SAENZ & ASOCIADOS ABOGADOS / LAWYERS, offers you the opportunity to claim the costs of formalizing mortgages: notary deed, administrative expenses, housing appraisal fees, property registration and documented legal acts. A judgment of the Supreme Court of December of 2015 considers null and void the clauses that impose to the consumer to assume the expenses and the payment of the taxes of the formalization of the mortgages. As an example, a mortgage of € 150,000 could be recovered up to € 3,000.
WHO CAN COMPLAIN? : • Everyone who has or has had a mortgage loan.
WHY CAN EVERYONE CLAIM?:
WHAT CAN I RECOVER?:
For a loan of € 150,000 you could recover up to € 3,000 approximately.
HOW MUCH IS IT GOING TO COST ME?
WHAT DOCUMENTATION IS NEEDED?
WHAT SECURITY IS THERE TO WIN?
THE EXPENDITURE CLAUSE THAT NORMALLY THE BANK ENFORCE TO ACCEPT AND SIGN IN THE TITLE DEED:
“All taxes, commissions and expenses caused by the preparation, formalization, correction, processing of deeds, modification - including division, segregation or any change that implies alteration of the guarantee - and execution of this contract, And for the payments and refunds derived therefrom, as well as for the constitution, maintenance and cancellation of its guarantee, being also in its charge the premiums and other expenses corresponding to the insurance of damages, that the borrowing party is obliged to have in force”.
This is the wording of the first paragraph of the clause whose nullity has declared the Supreme Court, which, firstly, highlights the striking extension of it. In effect, the clause from that initial paragraph also includes the authorization of the borrower to charge the Bank with the necessary amounts for the registration of the mortgage (and previous titles) in the Land Registry and, in its Case, cancellations of preferential charges and those that proceed for the preparation of antecedents that must be done by the Bank for the granting of the deed of cancellation of mortgage; The expenses, in case of non-payment, for the judicial and / or extrajudicial claim of the debt including attorney and attorney's fees are also added, even if their intervention is not mandatory. The amounts so owed to the Bank shall bear interest on arrears and shall be secured by the mortgage itself.
In short, says the High Court, the clause seeks to attribute to the consumer all the costs derived from the agreement and development of the contract, "supplying and sometimes contravening, legal provisions with different provisions."
In short, says the High Court, the clause seeks to attribute to the consumer all the costs derived from the agreement and development of the contract, "supplying and sometimes contravening, legal provisions with different provisions."
The general framework of the abusiveness of expenses:
According to the Supreme Court Sentence, the rules of application in this matter are those included in Article 89.3 Consolidated Text of the General Law of Consumers and Users that qualifies as unfair terms, in any case:
-The transmission to the consumer and user of the economic consequences of administrative or management errors that can not be attributed to him (number 2).
-The imposition to the consumer of the documentation and processing expenses that by law correspond to the employer (number 3).
-The stipulation whereby the consumer is charged with the expenses arising from the preparation of the degree that correspond to the entrepreneur (number 3, which refers to the purchase and sale of housing, although, argues the Supreme Court, Financing is a facet or phase of such acquisition, reason why the quotation of this precept is correct)
- The stipulation imposing on the consumer the payment of taxes in which the taxpayer is the entrepreneur (number 3)
-The purpose of which is to impose on the consumer and user additional goods or services or unsolicited accessories (number 4).
- Price increases for ancillary services, financing, deferrals, surcharges, damages or penalties that do not correspond to additional benefits that may be accepted or rejected in each case, expressed with clarity or separation (number 5).
NOTARY AND REGISTRATION FEES:
The Supreme Court argues that, with regard to the formalization of notarial deeds and registration of the same, (necessary for the constitution of the security right), both the fees of Notaries and Land Registry Office attribute the Obligation to pay to the applicant for the service in question or to the benefit of which the right is registered. And who has the main interest in the documentation and inscription of the deed of mortgage loan is undoubtedly the lender, because it obtains an executive title (article 517 LEC), constitutes the real guarantee (articles 1875 CC and 2.2 LH) and acquires the possibility of special execution (article 685 LEC).
Consequently, the Supreme Court considers the clause discussed as abusive because:
1) Does not allow a minimum reciprocity in the distribution of expenses incurred as a result of the notarial and registry intervention, and
2) It relapses all on the mortgage’s borrower.
