European justice opens door to claims for derogatory clause of hostage already closed


A woman protests before the Supreme Court in Madrid for clues
A woman protests before the Supreme Court in Madrid for a derogatory clause of a mortgage.EFE

The Court of Justice of the European Union (CJEU) ruled on Tuesday that Consumers can request for resolution of the offending sections in the court of a mortgage, even if it has already been foreclosed and the property has been sold, but only later and in separate legal proceedings.

The court thus ruled at the request of the Provincial Court of Zaragoza on the case of a Spanish consumer who had signed a mortgage ibercaza Which was executed in 2015, after which the property was sold.

In 2016, the bank requested liquidation of the mortgage interest, but the consumer objected, alleging that the floor and default interest clauses of the mortgage contract were abusive.

However, the court dismissed these claims and ordered the termination of the interest as the consumer did not oppose the execution and it was not possible to examine whether the clauses were defamatory.

The consumer then appealed to the Zaragoza Provincial Court, which decided to ask the CJEU.

In its preliminary ruling, the Spanish court indicated that in this case, during the foreclosure process, the judge exercised ex-officio control of the clauses to see whether they were abusive, although this is not explicitly reflected in the foreclosure decision. Is. This judgment indirectly recognizes the validity of the clauses.

In this sense, he explained that Spanish law prohibits re-exams if they were abusive Since a control has already been made and the principle of justice is applied; and asked the CJEU whether this is in accordance with European law and what could be the consequences of subsequent amendment of the clause.

The Community Court ruled on Tuesday that EU law contradicts this national law that does not allow a judge to examine the abusive nature of the clause or consumer, after a deadline to protest, enforce this abusive nature. To do when the judge had already done the assessment. According to the Efe news agency, if they were abusive at the beginning of the execution process, but in the judicial resolution there is no reason to substantiate such an examination nor to say that it cannot be questioned.

to a third party

However, the court noted that when the foreclosure proceedings have ended and the property rights have been transferred to a third party, The judge can no longer proceed to an examination Due to the abusive nature of the contractual clauses which would nullify the transfer of ownership and call into question its legal security.

But it does specify that, in this situation, the consumer should be able to invoke the abusive nature of the clause, in a separate subsequent process, to receive compensation for pecuniary damage caused by their application.

The CJEU’s jurisprudence states that mortgage clauses deemed to be defamatory must be declared void, with the consumer having the right to reimburse the amount received by the bank.

Today, the CJEU also issued four other separate rulings relating to abusive clauses, which, in general, reaffirmed that national procedures should not hinder the defense of consumer rights and that national judges should make ex-officio assessments of abusive nature. Needed

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