スペイン政府は住宅ローン(借入金)の法律を換ることに恐れている
ENTREVISTA AL JUEZ ANTIDESAHUCIOS
“El Gobierno se ha asustado a la hora de cambiar la legislación hipotecaria”
Entrevista con el juez que ha logrado meter una china en el sistema de desahucios
Milagros Pérez Oliva 30 NOV 2012 - 16:58 CET
INTERVIEW WITH JUDGE ANTIDESAHUCIOS
"The government is scared when changing mortgage legislation"
Interview with the judge that China has put a system in evictions
Milagros Pérez Oliva 30 NOV 2012 - 16:58 CET
It has a warm talk, and so quietly, sometimes hard to hear. But the speech is crisp shells, and attitude, as humble as strong. It seems a judge, at least not like a judge who has populated the collective imagination for many years: a distant, accommodated in a power pedestal untouchable, impervious to reality and more concerned with applying the letter of the law that by digging into his spirit. Judge Jose Maria Fernandez Seijo is the opposite of that cliché. He holds Commercial Court Number 3 of Barcelona, which receives more than eight hundred cases each year, some of them very complex. Member of the Association of Judges for Democracy, has his court a day and goes to great lengths to defend the reforms considered necessary.
During the interview expands on the answers, but arrived a moment to look at the clock starts. It is about time to pick up the kids, "to reconcile" he says, though it is a term that does not like. "Because you go seems forced, and is the opposite, I like to go get the kids to school and play with them in the park." He has a daughter of 20 years, from a first marriage, who is studying medicine, and two of 3 and 5 years. And you still have time and desire to maintain a blog that presents itself as "a proposal subjective, haphazard and lax" about the world of cooking.
Seijo Fernandez is one of the main drivers of the Spanish legislation on foreclosure is now under fire, despite the attempts of the banking system so that everything is as it is. It was he who asked the Court of Justice of the European Union for Mohamed Aziz, a hopeless you requested injunctive relief on the ground that the loan terms were abusive, and judgment is expected before Christmas. For now, the report of the attorney general of the court that the Spanish legislation is unfair and violates European rules to protect consumers.
QUESTION: How much injustice has to be on foreclosures for the judges, including 47 deans, have had to leave to report abuses permitted by law. How has this situation come about?
"The situation is very serious and the judges are in the firing line"
ANSWER: Is that the problem is very serious, and we are in the firing line. We felt like we were sitting on a pressure cooker. The foreclosure process has been questioned since 1978, because it guarantees the right of defense of persons. In the 22 years I've been a judge has been changed several times, but all aspects accessories. Article 9 of the Constitution enshrines the judge as the guarantor of citizens to effectively exercise their rights, but we have a Code of Civil Procedure of the nineteenth century that this process gives the judge a residual action, so that those who have wanted to play this role of guarantors have been forced to do so, the system looking pores.
Q: At what point did you feel challenged by this situation?
R: Well before the crisis. Already in May 1991, shortly after reaching my first destination in Esplugues de Llobregat (Barcelona), one day the bailiff called me because they were going to evict a very young marriage, and the little girl, who already had two children, was standing on a roof of the sixth floor and threatened to jump. That was the first contact I had with an eviction. I was 25, and the girl, 21. I tried to dissuade her: "Baja, you do not want to kill, but in the end you're going to hurt you." It was believed to be the judge. After that I have always tried to follow the custom of executions. In the Spanish system, the judge, if he will not even get to meet the injured.
Q: Are you changing the model judge?
A: In the nineteenth century ideology, the judge should be a figure "disaffected" to the world, in the sense of not being influenced by the environment. That idea has been disappearing Napoleonic. Judges now have the same problems as any citizen, have been cut as the other and each time we have a greater social anchor in reality. Moreover, the judge is no longer an elite race, as people think. We are part of the middle classes.
P: Decide on the lives of others is very serious. I always thought that to be a judge needed a great vocation. How did yours?
The system worked with the idea that the floor and the brick is always revalorizarían
A: Well, the truth is not going to be a judge. Initially thought to devote to philology, but then I chose law, and here I am. It is a very nice, but I'm not a judge vocation.
P: Well, not to be ...
A: My father was a clerk and agreed to the judiciary in Madrid. I was the oldest of four children, and the truth is that when I started studying law, I asked myself what was the academic option, leaving two or three years abroad and teach at the University. But at the end, the judiciary seemed like a good option. I must confess that the subjects in the lower grades who took out during the race were the commercial litigation and who are you now I do.
Q: Would you have liked more engage in criminal matters?
A: No criminal because I chose a life experience very curious. When judge took three years I had to do alternative service and asked to work in the women's prison. I was 13 months. Guillem Vidal, who then chaired the Superior Court of Justice of Catalonia, told me: "José Mari, when you get out of prison you can not ever be criminal judge, because you have shown so much empathy with people in there, you would not be a good judge. " On the other hand, I thought the left was much worried by the Criminal Law for Civil, and found that in this area there were many things to do.
