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Legal tip 914.European Court rules Spanish mortgage law is abusive
14 March 2013 @ 17:38


Source: El PAIS
 

European Court rules Spanish mortgage law is abusive

Luxembourg tribunal says that national legislation breaches consumer protection directive

 

The European Court of Justice on Thursday ruled that Spain’s mortgage law is incompatible with a European directive on abusive practices in consumer contracts, opening the door to more legal protection for households facing eviction from their family home.

The ruling comes in response to a question posed by a Barcelona court in connection with the eviction of Moroccan immigrant Mohammed Aziz from his home in January 2011, after he failed to meet mortgage payments on a 138,000-euro loan granted to him by savings bank CatalunyaCaixa in July 2007.

The court wanted to know if the eviction breached Aziz’s rights. The European Court ruled Thursday that the process of ousting him from his home infringed the European Union’s 1993 Unfair Terms in Consumer Contracts (93/13EEC) directive on consumer protection.

The ruling will apply to all eviction cases currently being processed across Europe but will not apply retroactively, as pressure groups have been calling for. Amendments to the mortgage law, which is more than a century old, are currently going through parliament, and it appeared as if the government was waiting for the Luxembourg-based court’s judgment before proceeding with the passage of the draft law.

One of the anomalies of the current law in Spain is that if a homeowner fails to meet a single monthly mortgage payment, the bank can initiate accelerated proceedings to evict the borrower and take possession of the property. Even if the borrower alleges the contract he has signed is abusive and a court agrees with him, if the eviction has already been carried out the homeowner has the right to compensation but not the right to recover the property. The bank can also ask for full repayment of the loan even after obtaining possession of the property in question.

“The Court […] holds that the Spanish legislation does not comply with the principle of effectiveness, in so far as it makes it impossible, or excessively difficult, in mortgage enforcement proceedings initiated by sellers or suppliers against consumer defendants, to apply the protection that the (93/13EEC) directive confers on those consumers,” the court’s ruling said.

The court also questioned whether Aziz would have willingly signed on equal terms with the bank a contract that included a penalty clause for back payments with an annual default rate of 18.75 percent. “The national court must in particular compare that rate with the statutory interest rate and determine whether it is appropriate for securing the attainment of the objectives pursued in Spain and does not go beyond what is necessary to achieve them,” the court determined.

Plataforma de Afectados por la Hipoteca - Valencia

"Plataforma de Afectados por la Hipoteca - Valencia", Valencia, East of Spain, by Antonio Marin Segovia, at flickr.com



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2 Comments


Ian said:
19 March 2013 @ 04:37

Tom Darcy - http://www.facebook.com/tom.darcy.5205

Twenty seven people asked me today why I am doing this. My answer
I live with the reality that tomorrow morning or some morning, men from the sheriffs office will drag my family from their home, leaving my family homeless, I don’t sleep much like most in our prison called a home with chains and locks and barricades from 4am waiting, it’s a torturous hell no human should suffer, yet I’m one of Thousands that do. One phone call telling you your job is gone and you could be on that path; complacency or “I’m ok Jack” will not help you. What will you do then or say?, sympathy or empathy are just words that comfort those that utter them, the reality for thousands of families across this country is how do we survive this week, what will not be paid, who suffers, which child, how much more can we all suffer before all we are is gone. The lost innocents of children across this country who suffer the consequence of warring parents or tearful mothers is invisible to us all, they, you, and all of us deserve a better life, only action can change this, thank you to all the thousands of people who have shared their lives with me in the last four weeks, please talk to each member of your family, when fearful for them or yourself please contact Pieta House 01-6010000 or Aware 1890 303-302. If I can in a very small way prevent one family from this shameful misery or one person taking their life then my existence had meaning,


Ian said:
19 March 2013 @ 04:39

Tom Darcy - http://www.facebook.com/tom.darcy.5205

To our fellow victims of illegal banking, your bank if a member of Europe broke the following laws THEY COULD NOT HOLD A LEGITAMATE EUROPEAN BANKING LICENCE IN ACCORDANCE WITH THE FOLLOWING S.I. No. 395/1992 — European Communities (Licensing and Supervision of Credit Institutions) Regulations, 1992. 4. Control of credit institutions and solvency ratio. 5. Determination of qualifying holding. 6. Minimum capital requirement. 13. Maintenance of own funds by credit institutions. 19. Non-disclosure of information. 33. Offences. Please post across the world,

A nuestras compañeros víctimas de banca ilegal, su banco si un miembro de Europa rompió las siguientes leyes no podría sostener A LEGITAMATE europeo banca licencia de acuerdo con el siguiente S.I. no. 395/1992, normas de las comunidades europeas (licencias y supervisión de las entidades de crédito), 1992. 4. Control de las entidades de crédito y el coeficiente de solvencia. 5. Determinación de la calificación de explotación. 6. Mínimo requisito de capital. 13. Mantenimiento de fondos propios de entidades de crédito. 19. Confidencialidad de la información. 33. Delitos. Por favor enviar en todo el mundo,


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