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El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche. www.costaluzlawyers.es

Legal tip 1202. Being repossessed? Check on abusive clauses
09 September 2014 @ 09:14

A decree approved last Friday, 2014 September 5th by the Executive provides that the mortgagor being repossessed, may file an appeal against the order to dismiss their opposition to the execution in the event that opposition denounced an unfair contract term.

This possibility is included in the amendment of the Civil Procedure Act in order to comply with the judgment of the Court of Justice of the European Union of 17th July 2014.

This new provision will apply to foreclosure proceedings in which there had been no entry into possession of the property by the auction acquiring person.

One month´s deadline (till 8th of October 2014) is provided for an appeal to be exercised in  those procedures where opposition was rejected in the past and allegations on abusive clauses were contained in it.  

Benissa, Alicante, Eastern Spain, at facebook.com



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11 Comments


antifreeze said:
09 September 2014 @ 10:11

Thanks Maria - that sounds like the European Courts have fair hearing for consumer rights - unlike in Spain. although consumers are Spanish as well as foreigners who will all benefit from such a ruling.

UNFAIR CONTRACTS - contracts written for Corvera, by Corvera are against consumer rights for cancellations and late handover/completions and forced completions in some cases - will the EU courts see such unfair, unguided and unsupervised contracts as something that could be appealed as well? Any such case law come to the EU courts? Who took these foreclosure cases to EU courts? Single or group actions?

Very interesting developments and this should give back some confidence to buyers - perhaps.



mariadecastro said:
09 September 2014 @ 10:24

Antifreeze:
Answering your questions below in capital letters:

1. will the EU courts see such unfair, unguided and unsupervised contracts as something that could be appealed as well?

YES, IF THEY ARE BROUGHT TO ITS JURISDICTION.

2.Any such case law come to the EU courts?

YES, IF THEY ARE BROUGHT TO ITS JURISDICTION.

3.Who took these foreclosure cases to EU courts?

A JUDGE IN CASTELLON PROVINCE FOR ORIENTATION ON A CASE BY THE EUROPEAN JUDGES

4. Single or group actions?
SINGLE CASE



antifreeze said:
09 September 2014 @ 10:32

This is very interesting - in No. 3 - do you mean a Castellon judge took it to fight for the developer? Or was it the consumer who took it to court?

Thanks


mariadecastro said:
09 September 2014 @ 10:40

http://en.wikipedia.org/wiki/Preliminary_ruling

This link above explains how any Judge of any member State of the European Union can ask these Courts for interpretation of the Europan Law applicable to an specific case brought forward to his instance.


ads said:
09 September 2014 @ 16:45

As an alternative to a judge seeking interpretation from the EU, can Spanish lawyers bring current EU directives to the attention of the Spanish judiciary, and would the judge be legally bound to recognise these directives, or can the Spanish judiciary override these directives in their rulings?

Could a current EU directive for example be used to counter enforcement of a final ruling that failed to recognise a contractual term which had not been individually negotiated (acting as contrary to the requirement of good faith, causing a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer)? Such as provision of a BG with a non negotiated effective-from date, acting as illegal extension to a mutually agreed end date as per the purchase contract?






mariadecastro said:
10 September 2014 @ 06:19

Ads:
Of course Spanish lawyer can bring EU directives to the attention of the Spanish judiciary, but Judges are bound by these just if these have been incorporated to Spanish Legislation.

Most recent EU Directive on Consumers rights ( 2011/83/EU) has recently been "transposed" ( inmplemented) by Spanish Legislative Power through

"Ley 3/2014, de 27 de marzo, por la que se modifica el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias, aprobado por el Real Decreto Legislativo 1/2007, de 16 de noviembre".


antifreeze said:
10 September 2014 @ 07:41

"Law 3/2014, of 27 March, approving the revised text of the General Law for the Defence of Consumers and Users and other complementary laws, approved by Royal Legislative Decree 1/2007, of 16 November amending ".

If recent EU Directive on Consumers rights ( 2011/83/EU) can be enforced by lawyers in favour of consumers, then why are courts rejecting consumer cases where there are clear breaches with unfair contracts, delays etc? Cases where one expects local judges go against such consumers in courts. Each judge decides what they think....no legislature application.

The 'local' attitude wastes time - where consumers, mostly foreigners, have lost faith in contracts, developers, banks - consumer rights are more difficult to prove and enforce. Is that so?




mariadecastro said:
10 September 2014 @ 08:19

Dear Antifreeze:

I agree with you, from our experience with off plan contracts, better instruction to Judges on Consumer Law is necessary, specially in some regions.


antifreeze said:
10 September 2014 @ 08:43

Thank you Maria.

Ignorance is not a defense in Law....so why are JUDGES of all people, not up to speed with the Laws they should know and apply?

This is why Spain's legal system is so unpredictable; it all depends on single judge and their interpretation locally. In reality, there is no legal system if laws do not apply?



ads said:
10 September 2014 @ 08:45

Thank you Maria.
How will this "better instruction come", Maria?
Is there any statistical evidence evidence kept and monitored by the Justice departments to demonstrate when "certain regions" are not adhering to consumer/purchaser rights, so that this can be effectively identified and remedied?
Is there currently any recording/reporting mechanism in place for good law firms to report back such occurrences to the judiciary, which as Antifreeze has astutely observed places such a negative impact on purchasers' faith in the Justice system.


mariadecastro said:
10 September 2014 @ 10:01

Antifreeeze, Ads:
I fully understand, respect and value your opinions.

I think that these denouces will be better heard if you approach your European representatives.

I will be very happy to assist you with that if necessary.

Kindest,

María


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