Q: Why the judge considers that also has a social duty?
A: Yes, of course. I belong to the Association of Judges for Democracy, and in my private life I am left-wing voter, I do not mind saying. I am independent in my work, but when I vote always identified with progressive approaches.
Q: How came the case of Mohamed Aziz?
A: The same day he was scheduled to be executed the launch of its home by a court of Mataró, in a desperate attempt to stop the process went to court to seek injunctive relief for unfair contract. When foreclosure began in 2009, the bank claimed him the 139,000 euros of the mortgage, plus 41,000 of default interest and costs. When you ran the auction, in 2010, the box was left with housing for 50% of the appraised value and, after losing the house, Mohamed Aziz € 40,000 still owed on the mortgage and other 42,000 of default interest and costs . I could not help the launch, but I started to spin. It could not be that if he was right, if the contract was abusive, had no possibility of repair. So I decided to bring the matter before the Court of Justice of the EU.
"The moratorium adopted by the government will only exacerbate the problem"
Q: It must be terribly distressing that, once it starts running, in two or three years of the trial, time is like a cash register that writes down default interest and debt will not stop grow. --- How rea ctio - nan affected?
A: The problem is that people are not aware of the total debt and not even going to court. In most procedures are declared in default. That is very unusual, because the process is very complex, the defense ends up being expensive and people often dig in misconceptions, such as "I can not throw", "when they come I will not open the door", and so on . When you stop paying the monthly fee, the debtor thinks, "I must four months, at 600 euros, 2,400 euros are". And when the bank estimated reclaim will be 3,000 or 5,000 euros and can find someone around who is providing the services. But when it's implementation is not claiming that the contributions due, but the entire debt, which is called "early termination", ie, all that is left to pay the mortgage plus interest delay. In a subsistence economy, could someone coming to pay $ 3,000, but 120,000. That is one of the serious problems of the current system that I have submitted to the Court of Luxembourg.
The financial sector is a very powerful lobby. We have seen in the royal decree on evictions.
Q: If the court rules that the law violates the rights of those affected, what can have legal effect?
A: Under the current rules, the court may examine the formal legality of the mortgage, but can not go into the content of the contract. If the court said that to ensure the effective protection must be able to assess the content, any judge may rely on Community law and nullify clauses or procedures deemed abusive, which deactivate the coercive force of the current regulations.
P: That for new cases, but what about the pre-sentence?
A: Well, I understand that a decision would be taken from previous also because EU law is 1993 and should have been transposed into Spanish in 1995. So, in the cases filed after that date, the affected party may go to court, and, if it were established injury, could seek compensation for breach of Community law.
Q: Lately we have seen bold statements. Could have done more judges in the eviction process to break the law and practice corset supervisory function?
A: I think they've done enough, but probably we should have acted sooner. Three or four years ago, a judge of Barcelona, Guillem Soler, raised a question of unconstitutionality, but the Constitutional Court agreed to hear not and also did packing. In June 2012, the Luxembourg Court issued a ruling very interesting, raised by the Court of Barcelona following a case against Banesto, in which it is said that if a judge finds that the interests are abusive, you have to do not claim it. That is one of the loopholes that have followed some of the judgments innovative, but it is still forced mechanism. What you need to do is change the law.
Q: Now we see the drama and the consequences for one party, but how it was madness of cross guarantees, loans to 50 years and above appraisals of the market value?
An eviction of a family from their home is a strength exercise with no other purpose than to exercise it because the law allows
A: Because the system worked with the idea that soil and brick revalorizarían forever, so that even the most foolish buyer thought that if things went wrong you could always sell and earn money. The message was that in a globalized world growth would be permanent and would ensure full employment. And also because there was a change of culture in the financial world. Banks stopped talking about contracts and customers, and started talking about products. John Lanchester, author of The Port of aromas, the son of a Hong Kong financial and wrote an essay on the economic crisis in which he says that madness begins when change in the City of London the poets-who defend productive economy and only lend to those who create wealth-by mathematicians, who base their decisions on risk calculations and no longer sign contracts, but placed products. Linked to the product tends to have an incentive, a commission, which makes the whole system tends to the highest levels of risk. In Spain, this model bankruptcy in late 2007, when the ground begins to lose money.
Q: The housing bubble had therefore already punctured when the crisis of subprime mortgages in the United States?
A: Yes, yes. In October 2007, the commercial judges and ask you to create more courts, because we saw what was coming our way. We saw extremely weak societies, with frightful debt levels. Companies with 3,000 euros of capital and credit lines of up to a million. What happens is that in the early years the social consequences hardly noticed. In our culture, the floor is the last thing you stop paying. And there is a family solidarity mattress which functions as a damper. Even the councils worked to resolve problems of insolvency. But these resources are exhausted.
