At Fernández Bethencourt Abogados we have more than 35 years of experience and more than 1,000 judgements won against the banking sector.
The concept of mortgage law
Mortgage law is a branch of law strongly related to banking law, as banks and financial institutions are the main economic agents that grant loans and/or credits to individuals - for example, to enable them to purchase their primary residence or refinance their debts - and companies - in this case, for example, to finance their business.
Since its inception, the firm has specialised in advising on mortgage law.
The importance of expert advice in this area lies in the very nature of mortgage loans and credits: firstly, in the imbalance that usually exists between the two parties to the contract, since loans and credits are granted by banks and companies that are professionals in the sector and can impose their own (sometimes abusive) rules and conditions; and, secondly, because in order to obtain the money, borrowers must offer as collateral a property (usually such essential goods as their habitual residence or business premises), which, in the event of non-payment, may be executed by the bank or financial institution, in order to collect the unpaid amounts from the amount obtained at auction.
Obtaining a mortgage loan or credit is an operation of vital importance for borrowers, as it will be bound by the clauses contained in the contract for a long time - typically between 20 and 30 years - and we believe that it is imperative that consumers and businesses in need of finance do so on the basis of advice. by professionals, in order to choose the best option and under optimal conditions, as well as, if necessary, to renegotiate the initial conditions in order to adjust them to the debtor's new reality.
The non-payment of mortgage instalments usually leads to lenders and creditors claiming the unpaid monthly instalments and even the early repayment of the capital they lent.
The wear and tear of communication with banks and the inevitable personal involvement of debtors make it advisable to entrust these negotiations to teams of professionals who are experts in defending their clients' interests and obtaining the best solutions for them.
In recent years, the emergence of companies known as "vulture funds", which buy up debt and litigious claims (at a price that is usually very close to the value of the debt) and which, as a result, have become particularly important, become new creditors and can demand payments on the same terms as the original lenders.
We have extensive experience in negotiations of debts with funds and in the exercise of legal proceedings for the recovery of debts.
Mortgage defaults allow banks and creditors to lodge a complaint against the bank or a creditor. foreclosure lawsuits against debtors, with the intention that the property given as collateral is auctioned and with the amount obtained from the auction, they collect their debts.
However, la Ley permite que los deudores puedan oponerse a estas ejecuciones en una serie de supuestosOne of these is related to the existence of abusive clauses in the instrument of execution, i.e. the mortgage loan or credit deed itself.
Acting promptly and professionally in the response to the enforcement action and throughout the rest of the procedure is crucial, as the terms are short and the success of the process would result in the loss of the mortgaged property and, if its value does not cover the total debt, in the maintenance of a part of this debt
It is common for lenders and creditors to impose a number of requirements on their lenders and creditors. clauses in mortgage loans or credits, without negotiating them with clients or informing them of the legal and economic consequences. that they entail.
Thus, in breach of their duties of information and diligence, there are many contracts in which institutions include clauses that may be subject to a judgement of nullity and unfairness. For example, clauses limiting the variable rate of interest (known as "variable interest rate clauses"). "floor clauses); clauses setting as reference rates the IRPHclauses which determine the capital lent in a foreign currency, without informing customers of market risks and fluctuations (multi-currency mortgages); clauses obliging debtors to assume all the costs and expenses of the formalisation costs of writing or that set some very high interest on late payments; clauses allowing the entity to cláusulas que permiten a la entidad or clauses providing for the joint and several guarantee third parties (often relatives of the debtors), who are not informed of the obligations they are taking on or the waiver of rights they are agreeing to.
All these clauses are liable to be declared null and void. for not passing the control of incorporation of the Law on general contracting conditions (in the event that the debtors are professionals or legal persons) or for not passing the double control of transparency and, therefore, being abusive (in the event that the debtors are consumers and, therefore, the Law for the defence of consumers and users is applicable to them); For this, the corresponding ordinary procedure will have to be initiated, with a legal action against the bank, the financial institution or the lending or creditor fund, in order to have them removed from the deed and, in the relevant cases, to have the unduly paid amounts returned.
If you believe that your mortgage loan or credit deed may contain abusive clauses and you want to claim their nullity and recover the amounts you have unduly paid, or you want to negotiate your conditions or debt with the bank or financial institution, or you are in a foreclosure procedure, you can contact us through our contact form or by calling us on 922 630 373.
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