Request a multi-currency mortgage, does not exempt the bank from its obligation to report

abogado hipoteca multidivisa

 

The fact that the borrowers applied for the multi-currency mortgage loan does not allow us to presume that they understood their risks

 

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The Supreme Court has upheld the appeal by declaring the nullity of the multi-currency clauses of a mortgage loan granted by BANCO SABADELL, S.A.

The High Court continues with the jurisprudential line of its latest judgments, declarando la nulidad parciál del préstamo hipotecario multidivisa por falta de transparencia y abusividad en perjuicio del cliente. De esta resolución cabe destacar la afirmación de que la solicitud del préstamo multidivisa por los clientes, It does not imply that they were aware of their risks nor does it exempt the bank from its obligation to report.

The Civil Chamber of the Supreme Court gave judgment on 5 October 2020, with No Resolution 502/2020, estimating the appeal by Ms.. Mary Immaculate and D. Fair, declaring Nullity of the clauses relating to the multi-currency of the mortgage loan contract signed between the borrowers and BANCO SABADELL, S.A. Ordered to SABADELL BANK, S.A., recalculate the amortization table with the amount loaned in euros and the interest agreed in the deed, plus the stipulated differential. He condemned the bank to return the excess paid by Ms.. Mary Immaculate and D. Fair, or to reduce the amount pending repayment of the loan.

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.. Mary Immaculate and D. They just signed the 5 October 2005 with BANCO SABADELL, S.A., a home loan of 321.360 Swiss francs (206.000 €), with option to change currency on a quarterly basis. The 5 January 2007, they changed currency to Japanese yen. The 2 April 2007, they increased the capital 34.671.836 yenes japoneses (219.442 €).

The 15 June 2011 they transferred the mortgage amount owed to euros, staying 240.359,92 €. The expiration period was set on 5 June 2036, with a grace period of 18 months. After several grace periods, the 23 May 2014 they agreed on a lack of 60 months. The capital would be amortized in 390 monthly fees.

The 22 January 2016, Ms.. Mary Immaculate and D. They just filed a lawsuit against BANCO SABADELL, S.A. They requested the partial nullification of the loan agreement in relation to the multi-currency option, subsisting as if it had been awarded in euros. They requested that the overpayment be returned or the pending amortization be reduced.

Primera Instancia

The Court of First Instance No. 59 Madrid gave judgment on 20 June 2017, refusing the application.

The Court did not appreciate a defective consent in the understanding that Ms.. Mary Immaculate and D. They were just aware of what they hired, that the information obligations were fulfilled by the bank. For the trial judge, borrowers had sufficient knowledge of the complex product and the risks involved.

Provincial Court

Ms.. Mary Immaculate and D. They just filed an appeal.

The 8th Section of the Provincial Court of Madrid issued a ruling on 1 December 2017, partially estimated the resource. Confirmed the sentence appealed due to the expiration of the action for annulment due to an error raised.

The four-year period began to run from the 15 June 2011, when they converted the balance in Japanese yen to euros, because at that time the borrowing party was already aware of the complex product they had contracted. When they filed the lawsuit, the 22 January 2016, the action had already expired after the four years.

Supreme Court

Ms.. Mary Immaculate and D. Justo filed an extraordinary appeal for procedural infringement and appeal for cassation.

The extraordinary appeal for procedural infringement was dismissed.

On appeal they claimed three reasons, but the Chamber only estimated the second, in which they alleged infringement arts. 1, 3, 5, 7 and 8 LCGC and arts. 60.1, 80.1, 82 and 83 TRLDCU.

The first reason, related to art. 1301 CCivil and the determination of dies a quo for the computation of Term of the annulment action in this type of contract, was dismissed by the Chamber, because he considered that both initial contract as modification, were consummated when they were made available Dña. Mary Immaculate and D. Fair the sums of money that corresponded, namely, when the novation of the loan and refer it to euros the 15 June 2011. The amount in euros of the borrowed capital was much higher than the initial, so the expiration period had to be computed from the 15 June 2011. When they filed the lawsuit in 2016, the term had already expired, it is from four years.

In the second alleged reason, Ms.. Mary Immaculate and D. They just brought up the STS 608/2017, of 15 November, on multi-currency clauses, in which it was stated that “(…) Part of essential object of the contract and about which there is a special duty of transparency, in addition to deny that there was individualized negotiation when its clauses have been imposed in a generalized manner by the bank. Is requested ratification of the criterion about what, being the multi-currency option a general contracting condition, It must be subjected to the double transparency filter.

To estimate the reason, The Supreme Court highlighted the doctrine of the CJEU in application of the control of transparency in the contracting of this type of mortgage loans in foreign currency. Specifically, the STJUE of 20 September 2017 expressed that “(…) on the granting of foreign currency loans, that financial institutions should provide borrowers with sufficient information to enable them to make informed and prudent decisions, and understand at least the effects on quotas of a strong depreciation of the legal tender the Member State of the borrower's domicile and an increase in the foreign interest rate (…).

(…) the borrower should, on the one hand, be clearly informed that, to the enter into a loan agreement denominated in a foreign currency, is exposed to a exchange rate risk that will be, eventually, difficult to assume from an economic point of view in case of currency devaluation in which you receive your income in relation to the foreign currency in which the loan was granted.

(…) the profesional, in the present case the bank, must expose the possible variations in exchange rates and the inherent risks to the subscription of a loan in foreign currency. "

On the client's request for a multi-currency mortgage loan

For the Board, the fact that the plaintiffs applied for the multi-currency mortgage loan, It does not allow to presume that they were aware of their risks nor does it exempt the bank from properly reporting them:

Hemos indicado en otras ocasiones que el hecho de que hubieran sido los prestatarios quienes acudieran al bank to order this product, because it had been recommended by some co-workers, it does not allow presume that they did not need that information to understand the risks involved, enough for ello la lectura de la escritura.

Conclusion

Even if the client has applied for the multi-currency mortgage loan, annulment action may be brought due to lack of transparency, when there is no clear pre-contractual information on the risks arising from currency changes in relation to the euro.

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