To understand better how the unfair terms are, and that surely many of us have inserted in our mortgages, we will do it through an example, generally have the following tenor:
"All taxes, commissions and expenses incurred in preparing, formalizing, correcting, writing, altering, including division, segregation or any change that implies alteration of the guarantee - and execution of this contract , And for the payments and refunds derived thereof .... "
Supreme Court decision 705/2015 of December 23, is clear in this regard by declaring abusive the stipulation that the consumer has to bear the expenses derived from the public deed and registration costs. These expenses correspond to the person in whose favor the right is registered, and in fact who has the main interest in this case, is the lender. The bank. By means of this public deed the entity obtains an executive title and acquires the possibility of a special execution.
This clause does not allow reciprocity or a minimum distribution of the expenses incurred, causing a significant imbalance that no doubt would have never accepted in the framework of an individualized negotiation.
This ruling 705/2015 also indicates that it contravenes mandatory tax rules, and infringes at the same time the General Law on Consumers and users to impose on the consumer taxes whose taxable person is the financial institution. These aspects were also included in judgments 842/2011 of November 25, which declares abusive the clause of imputation exclusively to the buyer / consumer of the taxes derived from the transmission.
Abusive are also those clauses that impose on the consumer unsolicited accessory or complementary goods or services and also increases in price for ancillary services, financing, deferrals, surcharges, damages or penalties that do not correspond to additional benefits that may be accepted or rejected in each Case, expressed with due clarity or separation.
Against this background we propose to make a previous claim to the bank, in analogy to the procedure regulated by the Royal Decree Law 1/2017 of January 20, urgent measures of consumer protection in terms of land clauses.
Our right to claim the NULLITY of unfair terms does not prescribe while the contract is in force as is clear from the General Law on Conditions of Contract. In this respect the doctrine is unanimous and peaceful.
If, on the other hand, our mortgage agreement has already been finalized, we can claim the refund and interest on the unduly paid, and it is in this case that there are different criteria regarding whether there is a prescription in 4 years by application of article 1301 Civil for existence of vices of the consent or if they prescribe at the 5 years as indicated in article 1964.2 of the Civil Code.
Writings SF Lawyers
