Nullity life insurance linked to mortgage loan in Pontevedra

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The Provincial Court of Pontevedra confirms the invalidity of a single premium insurance linked to hiring a mortgage loan

 

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The imposition of contracting life insurance single premium when taking a mortgage loan, It is an unfair term.

The sentence of Section 1 of the Provincial Court of Pontevedra, of 13 September 2019 (Res. No. 491/2019), It has been estimated the invalidity of the clause which required the hiring of a life insurance single premium by signing a mortgage. It is an unfair term, It is generating a significant imbalance to the detriment of the consumer.

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

Ms.. Marisol and D. Eulogio signed with Banco Pastor S.A. of contracts equity loan, in the years 2008 and 2014 respectively.

The mortgage loan signed in the year 2008 He incorporated the obligation to take out life insurance, without informing borrowers. Insurance is made with the insurer Eurovida S.A.

The first clause stating that the borrower was transfer order 8.070,34 EUR payment of the insurance premium credit repayment death.

Ms.. Marisol and D. Eulogio lawsuit filed exercising individual action for annulment of a number of general conditions of contract. Specifically, the so-called “ground clause”, the imposition of contracting life insurance single premium linked to mortgage loan and “expenses clause”.

Primera Instancia

The 27 February 2019 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. 14 Vigo gave judgment partly estimating the lawsuit.

He declared the nullity of the clause limits the interest rate variation, early termination clause and spending clause in the loan signed 2008. Also it considered null expense clause and early maturity of the mortgage loan year 2014.

However,  He dismissed the nullity of the clause relating to linked life insurance, to understand that caused no contractual imbalance, surpassing the transparency control.

Provincial Court

Against that judgment appeal was filed by the plaintiff. The second plea concerned the validity of the clause loan 2008 imposed by the contracting linked life insurance.

It was about one cláusula abusiva given the circumstances in hiring. And that to the extent that caused a significant imbalance in the rights and obligations of the parties, against the requirements of good faith (art. 82.1 TRLGDCU).

The 13 September 2019 Section 1 of the Provincial Court of Pontevedra gave judgment estimating invalidity linked insurance.

The Court noted that, no record established that the appellant had knowledge of the related insurance and its influence on the loan agreement.

He referred to the judgments of the AP of Leon, section 1, of 18 March 2019, 4 October 2017 and 11 July 2018, they considered that clause, did not meet the formal control of incorporation: It was about one condition imposed which is not even written in the loan agreement, despite its importance ... Concealment is, for, manifest and affect the basic premise of control incorporation of the clause”.

And added that "even the related insurance mentioned yet is paid from the account in which you enter the amount borrowed, thus it is obviously out financing without stating that the financial cost.

The SAP Leon, of 18 March 2019, determined that "a linked without any reference to it is made in the contract of mortgage insurance is imposed. Thus is the financial institution that is designated insurance beneficiary, reducing the borrower to the condition insured. These circumstances ... understand that force is abusive practice acting and bank ...”.

And that tinged, should not declare the nullity of the insurance contract but, the invalidity payment of the insurance premium.

Case AP Lion 11 July 2018 solved an identical course, with the same financial institution and insurance.

So said the sentence: “borrowers never get into ... the scope of decision on the insurance (they can hire or not the mortgage loan but assurance is a condition imposed):

1.- Is the financial institution that imposed the condition with the binding offer after accession of borrowers have guaranteed insurance contract.

2.- The application for membership to the insurance contract is coursing through the offices of the lender ...

3.- It is the financial institution which is designated tomadora and beneficiaries, reducing borrowers passive insured status.

4.- hiring a single predetermined advance premium it is imposed on the application for membership, without having appeared other options, and retained the principal of the loan amount for payment that never becomes available to borrowers, ensuring, thereby, that the signing of the loan agreement was closed operation ...

I was brought up the art. 1 Act 7/1998 on general conditions of contract and art. 82 the TRLGDCU whereby "It is considered unfair term both terms not individually negotiated as <<practices not expressly consented>>”.

Similarly, the sentence was "concealment clause"This is because the condition imposed was not even drawn up in the loan agreement, despite its great importance.

That concealment was manifest and concerned the basic premise of control incorporation of the clause.

He also referred to art. 62 TR of the Law on Supervision of Private Insurance and art. 6 del Reglamento de los Comisionados para la Defensa del Cliente de Servicios Financieros. These items granted to the Directorate General of Insurance (DGS) supervisory powers and sanctioning powers by abusive practices in marketing and insurance contracts. So, under this competition, They resolved on complaints and claims made. Y, They considered inappropriate and contrary to good practices and applications in the field of private insurance, the imposition by insurance companies of a single premium insurance the policyholder.

In the report issued in the year 2007 by DGS again they reiterated "apparent lack of transparency of content control, because the consequences of such recruitment were ignored by borrowers.

The consequences of the declaration of abusiveness was the expulsion of the contract with the reciprocal restitution of benefits (art. 1303 CC).

The invalidity of the clause meant the invalidity payment provided by the financial institution. Nullity should not be the insurance contract, but tax payment by the financial institution.

The Court quashed the advance payment amount of life insurance.

Such invalidity retrotraía its effects upon signing the contract. However, during the elapsed time he had been providing insurance coverage on borrowers.

Thus came the refund of the amount by subtracting the proportion of the premium that is "consumed" while the contract was in force. In this case, it should return the amount of 8.055 euros, increasing in any case the resulting sum with legal interest.

Conclusion

Clauses imposed hiring a life insurance single premium linked to a mortgage loan, not beyond the control of incorporation and transparency and therefore are null, unless they have been informed and negotiated.

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