09 Jun Claiming of floor clauses on canceled mortgages
Claiming of floor clauses on canceled mortgages
In NAVARRO LLIMA ABOGADOS and after the Judgment of the European Court of Justice that ruled the total retroactivity in the return of the amounts collected by the financial entities by wrongful application of the floor clauses, we have been able to verify the considerable increase of consultations by clients affected due to this kind of clauses whose mortgage ss canceled.
Unfortunately many financial institutions, in avoiding more claims communicate to their own clients that the claim is prescribed for having passed the term of four years since its cancellation. But this assertion does not apply to all contracts and cases automatically.
In light of such information from financial institutions many affected have come to our office asking us whether they have the right to claim their floor clause, that is, absolute nullity, in cases in which more than four years have passed since their cancellation.
To claim the detrimental effects that a clause or contract has produced in the patrimony of a consumer – clearly speaking is in cases of defects in the consent or absence of information of contracted -, our legal system offers two ways: the so-called action by defects in the consent or revocability and the void action.
The first of them is subject to a limitation period of four years according to the provisions of the Civil Code, amd requires fraud, misrepresentation or error when granting and mortgage contract. This is the path to which the entities are desperately grasping.
This firm considers that there is no expiration or prescription period for a consumer to exercise this action. A clause that was null and void can’t be validated by the passage of time, consequently proceeds retroaction to the moment of birth of null act and its effects.
In summary, the clause is not put considered, as if it never deployed effects, and is therefore not subject to the four-year limitation period to which financial institutions are seized to flatly reject the claims of their clients. All this is endorsed by the most basic rules of obligations and contracts, by the General Conditions of Contract Law and by the abundant Jurisprudence in the matter.
In this line this office has obtained several Judgments in First Instance Court of Zaragoza, causing that the action of full right invalidation of said clause according to art. 8 of the General Conditions of Contract Act (LCGC) and restitution to customers of the money they had paid over while the floor clause was in force on the mortgage.
Therefore NAVARRO LLIMA ABOGADOS encourages clients who have been rejected their claims to financial institutions, in which they respond that the action to claim has prescribed, to advise and claim in light of the arguments set out in this post.