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Tuesday, 26 January 2016 13:02

Supreme Court abusive 32 clauses in mortgage

The Supreme Court considers abusive clauses in mortgage contracts 32 BBVA and Banco Popular, after a collective action brought by the OCU. The judgment requires modular, depending on the duration and amount of a mortgage early repayment clauses that empower the bank to request early repayment of the entire loan for non-payment of a portion of any fee. "It allows consumers to avoid its application by diligent conduct repair and possible resolution of the loan by the failure of a single term, even partial," he says.

El Supremo rechaza, así, la validez general de esta cláusula y apela a las circunstancias particulares de cada caso para declararlas nulas, por abusivas. Sin embargo, la sentencia, de 23 de diciembre de 2015, apunta que "la nulidad no siempre conllevará el sobreseimiento de la ejecución hipotecaria".

The Supreme rejects, as well, the general validity of this clause and appeals to the particular circumstances of each case to declare void, by abusive. However, the judgment of 23 December 2015, notes that "the invalidity not always entail the dismissal of the foreclosure."

The ruling notes that "the protection of consumers advised to avoid interpretations that, under the guise of maximum protection, as paradoxical consequence have restricted access to mortgage credit and, derivatively, to the acquisition of home ownership." In addition, it invokes the principle of balance and warning "inadequate force entities, in conduct flagrant delinquency, to go exclusively to the declaratory procedure for the resolution of the loan, with the planned closure of special enforcement proceedings".

The ruling notes that "the protection of consumers advised to avoid interpretations that, under the guise of maximum protection, as paradoxical consequence have restricted access to mortgage credit and, derivatively, to the acquisition of home ownership." In addition, it invokes the principle of balance and warning "inadequate force entities, in conduct flagrant delinquency, to go exclusively to the declaratory procedure for the resolution of the loan, with the planned closure of special enforcement proceedings".

The Supreme recalls that not attend this special enforcement, the debtor of "ventejas" containing this procedure would deprive. In this regard, it points to the possibility of setting a limit pricing for the auction or the possibilities of free housing.

The Supreme considered null and void all the clauses that "impose on the consumer all costs arising from the conclusion of the contract as a result of the notary and registry intervention and payment of taxes in which the taxpayer is the bank, as in certain taxable events Tax Stamp Duty ". In addition, Judge Vela Torres, speaker of the decision, also rejects all those imposing customer payment of court costs or attorney's fees and attorney to hire the bank.

Moreover, the Court maintains, as regards default interest, the declaration of invalidity of the rates set to be considered abusive. It also keeps its discretion as to the ground clauses that are abusive when they do not meet the transparency requirements applicable.

Dgital Newspaper El Economista