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El blog de Maria

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

Legal tip 1434. Repossession procedures frozen in Spain
21 August 2017 @ 14:22

Spain Supreme Court in its decisions dated   23rd of December 2015 and  18th of February 2016   has ruled on the nullity of clause on early maturity  of mortgage loan  which

(a) does not discriminate the class of default of the debtor, or 
(b)   entitles the creditor to cancel the contract on default of a single repayment installment of the loan 

The Aziz Judgement by the Court of Justice of the European Union, dated 14th of March 2013 also stated this in its paragraph 73.

According to the European Court, the procedural consequence of this would be that the creditor, the Bank, would lack title to start the execution. The foreclosure procedure must be dismissed pure and simply. To this, it was added the obligation of the judge to assess the nullity ex officio, at any stage of the procedure

On the contrary, Supreme Court decision dated 23rd of December 2015 reiterates that the nullity of the provision of early maturity would not necessarily determine the dismissal of execution, but rather:

“assess, in the specific case, whether the creditor's ability to exercise early maturity is justified on the basis of the following criteria:
(1) Essentiality of the unfulfilled obligation
(2) Severity of the breach in relation to the amount and duration of the loan agreement and
(3) Real possibility of the consumer to avoid this consequence; As established by the aforementioned STJUE of 14 March 2013 (Aziz case).

The Plenum of the First Chamber of the Supreme Court has therefore raised a preliminary ruling before the European Court of Justice, in interpretation of art. 6.1 of the Directive.

The doubts of the TS arise on two aspects:

 (A) Whether it may be admissible that the declaration of invalidity of the advanced maturity clause applied just to clauses where just one month would imply the default.
(B) That the application of the law is operative, when it is more favorable to the consumer than the pure and simple expulsion of the clause

As Supreme Court is waiting for the European Court of Justice to answer on this, many repossession procedures are currently stopped in Spain

Related discussion thread at EyeOnSpain Forum

Costaluz Lawyers services

Zahara de la Sierra, Cádiz, Southern Spain

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