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Declared null the clause that forces to pay the mortgage loans

It is issued in Murcia, the first sentence that declares null the clause that requires payment of mortgage loan expenses. Based on a case of the year 2015, feel a point of inflection, because it considers that it is an abusive clause.

WHAT IS THIS ABOUT?

Based on a lawsuit filed by a couple in 2015, the Court of Instance 11 of Murcia has declared the nullity of the clause that regulates the payment of mortgage loan expenses.

The clause in question, obliges the borrower to pay all the expenses of the provision of the mortgage. Including the "thinkable, previous, present and future" expense.

When considering it abusive, the judgment establishes its nullity. It also condemns the financial institution granting the loan to return part of the expenses generated by the mortgage.

IMPORTANT PRECEDENT

The Court of Instance 11 of Murcia, bases this ruling in that the clause "attributes to the borrower the totality, without exception, of the expenses that the operation of mortgage loans carries with it".

It considers it abusive, because these expenses include, in addition to those related to the constitution of the mortgage (appraisal) and those of granting the Deed and registration in the Registry, all possible future expenses.

DECLARATION OF NULLITY

The "omnicomprensividad" in the attribution of expenses to the client generates, according to the resolution, a situation of evident imbalance.

Consequently, it leads to declare the nullity of the clause and obliges the entities to return part of the expenses. In this way, you feel a turning point, as it extends to all financial organizations.

GROUND FOR NULLITY

The Court understands that the imbalance occurs in two ways. First, because the borrower must pay all expenses, although the rule facilitates the possibility of distributing them.

Secondly, because it considers that the consumer is attributed a series of expenses that do not correspond by law.

HOW DOES IT MOVE TO THE REST OF THE CASES

This judgment of the Superior Court, upon entering into force, reaches all citizens who have mortgage debt with a bank.

It is estimated that this resolution reaches 8,000,000 people.

In practice, banks are usually sentenced for charging abusive expenses. And they must return part of these expenses to the client.

WHO IS REACHED BY THIS SENTENCE?

Any citizen who has acquired a mortgage loan and pays all the expenses. Also, those people who have finished paying a mortgage at least 4 years ago.

HOW SHOULD YOU CLAIM?

There are several ways that you can resort to request the return of what corresponds:

• Use a consumer organization and file a class action lawsuit. These organizations also provide legal advice if necessary.

• Start a particular demand. In this case, the entity where the loan was acquired should be resorted, in the first instance, and try to resolve the matter there.

If a satisfactory answer is not obtained, it will be necessary to present a claim note in the same entity, claiming the refund.

If you do not reach an agreement, you should contact a consumer defense organization or a lawyer who will initiate a lawsuit.

Writings SF Lawyers