The CJEU rules on the resignation of consumers

 

 renuncia consumidores

 

Para el TWENTY, the waiver to claim an abusive clause is valid if the consumer was aware of what he signed

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On Judgment 9 July 2020 (Case C-452/18), the Court of Justice of the European Union has ruled on the validity of unfair terms in waivers signed by consumers.

Antecedentes

The origin of the procedure is in a claim against Ibercaja raised before the Court of First Instance and Instruction nº 3 from Teruel.

The client bought a home for 148.813 euros and subrogated in the mortgage that the promoter had arranged with CAI (then Ibercaja).  El préstamo tenía un “soil” the 3.25%.

Tras la Sentencia del Tribunal Supremo de 9 May 2013, Ibercaja había iniciado un proceso de renegociacióngeneralizadade las cláusulas suelo, within which the transaction with the plaintiff occurred.

The 4 March 2014 An agreement was signed between the client and Ibercaja novation por la que se acordaba reducir la “ground clause” to the 2.35% and renounced to exercise any action on it.  Even the bank made the client sign in his handwriting a statement that he was aware and understood that the interest rate on the loan would never drop below the 2.35%.

The client filed a lawsuit requesting the declaration of nulidad de la cláusula suelo and the return of the amounts paid as a result of the same from the subscription of the loan.

The bank defended itself using the novation of 2014.

In this situation, the Court of First Instance and Instruction nº 3 de Teruel suspended the procedure and asked the CJEU the questions that we discuss below.

Does the doctrine of the propagation of the effects of nullity apply to contracts related to resignation claiming the soil clause?

If the original floor clause is radically null, and said stipulation is the basis on which the “novation” is articulated, Would it also be canceled?

Not. For the CJEU, the free and informed consumer, aware of the non-binding nature of an abusive clause, you can validly express your consent and acceptance of it. The client's resignation knowing the abusive character and the clause in question is valid.  For there to be such "consciousness", the CJEU has two requirements:

a) That at the time of resigning the consumer was aware of the non-binding nature of said clause.

b) That the client was aware of the consequences that this entailed.

It is the national judge who must check whether the resignation came from a free and informed consent by the consumer.

The problem is interpretation of the existence of that "free and informed knowledge" which is an open and indefinite concept.

Contrary to what has been published by other respectable jurists, I understand that the CJEU has enshrined the validity of consumer waivers, when there is evidence that the client was "aware" of the abusiveness of the clause. Thus, the argumentation line of validity of the resignations expressed by the Supreme Court in its judgment of 11 April 2018.

Recall that there are numerous judgments in which some Courts have had enough news publication in the press to understand that the consumer was aware of the nature of a financial product (see SAP Valencia S8 of June 19, 2020 about "CAM Fees").

In this manner, in cases where a customer, has made the first out-of-court claim for the nullity of a floor clause and the refund of undue payment, Referring to STS 9 May 2013 with minimal argumentation, the bank will have it very easy to argue that when the "resignation" occurred, the client was informed. Remember that if the client wants to have the option to recover the costs of the procedure, you have to make a prior extrajudicial claim according to the provisions of the RD 1/2017 of 20 January.

Different case would be when, without any previous claim by the client, the bank takes the initiative and “forwards” the client a waiver of an action for a problem in some clause that the financial institution knows and the consumer is unaware of. Such resignation would be null without a doubt.

If the novation contracts are accession contracts that contain general contracting conditions, can they be annulled for abusive?

Sí. For the CJEU these clauses can be declared abusive. Even in the case that the client indicated in his hand and letter that he "understood"  the mechanism of the “soil” clause is not sufficient to conclude that there was an individual negotiation and that the consumer was able to influence its content.

The waiver of legal actions in which it is not reported that the original clause was void or the money that had to be returned to them, can it be declared void?

For the CJEU it is up to the national judge to check, in view of the information provided by the lender, if this was enough for the consumer to assess the economic consequences of what he signed. He adds that the professional cannot be required to provide future information on unforeseeable events that are beyond the professional's control..

Below indicates (this I understand is very relevant) which is “An especially relevant element” “the provision of information on the past evolution of the index on which the calculation of the applicable rate is based”

I do not know of any mortgage loan in which the payment has been compared in the last two years "with a floor clause" and "without a floor clause" before signing it.

If the requirement of transparency (as clearly stated in the paragraph 56 STJUE) requires you to wear "Available to the consumer the information regarding the past evolution of the index from which the interest rate is calculated", there is no floor clause, nor any multi-currency mortgage, nor any IRPH that exceed this requirement.

Notwithstanding the foregoing, the CJEU makes a surprising and striking statement, when you point to the paragraph 55 that the amounts that a customer could recover "They can easily be calculated by a reasonably insightful and reasonably insightful average consumer." From my point of view, this information does not conform to the reality of the average consumer in Spain, nor in the rest of Europe.

A prior resignation is void

Si la resignation se plantea en un contrato inicial y esde cara al futuro” dicha cláusula sería nula:  If a clause were included in the initial mortgage loan deed waiving to claim the nullity of any clause or to exercise actions, said stipulation would be null.

But if the resignation is later, it is up to the judge to determine the degree of certainty about the abusiveness of the clause on which it was compromised:  If the bank or customer was unaware of the abuse, the resignation would be null. But if the client was aware of the abusiveness of the clause,  the resignation would be valid.  And as we have seen before, it is relatively easy for the bank to prove that the client was aware of the abusiveness of the floor clause when the latter had submitted an extrajudicial claim.

Conclusion

The STJUE does not favor consumers, If not the opposite. Bless the resignation agreements as long as the financial institution can prove that when the client was signed, he was aware of the abusiveness of the clause. Except in the case of "cast" waivers of consumers who are completely ignorant of an abuse problem (issue heavily complicated by the proliferation of news media), The financial institution may defend that the client knew what he was signing.

Moreover, if the STJUE is taken rigorously, there is not a single mortgage loan with a floor clause, not even a multi-currency mortgage, nor a loan with IRPH in which a comparison with the Euribor has been made and therefore, they would all be voidable.

With this lack of clarity, it is very difficult to anticipate which will be the line that the courts will adopt and it creates a legal insecurity that citizens do not deserve.

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