Supreme Court Confirms Validity of Waiving Notification Clause in Mortgage Loan Assignments

According to the Chamber, judgment 792/2009 of the 1st Chamber itself declared the clause of waiving the notification of the assignment abusive when it was the clause of the contract as a whole. Now, the courts of first instance consider that the disputed clause (“The Fund may assign the mortgage loan, in whole or in part, without the need to notify the debtor, who waives the right granted to him by article 149 of the Law Mortgage”) refers to the assignment of the mortgage loan, so the resignation is valid.

The Supreme Court confirms this qualification. It upholds the admissibility of the resignation, although the Chamber itself has recently reasoned that the loan contract with interest is a bilateral contract with reciprocal obligations, because in the present case the assignment of the credit is made when the bank has fully complied with its obligation to deliver the loan. But add this: «The rule that the debtor’s consent is not necessary for the assignment to be considered valid finds an exception in the assignment of a credit relating to synallagmatic obligations, since in these cases the credit of one party has a correlative obligation. In such a way that not only the positive part of the obligatory relationship is transmitted, but the complete bundle of rights, obligations and actions derived from the contract, for which reason the assigned debtor also holds the position of creditor with respect to the assignor-creditor, and, in Consequently, it has a direct interest in ensuring that whoever is to be subrogated to the position of the creditor (assignee) has the necessary solvency to meet its new obligations. Which justifies that the assignment in these cases requires the knowledge and consent of the assigned debtor. Justification that does not apply when the obligations of the ceding creditor are no longer pending compliance. And this is what happens in the case of litigation, in which the lending entity had already complied at the very moment of the formalization of the mortgage loan contract, the obligation to deliver the mutual capital (first stipulation)”.

Let’s go now to the notification of the assignment. Here the Chamber embarks on a somewhat confused argument. It is true that the lack of notification of the assignment allows the debtor in good faith to free himself by paying the assignor. The Chamber seems to understand that the waiver of notification is then a waiver of the right to be released by payment to the assignor, which entails a waiver of rights that, carried out in general conditions, is null. “In other words, to the extent that the clauses waiving the right to notify the assignment could integrate or comprise a waiver of the rights of release for payment to the assignor in good faith, or compensation of credits prior to the assignment or its knowledge before the assignor, cannot be understood to be protected by a precept that, due to its normative rank and date, cannot prevail over the aforementioned legal norms protective of consumers and users. However, in the present case, the mortgage loan contract in which the disputed clause was incorporated was signed on December 14, 2007, that is, a few days after the reform of article 149 of the Mortgage Law entered into force. introduced by Law 41/2007, of December 7 (which entered into force the day after its publication in the BOE, that is, December 9, in accordance with its tenth final provision), by which new wording to its first paragraph, which suppresses the requirement of notification to the debtor. In this regulatory context, the notification waiver clause becomes irrelevant, since in no case does it eliminate the consequences of the lack of notification that we have explained (liberating effect of the payment made by the debtor to the assignor or of the compensation of the credit that has against the assignor). It is clear that, even if the debtor is not notified, his ignorance of the assignment of the credit means that if he pays the assignor he is released and that he can continue to offset the credits he has against that assignor, also with release effects. Therefore, the challenged clause is irrelevant since it does not alter the contractual position of the contracting parties, so that it does not cause any harm to the assigned debtor or generate any imbalance between the rights and obligations of the parties, which are necessary assumptions to assess its abusiveness (art. 82.1 TRLDCU)”.

Valuation

The sentence finally resolves well, but it is unnecessarily long and confusing, and, in an extreme, worrying. Consent and knowledge of the assignment are mixed. What distinguishes the assignment of the contract and that of the credit is not that in the first the assignment is not valid without notification, but that in the first the assignment is not effective if the debtor does not consent. In a more than implicit way, the sentence also maintains that in a bilateral contract the credit of one party cannot be assigned, if the two obligations are pending compliance, since in this case the assignment would affect the contract as a whole. Which is incorrect, because the assignment of the credit continues to be effective, without prejudice to the fact that the debtor can oppose all the exceptions that derive from the bilateral nature of the contract. Finally, it is also incorrect that the assigned debtor who waives notice is waiving the right to be released by payment in good faith to the assigning debtor; just the opposite: the assigned debtor who waives notice is transferring to the assignor and the assignee the entire risk that the debtor pays improperly without knowing it. Therefore, he is not giving up anything and therefore there is nothing that can be null. The one who can get hurt from this resignation is the assignee, but never the assigned debtor. And all this is indifferent to whether the original version of article 149 of the Mortgage Law required notification to the debtor in order to register the assignment of the mortgage loan.

STS 581/2023