Sobre la nulidad de la cláusula de afianzamiento

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Entrenchment clauses in mortgage loans may be considered abusive general terms of recruitment and therefore null

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It is a situation that has occurred most often: family members who act as consumers, entrench mortgage loans, waiving the benefits of order division and excussion Articles 1830 and following of the Civil Code: Such waiver violates Article 8.2 of the Law on General Conditions of Contract, qualifies as null abusive conditions como las previstas en el artículo 10 bis y en la Disposición Adicional Primera de la LGDCU.

El Art. 10 bis LGDCU establece que son abusive las estipulaciones no negociadas individualmente que, en contra de la buena fe, causen en perjuicio del consumidor un desequilibrio importante de derecho y obligaciones. Y la DA 1ª considera abusivo en su apartado 14º “La imposición de renuncias o limitación de los derechos del consumidor”.

The TRLDCU collects the same condition abusiveness Article 86.7.

Renunciation of the rights of excussion, división y orden coloca a los fiadores solidarios en una situación similar a la del deudor principal, pese a no serlo, lo cual constituye un desequilibrio injustificado en perjuicio de un consumidor. The guarantor becomes a real debtor, en idéntica situación que el deudor principal.

In these situations, it is highly unlikely that the sureties had wanted to put in the situation of the principal debtor if he had explained to them properly.
And, constituye una superposición de garantías que sería considerada abusiva por la DA1ª LCGC en su apartado 18 and Article 88.1 the TRLGDCU (“imposición de garantías desproporcionadas al riesgo asumido”). Normally, to guarantee the repayment of a loan, It constitutes mortgage on the financed housing, and the bond of a family is added, which would be unnecessary, as the financial institution should have worried assess the housing and finance only part of that assessment.

Then we collect a series of resolutions, either completely nullify the entrenchment clause, While waiving the benefits of order, division and excussion.

 

Section 4 SAP Barcelona 216/2018, of 5 April

“In the case analyzed, referred to the surety provides personal and unlimited guarantee, strengthening each and every one of the obligations assumed by the principal debtor, both principal, and interest, Commissions, expenses, costs and taxes arising from this contract, “deposit to be paid, and so it accepts both jointly between the guarantors and between the principal and sureties, and expressly waiving the benefits of order, discussion and division and few others could assist, purpose by accepting to know each and every one, clauses operation formalized in this instrument” and reaching consolidation to pay the costs and fees and professional rights of lawyers and solicitors, strengthening keeping in force until full settlement of the obligations guaranteed, strengthening the power hurt not advance ruling.

Analyzed the clause, it is incorporated into the contract in paragraph SPECIAL STATEMENTS. Terms of signed mortgage dated 26 June 2010, not intermingled with other, and it leads to the expression and bold uppercase “CONSOLIDATION” in order to highlight this particular personal guarantee; its terms are clear and simple, so would this first control or control of incorporation. As for real transparency, says the clause that the guarantee is personal and unlimited, strengthening each and every one of the obligations assumed by the principal debtor, both principal, and interest, Commissions, expenses, costs and taxes arising from this contract, “deposit to be paid, and so it accepts both jointly between the guarantors and between the principal and sureties, and expressly waiving the benefits of order, discussion and division and few others could assist, purpose by accepting to know each and every one, clauses operation formalized in this instrument”. Clause analyzed in this case, not the economic consequences of what it means solidarity with the consequent waiving the benefits of order is well explained, excusión y división. It only says that the surety provides personal and unlimited guarantee, strengthening each and every one of the obligations assumed by the principal debtor, both principal, and interest, Commissions, expenses, costs and taxes arising from this contract. It is not explained sufficiently that the waiver of the benefits of order means, excusión y división, Contrary to what happened in clause analyzed in the order made by this section fourth, in date 17 November 2017, appeal on the roll number 1.188/2017 . In that clause merely a reference to the renunciation of the benefits of order is not made, discussion and division but sufficiently explained the legal and economic effects involving such waiver stating that the financial institution, in his capacity as creditor, I could “directed indiscriminately against loaning party against all sureties or any of them or against each other at a time can go either” and sureties guaranteed “interchangeably and integrally with each other and with respect to the main part debtor, expressly waiving the benefits of order, excusión y división”. Also, also differs clause referred to in the judgments of section six of the A.P. Asturias, of 19 May 2017 , 12th clause initialed “joint surety” and 11th section of A.P. Madrid, 11th section, of 20 September 2016, under the heading “joint and several personal guarantee”, because in both cases, the very heading of clause, when referring to the supportive nature of the operation, They allow the guarantor to know that severally obliged to pay the borrower part, what does not happen in our case. Therefore, in the case of cars, Reference clause exceeds inclusion control, but not sufficiently explain the scope and consequences of solidarity nature of the obligation and waiving the benefits of order, discussion and division by Guarantor.

