スペイン政府の、住宅ローン未払いによる住宅差押、立ち退き対策法は、不十分!
MANUEL ALMENAR | Vocal del Consejo General del Poder Judicial
“La ley del Gobierno contra los desahucios se queda corta”
El vocal del CGPJ Manuel Almenar cree que “las cláusulas abusivas son el pan de cada día”
M. C. BELAZA / Á. DE CÓZAR Madrid 27 MAY 2013 - 00:51 CET
MANUEL ALMENAR | Member of the General Council of the Judiciary
"The law against evictions government falls short"
The voice of the GCJ Manuel Almenar believes "unfair terms are the daily bread"
M. C. Belaza / Á. OF cozar Madrid 27 MAY 2013 - 00:51 CET
Corruption cases, evictions, the preferred ... The crisis and inequality have made in recent years judges begin to be seen by citizens as the last dam to injustice unresolved by the legislature and the executive. Crouched so far in the courts, sometimes the margins of current debates, the judges have taken far more prominence. Manuel Almenar (Valencia, 1963), member of the Supreme Judicial Council, is one of those judges. In their language somehow shows that times have changed. On 17 received COUNTRY to talk about one of these issues, evictions.
Question. Do you have the feeling that you are now seen as the Chinese government in the shoe?
Answer. Normally we do our work in a quiet way, looking for solutions to specific cases. And now we've seen in a role that we are not accustomed. But our job is to seek remedies to situations of injustice and resolve conflicts. If we have to make decisions that do not like the Government or the powers that be, we will. Our constitutional duty is to provide legal protection to the parties. Like it or not.
P. On the issue of evictions, has not been some judicial inactivity until the problem has exploded?
Unfair terms in contracts are our daily bread
R. The judges themselves have tried, individually, find solutions within the narrow confines of the law. For example, extending the deadline for eviction or giving chances to the debtor so that he could resist. Moreover, the prospect of evictions has changed. During the early years, 2007 or 2008, still had a mattress mortgaged: the savings of family, friends ... That has disappeared and emerged what was underneath: a loss of economic capacity. That came to court later, when people could no longer afford their homes.
P. What leeway had to stop evictions?
R. Since 2009, the Luxembourg Court had issued several statements emphasizing the need for the judges could comment officially about the existence of unfair terms. But the problem with that was the magistrate was that the court said one thing that Spanish law expressly prohibited.
P. What now? What citizens can expect from the judgment of the Court of Luxembourg on March 14?
R. The judge now not only can, but must, be in motion the existence of unfair terms on mortgages. If you find one, you should delete it. That is, if a single set of default interest abusive, for example, the effect is that there will be no such interests. There is any way to maintain an unfair even softening. And this principle applies to other matters. We have focused on evictions, the most glaring, but are unfair day our daily bread.
The judges will make their decisions, but do not like the politicians
P. Do you think there is an equilibrium between the banks and the citizen requesting a mortgage?
R. The reality shows that no. The weak position of consumers is reflected in their bargaining, virtually no-one is limited to sign what they put-, as in the level of information you have.
P. The banks argue that they have already fulfilled their part of the contract: give money. And that the other party must return because he took a risk.
R. That would be so in an abstract situation. In the specific case we find that the bank often introduces clauses that break the balance between the parties. And at the root of this relationship is a situation of equality. For example, on a home loan is essential housing pricing. Who does? An appraisal company that depends on the bank. If then the amount of the valuation does not reflect the reality of the facts, who should bear the risk of being wrong? I understand that those who rated it, which was also charging for their expertise. That is, directly or indirectly, the bank.
P. The banks argue that they are not responsible for the drop in housing prices.
The mortgage law was well over 100 years. Now does not fix the problem
R. In many cases, the bank did not take into account the real economic capacity of the debtor. In others, while the real value of a home than 100,000 euros, the rated it at 120,000 and paid that amount, the debtor convinced that that difference could invest in a car or furnish the house. The risk can not be held without the consumer, who over or participated in pricing. In any case, we should speak of two officials.
P. Is it enough government law, passed in solitary?
R. It includes the changes that the judgment of Luxembourg considered mandatory, but it falls short. For example, do not set the time and instances in which the judge may intervene on its own to control the existence of unfair terms. Neither solves the problem of the protection of guarantors parents, close relatives, friends ... The guarantor often thought that if the debtor does not pay, the house would be enough to repay the loan, and now he finds that the house and not worth 100,000 but 60,000. The bank is directed against the guarantors, sometimes retirees who end up losing their home, which had guaranteed the loan. Such situations are not covered.
P. How could regulate?
R. Preventing overcollateralization situations. Banning second mortgages in fact, establishing that a loan is guaranteed only with the mortgage on the house and property of the debtor without being able to reach the residence of the guarantor. And expanding the thresholds for application of the code of practice for the guarantors, to avoid losing your home ...
P. The law says that the bank will have to wait three unpaid fee to initiate foreclosure. Is it enough?
R. Before it was only a month and now stands at three. But that's a minimum. Not to say that by fulfilling the bank already saved. The judge will take into account other circumstances, such as the total amount of debt and the payment period to see if the clause is abusive.
P. Seijo Judge Fernandez described the new law as a Frankenstein monster. He said it will be difficult to implement.
Banks should take responsibility for their mistakes
R. It would have been desirable clarity. The mortgage law was good in the time that passed, 100 years ago, but now it does not answer the problem. Should be reformed by the Civil Procedure Act. The loss of housing for thousands of people, requiring urgent and immediate action solution of social, is a separate question that demands an answer that does not have to match most global legal solutions. Mix everything, as does the law, may create distortions in your application.
P. The code of practice has hardly been applied, according to a recent study conducted in a court of Madrid.
R. This code raises two problems. The first is that 99% of foreclosure proceedings is alone with the complainant. The process is initiated, payment is required the debtor and reported that there is a case against him. But the debtor is not a person. Why? Does anyone believe that those who have no money to pay the mortgage can go and pay for a lawyer to advise him? Therefore not presented himself no debtor and very few people invoked the code of good practice. The second problem is that the requirements are very stringent. Although there have been relaxed, yet prevent code may apply and benefit a large number of families.
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