On May 26, a pioneering judgment was handed down in which Liberbank SA was condemned to return “to a commercial company the amounts unduly collected since the application of the floor clause”, as reported by the Ortiz Law Firm.
The conflict began in 2006, when the company entered into a purchase and sale contract with subrogation with Liberbank SA. “In the essential conditions of the primitive mortgage loan was the floor clause,” says Ortiz.
In the deeds of sale and subrogation, the conditions of the loan do not appear, only a generic reference appears that says: “The acquiring party declares to know the aforementioned loan deed in its entirety”, not stating that it had knowledge, “because the condition generates of the contracting was not incorporated into the only signed deed of sale and subrogation ”.
The ruling makes mention of the recent doctrine of the Supreme Court, specifically the STS of March 11, 2020. “This is the so-called incorporation control, which entities do not pass when they have not complied with the administrative obligations of transparency, nor have warned specifically the notary of the existence of the floor clause, so that the borrowers, who applied for the mortgage loan to buy a taxi license, had no real opportunity to know that the loan was subject to a limitation of the variability of the interest rate ”.
This judgment of the Supreme Court determines that “the floor clause in these cases does not exceed the incorporation control, because the borrowers had no real opportunity to know its inclusion in the contract and, therefore, its mere existence. This does not mean making a transparency control, but an incorporation control, which is pertinent with respect to any adherent, be it a consumer or professional ”.
In this regard, the judgment of May applies this jurisprudence and indicates that “simplement a generic reference to which the acquiring party declares to know the aforementioned loan deed in its entirety but, at no time does it appear that the buyer and subrogated in the mortgage had knowledge of the conditions of the loan beyond the outstanding principal, the amortization period and monthly installments, which the selling party had been paying ”.
“As Liberbank did not intervene in the deed of sale and subrogation, it did not deliver a copy of the mortgage deed to the subrogated party in said mortgage, let alone any binding offer, so it is obvious that it has not been exceeded the control of incorporation to which the jurisprudence alludes ”, it indicates.
Liberbank says that “the subrogation deed cannot be linked to it because it did not intervene in it, forgetting that the subrogation of the third party in the position of the seller and initial borrower, implies a passive subjective novation that requires the consent of the creditor, which may be prior, simultaneous or subsequent, express or tacit, but it requires it so that it has liberatory effects for the original debtor (art. 1205 CC) ”.
For this reason, “it cannot be argued that it is outside the operation, but that as a creditor it is an essential part of it and, in such a condition, it can and must respect the legal requirements, among which is the duty of information.”
And he adds that “Liberbank as the lender was the one that designed, drafted and introduced the clauses it deemed appropriate in the loan contract to the first buyer, and among them the floor clause, for which it is responsible, in any case, that Both in the initial deed, as in the mortgage subrogation, the control of inclusion and real comprehensibility is ensured, without its absence at the time of signing the subrogation deed may impair the debtor’s right to receive the necessary information to decide your acceptance.”
And consequently, it revokes a previous judgment of First Instance that “was dismissed and ordered the bank to pay costs.”
The legal direction of the case has been assumed by Bufete Ortiz Abogados, of Cádiz.
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