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スペインでの住宅ローン(借金)が払えない場合の立ち退きとその住宅の競売で銀行は評価額の50%で買える、45万0000世帯が影響(立ち退きと借金の返済義務)
Desahucios: modificada la ley, vale la trampa
Bancos y cajas recurren a una argucia legal para eludir la reforma que les obliga a adjudicarse las viviendas subastadas por el 60% del valor de tasación
Evictions: modified the law, it is cheating
Banks and resort to a legal ruse to circumvent reform that requires them to be awarded the auctioned homes for 60% of the appraised value
Milagros Pérez Oliva 18 JUN 2012 - 22:05 CET
Banks and resort to a legal ruse to circumvent reform that requires them to be awarded the auctioned homes for 60% of the appraised value
Milagros Pérez Oliva 18 JUN 2012 - 22:05 CET
It's legal, but lawyers involved in auctions seems a mockery. In July 2011, after months of public pressure, passed a royal decree that increased to 60% of the appraised value of the minimum price for which banks were awarded the homes that went to public auction for unpaid the mortgage. Until then, if the auction was unsuccessful, and that happened often, the bank could keep the floor for 50% of the appraised value. Well, every law, there is always the trap. Or the trick. Many financial institutions are being awarded housing for 50% of the appraised value, not 60%, thanks to a legal trick is to make bids for the property also a subsidiary of the entity.
The amendment passed last July only applies to cases where the property is auctioned residence. This means that financial institutions that use this trick they do at the expense of seriously harm the hopeless poor, those without other assets you come to the rescue of the floor on which they live. "It must be said that the procedure is legal, but in practice can nullify the reform, which was precisely to alleviate the plight of those unable to pay," said Andres Dominguez Luelmo, Professor of Civil Law at the University of Valladolid .
The 10% who earnthickens banksoutstanding debtthe terminally ill
Since the crisis began has been made in Spain more than 150,000 foreclosures and there are another 300,000 in progress. It is not known how many of them affect normal houses, but everything indicates that the figure is socially important. Until recently, most auctions were deserted because no investors willing to bid on a home that could hardly sell. In that case, the entity could be awarded directly to the property, but 60% of the value ascribed to grant the mortgage. Banks and savings banks have found, however, a loophole to circumvent the reform of Article 670.4 of the Code of Civil Procedure, which allows the performer to keep the right mortgage auction for 50%, provided that improves the supply of other applicant. In fact, no other candidate. They are the same, but with a distinct legal personality. Attend to make the auction a subsidiary housing bid for a lesser amount, so that the bank may possibly be the 50% plus one euro.
Idealistic property portal reported this in your newsletter and several law enforcement sources have confirmed this approach by financial institutions. Almost all have been created in recent years building societies operating in the practice as "bad banks" that focus on toxic real estate assets. In this case, besides acting as a "bad banks" are really hurt someone.
Some mortgageswere signed withcross guarantorsnot known
"It's clearly an artifact. The entity uses a real estate subsidiary to keep the floor for 10% less than they would have to accept if the bid remain deserted, "said Professor Dominguez Luelmo. The flip side is that the evicted will owe the bank a 10% higher than it should if the auction had been unsuccessful.
"When the law was changed a year ago," says Professor Dominguez Luelmo, "was left untouched Article 670.4, surely an oversight by the legislature. It would suffice to modify it to also establish a minimum of 60% and I propose to do. " Professor Ramón Falcón y Tella, Professor of Tax Law at the Complutense University of Madrid, means that financial institutions, given the serious difficulties faced, also need help and protection, but believes that in this case there is a legal inconsistency that renders the reform and that causes serious injury to the hopeless.
If someone has reached the point where their house goes to auction, because it is really an extreme situation. When the buyer has any chance of payment, banks tend to acquiesce to review the loan terms and deferring repayment because, as indicated by a spokesman for the Spanish Banking Association, as is the housing market, "is much more consistent with the activity and interests of the entity the continuity of the loan that the award of property. " But when there is no prospect of charge, urging the execution of the mortgage, an option that the association considers "not only legitimate," but necessary to "protect the solvency of the entity and the interests of its depositors and shareholders."
That 10% gain is not the only advantage derived banks and, according to Professor Falcón y Tella, by using this procedure. To bid in the auction, the bidder must deposit 20% of the previously assessed value of the property. But in this case, the property arm has only to provide a bank guarantee that gives the performer himself, which can bid for free.
Aziz Mohamed's case and the interests of usury
When the clerk terminating the auction begins for many terminally ill a new nightmare that can contribute to a disrupted soil for life: what still needs to pay debt that is not only what the outstanding mortgage. To this figure must be added interest on late payments that the entity has been charged on debt like a cash register runaway and can double the outstanding debt.
