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Entre los expedientes que negocia la Presidencia española de la Unión europea, en el área de Justicia, cabe destacar por su importancia para la ciudadanía europea, la propuesta de Reglamento del Parlamento europeo y del Consejo relativo a la competencia, la ley...

How to save the mortgage?
Feb 14, 2017

The judgement AzizThe decision of the CJEU on 4 March 2013 clearly marked a turning point in Spanish mortgage law. The acute economic crisis and the wave of foreclosures rightly created great social alarm. Also the lack of social and mediation instruments to prevent the family dramas experienced. As a result, numerous national and European court rulings have highlighted, rightly or wrongly, the weakness of our mortgage system.

The CJEU ruling of 21 December 2016, which established the full retroactivity of floor clauses, was a particular setback. In it, the Court of Justice called into question not only Spanish legislation but also the decisions of the Supreme Court. The accumulation of problems that this judgment unleashes will require clarification by the First Chamber of the Court, as it reached a Solomonic decision regarding the date of nullity - that of the judgment of 9 May 2013 - which Luxembourg now considers not to be in accordance with the law.

Faced with the certainty of an avalanche of claims for this reason, at least from consumers who did not agree with their bank or who were not reimbursed until the established date, (who in my opinion will be able to claim the remainder), the Government approved Royal Decree Law 1 /2017, which attempts, with good wording and diction, what is rara avis The EU is not only a very successful solution in itself, but also, with many doubts, a solution that satisfies everyone, which it does not fully achieve.

The Decree-Law, which must be validated in Parliament, establishes a procedure based on the creation by the affected entities of a complaints service - not an extrajudicial procedure because it is not entrusted to a third party - in order to obtain an agreement that avoids legal proceedings; it imposes a period of four months, counting the month of creation of the service from 20 January, in which the applicant, since the activity corresponds to the borrower, must prove the clause; allege that it is not transparent, therefore abusive, and request a refund. The Bank may oppose or agree a different solution with the consumer, who may not take legal action within this period. extrajudicialIf you sue afterwards, you may be ordered to pay costs. If you sue afterwards, you may be ordered to pay costs. Fiscally, if the borrower deducts interest for having the property rented, he will have to make a complementary declaration; if it is a habitual residence, he will adjust the deductions made, all of which are calculations that correspond to the consumer. A different solution is to novate the loan. Although notary and registry fees are significantly reduced, nothing is said about other expenses charged by the Entity; manager, if applicable, appraiser or associated products that must accept the new situation, which must pass the same transparency controls.

When this procedure has not yet been launched, on 26 January 2017, a new ruling was published in the CJEU, which declares unfair the clause that establishes the early maturity in mortgage loans or credits, in certain circumstances to be assessed by a judge, but above all annuls the 4th transitional provision of the law 1 /2013, and declares that a decision with the force of res judicata, does not prevent the judge from subsequently analysing the possible abusive nature of a clause in an incident of opposition.

In this situation, where important rulings such as multi-currency clauses or foreclosure by assignee creditors are still pending, credit may be further restricted. Indeed, destroying the foreclosure system entails the systemic risk of shutting down the long-term financing of real estate or business assets that are key to the maintenance of the middle class and thus to the democratic stability of a country. (Vine. Revista jurídica digital del Eleconomista Iuris&lex, January 2017)

Notaries, who have paid a serious reputational price, in most cases unjustly, have been calling for years for legal tools that allow them to carry out an effective control of transparency, without detriment to the superior judicial activity, as well as to be provided with an effective disciplinary regime, especially aimed at avoiding the concentration of mortgage loan signatures in notaries chosen by the bank, Following the ruling of the First Chamber of the Supreme Court of 23 December 2015, which declared the clause in which the bank passes on the costs of the transaction to the client to be abusive, this may mean that, for a simple reason of economic effectiveness and cost savings, it is difficult, especially in large cities, for the consumer to choose a notary. This limitation can create an abusive situation for the borrower insofar as he is prevented from choosing his notary, or in the absence of a specific relationship of trust and professionalism, to go to the one he feels most comfortable with due to his proximity or references.

In any case, it should be compulsory for the notary to participate actively in the pre-contractual phase, informing the consumer individually days before, and with the detail that each clause requires of the closed conditions of the loan, which will be reflected, in agreement with the consumer, in the document. This would improve the current system of mortgage signatures, in many cases externalised, favouring that the borrower can exercise this right, which is basic and prior to any other consideration.