Guillermo Jiménez & Asociados


Abusive declaration of the clause relating to the costs of establishing a mortgage

A First Instance Judge of Oviedo declares the clause relating to the costs of establishing a mortgage to be abusive, although it establishes that it is not mandatory to reimburse the consumer for the amounts paid for the taxes levied on the loan or for the management costs.

The Supreme Court’s ruling of December 23, 2015, following the criteria established by the Court of Justice of the European Union, declared null and void as abusive the clause that made the consumer bear the costs derived from the constitution of the mortgage-backed loan. However, there are discrepancies regarding which expenses must be reimbursed as a result of said declaration of nullity.

The Judgment referred to understands that, among them, the taxes levied on the loan would not be included, echoing the tax regulations and rulings of the contentious-administrative order.

Sentence 247/2016 of the Court of First Instance of Oviedo, in an ordinary lawsuit against LIBERBANK S.A., in which it was requested to declare the abusive nature and nullity of the clause relating to payment by the borrower of all expenses that burden the constitution of a mortgage loan, partially embraces the foundations of the Supreme Court ruling of December 23, 2015 on a clause analogous to the one debated in the litigation. However, in relation to the obligation to reimburse the banking entity for the taxes levied on the loan, this ruling that we are commenting on deviates from the arguments of the Supreme Court, and thus in its SIXTH Legal Basis it states:

“SIXTH.- It has already been pointed out above how the requirements of good faith and significant imbalance must be understood to declare the abusiveness of the clause. It has already been pointed out that the STJUE of March 14, 2013 in case C- 415/ 11 requires us to examine whether the promoter, in this case a lender, could reasonably estimate that, dealing in a loyal and equitable manner with the buyers -borrowers-, they would accept such a clause within the framework of an individual negotiation. The real controversy revolves around the existence of the imbalance caused by the clause, as the bank maintains that the tax obligation to which it refers falls on the consumer borrower. It should be noted that the party that introduces the discussed clause into the contract defends its validity by arguing its inanity, which It is a contradiction and it seems that such an argument refers to a defense against the consequences of nullity. We must insist with respect to notarial fees the existence of the specific norm in the protective regulation of the interests of consumers, which allows us to dispense with the allegations made by the defendant. In any case, it is not possible to accept his argument that it is the plaintiff who must bear them since it is the responsibility of whoever requested the provision of functions or services of the Notary and, failing that, the interested parties according to the substantive and fiscal regulations. He argues that the purchase and sale of the real estate that he finances with the loan is usually formalized before the same notary, so the performance of the public official’s functions is not requested by the financial entity, which does not intervene in the aforementioned contract. And from the point of view of the interested party, he understands that it is the borrower “for whom the operation involves in many cases the acquisition of his habitual residence.” The defendant omits any argument about the fees derived, for example, from the first copy of the deed for the lender, whose interest for the borrower does not seem to be guessed. In any case, the defendant starts from generic statements, which link the formalization of the contract to another to which the defendant is not a party, something that is not derived from the contract, nor is it necessarily so, to establish an unacceptable presumption. And it is enough to refer to the argumentation of the TS ruling transcribed in what matters here in the third legal basis to reason how the bank is the main interested party in the documentation and registration of the loan deed with mortgage guarantee, by thereby obtaining a executive title with privileged execution powers.

The issue appears more complex with respect to the Taxes that levy the loan with a mortgage guarantee. Certainly, the arguments of the aforementioned Supreme Court ruling are correct, but incomplete. We will not develop it in detail, but it should be noted that the tax, in the form of notarial documents of the IAJD, “the buyer of the good or right will be a taxable person and, failing that, the persons who request or request notarial documents, or those in whose interest they are issued”, according to art. 29 of the Law, as pointed out by the Supreme Court. But it must be considered that art. 68 of the Regulation of the Tax on Property Transfers and Documented Legal Acts, completes such provision with an addition: “Article 68 Taxpayer.- The acquirer of the asset or right will be a taxable person and, failing that, the persons who request or request the notarial documents , or those in whose interest they are issued. In the case of deeds of constitution of a loan with guarantee, the borrower will be considered the acquirer.” Chamber III of the Supreme Court had already declared this prior to the implementing regulations. Thus, among others, the Judgment of March 27, 2006 that addresses a case prior to the validity of the Rules argues: “in other words, the doctrine contained in the appealed ruling, in its own terms, should not be rectified because coincides with the jurisprudence of this Chamber, which has repeatedly understood that article 30 (today 20) of the Consolidated Text of the ITP and AJD (article 68 of the Regulation) indicates that, in the form of notarial documents of the IAJD, “it will be “taxable subject is the acquirer of the good or right and, failing that, the persons who request or request notarial documents, or those in whose interest they are issued” and that the acquirer of the good or right can only be the borrower, not just for an argument. similar to that of the unity of the taxable event around the loan, as occurs in the modality of onerous transfers — arts. 8º.d), in relation to 15.1 of the Consolidated Text and with art. 18 of its Regulations –, but because the “right” referred to in the provision is the loan reflected in the notarial document, even though it is secured with a mortgage and its registration in the Property Registry is a constitutive element of the right of guarantee. In short, when art. 31 of the Consolidated Text required, among others that are not of interest now, the requirement that the deeds or notarial acts contain acts or contracts that can be registered in the Property Registry, referring, inextricably, to both the loan and the mortgage. Good proof that this is the case is that the current Regulation of May 29, 1995 – which, although not applicable to the case in question, has an undoubted interpretative value -, in paragraph 2 of its art. 68, has specified that “in the case of deeds of constitution of a secured loan, the borrower will be considered the acquirer.” In any case, the unity of the taxable event regarding the loan produces the consequence that the only possible taxable person is the borrower, in accordance with the provisions of art. 8º.d), in relation to 15.1 of the ITP and AJD Consolidated Text, and in relation, also, to art. 18 of the 1981 Regulation, today art. 25 of the current law of May 29, 1995, which, by the way, already refers to the constitution of, among others, mortgage rights as collateral for a loan and not to that of loans guaranteed with a mortgage” (Cfr SSTS 19 and 23 of November 2001, June 24, 2002, May 14 and October 20, 2004 and January 20, 2006, to name just a few of the most recent).

In the aforementioned sense, the rulings of the contentious-administrative courts are unanimous and identify the borrower as the obligated subject of the tax. Therefore, there is no shifting of the tax burden that the professional had to bear towards the consumer, nor, therefore, can the discussed clause be considered abusive. The generic nature of the same is argued to support such a statement, since the displacement is predicated on all the “taxes of this operation”, but the truth is that it is an artificial argument, since the operation was not subject to any other tax, as evidenced by the fact that it had not been identified by any of the parties, more than ten years after the conclusion of the contract. And, furthermore, and for this reason, the intended declaration of nullity would be superfluous, since the consequence of this would be the expulsion of the clause from the contract, with the consequence that the tax must be borne by whoever is obliged to pay it, with no provision for repercussions. in a third. Therefore, the claim must be dismissed at this point.”

It is concluded, therefore, that until there are rulings in unification of doctrine that determine the scope of the expenses that must be reimbursed, we will find contradictory rulings, which advise caution when filing a claim action since we may find that The most important item of said expenses should not be reimbursed, which the line maintained by our office requires that the demands be presented duly substantiated to avoid pronouncements against the interests of consumers.

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