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The Court of Justice of the European Union (TEU) has ruled this Thursday that the terms soil re-negotiated mortgages can be examined by a judge and declared to be abusive , as well as that it is illegal for banks to require customers to waive legal action after the renewal of the contract.

The european court responds to the question raised by a court of Teruel about an issue that faces a consumer with Ibercaja in relation to an unfair clause in a contract of subrogation of mortgage loan.

In 2014, the company and its client signed a contract of novation which stated that the interest rate variable could not be less than 2,35%, compared to 3.25% as set out above. In addition, the two parties resigned to take legal action or to appeal the clauses contained in the contract.

After knowing the sentence of the TEU in 2016 that forced the Spanish banks to return to their customers all claimed more by these clauses, the client went to the Justice to declare null and void the clause soil provided in the first mortgage and the restitution of the sums received by Ibercaja. The entity denied that the clause is invalid because the consumer had been informed of its existence before the contract is signed.

In the ruling Thursday, the Luxembourg court declares that the european directive does not preclude the renegocación of a clause that may be declared abusive, “provided that the waiver of appropriate consent free and informed by the consumer”. In the second place, it opens the door for the own clause that modifies another potentially abusive of a previous contract can also be abusive if it has not been individually negotiated.

On the particular matter for which question the court of Teruel, the TEU notes that the fact that the renewal of the contract “falls within the general policy of renegotiation” of mortgages with clauses soil Ibercaja “could be an indication” that she “could not influence” in the content of the new clause.

In the same line, the european court stresses that the fact that the client write down “of its fist and letter” that he understood the mechanism of the clause soil “does not allow by itself conclude that the clause was negotiated individually”.

on the other hand, the ECJ has declared that also can be abusive a clause by which the customer of a mortgage contract waiver to take legal action against the entity, in particular “when the consumer has not been able to dispose of the relevant information that would have allowed him to understand the legal consequences which flowed for him from the clause”.

Finally, the european court ruled that a consumer may not waive by law to judicial protection or the rights conferred by the directive. Thus, the TEU states that “to admit the possibility that the consumer will resign prior to the rights conferred by the protection system, it would be contrary to the mandatory character of the standard and compromise the efficacy of this system.”

Almudena Velázquez, co-legal director of is, explains that “this is an important ruling for those affected by clause ground in Spain, as it opens the door to be able to claim that money that they paid more for this clause to be abusive, a situation that, until now, had really complicated, since in these agreements, forced the resignation on the part of consumers of legal actions later”.