The Supreme Court has established that foreclosures will not be promoted with less than one year of unpaid installments as long as they have stopped paying as of 2013.
This has been established by the Civil Chamber of the Supreme Court in a plenary ruling unanimously. With this decision, the Supreme Court adapts its jurisprudence on the effects derived from the nullity of the clauses for the anticipated maturity of mortgage loans to that raised by the Court of Justice of the European Union (CJEU).
The court understands that the mortgage loan is a complex legal business, whose common basis for the parties is to obtain a cheaper credit (consumer) in exchange for an effective guarantee in case of default (bank).
In this way, a long-term mortgage loan contract cannot subsist if the execution of the guarantee is illusory, so, in principle, the suppression of the clause underpinning that guarantee would cause the total nullity of the contract.
However, such total nullity would expose the consumer to especially damaging consequences, such as the obligation to return the entire outstanding balance of the loan, the loss of the benefits legally provided for foreclosure or the risk of the execution of a declaratory judgment.
To avoid these consequences, the CJEU admitted that the abusive clause be replaced by the legal provision that inspired the early expiration clauses, in its drafting of the year 2013. However, the Supreme Court has considered it more logical, at the present time, to have in Account of the new Law 5/2019, of March 15, regulating real estate credit agreements (LCCI), as the most beneficial mandatory rule for the consumer.
The Chamber provides a series of jurisprudential guidelines for the current foreclosure procedures, in which the delivery of the possession to the acquirer has not yet occurred. In this way, it determines that the processes in which the loan was given up before the entry into force of Law 1/2013, by application of a contract clause considered void, should be dismissed without further processing.
The processes in which the loan expired after the entry into force of Law 1/2013, by application of a contract clause deemed void, if the default of the debtor does not meet the requirements of severity and proportionality required by jurisprudence should be equally dismissed.
For this, article 24 of this rule is taken into account, according to which the anticipated expiration of the contract will occur if the borrower is in default in the payment of a part of the loan or interest capital and if the amount of the Past due and unmet installments amount to at least 3% of the amount of the capital granted, if the default occurs within the first half of the loan term.
This requirement will be considered fulfilled when the overdue and unmet installments amount to the default of 12 monthly installments or a number of installments such that it assumes that the debtor has breached his obligation for a term at least equivalent to 12 months. In addition, at 7% of the amount of the capital granted, if the default occurs within the second half of the duration of the loan. This requirement will be considered fulfilled, the norm establishes, when the overdue and unmet installments amount to the non-payment of 15 monthly installments or a number of installments such that it supposes that the debtor has breached his obligation for a term at least equivalent to 15 months.
On the contrary, if the debtor's default complies with the seriousness foreseen in the LCCI, they may continue processing. Finally, the dismissal of the processes will not impede a new executive demand based, not on the anticipated expiration due to contractual forecast, but on the application of LCCI.
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