FORECLOSURE: NEW GROUND OF OPPOSITION, NEW PROBLEMS OF LEGAL PROCEEDINGS

Abstract

The economic and financial crisis in Spain has some peculiarities of property such. This has forced to take action on some important deficiencies of our foreclosure. These shortcomings -mainly with regard to the reasons for opposition to foreclosure- had been historically denounced. But it was the ECJ (Judgment of March 14, 2013) who established the unsuitability of our system to European consumer protection legislation because Spanish law did not include unfair terms as a cause of opposition to foreclosure. Finally, Law 1/20013 of 14 May, of measures to strengthen the protection to mortgage debtors, debt restructuring and social rent, introduced -among other innovations- a new cause of opposition to foreclosure that has important problems interpretative: when a clause was abusive; how to report the unfair nature of a clause in the foreclosure process; the consequences of the declaration of invalidity of an unfair term; or interpretative problems resulting from the STS of May 9, 2013 and the non-retroactive effects of the annulled clause and the reimbursement of amounts wrongly charged by the bank.