European Justice admits to claiming malicious provisions on an already enforced mortgage

The court made such a decision at the request of the prosecutor. Zaragoza County Court In the case of a Spanish consumer who signed a mortgage with Ibercaja in 2015 that was foreclosed and subsequently sold.

In 2016, the bank requested the liquidation of the mortgage interest, but the consumer objected, claiming that the base and default interest provisions of the mortgage contract were abused.

AgainSince it was not possible for the consumer to oppose the enforcement and to examine whether the provisions were abused, the court rejected these claims and decided to liquidate the interests.

The consumer then decided to apply to the CJEU by applying to the Zaragoza Provincial Court. The Spanish court, in its preliminary ruling, in this case, during the execution procedure, the judge, ex officio, checked whether the clauses were abused, but this was not clearly reflected in the lien decision. This decision tacitly accepts the validity of the articles.

Subsequent revision of articles

In this sense, he explained Spanish law prevents re-examination if a check has already been carried out and has been harassed. and the principle of final judgment applies; He asked the CJEU whether this was in line with European law and what consequences a later revision of the articles might have.

Community court ruled EU law opposes this national legislation which does not allow the judge to examine ex officio the abusive nature of sexual abuse.When neither the e-statements nor the consumer asserts this abusive nature after the objection period, the judge already evaluates ex officio whether it has been abused at the beginning of the enforcement process, but there is no reason to approve such an examination in the judicial decision. Nor does it say that it cannot be questioned.

However, the court notes that: lien has been concluded and property rights have been transferred to a third party, the judge can no longer continue to examine the abusive nature of the contractual clauses that will lead to the cancellation of the transfer of property and to question its legal certainty.

But in this case, he says, the consumer should be able to call, abuse of provisions for compensation for economic damage resulting from their implementation in a different subsequent procedure.

ECJ case law shows that: mortgage provisions deemed abusive must be declared void, The consumer has the right to return the amounts unfairly received by the bank.

ABAD today also four different sentences about abusive substances In general, it affirmed that national procedures should not interfere with the protection of consumer rights and that national judges should assess ex officio the nature of abuse.