On March 14, the judgment of the Court of Justice of the European Union (CJEU) was announced in relation to the nature of adjusting or not some aspects of the Spanish mortgage foreclosure legislation, to the European regulations on the matter. .
Much has been said about this matter in all the press and opinion forums about the consequences that this sentence will have with respect to the enforcement proceedings that are in progress, but as an ultra-quick summary, what the CJEU considers illegal is that the A judge who knows a process that has been filed by the debtor to annul clauses that he considers abusive, cannot do anything to stop the execution.
The Government was waiting for this sentence to give content to the announced reform of the mortgage legislation, which was being processed at the popular initiative. What is most consistent with the content of the sentence is that the possible abusive nature of a clause can also be resolved in the enforcement procedure, so that the debtor's means of defense should be expanded, which until now were limited according to article 685 LEC to the following cases:
a.- The extinction of the guarantee or the guaranteed obligation. It means that the debt has been paid.
b.- The error in the determination of the demandable amount, when the guaranteed debt is the balance that results from the closure of an account between executing party and executing party. In other words, it can be proven that the amount claimed is not the amount actually owed.
However, the fact that it could be argued that a clause is abusive should not make us forget that the determination of such a character is complex. The Law for the Defense of Consumers and Users establishes the requirements for a clause to be considered abusive, but its application to the specific case requires an assessment of different circumstances. The determination of the possible abusive nature of a clause is a matter that, if it is not specifically determined by law (for example, the agreement by virtue of which certain expenses are from one of the parties), requires a judicial decision, and can be indicated as a summary that a clause is not abusive if the professional could reasonably estimate that, dealing fairly and fairly with the consumer, the latter would accept such a clause in the framework of individual negotiation.
With all this, it turns out that the system must also change, as a guarantee of all those involved in the businesses, establishing a method that allows knowing at the time of signing a contract, whether or not it has abusive clauses, which in my opinion understanding should go by way of a prior approval of the clauses of the banks, through an "ad hoc" body.
Faced with this situation, the opinion of the AHE (SPANISH MORTGAGE ASSOCIATION) has been published in the press that the fault of the mortgages having abusive clauses is a matter of notaries, who did not warn customers at the time of signing of the mortgage loan deeds. Obviously, I cannot give the reason for such a statement because it is false, since notaries can only refuse to authorize a document, in the event that it has abusive clauses, if they are declared as such by law or by a final sentence. registered in the Register of Contract Conditions. Apart from these cases, the notary does nothing more than give an opinion on the possible abusive nature of a clause.
But, in addition, the AHE hides a very serious issue that has happened in mortgage contracts in recent years, such as, in my opinion, that banks have clearly prevented consumers from exercising a basic right, such as free choice. as a notary, some going so far as to establish a system of "approval" of notaries, the very mention of which should cause astonishment, as a requirement for a notary to authorize documentation in which that bank acts. The free choice of notary, as well as the free choice of appraisal company or administrative agency that must carry out the registration procedures of the deeds of sale and mortgage in the property registry are rights that are recognized by law, and their non-compliance It is punishable by financial institutions in accordance with the Law on Discipline and Intervention of Credit Institutions; Likewise, the breach of these rights, through the agreements in the clauses of the banks, can be considered as an abusive clause. And although it seems like a minor issue, it is not. The signing of a mortgage, as we are all verifying, is an act of enormous future significance that must be surrounded by the necessary calm and be granted in a place where the consumer can be aware that all those involved in the process must act on your behalf.