Laugh of the risk premium, lawyers say. And many would have evicted the interest rate paid by all the public debt or interest-bearing banks to borrow from the market. If an interest rate of 7% is unbearable for a country, what is the tolerable amount for a family economy in bankruptcy? For the homeless, in addition to losing the house, are facing default interest ranging between 19% and 25%. Start counting from that is left to pay the fee and join in a blow to the debt when the auction ends. The foreclosure can take as Beatriz Corredoira, General Counsel of the Consulate of Ecuador in Barcelona, one and a half to two years and in some cities more jam, and Ruby, three.
"The law allows interest on arrears are high to discourage non-payment of dues, but when someone really can not afford, are abusive," says Professor Ramón Falcón y Tella.
Judge Jose Maria Fernandez Seijo considers that the default interest applicable in Spain are clearly disproportionate and therefore has raised a question before the Court of Justice of the European Union understand that it may be in breach of Community provisions, in particular , the policy that protects consumers against unfair terms. It further alleges that the runtime system that applies not automatically facilitates control by the judge, leaving the debtor in a state of helplessness.
The case that the judge has raised illustrates a phenomenon that could be termed usury. This is a foreclosure filed by La Caixa d'Estalvis de Tarragona (now part of Catalunya Caixa) against Aziz Mohamed, a Moroccan living in Spain since 1993 and in July 2007 signed a mortgage on the house he had acquired Mataro, priced at 194,000 euros.
It was, like many others, a very long-term loan, with fees of 600 euros per month. The final was scheduled for 2040, but just a year later, the crisis erupted and Mohamed Aziz failed to meet the deadlines. From the time of making the loan until they stopped paying, 10 months later, he had paid 6,656 euros for ordinary interest and amortization of EUR 1,325 capital. In March 2009, when it initiated the foreclosure, an entity called a debt of 139,764 euros, 41,902 euros more default interest and court costs. The first installment unpaid amounted to 620 euros, the second 822, third at 861, and so on.
The auction was convened in July 2010 and was deserted, so that the box was the floor for 50% of its appraised value, ie, for 97,200 euros, so that when in January 2011 Mohamed Aziz was " launched "last of the house, had lost his home and still owed more than 40,000 euros of outstanding mortgage loan of 42,000 euros plus default interest and court costs.
After running the auction, the bank also gets the house. "Legally, the bank never gets to own the property, because at the time of the award gives the closing of the auction at the subsidiary" he explains. This accomplishes two additional benefits: firstly, it prevents the property listed on its balance sheet and having to provision the appropriate capital and, secondly, as estate subsidiaries normally declare losses, may realize certain tax benefits, for example deduct VAT.
Judge Jose Maria Fernandez Seijo, head of the Commercial Court number 3 in Barcelona, corroborates this way, legal but questionable proceeding, and highlights the injustice it entails. "Many homes now come to auction were bought at the peak of the housing bubble. And many were priced at prices not only much higher than its current market value, but even higher then market value. "
Buyers have their share of responsibility, but the whole system induced overvaluation because it was assumed that prices would keep rising. "The directors and employees of the bank offices had strong incentives to place mortgages at any price", says Professor Falcon. "In many cases valuations were also upward to cover processing costs and other expenses," he adds. It was so out of control, when the buyer was an immigrant and had no guarantor, the entity itself brought him into contact with another immigrant who wanted to buy a home also, so that they would support each other.
"Now we find instances of cross guarantors who do not even know," he explains Seijo. The judge has seen even a case of simultaneous sale of four houses, in which each buyer signed as guarantor of the other three. Now, some guarantors lost their home, not because they could not pay your mortgage, but can not meet the guarantee signed to cover another buyer.
The problem is that when the clerk terminating the auction, the drama is not over, as you well know Montserrat Serrano, lawyer of the group round in Barcelona. "With the auction is not paid the procedure. This will remain open until the buyer pay off all debt, "he explains. As in the early years most of what you pay is interest in the fee, when the floor becomes payable auction is still most of the paid-up capital. So, when the bank wins the house for 50% of the appraised value, the buyer loses the house, but still owes a large part of the mortgage.
To that amount is added up the costs of judicial enforcement and default interest, so that final outstanding debt may exceed the value at which it has been awarded the bank. And that amount will have to answer the evicted with all its assets, present and future. "Many of them leave the court with the wages garnished for life. And if they do not work, know that when you find him, they garnish a portion of what they charge, "said Serrano Montserrat.
To rescue the most dramatic cases, the Government submitted a few weeks a Code of Practice which encourages banks to accept a voluntary payment in cases of serious risk of social exclusion. That is, ultimately, with the delivery of housing be paid off all debt.
