The Court of First Instance and Instruction No. 1 of Santander has issued a pioneering judgment in Spain for the annulment, for the first time in our country, of the clause of expenses of a deed of sale of housing with subrogation and mortgage novation (the conditions financial statements are referred to a previous loan to which some modification is added) referring to the status of buyer and not of the customer’s borrower.
In the resolution, which may affect “thousands” of mortgaged who are in a similar situation, the judge rejects the bank’s argument that it was not entitled to be sued because it was not a seller, but a lender. The magistrate has “no doubt” that the clause “covers the attribution to the borrowing buyer not only of the purchase and sale expenses but also those of subrogation and novation, since (the clause) expressly refers to all the expenses and taxes that are derived from the present grant “.
In sales with subrogation – with or without novation – the clauses of expenditure are usually shorter than in mortgage loans, and no reference is made to the borrowing party, but to the buyer and the seller, which in principle seemed to make it impossible to claim of the clause, since the expenses of the sale are not refundable. Thus, the banks alleged that they were not entitled to be sued since the clause referred to the expenses of the sale, which should be claimed from the selling party and not from the lender.
However, in this new ruling, which has been accessed by Europa Press, the judge of the First Instance body of Santander Javier Gómez Hernández considers that Liberbank is legitimized in this judicial process as regards the nullity of the clause referring to the expenses originated by the subrogation and novation of the loan, clause with which “all” of the operation “without exception” is “moved” on the consumer, while the bank “does not assume any expense”.
“The entity had to proceed to make an equitable distribution” but “it did not” and this caused a “significant imbalance” in the client that had not accepted these conditions in an “individualized” negotiation, according to the ruling, which condemns the bank in which integrates the old Caja Cantabria to return 785 euros for notary fees, registration and management of subrogation and novation of the loan to a man who in December 2010 signed the deed with a nominal 185,200 euros.
The loan to which the applicant was subrogated dated February 2008 and two years later was subject to an extension in which a ground clause was established, which has also been declared void by the judge, considering it abusive, and which involves a refund € 3,725 to the client, defended by the lawyer Juan Manuel Brun Murillo.
COST AND SOIL CLAUSE
The ruling, derived from a double claim, fully estimates the request that the floor clause of the mortgage loan be declared void, and partially accepts the same request for the expenses derived from the deed of sale as it accepts the return of the notaries, registration and of management, but not the Tax of Documented Legal Acts, on which the Provincial Court of Cantabria decided last November that must be paid by the client.
The judge considers the clause of expenses of the deed of sale, mortgage subrogation and novation “abusive” and declares it “null in its entirety”, because “widely attributed to the consumer all expenses arising from the operation without distinction causing an imbalance important in the rights and obligations of the parties that derive from the contract “. In this regard, it adds that the same arguments of the judgment of the Supreme Court of December 2015 regarding the constitution of the mortgage loan can apply to the novation, since in this case also the “principal” interested in the documentation and its registration in the registry is the lender.
And on the fact that the client has accepted the expenses “without objection”, the magistrate reasons that his acceptance cannot be derived from it, given the situation of “inferiority” in which he was: he had “no choice but to accept a conditioned prerequired to be granted the loan, “he defends. “The payments do not imply acquiescence”, sentence. Thus, Liberbank will have to return 433.5 euros of notarial expenses, 227.2 of registration in the register and 124.2 of the agency, which adds 785 euros, to which we must add 3,725 more of the floor clause, which is declared equally null for lack of “transparency” and for being “abusive”.
“The appearance prevails that the type is variable when, in fact, it would be exclusively upwards,” the judge points out, which does not include “sufficient and extensive” information from the bank’s employees to the client, who imposed a “clear imbalance in the distribution of risks “on the variability of interest rates.
Finally, regarding the procedural costs, and after clarifying that when there is an accumulation of proceedings – as in this case – all are resolved in the same sentence but separately, the judge also pronounces independently on them, and condemns to its payment to Liberbank for the claim relating to the floor clause, fully estimated, and resolves instead that it is not appropriate to order costs in the case of the expense clause, partially accepted. The judgment, handed down on January 24, is not final, and an appeal can be lodged against it within 20 days.