THE CONSEQUENCES OF AN ABUSIVE CLAUSE (UNFAIR TERM) REGARDING MORTGAGE LOAN: SPECIAL REFERENCE TO DEFAULT INTEREST

Abstract

Recent Sentence of European Court of Justice, of January 21, 2015 again stressed the repeated theme of unfair terms of the mortgage loan. This sentence analyzes the existence and effectiveness of a clause in which the scope of default interest is fixed when shown and reported as abusive by the Judge. In particular, we analyze whether it is contrary to EU law the provisions of the Spanish Ley Enjuiciamiento Civil and the Ley Hipotecaria, renovated after Law 1/2013, specifically to comply with the provisions of the sentence of European Court of Justice of March 14, 2013, relative to the maximum extent provisions of 114.4 LH for default interest. The possible consequences of the declaration of an unfair term, again according to the European Court of Justice case law, are not confined to these two, if not, again, it seems possible the power of national courts to integrate or moderate this clause without contravenes EU law. Is there a change in criteria? What is the real extent of the effectiveness of an unfair term in a contract of mortgage loan? With this ruling seems introduce new possibilities, in a way, reintroduced legal uncertainty. We analyze this sentence and its consequences.