Although this code may be a relief for the very poor, legal sources consulted doubt that will have much impact, as payment in kind is restricted to cases where all household members are unemployed and mortgage payments exceed 60% of family income, which may not come from earned income or economic activities. That means that this possibility is practically limited to recipients of public subsidies. In addition, homes may not be priced above 200,000 or 120,000 euros, as appropriate.
For everyone else, things will stay the same. That is, evil. Or very wrong. Because it seems that among the priorities of the Government, contains a formula that, in addition to helping financial institutions to address the gaping hole they have accumulated, you can find a formula to rescue those who are now also victims of their bad practices .
The amendment passed last July only applies to cases where the property is auctioned residence. This means that financial institutions that use this trick they do at the expense of seriously harm the hopeless poor, those without other assets you come to the rescue of the floor on which they live. "It must be said that the procedure is legal, but in practice can nullify the reform, which was precisely to alleviate the plight of those unable to pay," said Andres Dominguez Luelmo, Professor of Civil Law at the University of Valladolid .
The 10% who earnthickens banksoutstanding debtthe terminally ill
Since the crisis began has been made in Spain more than 150,000 foreclosures and there are another 300,000 in progress. It is not known how many of them affect normal houses, but everything indicates that the figure is socially important. Until recently, most auctions were deserted because no investors willing to bid on a home that could hardly sell. In that case, the entity could be awarded directly to the property, but 60% of the value ascribed to grant the mortgage. Banks and savings banks have found, however, a loophole to circumvent the reform of Article 670.4 of the Code of Civil Procedure, which allows the performer to keep the right mortgage auction for 50%, provided that improves the supply of other applicant. In fact, no other candidate. They are the same, but with a distinct legal personality. Attend to make the auction a subsidiary housing bid for a lesser amount, so that the bank may possibly be the 50% plus one euro.
Idealistic property portal reported this in your newsletter and several law enforcement sources have confirmed this approach by financial institutions. Almost all have been created in recent years building societies operating in the practice as "bad banks" that focus on toxic real estate assets. In this case, besides acting as a "bad banks" are really hurt someone.
Some mortgageswere signed withcross guarantorsnot known
"It's clearly an artifact. The entity uses a real estate subsidiary to keep the floor for 10% less than they would have to accept if the bid remain deserted, "said Professor Dominguez Luelmo. The flip side is that the evicted will owe the bank a 10% higher than it should if the auction had been unsuccessful.
"When the law was changed a year ago," says Professor Dominguez Luelmo, "was left untouched Article 670.4, surely an oversight by the legislature. It would suffice to modify it to also establish a minimum of 60% and I propose to do. " Professor Ramón Falcón y Tella, Professor of Tax Law at the Complutense University of Madrid, means that financial institutions, given the serious difficulties faced, also need help and protection, but believes that in this case there is a legal inconsistency that renders the reform and that causes serious injury to the hopeless.
If someone has reached the point where their house goes to auction, because it is really an extreme situation. When the buyer has any chance of payment, banks tend to acquiesce to review the loan terms and deferring repayment because, as indicated by a spokesman for the Spanish Banking Association, as is the housing market, "is much more consistent with the activity and interests of the entity the continuity of the loan that the award of property. " But when there is no prospect of charge, urging the execution of the mortgage, an option that the association considers "not only legitimate," but necessary to "protect the solvency of the entity and the interests of its depositors and shareholders."
That 10% gain is not the only advantage derived banks and, according to Professor Falcón y Tella, by using this procedure. To bid in the auction, the bidder must deposit 20% of the previously assessed value of the property. But in this case, the property arm has only to provide a bank guarantee that gives the performer himself, which can bid for free.
Aziz Mohamed's case and the interests of usury
When the clerk terminating the auction begins for many terminally ill a new nightmare that can contribute to a disrupted soil for life: what still needs to pay debt that is not only what the outstanding mortgage. To this figure must be added interest on late payments that the entity has been charged on debt like a cash register runaway and can double the outstanding debt.
Laugh of the risk premium, lawyers say. And many would have evicted the interest rate paid by all the public debt or interest-bearing banks to borrow from the market. If an interest rate of 7% is unbearable for a country, what is the tolerable amount for a family economy in bankruptcy? For the homeless, in addition to losing the house, are facing default interest ranging between 19% and 25%. Start counting from that is left to pay the fee and join in a blow to the debt when the auction ends. The foreclosure can take as Beatriz Corredoira, General Counsel of the Consulate of Ecuador in Barcelona, one and a half to two years and in some cities more jam, and Ruby, three.
