A few days ago a person came to my notary's office (I have to say that I don't like to use the word client to refer to those who come to my office) to explain to me the ordeal he was going through once he paid his mortgage loan, to get his financial entity grants you the corresponding mortgage cancellation deed.
Based on what he has told me and the documentation he has shown me, I am going to try to reconstruct the story, although proven facts, in a legal sense, can only be considered some, which does not mean that they are not true.
In 2011, Mr. XSC, once his mortgage loan was paid, went to his office where he had hired him, requesting that he grant a deed of payment letter. There they ask you, first of all, to pay a commission of 50 euros, and although in the written response that the financial institution gives you to your request, you are informed that you can carry out the cancellation procedures yourself, Once you have obtained the bank certificate of having canceled the debt, the truth is that they verbally encourage you, by all possible means, so that the cancellation is carried out through the procedure established by the bank, which is to go to your notary, and that the bank agency is the one that manages the cancellation, collecting the deed and presenting it in the Property Registry, which would mean expenses of 300 euros, in addition, the payment of the Notary and the Registry of the Property and the aforementioned 50 euros, all of which must be paid in advance, for which they ask for 800 euros of provision of funds.
Not being satisfied, Mr. XSC files the corresponding claim with the BANCO DE ESPAÑA CLAIMS SERVICE, issuing a resolution (file R2011329138) that exclusively addresses the issues for which there has been documentary evidence, in the following terms:
1.- Financial entities are not entitled, in accordance with article 42 of the mortgage law and in accordance with criteria of good banking practice, to collect any amount for the simple issuance of a certificate of economic cancellation of the debt or, alternatively, by his appearance before a Notary, if the declaration of that is incorporated in a public deed.
2.- That clients can carry out by themselves the necessary procedures for the cancellation of their mortgage registration, once the certification of having paid the debt has been obtained. Therefore, financial institutions only provide this service if requested by their client, for which it is necessary for the client to give his consent, not only to this service, but also to be owed the commissions charged and reported for this concept.
3.- That the commissions that financial entities may demand for the preparation of the necessary documentation for the cancellation of the mortgage, have as a budget that a true and effective service has been provided to the client, without including in this concept the delivery to the client of the documentation related to the extinction of the debt or the displacement of the representative of the entity to the Notary that the client indicates.
4.- That the choice of the Notary who performs the mortgage cancellation corresponds to the client and not to the financial institution.
Despite everything we have explained, the resolution of the BANCO DE ESPAÑA CLAIMS SERVICE that Mr. XSC obtains is somewhat discouraging, for all those who are not used to legal issues, because like Mr. XSC, at all times he has refused to pay the commission of 50 euros, the CLAIMS SERVICE OF THE BANK OF SPAIN says that there is no documentary evidence that can support the existence of a banking malpractice, because until it has been collected, said malpractice has not occurred. For this reason, Mr. XCS continues without obtaining his mortgage cancellation. According to the Bank of Spain, Mr. XCS must pay, and then claim against what they have charged.
I would say, isn't there an easier way to do things? Perhaps if banks were to face significant sanctions, in case of breach of their duties, there would not be as many abuses.
As a summary, I would say that the praxis of banks to manage the entire mortgage cancellation process through their agencies is real, and I give an example of the enormous number of cases that are revealed on rankia-type web pages, the ones themselves queries that are made to me by this blog and what notaries see on a day-to-day basis, where we are unable to obtain payment letter deeds, because the employees of financial institutions tell us that their bank has this service centralized in Madrid , Sabadell or in other points of the Spanish geography of your convenience.
The most bloody case in this matter was that of the extinct CAIXA PENEDES and its GIATSA agency, whose daily work produced embarrassment.
Lleida on October twenty, two thousand and fourteen.
