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It Is Possible for the Consumer to Recover the Expenses Paid for the Formalization of the Mortgage

Raul de Cruïlles's picture
Published: 27/01/17 - Country: Spain

When making a mortgage loan agreement with a credit institution, it is very common for the contract to include an expense clause under which the borrower (borrower) assumes the set of expenses entailed by the constitution and registration of the Mortgage loan.

However, in the case of a consumer, there is an important possibility that such costs have been attributed to him in an abusive way, since they are a predisposed contract, and that such exclusive attribution is contrary to the fair balance of benefits, which can that the consumer borrower can now recover the expenses paid in his day for the constitution of the mortgage.

In effect, the mortgage guarantee is made before a notary and is registered in the Property Registry, which implies the generation of expenses for the corresponding professional fee. Likewise, this mortgage constitution is subject to the Tax of Documented Legal Acts. And to this is added in general the existence of expenses of appraisal and of management.

It has long been argued in the Courts whether the clauses of the mortgage loan contracts that directly attribute to the borrower-consumer all of those expenses are admissible in the light of consumer protection regulations, or Well they are abusive and therefore must be annulled.

The consequence that the clause of attribution of expenses to the borrower is declared null by abusive is that it is taken for failure, and therefore, the bank must repay to the borrower all those expenses that he paid in his day (notary, registry, appraisal , Manager, taxes).

In this regard, it is worth noting the Supreme Court's ruling (Civil Chamber) 705/2015, of December 23 , which resolves the appeals presented by BBVA and BANCO POPULAR against the Judgment of the Madrid Provincial Court (Section 28) Of July 26, 2013, in relation to the demand initially filed by the Organization of Consumers and Users requesting the declaration of abusiveness and consequent nullity of the expenditure clause inserted in the contracts of said entities.

The clause of the bank contract in the case judged by the Supreme Court indicated the following:

"All taxes, commissions and expenses incurred in the preparation, formalization, correction, writing, modification - including division, segregation or any change that implies alteration of the guarantee - and execution of this contract , And for the payments and refunds derived therefrom, as well as for the constitution, maintenance and cancellation of its guarantee, being also in its charge the premiums and other expenses corresponding to the insurance of damages, which the borrowing party is obliged to have in force " .

That judgment has stated that the Consumer Spending Clause in that proceeding is abusive by providing that:

"It is enough to remember, with regard to the formalization of notarial deeds and registration of the same (necessary for the constitution of the security right), that both the fees of notaries and the registrars of property, attribute the obligation Of payment to the applicant for the service in question or to the benefit of which the right is registered or requests a certification. And who has the main interest in the documentation and inscription of the deed of mortgage-backed loan is undoubtedly the lender, since it obtains an executive title (article 517 LEC [RCL 2000, 34, 962 and RCL 2001, 1892] ), Constitutes the security right (articles 1875 CC [LEG 1889, 27] and 2.2 LH [RCL 1946, 886]) and acquires the possibility of special execution (article 685 LEC).

Consequently, the clause discussed not only does not allow a minimum reciprocity in the distribution of expenses incurred as a result of the notarial and registry intervention, but also relapses all of it into the mortgage lender, even though the application of the regulations would allow An equitable distribution, because although the beneficiary of the loan is the customer and said business can be considered as the principal against the constitution of the mortgage, it can not be lost sight that the guarantee is adopted for the benefit of the lender. This implies that it is a stipulation that causes the consumer client a relevant imbalance, which he would not have reasonably accepted in the context of an individualized negotiation; And which, moreover, is expressly included in the catalog of clauses that the law classifies as abusive (Article 89.2 TRLGCU [RCL 2007, 2164 and RCL 2008, 372]).

Recently other rulings of Saragossa and of Oviedo have declared declaring the nullity of the clause of expenses, reason why the sentence of the Supreme Court has remarkable relevance in the judicial practice.

Therefore, under this case law, the possibility of cancel the clause of expenses in the mortgage loan contracts, for which it is appropriate to analyze its wording, if appropriate, submit a formal complaint to the entity, and ultimately Term to go to the Courts of Justice.

It should also be noted that "Consumer" may also include autonomous professionals that have contracted for a different end of their professional activity, even if the warranty receives on any good related to that activity.

The Judgment of the Court of Justice of the European Union of 3 September 2015 sets this criterion of extending the protection of consumer regulation to professionals when they act outside their field of activity and is a contract not negotiated Individually in the wording of which they have been unable to influence.

Such consideration of "consumer" is admitted by the court even in the case of a legal professional, considering that despite his knowledge of the law, he still deserves protection if he has not been able to influence the wording of the contract, (Which can be applied to other professionals as well).

Finally, we must point out that it is also possible to claim the nullity of the clause for companies through the invocation of the regulation on general conditions of the contract, in which case the nullity that may exist by the imposition by the bank of the clause without negotiation, in the Framework of what is called an "adhesion contract".

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Raul de Cruïlles's picture

Lawyer in Judicial and Arbitral Procedures. Legal advice on matters of commercial, financial, corporate, bankruptcy, real estate, patrimonial, insurance and civil liability.