La Razon / The Court of Justice of the European Union (EU) said today that a judge may be able to consider abusive a mortgage clause that imposes a higher rate to “three times the legal interest” and thus prevent its application, which supports the Spanish legislation.
The European court, based in Luxembourg, issued a ruling on a case brought by a Spanish judge over possible abusive clauses in some mortgage loans granted by Banco Unicaja and CaixaBank.
In an earlier judgment of March 2013, the Court of Justice of the EU forced the government to change the rule then in force which did not allow a judge to suspend foreclosure if unfair terms were detected.
In its decision today, the European Court indicated that the Spanish legislation is in line with the EU in that a judge has to recalculate the interest by the application of a “more than three times the legal interest”.
However, he made clear that the Spanish judge may “consider abusive the clause impose such interests and therefore leave no application. “
Unicaja Bank and CaixaBank had filed lawsuits execution before the Court of First Instance and Instruction No. 2 of Marchena (Sevilla) at the rates of interest Delay agreed.
The Spanish judge the question of abusive clauses interest rates for late payment was raised, and the application of such rates to capital which is a consequence of early maturity late payment.
Forwarded a question to the European court had doubts as to the consequences that would remove the unfairness of such clauses because, according to Spanish law, should order that default interest recalculated whose type is greater than three times the legal interest rate, so that an interest rate not exceeding this limit is applied.
Today, the Court of Justice of the EU stated that the European directive on unfair terms does not preclude the Spanish law provided that its application “does not prejudge the assessment by the national court of the unfairness of the clause” and shall not prevent “leave without applying the clause if considered to be abusive.”
In this regard, noted that the obligation to respect the ceiling interest rate for late payment “in no way prevents the judge to consider a clause that establishes such interest was abusive.”
The court added that, in principle, it seems that the cancellation of such clauses may bring “negative consequences for the consumer”, as the amounts for which the foreclosure proceedings were initiated “necessarily be . lower, not increase with default interest envisaged by such clauses “
Information La Razon
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