IMPORTANT: This post discusses a specific ruling by the Provincial Court of Seville dated June 10, 2019, regarding an early maturity clause and the dismissal of a foreclosure proceeding, within the existing case law framework following the CJEU ruling of March 26, 2019. Currently, any objection, motion to dismiss, or review of unfair terms in a foreclosure proceeding must be examined on a case-by-case basis, Law 5/2019 regulating real estate credit contracts, Directive 93/13/EEC, the current case law of the CJEU and the Supreme Court, as well as the specific procedural status of the case.
Mortgage Foreclosure: Early Maturity Clause. Final Dismissal
The Provincial Court of Seville, Eighth Section, by means of an ORDER dated June 10, 2019, issues a resolution by which it proceeds to confirm the total dismissal of the mortgage foreclosure.
This ruling is one of the first to be issued by the 8th Chamber of the Provincial Court of Seville following the March 26, 2019, judgment of the CJEU resolving the preliminary ruling requested by the Supreme Court. (Case C-70/17) andis essential in that it sets the direction this Chamber will follow regarding early termination clauses.
As we have mentioned in previous posts, the CJEU Judgment seemed ambiguous regarding the final effects of the removal of the Early Maturity Clause, leaving open different potential interpretations or options for the Court hearing the litigation.
Mortgage Foreclosure: Ruling by the Provincial Court, 8th Section, of Seville
The verbatim wording of the decision is as follows:
» LEGAL REASONING
FIRST.- Subject Matter.-
1.- The case at hand brought to this appeal is an enforcement of a non-judicial title against consumers of a loan or credit contained in a public deed.
2.- As with any enforcement title, it must be executed according to the terms contained therein, and the enforcement must adhere to the literal wording of the title.
3.- Consequently, if the early maturity clause disappears from the enforcement title due to being declared unfair, such early termination of the loan or credit is not possible except through a judicial declaration made in a declaratory proceeding, where it is specifically proven that there has been a breach by the borrower of their payment obligations that justifies said termination, with the consequence that what was received by them must be returned, plus compensation for damages caused by their breach.
SECOND.- Declaration of full nullity of the early maturity clause for being unfair and consequences.
4.- In the case at hand, in the title intended to be enforced, there is an early maturity clause, which this Court, ex officio or at the request of a party, must declare unfair, as it is unfair insofar as it allows the professional financial entity to declare the contract terminated with a minimum breach by the executed-consumer in relation to the agreed duration of the loan, and cannot, according to the judgment of March 26, 2019, of the CJEU resolving the preliminary ruling raised by the Supreme Court (Case C-70/17) and by the Court of First Instance No. 1 of Barcelona (Case C-179/17), be partially preserved by removing the elements that make it unfair,
when such removal is equivalent to modifying the content of said clause affecting its essence, as the ruling of said judgment literally states: “Articles 6 and 7 of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that, on the one hand, they preclude an early maturity clause of a mortgage loan contract declared unfair from being partially preserved by removing the elements that make it unfair, when such removal is equivalent to modifying the content of said clause affecting its essence…”
5.- And, since the exception established in said ruling does not apply in this case: “…and that, on the other hand, those same articles do not preclude the national judge from remedying the nullity of such an unfair clause by replacing it with the new wording of the legal provision that inspired said clause, applicable in the event of an agreement between the parties to the contract, provided that the mortgage loan contract in question cannot subsist in the event of the removal of the aforementioned unfair clause and the annulment of the contract as a whole exposes the consumer to particularly detrimental consequences”, because the total removal of said early maturity clause does not, in any case, lead to the nullity of the contract contained in the title, it is appropriate to stay the requested enforcement, as the enforcement is reduced to the amounts actually due until the filing of the enforcement claim, it not being possible to claim in the enforcement, without prior termination of the contract, all the loaned capital whose enforcement is sought with said enforcement claim.
