The Civil Chamber of the Supreme Court has confirmed the validity of a floor clause provided for in a mortgage loan contract signed by a bank branch managerdespite the fact that the pre-contractual information provided by the entity is not accredited.
The plaintiff’s activity was related to the contracting of this type of mortgage loan deed with variable interest and floor clause
Sentence, from June 16, 2022points out that the knowledge of the borrower “exempted the lender from having to explain what it was obvious that he knew perfectly”.
–
The case
In February 2006, being an employee of the Bank of Valenciathe user entered into a mortgage loan contract with this entity, under special conditions offered to bank employees.
In September 2006, the employee was hired by banesto (later integrated into Banco Santander).
Interior of a Banesto office. (Photo: Trem Studio)
–
After receiving several binding offers from Banesto to subrogate the mortgage loan, in October 2007, being already director of an office of the aforementioned bankthe worker agreed with this mortgage loan that replaced the previous one.
Specifically, among other provisions, the contract contained a Floor clause 2%, which would become 2.5% when the employment relationship ceased.
In February 2012, the employee was fired of the banking entity and, from then on, the floor of 2.5% began to operate.
First instance: the floor clause is null
The Court of First Instance No. 9 of Zaragoza fully upheld the claim, declared the nullity floor clause and agreed to return the amounts unduly paid.
According to the opinion of the lower court, despite the fact that the wording of the stipulation was clear, it was not proven that it was informed in a timely manner to the bank employee for the inclusion of the controversial floor clause.
Second instance: the employee knew perfectly well how the clause operated
However, after the bank appealed, the Zaragoza Provincial Court estimated the appeal and reached the conclusion that the plaintiff, before executing the loan deed that included the floor clause, was informed of its existence and its legal and economic consequences.
The Court started from the consideration that the plaintiff knew that the bank employees had different and more beneficial conditions when arranging the mortgage loan compared to the rest of the clients. It also took into account that the user, as branch manager, knew perfectly how the repeated ground clause operated and the legal and economic consequences of its inclusion. In addition, the borrower acknowledged in the course of this litigation that he ended up accepting the conditions offered by Banesto for an image issue.
Supreme Court: the appellant promoted the contracting of loans with floor clauses
Now, the Civil Chamber of the Supreme Court once again agrees with Banco Santander by dismissing the appeal filed by the bank employee.
On the one hand, regarding incorporation control or inclusion, the High Court emphasizes that the experience and work activity of the borrower, office director of the entity with which he signed the deed, “they prevent denying that he would not have had a real opportunity to know at the time of the execution of the contract the existence of the floor clause”.
“The appellant was informed of its existence and its legal and economic consequences.” (Photo: Economist & Jurist)
–
On the other hand, in relation to transparency control, the First Chamber maintains that, in the present case, yes there was sufficient pre-contractual information so that the borrower could know the economic and legal burden entailed by the limit to the variability of the interest rate introduced in the mortgage loan subrogation deed. In fact, it should be remembered that, in his capacity as branch manager, “was part of his business promote the contracting of mortgage loans with clients of the entitywhich used to include this type of floor clauses”.
It is logical that this circumstance influences in this case when corroborating the sufficiency of the pre-contractual information received.
In short, “this knowledge, typical of an expert, is what justifies that, even if the specific content of the pre-contractual information is not accredited that at that time was supplied on the floor clause, we do not appreciate the lack of transparencysince the borrower’s knowledge of the bank for which he worked as branch manager exempted the lender from having to explain what it was obvious that he knew perfectly”, concludes the TS.
–
/data/photo/2021/06/02/60b76347020c2.jpg?resize=150%2C150&ssl=1 "Sueded by Harmas Jalesveva for IDR 1.1 Trillion, Bukalapak Opens Voices Pages all")