The European Justice opens the door to claim for abusive clauses a mortgage already executed

The Court of Justice of the European Union (CJEU) ruled this Tuesday that

of a mortgage even when it has already been executed and the property sold, but only in a subsequent judicial procedure and different.

The court thus ruled at the request of the Zaragoza Provincial Court on the case of a Spanish consumer who had signed a mortgage with

that was executed in 2015, after which the property was sold.

In 2016, the bank requested the liquidation of the mortgage interest, but the consumer objected, alleging that the floor and default interest clauses of the mortgage contract were abusive.

However, the court rejected these claims and ordered the interest to be settled since the consumer had not opposed the execution and it was not possible to examine whether the clauses were abusive.

The consumer then appealed to the Zaragoza Provincial Court, which decided to ask the CJEU.

In its preliminary ruling, the Spanish court indicated that in this case, during the foreclosure procedure, the judge made an ex officio control of the clauses to see if they were abusive, although this is not explicitly reflected in the decision to foreclose the mortgage.

This decision implicitly recognizes the validity of the clauses.

He explained, in this sense, that

since a control has already been carried out and the principle of res judicata is applied;

and he asked the CJEU if this is in accordance with European law and what consequences a later revision of the clauses could have.

The community court ruled on Tuesday that EU law opposes this national legislation that does not allow the judge to examine ex officio the abusive nature of the clauses or the consumer, after the deadline to oppose, to invoke this abusive nature when the judge already evaluated ex officio whether they were abusive at the beginning of the execution process, but the judicial resolution does not contain any reason that proves such an examination nor does it say that it cannot be questioned, according to the Efe news agency.

to a third party

The court points out, however, that when the foreclosure procedure has concluded and the property rights have been transferred to a third party,

of the abusive nature of contractual clauses that would lead to the annulment of the foreclosure.

transfer of property and to question its legal certainty.

But it specifies that, in this situation, the consumer must be able to invoke, in a different subsequent procedure, the abusive nature of the clauses in order to obtain compensation for the economic damage caused by their application.

The jurisprudence of the CJEU establishes that the mortgage clauses considered abusive must be declared null, with which the consumer has the right to be reimbursed the amounts unduly received by the bank.

Today, the CJEU also issued four other different rulings regarding unfair terms in which, in general, it confirmed that national procedures should not be an obstacle to protecting consumer rights and that national judges should assess the abusive character ex officio

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