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A specialist court, designed for abusive-clause concerns

SPAIN’S General Council of Judicial Power has approved the use of one provincial Court, specifically for claims related to the general conditions included in mortgages, whose borrower is a member of the public and not a company.

It means that these courts can hear any related discrepancy to a mortgage, including controversies raised by floor clauses, early-deadline charges, delayed moratorium interests, expenses of formalisation of mortgages, and charges for multi-currency mortgages.

Here in Tenerife, this specific court has been sited in La Laguna’s Civil Court 1.

But the professionals’ law associations, the Judiciary, and lawyers of the Administration of Justice (Secretaries of Court), have been quick to criticise this action.

They say it is only four months since Royal Decree-Law 1/2017 was put into action for these claims, and that it will put extra pressure on the courts because they will have to handle other “ordinary” cases as well.

Royal Decree-Law 1/2017

In a previous Canarian Weekly issue, I wrote about this Royal Decree, approved on 20th January, regulating the proceedings to refund monies through irregular charges, because of the floor clause (Clausulas Suelo).

Bear in mind that neither the Supreme Court judgement of 2013, nor the European Court judgement of December 2016, nullified all the floor clauses, which would be nullified if they were not transparent and clear.

The Supreme Court ruled that the floor clauses could be considered valid when they fulfilled all the “special transparency requirements of the contracts, signed with customers and consumers”.

What do the judges mean by “special transparency requirements?” Basically, the customers should have been informed, clearly and precisely, about the consequences of the floor clauses prior to signing for their mortgage, especially because of their complexity.

The banks are obliged to reply in favour, for or against the petition. But they must explain why, if the reply is negative, and must calculate the liquidation and make an offer to the client, if positive.

It is then the clients’ decision whether or not they accept it.

Experience after three months

Initially, everyone believed the banks would want to avoid legal proceedings, and would offer their clients a reasonable settlement or solution. But this has not been the case.

Making a “home survey” after three months, only few banks have replied in a positive way to claims. In most cases, the banks, especially La Caixa, have responded by ignoring the clients’ petitions,writing in a standard letter that, after studying the case, they do consider the floor clause is transparent and valid; hence, they won’t be acknowledging any claim.

I suggest that all these unsatisfied clients should go to Court to claim a refund of the irregular interest-charges, because the banks have not explained clearly to their clients about the consequences of the abusive clauses.

It looks as though the Civil Court 1 in La Laguna is going to be a very busy place!

Mariano Zunino Siri is a registered lawyer at the Tenerife Bar Association since 1991. Email: marianozuninosiri@gmail.com ; abogado@abogadosmadridtenerife.com

Short URL: http://www.canarianweekly.com/?p=36833

Posted by on Jul 14 2017. Filed under Legal Matters. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

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