Post by rajiyakhatun406 on Feb 12, 2024 2:35:05 GMT -5
The possibility of moderating by the Judge the consequences of the declaration of nullity by operation of law of the expenses clause; If the opening commissions constitute the main object of the contract and it is not possible to subject them to transparency and/or incorporation control, without it being necessary for the banking entities to justify the reality of services actually provided for the application of such commissions. If the consequence of the declaration of nullity, the return of amounts, is subject to the limitation period of 5 years and from when said period would begin to run. If the consumer must bear part of the procedural costs based on the amounts unduly paid that are returned, despite having declared the invalidity of the clause that imposed such expenses due to abuse.
In relation to mortgage expenses , although the Supreme Court has been recognizing the abusive and null nature of the clauses that imposed the Ecuador Email List assumption of them in their entirety on consumers, when carrying out their restitution it agreed that Notary and management expenses had to be distributed in half between the financial institution and the borrowers; while it was the bank that had to assume the payment of all the registration expenses derived from the mortgage loan deed. ADVERTISING However, the CJEU has indicated that this distribution of expenses would only be admissible in the event that the provisions of national law applicable in the absence of the clause declared void would precisely impose on the consumer the payment of all or part of those expenses.
Which in fact does not happen. Thus, it is considered contrary to Union Law , specifically Directive 93/13 , that the national judge can modify the content of a clause declared abusive if it is not to adapt it to the rule of national law applicable to the case, since Furthermore, this could eliminate the deterrent effect that the application of these abusive clauses should generate on banking entities. Since there is no rule within national law that imposes the payment of these expenses on consumers, the consequence will be that, once the abusive nature of the expenses clause has been declared, the banking entity will have to reimburse them in full . A new front is also opening in relation to the opening commissions.
In relation to mortgage expenses , although the Supreme Court has been recognizing the abusive and null nature of the clauses that imposed the Ecuador Email List assumption of them in their entirety on consumers, when carrying out their restitution it agreed that Notary and management expenses had to be distributed in half between the financial institution and the borrowers; while it was the bank that had to assume the payment of all the registration expenses derived from the mortgage loan deed. ADVERTISING However, the CJEU has indicated that this distribution of expenses would only be admissible in the event that the provisions of national law applicable in the absence of the clause declared void would precisely impose on the consumer the payment of all or part of those expenses.
Which in fact does not happen. Thus, it is considered contrary to Union Law , specifically Directive 93/13 , that the national judge can modify the content of a clause declared abusive if it is not to adapt it to the rule of national law applicable to the case, since Furthermore, this could eliminate the deterrent effect that the application of these abusive clauses should generate on banking entities. Since there is no rule within national law that imposes the payment of these expenses on consumers, the consequence will be that, once the abusive nature of the expenses clause has been declared, the banking entity will have to reimburse them in full . A new front is also opening in relation to the opening commissions.
