February 26, 2021

Unjustifiable delay of the Supreme Court | Economy


Have already passed four months since the EU Court of Justice (CJEU) issued the ruling of March 26 on foreclosures. The ruling answered the questions of the Supreme Court and the Court of First Instance number 1 of Barcelona. The First Chamber of the Supreme (civil) did not analyze the European decision until July 17. It is unknown if there was consensus, but will not issue a sentence until September.

Experts argue that "there is no legal basis" for such a long delay in a matter of such social impact as that of foreclosures that end in evictions. There are 20,000 paralyzed in court. It is incomprehensible that half a year is required to interpret a European resolution in which “there are no new jurisprudential contributions,” said José Manuel Arias Rodríguez, the president of the Tenth Section of the Provincial Court of Madrid in laleydigital.

The underlying issue is in the valuation of the early maturity clause contained in all mortgages. This allowed banks to demand from the debtor all outstanding debt if there was only one default. The clause was the foundation of the relentless foreclosure procedure that has caused hundreds of thousands of evictions. The Supreme Court asked the CJEU if this procedure could be maintained, which it considered best for the consumer, removing the abusive part of the clause (a default) and replacing it with the Spanish norm then in force that allowed the foreclosure with three defaults (12 or 15 with the new law).

Following the ruling of the CJEU, which on July 3 returned to pronounce in the same direction, four hearings, numerous judges and experts consider that the early expiration clause is void, that the loan and mortgage guarantee contracts subsist after the elimination of abusive clause and that in any case you have to ask the consumer if he wants the execution to continue. Banks can go to the ordinary route, preferred by those affected because they can invoke other abusive provisions (land clauses, excessive interest) and thus reduce their debt.

Most courts that have ruled have filed executions with the agreement of the consumer. A few, however, have continued the procedures. The delay of the Supreme supposes legal uncertainty and arouses suspicion.

The European court promotes new principles such as the consequences derived from the declaration of abuse and the importance of transparency. Values ​​defended by Professor Francisco Javier Orduña in several private votes as a magistrate of the High Court, which he resigned last June. Values ​​that have been recognized by the European Commission and the CJEU. The Supreme should cease to be a remorse as in the ground clauses and apply European doctrine.

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