented in a public deed.

The plaintiff alleged that the legal relationship between the parties was a loan, there are indications that led to the belief that there is a simulatoria performance and that the loan was received only in the amount of 150.00 euros. There was no evidence showing the existence of a check 50.000 euros.

Provincial Court

The 2 April 2019 11th Section of the Provincial Court of Barcelona gave judgment confirming (except in the imposition of costs) the judgment of the first instance.

The core was litigated nature of the existing legal transaction between the parties.

Exchange rate mortgages and private documents signed, really they are hiding contrato de préstamo. In fact, private contracts contained the term "loan".

So, when Dña. Soledad, He acknowledged a debt in the public deed, It does in relation to the loan granted by the defendant.

Hence the thesis of IOU was rejected because "the defendant's claim of the existence of investment by the plaintiff in a work of art as a proper reason of IOU is qualified for the first time in appeal as analogous to contract accounts'.

Regarding abusiveness of interest, the Court considered that it was significantly higher than normal money in the year 2011 and manifestly disproportionate in relation to the value of the properties mortgaged as collateral.

The Court cited the doctrine of the First Chamber of the Supreme Court, in Case 27 November 1991 and 13 February 1998, for that "The IOU is configured as a fully valid and lawful business, authorized by the principle of private autonomy and contractual freedom Art. 1255 Civil Code, which it is binding on who does ... ".

Moreover, the Suppression Act of Usury of 23 July 1908, He sanctioned in Article 1 “any loan agreement stipulated that interest significantly higher than normal money and manifestly disproportionate to the circumstances or under conditions such that result that leonino, having reason to believe that It has been accepted by the borrower because of their plight, de su inexperiencia o de lo limitado de sus facultades mentales.

The said Act 23 July 1908 It is set up as a limit the bargaining autonomy the arts. 1255 the Civil Code and 315 Commercial Code,  It is applicable to loans and, and general, operation equivalent to any credit to these.

The nullity It referred to the Usury Act is absolute so that, as he noted by the Supreme Court Judgment 14 July 2009, He behaved "ineffectiveness of the business that is radical, absolute and original, that does not support validation confirmatory, because it is fatally insanable, nor it is susceptible of the prescription, such invalidity affecting the entire agreement (…)”.

It was not proved existence a reconocimiento de deuda. The manifestation of the words "IOU " in the writings of currency mortgage I could not take the context to classify them as such legal business. The IOU it was about the secured loan and the notary not testified that it was an IOU.

The Court dismissed the appeal filed by Ms.. Soledad. The action brought by the commercial, It was estimated only as to the costs instance that were not imposed on any party. For all the rest, the first instance judgment was confirmed.

Conclusion

Qualified as abusive and disproportionate by the Usury Act null and ineffective interests are absolutely and radical, without that support its validation for confirmation of the borrower. Usury Act applies to any type of loan, even, to secured by mortgage.

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