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Wednesday, 06 August 2014 00:00

You can override the floor of a company

Real Estate office digital newspaper Elconfidencial.com: Do I have a mortgage with BBVA clause in the soil is the name of a SL. On the property on which rests the mortgage is first and only residence. Is it possible to annul? - Of course it is possible (different is that it suits for the costs involved), possibility including the return of the unduly claimed more related interest and it continued emphatically saying that there is sure to be achieved.

In this case I can not help but be strong in the legal point of view I defend and then explain: colloquially known as clause floor (or from a technical point of view, less restrictive clause in the interest rate) and the clause ceiling, despite opposing views to be found, is not a common practice Spanish Mortgage law. They are ex novo conditions that banks begin to introduce a shy way from roughly 2000, and more intensely since 2004. They are therefore not in any way, as some they want to see, known conditions, and publicly known user (Spanish) means either banking cooperative, commercial or consumer who hired. For more "INRI" many of those affected can not account for the existence of these conditions until these effects are not displayed, that is, until the main mortgage rate (we speak Euribor) does not swing, does not pivot beyond the 2007 and 2008, below the limit imposed by the clause floor.

- So suffers from legal expertise the puerile argument that the clause floor was writing the mortgage from the beginning, from the same firm or was notarised, because so poor explanation would only place where it has been signed on loan mortgage after scandal size was known of a notorious way and / or leap to the forefront of all media or when the notary could prove irrefutably and unambiguously warnings about the economic consequences of such clauses avoiding limiting its actions to a quick read, because until that happens, it was not known this banking practice and it was not exactly as mentioned above, because it is a new practice that does not spread its effects (in many cases) until many years after signing the writing.

- Nor does fit the defense argue others regarding these clauses have no place within the commercial margin of the bank, because that argument is again fallacious and not because the business profit is illegal or illegitimate: on the contrary, that charge all what they have to collect or what they want in the game of supply and demand, except that in each case a court may declare abusive (margin trading), if it is not because traditionally the business benefit in these operations mortgage (this is not new, this really is known by most users) has been framed, has been placed in the differential applies, in addition, the mortgage rate (Euribor being the most common). In fact, in recent years, this differential has risen 300% and no one has raised legal action on the grounds that he did not know what was Euribor +3.25 differential, simply because this profit margin, whether it is expensive or cheap, everyone understands as the resulting tax payable is displayed. But introduce and add another course via clause floor (which repeat in Spain when he starts acting is completely new) without securing the contracting the will and knowledge of the consequences of it, of course it is not appropriate or legitimate, or meet low my judgment with good banking practices.

- In addition, such behavior conflicts with the principle of good faith embodied in contracts chaired by Spanish law, European and international, good faith understood as honesty, reliability, consistency and openness in the obligations and rights that frame the relationship but also associated with the confidence that their legal appearance generated. Existing trust this respect when ten years ago nobody asked the notary or the bank to explain whether his mortgage deed had clause floor and what meaning had. Question nobody did because it was not known neither its existence nor its meaning, much less its monetary result. That is, there was then, when hiring, will by the mortgaging to take the floor clause, basically because it was not known in the consequential legal sense (Articles 1089, 1091, 1254, 1255 and 1258, including the Civil code) by much autonomy that our law preside.

- On the other hand, it is majority jurisprudence, doctrine and even legislation which constricts the legality of the clauses of these practices, that they are adequately explained in a clear enough, accurate and in many cases accompanied by pre-contractual information-documentation delivered sufficiently and / or legal notice which of course is clear, accurate and sufficient. And it does not seem excessive or in our law or indeed in Comparative ask the bank, to the party is aware, by means, for principal and interact in markets that make up the price of the mortgage index, which customers bank sign handwritten who are knowledgeable and aware that, against possible drops in your mortgage rate, they would not benefit from paying fees much higher ground if these clauses did not exist, and the same explanation for the clause ceiling. Herein lies one of the Gordian knots of this 'mess', as other of the spurious arguments of banks trying to justify that not even explain, the clause floor, plot with a supposed symmetry or existence of the clause ceiling, the entity 'sell' an alleged netted from the risks of users to increases in mortgage rates, terms ceiling so exorbitant itself in most cases that become little more than unachievable, except, of course, that retrotrajéramos us to times where the reins of monetary policy were co-directed by the Bank of Spain and where you could see interest rates (then MIBOR) of 20% in 1983 and 15% (as are today many mortgages in its clauses ceiling), in 1990, that is in a stage of abandonment of the common monetary policy scenario today is very difficult to imagine.

- Finally, delving into the alleged symmetry between the clause and the clause floor ceiling. What symmetry-ratio exists net and percentage-wise, in the route that goes from a Euribor 4% (guy who could hire 2008) to a floor of 3% against the route that goes from the same Euribor hired 4% to a roof, at best, 8% or 10%? Apart from this apparent imbalance, where one only is benefited (without warning as it should be noted) is the bank, has anyone even planned and planned the scenario of pure mortgage catastrophe that advendría if the price of mortgage majority index (Euribor) rise above 6%? Is it true that the European monetary authorities are willing to accept tens of thousands of foreclosures in Spain and other countries? My own conclusion is certainly not. So what they have contractual clauses under-roof floor discords? It seems that no. From a legal perspective and financial these clauses and marketed are absolutely unacceptable, more so when the legal relationship that binds the contracting is of such long duration, and who knows the market and has the technical and human means whoever ends imposing in the way it does this type of clause.

Digital Newspaper El Confidencial