Luis Prados Ramos


Law 1/2013 of May 14, 2013 has been the response of the Spanish government to the Judgment of the Superior Court of Justice of the European Union of March 14, 2013, which resolved on the nature of adjustment or not of some aspects of the Spanish mortgage foreclosure legislation, to European regulations on the matter.

The norm has been accepted with some uneasiness, since more was expected, both from the platform of those affected by mortgages, who demanded dation in payment with retroactive effects, and from specialists in the field, who considered that it was the occasion for undertake a more in-depth reform of the mortgage foreclosure system and the moment was especially appropriate to enter into the regulation of the bankruptcy of natural persons, which was foreseen in the electoral program of the Popular Party.

I do not intend to make a comprehensive review of the law, nor a critique of it that other people will already take care of, I simply want to make references to two issues:

The first of these is the modification of article 695 of the Civil Procedure Law, which expands the causes of opposition to the foreclosure of a mortgage, providing that the debtor can allege the abusive nature of a contractual clause that constitutes the basis of the foreclosure. or that would have determined the amount required. It also establishes an abbreviated procedure, which suspends execution until it is determined whether or not the challenged clause is abusive.

The entry into force of a law, especially when it refers to procedural issues, always raises the question of how ongoing proceedings are affected. In the case of foreclosure proceedings, the fourth transitory provision of Law 1/2013 establishes a period of one month from the day following the entry into force of the law, therefore until June 16, 2013, in which the mortgage debtors who are being affected by a foreclosure procedure, can formulate an extraordinary incident of opposition based on the existence of abusive clauses in the contract.

The second question is that referring to the modification of RD 6/2012, which regulates the Code of Good Banking Practices. As a consequence of this reform, the group of people who may request and demand the measures provided for in the code, consisting in order of preference, is greatly expanded:

1.- Restructuring of the debt, through deficiencies in the amortization of capital, extension of the period of duration of the loan and the reduction of the interest rate applicable to Euribor + 2.5 during the grace period.

2.- If this is insufficient, a removal of the pending capital can be required.

3.- And finally, one year after the restructuring request, if the previous measures were not sufficient, the dation in payment may be required, in which case, there is a special treatment of the taxes that are levied on the transferor (debtor) since they are the creditor entity is considered a passive subject of municipal capital gains and no capital gain is generated in income tax.

With this regulation, it is very likely that many citizens of Lleida will be able to access the measures that we have indicated and we take advantage of this to make our office available to whoever needs it, through professional and disinterested advice on the channels that mortgage debtors have to demand to the bank relief from its mortgage burden.





  1. Daniel Fernandez Esteban

    In line with the notes on the recently published law 1/2013. Although the rule takes an important step with respect to the protection of mortgage debtors, it should be noted that the modification of article 695 of the LEC continues to be insufficient since the appearance provided for in said article only allows documentary evidence to be provided and that the parties are heard without the possibility of proposing other evidence such as the summons of witnesses, etc. This leads us to the fact that in executive proceedings who attend the hearings on behalf of the entities are the lawyers who know little about how the entity could carry out a certain operation with the client on which an unfair clause could exist (interest , guarantees…). Likewise, the lawyers of the entities may not provide as evidence the interrogation of the executed debtors, which means that the evidence is insufficient, therefore the hearing becomes a mere presentation of allegations that reproduce those formulated in writing by the lawyers. without entering into interrogations because procedurally if the entity does not propose them they cannot be interrogated. Despite the recent publication of the norm, we already have resolutions in our demarcation civil incident 7/2013 Mortgage foreclosure 1151/2012 Instance 8 where the default interest clause of 13 % is declared null because it exceeds three times the legal interest of the money to the signing of the mortgage loan, parameters established by the Judgment and the published standard.

  2. Thank you very much, Daniel, for your comment and congratulations on your performance in the incident you mention. In my opinion, the abusive nature of a clause should be able to be assessed independently of the interrogation of the executed debtor. If there has been no individual negotiation and the solution given by the dispositive rule is deviated from, we are most likely in an unfair clause.

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