The Court of 'unfair terms' in Madrid agrees with the consumer,

The Court of 'unfair terms' in Madrid agrees with the consumer,  less tax payments

• By  elEconomista.es ,  www.eleconomista.es
• View Original
• November 9th, 2017
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The Court of First Instance 101a of Madrid, in charge of the exclusive demands for 'unfair terms' in the region, issued the first ruling in which enters the merits of the case, which gives reason to the entity on paying taxes, but declared invalid, and therefore its total expulsion of the contract, the clause relating to early maturity, interest on late payments and the payment of notarial and registration expenses.

The sunset clause, under which the financial institution could give up the contract signed mortgage loan agreement between the parties before any type of borrower default, however slight or essential to be the default, zero is declared in this judgment of 7 September.

Recalls the head of the Court of First Instance 101a, the judge Carrera Fernández, that the doctrine of the ECJ has been incorporated into our legal system by Law 1/2013, of 14 May, amending Article 693 of the Civil Procedure Act , requiring non-payment of at least three monthly payments so you can be encouraged foreclosure.

Also the judgment of the Plenum of the Supreme Court, Civil Division, No. 705, of December 23, 2015 states that a clause allowing the resolution to the failure of a single term must be deemed unfair, given that failure is not linked a quantitative or temporarily serious parameters.

In the same vein, he also declared invalid on default interest, considering that were abusive because of higher interest contemplated delay by four percentage points to remunerative interest.

This declaration of invalidity has been made taking into account not only legal parameters, as provided for in Article 114 of the Act Hipotecaria- but also consolidated jurisprudence of the Supreme Court and the Superior Court of Justice of the European Union.

Default interest

In the particular case, the clause sets a default interest of four percentage points above the legal interest rate, which although can not be considered excessive and notoriously disproportionate itself to be considered disproportionate considering the maximum rate he agreed variable interest rate on the loan is 13%, and taking into account that exceeds the parameters contained not only in mandatory rules, as expressly provided for mortgage loans Article 114 of the mortgage Act or article. 20 of the Law on Consumer Credit Agreements, but also violates jurisprudencialmente consolidated as two percentage points added to the established remunerative interest personal loan parameters.

Therefore it concludes that it is an interest rate that implies compensation for non-essential or serious obligations of the borrower defaults disproportionate. 

All the judge concludes that the term is unfair.

In addition, in relation to the clause mortgage costs imposed by borrowers, there have declared void that forced borrowers to take over the duties of notary and registration. 

In its judgment, the court argues that it is the respondent company (Bankia SA) who is required to pay the same as one who holds an interest in the constitution of the collateral mortgage while the borrower is only interested in obtaining a loan.

The constitution of security only benefits the bank, as she is the one that gets an enforceable to attend the special method of execution and preferential credit if borrowers incurred in bankruptcy since credit secured by mortgage holds a special privilege for payment to be executive. 

The borrower concludes the sentence, has an interest in obtaining a loan, which would not require writing publicly, not in the creation of a mortgage.

Finally, the sentence is not considered to be null clause of the clause which requires borrowers to pay taxes arising from the mortgage loan, in line with the jurisprudence of the Third Chamber of the Supreme Court and the legal regulations and regulatory, requiring the payment of such amounts to them.