JUDICIAL CONTROL OF SUMS CLAIMED FROM A BORROWER BY THE LENDING BANK

Abstract

In this paper it is analyzed the criteria used by courts of law to control the amount legally claimed by the lender credit institutión to the borrower as a consequence of the non-payment of any instalment. Specifically, we focus on the analysis of the sum of money claimed as principal, remunerative interest and default interest. In the former case, it is studied under which circumstances the borrower's default makes also the non-expired amount claimable. On the matter of remunerative interest, we go in depth into the control in Spain of usurious interest and we make an analysis of legality of floor clauses. Regarding default interest, it is analyzed the possibility that agreed interest were judicially reduced or suppressed because of being considered excessive. In studying all these issues, it is taken into account the effect that the Draft Commercial Code Bill could have if it were finally approved. The paper finishes with a reference to the lender's possibility of raising all these issues as a defense in small claim proceeding or in foreclosure process as well as to the possibility that the court ex officio were entitled to rule on them.