Spain, condemned by the ECJ to compensate those affected by unfair terms on your mortgage
The burdensome situation in which found, and still are, many people who have been immersed in foreclosure, to the judges not to have safeguarded their right to examine their contracts and eliminate them unfair terms, it seems that you can find a palliative to a recent judgment of the Court of Justice of the European Union.
sentencia_del_tribunal_de_justicia _-_ responsabilidad_del_estado.pdf
To do memory and remember that our lawgiver, the current caretaker government, despite the continuing requirements of Europe on the failure of mortgage reforms being carried out, does not regulate until the month of October last 2015, the last reform operated in our Civil Procedure Act, mandating Judges officially examine the contracts that are submitted with the demands.
This review should help to remove those clauses which, under its discretion, are abusive clause such as the soil, the clause excessively high interest delay 365/360 clause by which the debtor pays interest 5 days per year or even loan assignment clause without further notice to the debtor.
There are many families as a result of the application of these provisions -in terms affecting the amount by which the judgment-was based, they have fallen in some cases without housing and with a debt that still haunt them for life .
And many are the legal operators, including our Supreme Court, who have raised our voice stating that, although our national legislation does not contemplate, judges and courts had to make an ex officio examination of abusive clauses in consumer contracts since queasí was ordained since 2009 in Europe, which is supranational law and jurisprudence.
Despite this, and in my personal experience, many Judges resolved that national legislation entitling them but did not require them. This means that the review was "voluntary".
Well, it has again become Europe who has put the "dot the i", and the Court of Justice of the EU (ECJ) has ruled last July 28 in Case C-168/15 that comes to say the following:
- That the State is responsible and therefore must compensate those individuals being involved in court proceedings, the judge resolves to the detriment of the latter manifestly in breach of applicable law or against a law of the Court of Justice The matter.
- On unfair clauses remember that it is from the judgment of 4 June 2009 (case Pannon), when the ECJ establishes imperatively, no option to any other authority derived from national law, belonging Judges Member States have an obligation to examine unfair terms of contracts involving consumers and presented to them in the different procedures.
- The rules relating to the procedure for claiming compensation and the assessment of damage and the subject of financial compensation, must be governed by the national law of each Member State.
In conclusion: Under the judgment of the ECJ, who has obtained an unfavorable to their aplicándosele interests unfair terms that were not removed from office by the judge who understood his-and issue court decision it has been after 4 June 2.009- may commence, after the assessment of damages and deemed justifiable, the corresponding claim for damages against the State. Mentioning that the regulation we have today, the deadline for such claim is one year. That is, until July 27, 2017.