October 22, 2020

The TEU rules that the floor clauses renegotiated can be abusive


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The Court of Justice of the European Union (TEU) has ruled this Thursday that the clauses renegotiated ground of mortgages can be examined by a judge and found abusive, as well as it is illegal for banks to force clients to renounce legal actions after the renewal of the contract.

The European Justice thus responds to the preliminary question raised by a Teruel court on a matter that confronts a consumer with Ibercaja in relation to an abusive clause in a mortgage loan subrogation contract.

In 2014, the entity and its client signed a novation contract stating that the variable interest rate could not be less than 2.35%, compared to 3.25% previously stipulated. In addition, the two parties waived legal action or appealed the clauses contained in the contract.

After learning about the TEU ruling in 2016 that forced Spanish banks to return to their clients everything they have charged In addition to these clauses, the client went to court to declare void the floor clause provided for in the first mortgage and the restitution of the amounts received by Ibercaja. The entity rejected that the clause was null because the consumer had been informed of its existence before the signing of the contract.

In the ruling on Thursday, the Luxembourg court declares that the European directive does not oppose the renegotiation of a clause that may be declared abusive “provided that the resignation comes from free consent and informed by the consumer ». Second, it opens the door that the clause itself that modifies another potentially abusive one from a previous contract can also be abusive if it has not been negotiated individually.

On the specific matter for which the court of Teruel asks, the TEU remarks that the fact that the renewal of the contract “is framed within the general policy of renegotiation” of mortgages with Ibercaja floor clauses “could constitute an indication” of that the consumer “could not influence» the content of the new clause.

In the same vein, European Justice stresses that the fact that the client wrote “in her own hand” that included the mechanism of the floor clause “does not by itself allow conclude that the clause was negotiated individually”.

On the other hand, the TEU has stated that a clause whereby the client of a mortgage contract waives to take legal action against the entity, in particular “when the consumer has not been able to dispose of the pertinent information that would have allowed to understand the legal consequences derived for him from said clause ».

Finally, the European court ruled that a consumer cannot legally renounce legal protection or the rights conferred by the directive. Thus, the TEU states that “admit the possibility that the consumer previously renounce the rights conferred by the protection system would be contrary to the imperative nature of the standard and would jeopardize the effectiveness of this system. “

Almudena Velázquez, legal co-director of reclamador.es, explains in this regard that “this is an important sentence for those affected by a soil clause in Spain, as it opens the door to being able to claim that money that they overpaid for this abusive clause, situation that, until now, they had really complicated, since in those agreements it was forced to the resignation on the part of the consumers of later legal actions ».

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