The Supreme Court has decreed that evictions in which the default has occurred for less than twelve months should not proceed, thus setting the criteria for pending foreclosures after the EU Court of Justice (CJEU) declared abusive the early expiration clauses .

Last July the CJEU endorsed that the national judges remedy the nullity of this clause by replacing it with a new legal provision when the contract cannot subsist if the abusive clause is deleted and if the cancellation of the contract exposes the consumer to especially harmful consequences.

As the First Chamber of the Supreme Court understands that the deletion of the clause would cause the total annulment of the contract, which in turn would expose the consumer to especially harmful consequences, considers that this substitution of a clause by another allowed by the CJEU .

As he has communicated in his new car, the Supreme Court considers it logical to take into account the new law regulating real estate credit contracts as a more beneficial norm for the consumer, which is why it has provided guidelines for the procedures in foreclosure in progress in the that the delivery of the possession to the acquirer has not yet occurred.

Specifically, it has indicated that the processes in which the loan was terminated before the entry into force of Law 1/2013 of measures to strengthen the protection of mortgage debtors, by application of a clause, should be dismissed without further processing. Reputed contract void, which took place on May 5, 2013.

Regarding the processes in which the loan was given up after the entry into force of that law, they will also be dismissed if the debtor's default does not meet the seriousness requirements set forth in article 24 of the new real estate credit law.

This article stipulates that, in order for an entity to exercise its right of early maturity, unpaid installments must exceed 3% of the granted capital or 12 monthly installments if it occurs in the first half of a loan's life, and 7% of the granted capital or 15 monthly installments if it occurs during the second half.

Consequently, it considers that all procedures prior to 2013 and those subsequent to that date in which the aforementioned gravity is not reached, that is, when the unpaid installments do not exceed 3% of the granted capital or 12 monthly installments, must be dismissed. .

Therefore, it can continue the processing of the processes in which the loan, due after May 2013, meets the condition that the unpaid installments exceed the limit of 3% or the twelve unpaid.

In any case, the Supreme Court has affirmed that the dismissal of the processes will not prevent a new executive demand based not on the anticipated expiration due to contractual provision but on the application of the new real estate credit law.

According to the criteria of The Trust Project

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  • Supreme Court
  • Evictions
  • Mortgages

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