Mortgage loan
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Consumer protection against abusive clauses in banking clean-up processes
When a bank faces a crisis, the banking authority can implement "clean-up" measures or resolution to prevent a collapse . In the mentioned case, a Portuguese bank in difficulties was intervened by the Bank of Portugal , which created a "bridge bank" and transferred part of its assets and liabilities , including mortgage loans that had been transferred to this new bank through subrogation . However, other responsibilities remained with the original bank, such as those related to the nullity of abusive clauses in those contracts.
Several consumers sued the bridge bank seeking the Refund of amounts charged for abusive clauses in mortgages that were now in that bank. The key issue was whether the bridge bank had to respond to those refunds, or if, on the contrary, that economic burden remained with the old bank, as decided in the resolution.
The Supreme Court concludes that the bridge bank does not have passive legitimacy to refund amounts charged for abusive clauses before the resolution measures were adopted, that obligation remains with the original entity. In other words, even though the mortgage has been "transferred" to the bridge bank, resolution, that obligation remains with the original entity. That is, even if the mortgage has been "transferred" to the bridge bank, not all economic consequences derived from previous abusive clauses are automatically transferred if the resolution authority decided to leave them out. derived from previous abusive clauses if the resolution authority decided to leave them out.
The decision is based on the joint interpretation of Directive 2001/24/EC and Law 6/2005, which state that the sanitation measures of the State of origin (here, Portugal) produce full effects in the host State, without extra procedures. And also in the idea that consumer protection cannot change the distribution of assets and liabilities set by the resolution authority, for reasons of banking stability and legal security.
If you are thinking of carrying out any type of operation or business that includes the formalization of a real estate credit contract, our professionals can advise you in defending your interests-
Elevator maintenance
Nullity of duration clauses and excessive notice in successive contracts This case deals with a typical contract for “preventive maintenance” of elevators, which are not fulfilled in a single day, but are provided month by month (what is called in law a successive contract). A maintenance company sued a community of owners because it decided to terminate the contract before the agreed term expired. The company claimed two things, on one hand, that unpaid invoices were paid; and, on the other, compensation for “breaking” the contract early. The conflict revolved around two clauses of the contract where one set a duration of 3 years and the other required a notice of 180 days (six months) in advance if one wanted to terminate the contract. The community argued that these conditions were abusive in the case of a consumer (in this case, the community itself). In the first instance, the court ruled in favor of the company, ordering the community to pay both the compensation for early termination and the outstanding invoices (in addition to interest and costs). However, on appeal, the Provincial Court of Málaga changed the criterion, declaring the 3-year duration clause and the 180-day notice clause null and abusive. What is the practical consequence? If those clauses are invalid, the company cannot rely on them to demand a penalty or compensation for having terminated the contract early. Nevertheless, the community must pay what it actually owed, the outstanding invoices for services already rendered. The Supreme Court confirmed this outcome, the duration and notice clauses are considered null, no compensation is due for ending the contract early, and only unpaid invoices are owed.
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Urban leases
Does a reversible work by the tenant give the owner the right to terminate the contract?
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Urban Leases
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