Mortgage Foreclosure: Successful Cases vs. Caja Rural

Mortgage Foreclosure: Final Dismissal.

The Provincial Court of Seville, Sixth Section, by ORDER dated September 20, 2018, issued a decision ordering the complete dismissal of the mortgage foreclosure proceedings, ordering the banking entity CAJA RURAL DEL SUR to pay the costs.

Basically, the Provincial Court of Seville notes the following:

1.- If the floor clause is declared null and void, the bank must provide a new full settlement statement for the loan, with a recalculation of remunerative interest from the first year onwards.

2.- If the bank does not comply with the above, the case and the enforcement proceedings must be definitively dismissed, with no further requests from the court.

Accordingly, the mortgage foreclosure proceedings were fully dismissed, rendering them without effect.

Mortgage Foreclosure: Decision of the Provincial Court of Seville.

The verbatim wording of the decision is as follows:

“FIRST.- In the mortgage foreclosure proceedings, the defendant filed an objection, and an order was issued agreeing to proceed with the recalculation, with default interest having no effect and being replaced by remunerative interest, which likewise had to be recalculated by deducting the amounts overcharged due to the floor clause. The enforcing party filed a submission in which, as it stated, the recalculation of the amounts for which enforcement should continue had been carried out. The Court held that the recalculation had not been carried out and that the proceedings should therefore be dismissed.”

An appeal has been lodged against that decision by the representation of the enforcing party, seeking its revocation, the enforcement to continue, and costs to be imposed on the enforced party. The enforced party has opposed the appeal and has requested confirmation of that decision.

SECOND.- In the order issued in the enforcement incident, the clause relating to default interest and the floor clause were declared null and void as unfair, so that no default interest would accrue but rather remunerative interest, and the remunerative interest would have to be recalculated without applying the floor clause.

The recalculation, once the floor clause has been declared null and void, affects the entire term of the loan after the first year, for which a fixed interest rate was agreed, as stated in the deed dated April 17, 2006, third bis stipulation, which sets a minimum limit on the variable interest rate referenced to EURIBOR of 3.50% per annum, an agreement that is maintained in the subsequent amending novation. Therefore, given the retroactive effect of the declaration of nullity, an issue resolved by the CJEU judgment of December 21, 2016 (Gutiérrez Naranjo case), which led to a change in the case law of the First Chamber of the Supreme Court from judgment 123/2017 of February 24 onwards, the party should have provided a new full settlement statement for the loan with a recalculation of remunerative interest from the first year of the loan’s term, which it has not done; only in that way could it have been verified whether, at the time the claim was filed, the defendant owed more than three loan instalments. As it has not proceeded in the indicated manner, the ordered dismissal is appropriate, with no further requests from the Court, since it is for the party to submit a settlement statement in accordance with what was agreed in the final decision.”

The appeal must be dismissed and the decision fully upheld.

THIRD.– The costs arising from this appeal must be imposed on the appellant, as all the claims in its appeal have been dismissed, as provided for in paragraph 1 of Article 398 of the Civil Procedure Act.”

This decision brings the mortgage foreclosure proceedings to an end with a completely successful outcome, making the claim of the banking entity CAJA RURAL unviable.

Dismissal and Termination of Mortgage Foreclosure Proceedings: Our Objective.

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.

The IN DIEM Abogados practice area specializing in Mortgage Foreclosure is led by one of the best lawyers specializing in Banking Law, Casimiro Galán Garrido, who has extensive experience and a high level of expertise in the banking and financial sector, with thousands of favorable decisions in this jurisdiction. If you require more information about our services, you can click HERE.