Nulidad del seguro vinculado al préstamo hipotecario

seguro vinculado

La imposición de un seguro de vida en la contratación de un préstamo hipotecario es abusiva

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The section 1 of the Provincial Court of León reiterates its judgment and declare the nullity of the clause obliging the client to hire an insurance linked to taking a mortgage loan for lack of transparency. The sentence is 11 July 2018, No.. 290.

Antecedentes

The 20 May 2009, Banco Popular and Ms. Lorenza signed mortgage loan contract and 13 May 2009 It was signed one application for membership insurance linked credit repayment death.

Said membership application is handled through a branch of the Banco Popular and through a mediating company integrated the People's Bank.

Ms. Lorenza lawsuit filed against Banco Popular requesting the annulment of contracting life insurance linked to mortgage loan and the repayment of the premium deducted directly from the amount of the same.

Primera Instancia

The Court of First Instance. 4 Leon gave judgment on 18 December 2017 in which he upheld the lawsuit filed by Ms. Lorenza and declared annulment of hiring insurance linked to mortgage loan and a transfer order for the insurance.

Contra esta decisión, Banco Popular appealed denying the abusiveness of hiring insurance and mentioned the judgment of the Audiencia Provincial 335/2017 in a similar case it was decided.

Apelación

To study the case, Hall began pointing out that in its judgment 314/2015, of 16 December determined that the insurer who is hired (euro Vida) It was the Banco Popular Group.

He said that considering that in public deed granting the mortgage loan of direct payment of the premium the insurance was available, It was clear that Banco Popular had imposed consumers the assurancebecause it regarded the premium payment and financial condition along with others that make up the loan agreement”.

The fact that before the loan agreement, without the security of your celebration, membership application be submitted to the insurance contract, It is evidence of this theory; in this regard the Chamber notes that "even though it is made out clause indicating that borrowers give a transfer order, this is directly linked to the hiring of the loan. Ultimately, borrowers never get into what we might call, scoped decision on hiring insurance”.

Now, As for the abusiveness of clause, Hall made a transparency control stating that the obligation to take out insurance repayment can not be considered abusive and can not be considered unjustified. In respect highlighted:

the demand for insurance to guarantee payment of a loan, can not incardinar, general and absolute rule, in the circumstances set out in Articles 82 and following of the Royal Decree 1/2007, of 16 November, approving the revised text of the General Law for the Defence of Consumers and Users and other complementary laws”.

Despite the above and considering that the abusiveness of a clause becomes not only its intrinsic content, Chamber verified the control of transparency given that the applicant was consuming and therefore protection rules should apply to consumers and users.

In that vein he was implementing the provisions of art. 80 LGDCU on the requirements clauses must comply not individually negotiated in consumer contracts, toda vez que payment of the insurance premium came from a prearranged clause is not individually negotiated.

Accordingly, conducted verification control transparency dual filter, on one side the formal transparency, semantic or grammatical and substantive or content "It is projected on the essential elements of the contract in order to verify whether the acceding knew or could know clearly and easily both the economic burden it really means for him the contract”.

This dual control contemplated in the judgment of the CJEU 21 March 2013:

with a contractual clause as discussed in the main proceedings, the requirement that a contractual clause should be drafted in clear and understandable way be understood as an obligation not only considered that the clause is clear and understandable for the consumer grammatically, but also the contract transparently expose the actual operation of the conversion mechanism of the foreign currency to the clause which refers, and the relationship between this mechanism and prescribed by other provisions relating to the delivery of the loan, so that consumers can assess, based on accurate and understandable criteria, the economic consequences responsible ".

As to formal control, not exceed that of a side hiring repayment insurance not even written in the loan agreement, despite its importance. So, the Chamber noted that:

Concealment is, for, states, and affect the basic premise of control incorporation of the clause

He stressed the Chamber one mala praxis hiring in the financial institution to the extent that the Annual Report of the Claims Service (year 2006) DGS said:

también ha sido motivo de reclamación la exigencia de contratación, con ocasión de la concesión de un préstamo hipotecario, of a life insurance at a single premium for the entire life of the mortgage loan,,es,which is charged to the borrower and policyholder by an increase in the borrowed capital,,es,In these contracts the beneficiary is the lender entity,,es,It is observed that this practice is spreading in the market,,es,being an action that is considered by the Claims Service as inadequate and,,es,on certain occasions,,es,clearly abusive ",,es,Complaints are not isolated,,es,and also in the Year Report,,es,refers to the file,,es,Lack of informative rigor on the method of calculating the value of rescue in life insurance ",,es,we will limit ourselves to indicate that,,es, que es cargada al prestatario y tomador de la póliza mediante un incremento del capital prestado. En estos contratos el beneficiario es la entidad prestamista. Se observa que esta práctica se está extendiendo en el mercado, siendo una actuación que es considerada por el Servicio de Reclamaciones como inadecuada y, en ciertas ocasiones, clearly abusive”.

In a similar sense the Report 2007 He highlighted a lack of rigor information on the method of calculating the surrender value of life insurance.

Accordingly, Hall noted that "if the insurance intermediary operates through the branches of the lender, it must assume the obligations inherent to the commercialization of the product,,es,the clause is clearly abusive and must be expelled from the contract,,es,The abusiveness of the contract entails the nullity of the clause,,es,and the effects of nullity are the reciprocal restitution of benefits,,es,The nullity of the clause supposes the nullity of the payment arranged by the financial institution because the nullity of the imposition of the insurance contract who carried out the abusive practice must assume the consequences.,,es, y más si la aseguradora es de su propio grupo empresarial"And it showed no offer to the client the opportunity to learn information relevant to respect.

As to content control Hall noted that the lack of transparency in the formal control leads to a lack of transparency of content control whenever legal consequences - economic were unknown to the borrower.

Conclusion

The Chamber concluded the abusiveness of clause and he expelled from the contract effects, however, He noted that the return premium to the invalidity ended the link between the applicant and Eurovida but left open the possibility that among them MIGHT maintain the validity of the same.

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