[…]

We have said that the requirement of transparency can not be reduced only to the understandability of this in a formal and grammatical level, but it goes further by requiring consumers to provide, based on specific criteria and understandable, the economic consequences of what has been signed (comprehensibility). In the transcribed clause does not explain that, as a result of strengthening solidarity or waiving the benefit of discussion, the detent is bound identically to the main debtor and the bank can be directed either against the debtor or against the detent or against both, repealing the general scheme of the Civil Code for the contract of guarantee. vitiated, therefore, lack of real transparency because the scope of such solidarity is not explained, in terms understandable to the surety, namely, It not explained in a clear and understandable legal and economic significance that entails. For all of which, it has been concluded in this course that the clause lacks real transparency regarding the supportive nature of the obligation and the resignation of the guarantor to the rights of order, excusión y división. And, appreciated this lack of real transparency of the clause regarding the strengthening solidarity pact, proceeds go to make abusiveness control thereof

Not having exceeded the actual control transparency clause on the principal obligation of the contract of guarantee as to its comprehensibility, specifically, with respect to the supportive nature of the obligation, It should make control of their unfairness. Clauses that are abusive, contrary to the requirements of good faith, cause a significant imbalance in the rights and obligations under the contract, it being evident that renouncing the benefits of order, It means taxing discussion and division substantially legal detent position for the creditor. There are no facts to assert that, Elena have met the legal and economic consequences of losing, I had signed the same. Nor can conclude, in view of the evidence produced, the waiver of the benefits indicated was necessary condition for the loan. Under the above, It is clear that renouncing the benefits of order, division, excussion and extinction by the surety unequally harms to the same taxing their situation without valid reason, therefore be declared void by abusive solidarity of the bond and waiving the benefits of order, discussion and division.”

Section 2 SAP Donostia - San Sebastián 180/2015, of 30 September 2015

“It is true that the clauses collect the sureties expressly waive the benefits of order, excusión, division and extinction legally could to attend, but no evidence has been given explanation on the legal and economic significance that this entailed, or to be maintained as a necessary condition for granting credit waiver of such benefits, what would suppose that they were made aware of it. Moreover, as STS points 8 September 2014 , “notwithstanding the important preventive role that notaries perform on the prior control of the general conditions of recruitment, according to the characterization and scope of transparency exposed control, real comprehensibility must be inferred from the game itself or regulatory development prearranged, so that the reading public deed and, if, the contrast of the financial terms of the binding offer with the respective mortgage loan, no substitute, therefore alone, no protocol or specific action in this regard, compliance with this special duty of transparency”. For all of which, it has been concluded in this course that the clause lacks transparency. And, appreciated this, control proceeds to perform the same abusiveness. As discussed, It is understood to be those clauses abusive, contrary to the requirements of good faith, cause a significant imbalance in the rights and obligations under the contract, It is clear that waiving the benefits of discussion and division implies substantially encumber the legal position of the guarantor to the creditor, without stating what benefit you get that giving up the rights that the law recognizes him. There are no facts to assert that, Having known the consumer legal and economic consequences of losing, I had signed the same. Nor can it be concluded in view of the evidence produced that the waiver of the benefits indicated was necessary condition for granting loans. Moreover, that legally does not fit equate joint debtor guarantor for the powers that the law recognizes it as against him, and are reflected in the contested judgment (Arts. 1.838, 1.839 and 1.843 CC ), does not exclude, as also points out that resolution, given the similarity, as a result of forgoing the benefit of discussion, between the pawl and the debtor regarding the creditor. Last, that the rules of the Civil Code provides for the possibility of waiving the benefits of discussion and division does not exclude the abusiveness to the extent that such waiver by restricting the rights are the same standard recognizes the consumer. Under the above, it's clear that renouncing the benefits of order, division, excussion and extinction by the surety harms inequitably at the same taxing their situation without valid reason, so that, proceeds, with estimates of appeal, revoke the first instance judgment and declare it null by abusive.”

Section 1 Commercial Court Donostia - San Sebastián 56/2016, of 18 February

“The intervention of the guarantor is voluntary, If you want involved in the operation and if it does not want, so it can be concluded that if involved is well aware of what it means, namely, which it is obligated to pay or enforced by a third in the case of not doing it ( art. 1.822 CC ). Now, the guarantor may not be compelled to pay the creditor without getting prior excussion of all the debtor's assets ( art. 1.830 CC ) and the creditor can not claim each guarantor but the part that corresponds satisfy ( art. 1837 CC ), except as expressly agreed. Therefore, the constitution of the bond does not inescapably requires waiving the benefits of discussion and division by the guarantor, and can not be inferred that there have been negotiations on those points the mere fact of the constitution of the former. Sentado lo anterior, the proceedings can not be concluded that there was a negotiation between the parties with respect to that question”. Therefore, Part of that clause to the configuration of the bond as solidarity and waiving the benefits of order, division and extinction, aspect it considered cause for abusiveness and invalidity of the clause by the plaintiff, It must be considered a general condition of recruitment.