P: Place on the political agenda in payment is probably the most tangible result of the 15-M Movement. Neither the PSOE and the PP had done nothing to change the law. Do you think you have been frightened by the possibility that provoke suicide, as in the 'Arab Spring', a social explosion?
A: Yes, because it symbolized the despair suicides in which the crisis has plunged many families. And, the launch of a family home is not followed by the relocation of another. It is a strength exercise with no other purpose than to exercise it because the law allows. There are countries where housing is not dislodged until no other occupant. Here is evicted by force, it leaves people in the street and the house is empty. And movements are so miserable ...
Q: Like what?
Judges now have the same problems as any citizen
A: In the case of the intervened banks, we should ask how many foreclosures are ahead because some lawyers or prosecutors have been at risk its contract with the bank. At present, most evictions are outsourced. No longer are the financial institutions that deal with debt claim, but outsiders who are around 30%. In bank mergers, these contracts are endangered, and some of the firms that manage these entities delinquencies have led to court strike all unpaid lest they run out of contract. If the process is alive in court, accrued interest and costs. That happened, for example, mortgages Bankia, of UNIM or Caixa Penedès.
Q: The image bank is in tatters and is in danger of becoming the catalyst for everything unrest. Are you changing your behavior in court?
A: So far they have been putting dams, such as the Code of Practice, but they are still patches and its effect is diminishing. Some companies are already taking, regardless of that code, the social cost of the situation and in some cases executed. But film is so great that such measures will not be used for anything. In fact, the launches are now produced cases that began three years ago, at the start of the crisis. Worse, the fat, is yet to come.
Q: Will it help the moratorium adopted by the Government?
There has been a change of rules in the middle of the party
A: Not at all. The moratorium will not solve the problem, but to make it worse, because, as in all contracts, you have to read the fine print, and in this he says is something tremendous: the moratorium paralyzes the process, but not the default interest ...
Q: But that's a joke.
R: Or an exercise in optimism. Maybe, the Government believes will enhance both the economic situation, that within two years the people affected have recovered not only purchasing power, but can cope with all the debt and default interest, ranging from 18% and 29%. The feeling I had when it introduced the measure could not be worse. That did not appear the Justice Minister to discuss this issue in legal terms, but the Economy, and indicates where things are going. Do not they realize they are being ridiculous? If someone can not pay 120,000 euros now, how will you pay 150,000 in two years?
Q: The other big drama are the bankruptcy proceedings. What does corporate crises from a Commercial Court?
A: From the outset it was clear that it was a financial crisis, but has spread to the productive economy and everyday bankrupt companies that have done well, with orders and could get by, but are sinking, although are profitable, because no one pays money. On the origin of everything, what we find is a financial bubble that set ground rules for access to unbearable debt and now companies can not renew the credit facilities and have to close.
Q: But in companies has been a change of culture, is not it? The family business model is dying, and emerges is a very widespread owned corporation in which shareholders are less and less, because few executives who decide are only looking out for their own interest.
A: Most of the cases that come to court are still SMEs. But it is true that there has been a rule change to half. And now premium economy more speculative than productive. I remember back in 2006 I had a case of a manufacturer that made jackets for a department store, and I said as much got jackets making a profit of 3%, but if I closed the factory and sold the lot, would win 300%. For large companies, the problem has been raised in the IPO success key. The IPO has resulted in many cases an enrichment of executives, but then the demands and market volatility have led many companies, the obsession with turning a profit, would get involved in risk adventures that had little to do with the reality of the company.
Q: Are you growing power of large corporations?
A: Yes, it has grown a lot. Now it has much more influence the view of the president of a large corporation that the Prime Minister himself. It matters more to say about economic policy Emilio Botin, Santander, or what the views Isidre Fainé, La Caixa, on draft independence, which they say matches those issues. Of that I have no doubt. There is also a continuous passage between political power and big corporations. When you see a vice president of government ends up being CEO of a company, or that the foreign minister is heading soon after an airline, the tendency is to distrust. Such cohabitation is unhealthy for democracy.
P: And especially cohabitation between financial and political, is not it?
A: The financial sector is a very powerful lobby. We have seen in the royal decree on evictions. I am sure that the technicians of the two parties entered into negotiations in order to find a solution and to fundamentally change the laws, but in the three days of meetings, the financial lobby held parallel meetings and pressured the government to achieve their aims. Otherwise, it makes no sense to be announced with fanfare that has created a committee of experts, which will provide a comprehensive solution to the problem, and then it all ends in a smokescreen of just two fingers thickness.
Q: How do you think they have succeeded in convincing the government?
R: by asking whether it has assessed the economic impact of changing the law. What they say is that banks, changing mortgage legislation, there will be a pull factor and there will be many more defaults. That system has worked very well, with great confidence, so far, and if you change, aid to banks from the European bailout will have to be much higher. I think it's frivolous, but it is saying. And then, the government has scared. But I am convinced that, if the law is changed, it will not happen, because people do not want to lose your house you can afford and still pay.
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