The recent ruling of the TS, First Chamber, of the Civil, 12-12-2018 (SP / SENT / 982027) brings back to the table the abusive clause that provides for the incorporation of payment obligations derived from loans to blank promissory notes issued and signed by the borrower.
There is no doubt that the ability of banks to invent clauses that enrich it illegally is unlimited
Our Supreme Court had already ruled on the abuse of this practice in previous judgments such as those of TS, First Chamber, Civil, 2-11-2016 (SP / SENT / 877114) or the Plenary of the Supreme Court, First Chamber, of the Civil, 12-9-2014 (SP / SENT / 782265).
This clause, as it has happened with many others, once again highlights the need for an official controller that does not allow its inclusion in contracts. Its abusive nature is absolutely clear and it does not make any sense to focus the consumer on the need to sue.
In this case, the exchange judgment originates from the formalization between BBVA and a consumer of three personal loan contracts whose payment obligations – principal and interest – are incorporated into three blank promissory notes issued and signed in favor of the bank. When the defendant failed to meet its obligations to repay the loan, the bank gave up the loans in advance by filing the bills once they had been paid. The borrower opposes that the promissory notes are null and void in light of the protective regulations of consumers and users since they were included in a clause that could not be negotiated individually and that involves a breach of the requirements of good faith that causes harm to the consumer and a serious imbalance of the rights and obligations that are derived for the parties. The judgment of first instance, issued by the Court of First Instance No. 5 of Vic, dismisses the opposition on the understanding that it is not an abusive clause and that the promissory notes whose payment is claimed have been filled in as agreed.
The decision of appeal of the Provincial Court of Barcelona (Section 11.ª) issued judgment dated May 22, 2015, dismissing the appeal and confirming the judgment of first instance.
The appeal, filed by the borrower, alleges the infraction of articles 82.1 of the Revised Text of the General Law for the Defense of Consumers and Users and 824 of the LEC in relation to article 67 of the Exchange and Check Law and it fixes the casacional interest in the breach of the jurisprudence of the Court, specifically of the ruling of the Plenary of September 12, 2014.
The judgments that we cited at the beginning of this post established as a doctrine that the general condition that provides, in loan agreements with consumers, the signature by the borrower (and, if applicable, guarantor) of a promissory note, in guarantee, in which the The amount for which the lawsuit for the exchange judgment will be filed is complemented by the lender through liquidation, is abusive and, therefore, void, can not be considered as incorporated into the loan contract, and, therefore, entails the ineffectiveness of the declaration. would change.
This clause allows the lender access to a privileged process that begins with a precautionary seizure without the need to hear the defendant and without having to provide bail or justify the periculum in arrears, based on a contract that requires a prior liquidation to determine the amount owed at a specific time, without the creditor must justify the elements of fact and calculation used to set the amount claimed and without correction of the settlement has been controlled by a notary public. It prevents the borrower from having the elements of fact and calculation that allow him to prosecute the correction of the amount claimed and, where appropriate, to challenge it, also investing the burden of proof to his detriment.
What abusive clauses can consumers claim in The Courts ? In the Eugenio Ribón monograph published in June 2018, 30 abusive clauses are analyzed with their practical solutions and extensively detailed forms , to give the keys to the lawyers when making the corresponding legal claim: