Although this mandatory examination was one of the main demands of the European directive, the minister Luis de Guindos elaborated a text in which this was not reflected. The idea was that it would be developed in a later regulation. In addition, it was alleged that entities already perform a scoring or evaluation based on which they give the price of the mortgage. However, that regulation would only have a merely administrative value. It did not give contractual force to the exam. "They said that it was not necessary, but the experience of the bubble has shown that yes," says Francisco de la Torre, deputy of Citizens and one of the speakers of the law.
For this reason, in the end it has been introduced in the text with the backing of all the parties. In principle, this would avoid very common cases such as those of immigrant groups that availed each other to get the mortgage. Or when these loans were given to people with low income and poor job prospects.
In fact, in the directive that transposes this law There is talk of using instruments such as "loan-asset ratios, loan-income, debt-income or similar, minimum levels below which no credit would be considered acceptable". In general, as stated in its preamble, the directive deals with the necessary measures to "prevent excessive household indebtedness", "avoid irresponsibility in the granting and contracting of loans", and "regain the confidence that entities they behave professionally and responsibly. " "With this solvency assessment, the concept of responsible credit is transferred to the bank and not to the client", underlines Fernández Seijo.
No sanctions for now
However, in the wording agreed so far there is a problem: sanctions for failing to comply with the solvency test are not contemplated. It is a non-minor omission that detracts from the law. We can propose as a sanction that the mortgage could be annulled, a punishment that the rest of the formations judged excessive. For example, the socialist parliamentary group included in its amendments that interest payments could be canceled, a penalty common in other countries for this breach. And Ciudadanos pleaded to suppress only the interests of delay.
That said, at this time the Ministry of Economy has taken the reins and negotiates with the PP to try to unlock parliamentary approval. In this context of much more secretive conversations, some legal sources consulted fear that a step back could be taken and that the failure to comply with this examination would end up without penalties in the law.
In these discussions the interests of delay will have to be fixed, that Guindos put in three times the legal interest, that is, 9%. "It's about having a balance so that the non-payment does not go out and the bank can recover the management costs", explains Fernández Seijo. In the initial amendments, the socialist parliamentary group wanted to modulate this penalty. You will also have to close the non-payment will be enough to start the execution of the mortgage. Sherry made it concrete so that in the first half of the life of the loan, nine defaults or a delinquent amount of 2% of the loan would suffice. In the second half the necessary defaults rose up to twelve installments or 4% of the mortgage.
Another workhorse of this law is the sale of products linked to the mortgage. "In Spain they used to be cheaper because the business of the banks was to use the anchoring mortgage to market other financial products such as insurance. Although they are supposed to be banned, the current wording is ambiguous enough for banks to continue to do so. And the Bank of Spain is allowed to establish in a circular the criteria for it, "says Fernando Zunzunegui, an expert lawyer in financial law. "We should take the wording as it is in the directive, which in this sense is quite well done," adds Fernandez Seijo.
On the other hand, the legislation that has already left Guindos will lower the anticipated repayments of the mortgage, facilitate the change from variable to fixed and will cause notaries and registrars to prohibit any contract that contains clauses declared abusive as they appear in a register of judgments already created .
By last, will force the mortgaged to sign before a notary that they understand the risks and conditions of the credit, including simulations of the evolution of the types in the contracts with variable interest. "The signing before a notary was done to shield the banks from the lawsuits, but no judge will accept that," says Zunzunegui.
The real estate credit law arises to adapt a European directive of February 2014. The then Minister of the PP Government, Luis de Guindos, did not bring it to Congress until the end of 2017. And since then it has been stagnant in Parliament. Finally, it seemed that it was close to agreement. But then the sentence of the Supreme Court that said that the tax of legal acts documented was paid by the bank.
As then the high court convened a plenary to clarify this criterion, in Congress it was decided that the Supreme Court's opinion would be awaited to be reflected in the law. The political groups intend to define the distribution of all the expenses and taxes of the mortgage. It was assumed that there was a principle of agreement in this respect in the absence of how the tax on legal acts would remain. But now the Ministry of Economy has moved that has a new design of cost sharing. Next Tuesday the speakers meet to try to reach a pact on a subject that is now politically flammable.