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es_Case Details

es_Case Details
es_National ID Provincial Court, Zaragoza, Judgment 486/2017
Estado miembro España
es_Common Name SAP, Zaragoza, nº 486/2017
es_Decision type es_Court decision in appeal
es_Decision date 24/07/2017
Órgano jurisdiccional Provincial Court, Zaragoza
Palabras clave Consumers and users, floor clause, mortgage loan agreement, interest rate cover, contractual novation.

Consumer Sales and Guarantees Directive, Article 5

ECLI: ECLI:ES:APZ:2017:1755

Process related to the nullity of a floor clause contained in a mortgage loan contract. The novation of said contract does not suppose the acceptance of the clause nor the waive of the consumer’s rights.

The plaintiff and the bank (defendant) in 2008 entered into a mortgage loan agreement that contained a floor clause under the denomination of "interest rate cover", whose limit was 4.5%.

In 2015, the same parties signed a private novation document of the contract, which rendered the previous floor clause ineffective, agreeing on a new limit of 3%. In the same document, the plaintiff waives to exercise any type of action related to the floor clause, as well as to request the return of the settlements made up to that date.

Subsequently, the plaintiff files a claim against the financial entity requesting the nullity of the floor clause contained in the contract concluded in 2015, as well as the refund of the amounts unduly collected in application thereof.

The defendant alleges that the floor clause was clear and understandable, and that it had been negotiated individually, thus exceeding the control of incorporation and transparency. On the other hand, that the novation contract supposes the ratification of the original contract (after the STS 241/2013 of May 9), accepting the claimant the existence of the floor clause and the waive of the action that is filed in this process.

The judgment analyzes the following relevant points:

- Control of incorporation and transparency control of the general condition.

- Non-confirmatory nature of the contractual novation made after May 9, 2013.

- Application of the CJUE doctrine of December 21, 2016, on the effects of nullity in the present litigation.

- Interest derived from amounts unduly collected in application of the clause declared null and void.

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The Provincial Court dismissed the appeal.