According to the Supreme Court, this is a stipulation that causes the consumer customer a significant imbalance, which he did not reasonably accept in the context of an individual negotiation; and which, moreover, expressly appears in the catalog of clauses that the law classifies as abusive (article 89.2 TRLGCU).
TAXES:
The Supreme Court is based on Article 8 of the Consolidated Text of the Law on Taxes on Transfer of Assets and Statutory Acts, which provides (when dealing with the transfer of assets in which the loan is exempt) than in the constitution of loans of any kind, the obligated will be the borrower; Article 15 (1) of the consolidated text, adds that the constitution of the bonds and of the rights of mortgage, pledge and antichresis, in guarantee of a loan, will be taxed exclusively, for the purposes of property transfers, by the concept of loan.
According to what was said, all the tax burden would be on the borrower, but art. 27.1 of the same standard subject to the tax in the form of documented legal acts, the notarial documents, indicating art. 28 that the acquirer of the asset or right and, failing that, the persons who request or request the notarial documents, or those in whose interest they are issued, will be subject to taxation of the tax.
Therefore, the Supreme Court understands that the lender does not remain outside of the taxes that could accrue on the occasion of the commercial operation, but, at least with regard to the tax on documented legal acts, will be taxable as far as To the constitution of the right and, in any case, the issuance of the copies, minutes and testimony that interests, and that, through the clause in dispute, unduly burden the other contracting party. In this way, the Supreme Court concludes that the clause imposing on the borrower the payment of taxes (the gradual fee of the Tax of Documented Legal Acts that pays the mortgage as an inscribable act and the fixed fee - the stamp of the paper Of exclusive use of notary on which the deed and its authorized copies extend), violates mandatory rules, specifically Article 89.3 c) TRLGCU, which considers as abusive and therefore null the stipulation that imposes on the consumer the payment of taxes when the taxpayer is the entrepreneur.
OTHER EXPENSES:
This concerns pre-litigation, procedural or other costs, arising from the failure of the lending party to fulfil its obligation to pay, and the attorney's fees and procurador's fees contracted by the lender.
The Supreme Court argues that the costs of the process are subject to mandatory rules (articles 394 and 398 LEC, for declaratory processes, and articles 559 and 561 of the same Act, for enforcement). Such rules are basically based on the principle of defeat, and in the specific case of execution, costs will be imposed on the executed when the execution clearance continues; But may also be imposed on the performer when there is a procedural defect that can not be remedied or has not been remedied within the period granted for that purpose (article 559.2 LEC), or when there is any reason for objecting to the merits (article 561.2 LEC) ; And when the estimate is partial, each party must bear the costs accrued to its application.
Consequently, the Supreme Court concludes that the attribution to the borrower in any case of procedural costs infringes procedural rules of public order, which implies, without further excusation, (ex art. 86 TRLCU and art. 8) but also introduces an obvious imbalance in the position of the parties, by taking the consequences of a proceeding on one of them at all costs, taking into account neither the legal origin of the claim or the opposition to the claim, nor the faculties of moderation that the law recognizes to the Court when it appreciates serious doubts of fact or of right.
Regarding the imputation to the client of attorney fees and attorney fees that the lender has served, even when their intervention is not mandatory, the stipulation contravenes art. 32.5 LEC, which excludes such expenses from the possible condemnation of costs, unless the court appreciates recklessness or the domicile of the party represented or defended in court is in a place other than that in which the trial has been processed. Therefore, in addition to the lack of reciprocity between the rights and obligations of the parties and the difficulty for the consumer to assess the consequences of not knowing at the time of signing the contract the accumulation of actions that could eventually be used by the entity Contracting of such professionals without being prescriptive (acts of conciliation, civil judgment in Courts, which in itself would be sufficient to consider the clause as abusive, it is correct the declaration of nullity of the same, according to the arts. 86 TRLCU and 8 LCGC.
CONCLUSION:
In the event that you have signed a mortgage loan with any Banking entity, please be aware that the expenses paid by you to the bank for the amounts related to the notary's invoices; Of the registration of the Property; Of the payment of the legal documents tax and those of the management used by the bank, are void and can claim them directly to the bank and, in case they are not returned, can sue the bank and claim all the money you already Payment to the signature of your mortgage loan, you can contact our law firm SAENZ & ASOCIADOS, ABOGADOS / LAWYERS, and we will contact you immediately and inform you personally, free of charge.
The information and legal counsel offered in the Blog section is just guiding and not binding. If you need to make a qualified legal inquiry, you must always address to a professional duly authorized. If you wish, you may contact us at [email protected]