In these proceedings it has not been established that no further explanation was given about the meaning of the configuration of the bond as solidarity, with waiving the benefits of order, discussion and division involved, so that the consumer could understand that emerged breach by the borrower, the entity could go, indistinctly, the debtor or one or two sureties to claim it. Thus, is considered to clause does not exceed the transparency control.

[…]

In this sense, It must be considered that depriving the guarantor of the benefits that would have corresponded to opt for a regular bail, It creates an imbalance between the rights between the parties resulting contrary to good faith, to understand that being informed with sufficient transparency of the obligation assumed they had not accepted (criterion for assessing the bona fide established in the judgment in Case Aziz).”

 

Court of First Instance of Bilbao No. 11 sentence 433/2018, of 5 April

“Good, first, It must take into account that the bond stipulated, which it is not regulated as natural and in the absence of agreement on the Civil Code, but it contains the waiver pawl expected as exceptions to the general rule that favor the creditor. In this case, a solidarity bond and a waiver of consumers to the benefits of discussion and division is established. With respect to these benefits, the Civil Code, provides the following: Article 1830: ” The guarantor can not be compelled to pay the creditor without getting prior excussion of all the debtor's assets “. Article 1831: ” The excursion does not take place: 1.º When the guarantor has expressly waived “. Article 1837: ” It is several sureties of the same debtor and the same debt, the obligation to answer it is divided among all. The creditor can not claim each guarantor but the part that corresponds satisfy, unless expressly provided for solidarity. The benefit of division against cofiadores ceases in the same cases and for the same reasons than excussion against the principal debtor “. Therefore, taking into account the significance of the resignations made to the detriment of consumers and greater security for the creditor bank and that these were to determine the content of the contract of guarantee, the entity should report it to consumers and significance of the resignations carried out, without sufficient merely quote the clause itself some legal precepts (and in no case, all affecting them, because even the reference to solidarity and renunciation is mentioned division). The evidence in the file does not show proof that such information were to be provided, even by the employee of the entity that sold the loan, for he himself, in the act of judgment, He not managed to respond when asked about the meaning of the terms of the clause and expressed lack thereof. It is observed the lack of compliance with the duties of transparency, it follows that we, In the case at hand, consumers carried out an agreement with the bank that, They certainly would not have accepted being treated in a fair and equitable manner that would have allowed them to know the economic and legal consequences of the contract that were celebrating and they He imposed a significant imbalance in its injury, undoubtedly, determines its abusiveness.

Court of First Instance No. 5 Palma de Mallorca sentence 7 of 15 January 2018

"It has been established that it was prepared in Notaria in which were three, Mr. Constantino , Mr. Onesimo and Sr Economist. Vicente , and he was granted before the Notary Victorino , who acted substitution mate Sr. Constantino and its Protocol, so good, As for strengthening solidarity clause does not prove that the defendant was negotiated with Mr.. Constantino , prior to the time of signature, and Sr. Constantino , Notary exercise, legally perfectly and knows the meaning of joint and several guarantee, and waiving the benefits of discussion, order and division and thus for being a notary and lawyer, and signed without negotiating have negotiated the same, and imposition of the bank since it has been recognized that it was a sine qua non to conclude real estate leasing operation, and ultimately, compelled he signed and conditioned by external circumstances, renounced the benefits of the guarantor, of discussion, división y orden; and imposition of the bank, as well as it is already detailed in the report submitted as number one of the response to the demand, in the analysis of the aforementioned lease Investment property Belmorán S.L., investment was 2.765.000 euros, the appraised value was 1.878.854 euros and the recommendation made in the report, know that it is a company newly formed and poorly documented. In principle the income that could be generated by leasing the premises and car parks Caprabo S.A. would be insufficient to repay the leasing fees, according to the conditions referred.

(….)

ultimately this judging based on the estimation of the test carried out on the basis of the rules of healthy criticism and ease probation concludes that the bank conditioned from the outset the successful outcome of the operation to the inclusion of clause co-signers and ensured based on their dominant position assurance position and operation result in any case by clause guarantee solidarity, which has no reliable way has been previously negotiated with Mr.. Constantino , so it is declared invalid from of that clause in the lease Financial Officer Date 28 November 2.003 by abusive. "

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