"The law allows interest on arrears are high to discourage non-payment of dues, but when someone really can not afford, are abusive," says Professor Ramón Falcón y Tella.
Judge Jose Maria Fernandez Seijo considers that the default interest applicable in Spain are clearly disproportionate and therefore has raised a question before the Court of Justice of the European Union understand that it may be in breach of Community provisions, in particular , the policy that protects consumers against unfair terms. It further alleges that the runtime system that applies not automatically facilitates control by the judge, leaving the debtor in a state of helplessness.
The case that the judge has raised illustrates a phenomenon that could be termed usury. This is a foreclosure filed by La Caixa d'Estalvis de Tarragona (now part of Catalunya Caixa) against Aziz Mohamed, a Moroccan living in Spain since 1993 and in July 2007 signed a mortgage on the house he had acquired Mataro, priced at 194,000 euros.
It was, like many others, a very long-term loan, with fees of 600 euros per month. The final was scheduled for 2040, but just a year later, the crisis erupted and Mohamed Aziz failed to meet the deadlines. From the time of making the loan until they stopped paying, 10 months later, he had paid 6,656 euros for ordinary interest and amortization of EUR 1,325 capital. In March 2009, when it initiated the foreclosure, an entity called a debt of 139,764 euros, 41,902 euros more default interest and court costs. The first installment unpaid amounted to 620 euros, the second 822, third at 861, and so on.
The auction was convened in July 2010 and was deserted, so that the box was the floor for 50% of its appraised value, ie, for 97,200 euros, so that when in January 2011 Mohamed Aziz was " launched "last of the house, had lost his home and still owed more than 40,000 euros of outstanding mortgage loan of 42,000 euros plus default interest and court costs.
After running the auction, the bank also gets the house. "Legally, the bank never gets to own the property, because at the time of the award gives the closing of the auction at the subsidiary" he explains. This accomplishes two additional benefits: firstly, it prevents the property listed on its balance sheet and having to provision the appropriate capital and, secondly, as estate subsidiaries normally declare losses, may realize certain tax benefits, for example deduct VAT.
Judge Jose Maria Fernandez Seijo, head of the Commercial Court number 3 in Barcelona, corroborates this way, legal but questionable proceeding, and highlights the injustice it entails. "Many homes now come to auction were bought at the peak of the housing bubble. And many were priced at prices not only much higher than its current market value, but even higher then market value. "
Buyers have their share of responsibility, but the whole system induced overvaluation because it was assumed that prices would keep rising. "The directors and employees of the bank offices had strong incentives to place mortgages at any price", says Professor Falcon. "In many cases valuations were also upward to cover processing costs and other expenses," he adds. It was so out of control, when the buyer was an immigrant and had no guarantor, the entity itself brought him into contact with another immigrant who wanted to buy a home also, so that they would support each other.
"Now we find instances of cross guarantors who do not even know," he explains Seijo. The judge has seen even a case of simultaneous sale of four houses, in which each buyer signed as guarantor of the other three. Now, some guarantors lost their home, not because they could not pay your mortgage, but can not meet the guarantee signed to cover another buyer.
The problem is that when the clerk terminating the auction, the drama is not over, as you well know Montserrat Serrano, lawyer of the group round in Barcelona. "With the auction is not paid the procedure. This will remain open until the buyer pay off all debt, "he explains. As in the early years most of what you pay is interest in the fee, when the floor becomes payable auction is still most of the paid-up capital. So, when the bank wins the house for 50% of the appraised value, the buyer loses the house, but still owes a large part of the mortgage.
To that amount is added up the costs of judicial enforcement and default interest, so that final outstanding debt may exceed the value at which it has been awarded the bank. And that amount will have to answer the evicted with all its assets, present and future. "Many of them leave the court with the wages garnished for life. And if they do not work, know that when you find him, they garnish a portion of what they charge, "said Serrano Montserrat.
To rescue the most dramatic cases, the Government submitted a few weeks a Code of Practice which encourages banks to accept a voluntary payment in cases of serious risk of social exclusion. That is, ultimately, with the delivery of housing be paid off all debt.
Although this code may be a relief for the very poor, legal sources consulted doubt that will have much impact, as payment in kind is restricted to cases where all household members are unemployed and mortgage payments exceed 60% of family income, which may not come from earned income or economic activities. That means that this possibility is practically limited to recipients of public subsidies. In addition, homes may not be priced above 200,000 or 120,000 euros, as appropriate.
For everyone else, things will stay the same. That is, evil. Or very wrong. Because it seems that among the priorities of the Government, contains a formula that, in addition to helping financial institutions to address the gaping hole they have accumulated, you can find a formula to rescue those who are now also victims of their bad practices .
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