6.- Nor can said clause be preserved in its entirety, insofar as the borrower-executed-consumer, at no time during the procedure, has shown opposition to the early maturity clause of the title intended to be enforced not being removed, as referred to in paragraph 63 of the aforementioned CJEU judgment of March 26, 2019.
THIRD.- Conclusion.
7.- Consequently, the ruling of the appealed order is confirmed, agreeing to the dismissal of this enforcement procedure, rendering the agreed enforcement order null and void if applicable, as the early maturity clause contained in the title is declared unfair, ordering the court of origin to definitively file the proceedings, without prejudice to the actions that may correspond based on the contract concluded between the parties.
8.- There is no ground to impose the costs incurred in any of the instances as there were legal doubts at the time, which had to be resolved through a preliminary ruling filed before the CJEU.-
OPERATIVE PART
The Chamber formed by the Magistrates heading this resolution, before me the Lawyer of the Administration of Justice, AGREES:
The appeal filed by the representation of BANKIA, S.A. against the order issued on February 09, 2017, in case no. 863/13 by the Court of First Instance No. 1 of Alcalá de Guadaira is dismissed, and we declare the stay of this enforcement procedure, as the early maturity clause contained in the title being enforced is declared entirely null and void for being unfair, rendering the dispatched enforcement null and void, where applicable, and ordering the court of origin to definitively file said enforcement procedure, all without imposition of costs in any of the instances.
Dismissal and Dismissal of Mortgage Foreclosure Proceedings: Our Goal
IN DIEM Lawyers has as its main objective in all its defences to uphold the doctrine of the Court of Justice of the European Union on the protection of banking consumers, at any procedural stage and whatever the circumstances of our clients, even where they did not respond (object) to the bank’s enforcement within the required time limits. In this regard, it should be recalled that the court’s ex officio review of the unfairness of such clauses—such as the early maturity clause—may be carried out at any time provided it has not been raised previously, as established by the CJEU judgment of 26/01/17.
Preguntas frecuentes sobre ejecución hipotecaria y cláusula de vencimiento anticipado
¿Puede conservarse parcialmente una cláusula abusiva?
Como regla general, no puede conservarse parcialmente una cláusula abusiva si la eliminación de los elementos abusivos modifica su contenido esencial. El juez debe valorar si la cláusula puede subsistir o si debe eliminarse íntegramente del contrato.
¿Qué ocurre si se elimina la cláusula de vencimiento anticipado?
Si la ejecución hipotecaria se basa en una cláusula de vencimiento anticipado declarada abusiva, puede acordarse el sobreseimiento de la ejecución. Ello no impide que la entidad pueda ejercitar, en su caso, otras acciones conforme al contrato y a la normativa aplicable.
¿El archivo de la ejecución hipotecaria cancela automáticamente la deuda?
No necesariamente. El archivo de la ejecución hipotecaria impide continuar ese procedimiento ejecutivo concreto, pero no supone por sí solo la extinción de todas las obligaciones derivadas del préstamo. La entidad podría reclamar cantidades por otras vías si legalmente procede.
¿Qué debe revisar un consumidor afectado por una ejecución hipotecaria?
Debe revisarse la escritura de préstamo, la cláusula de vencimiento anticipado, la demanda ejecutiva, las cantidades reclamadas, el número de cuotas impagadas, las resoluciones dictadas y si se ha realizado un control judicial adecuado de las cláusulas abusivas.
¿Qué efectos tiene declarar nula una cláusula abusiva?
La cláusula declarada abusiva debe tenerse por no puesta y no puede vincular al consumidor. En una ejecución hipotecaria, si esa cláusula es el fundamento del vencimiento anticipado, su nulidad puede afectar directamente a la viabilidad del procedimiento.
¿Por qué conviene contar con defensa especializada en ejecución hipotecaria?
Porque la defensa frente a una ejecución hipotecaria exige analizar el contrato, la normativa de consumidores, la jurisprudencia europea y española, los plazos procesales y las posibles cláusulas abusivas. Una estrategia adecuada puede ser determinante para solicitar el archivo o limitar los efectos de la reclamación.
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