If you guaranteed your children's mortgage, a business operation or a relative's loan and now the bank is claiming against you, there are ways to cancel that guarantee: lack of transparency, modification of the loan without your consent, status of consumer guarantor, or abusive clauses in the contract. Más del 70% de los avales en hipotecas familiares tienen vicios reclamables.
A bank guarantee is one of the most dangerous figures in banking law: the guarantor is liable with all their present and future assets for another person's debt. That is why the legislator and the courts have created protecciones especiales — and that is why the bank is subject to a reinforced duty of information, transparency and verification of the guarantor's consent.
The situations giving rise to nullity are several: falta de información precontractual adecuada to the guarantor (especially when it is the father, mother, spouse or relative of the debtor); modifications of the loan without your express consent (article 1851 of the Civil Code — automatically extinguishes the guarantee); cláusulas abusivas in the guarantee deed (waiver of the benefits of excussion, division and order); condición de consumidor avalista (CJEU C-419/19 has confirmed that the guarantor of a consumer is also a consumer, with all the corresponding protections).
La Ley 5/2019 de Crédito Inmobiliario (LCCI) further reinforces the bank's obligations for mortgages signed from June 2019: specific pre-contract information to the guarantor, notarial warning, verification of financial capacity to be liable. El incumplimiento conlleva nulidad del aval — y los avales de hipotecas anteriores también pueden ser reclamables por las vías generales.
Every case is unique, but there are six proven lines of defence we apply depending on the type of guarantee, the signing circumstances and the bank's later behaviour regarding the main loan.
If the bank did not give you clear pre-contract information about the scope of the guarantee, the risk assumed and the financial situation of the main debtor, the lack of transparency leads to nullity. Especially reinforced in family guarantees.
If the bank extended the loan, changed the interest rate, refinanced or negotiated with the debtor without asking for your express consent, the guarantee is automatically extinguished by article 1851 of the Civil Code. One of the most effective defences.
The CJEU (C-419/19) has confirmed that the guarantor of a consumer — parent guaranteeing a child, spouse, relative — is also a consumer against the bank. All the protections of Directive 93/13 on unfair clauses apply.
Waiver of the benefits of excussion, division and order (the bank making you liable before enforcing against the main debtor or the mortgaged asset). These clauses are usually abusive and void under CJEU doctrine.
For mortgages signed from June 2019: the bank must give a specific FIPER information sheet to the guarantor, check financial capacity and arrange the notarial deed. Breach of any of these obligations leads to nullity.
If the main loan has abusive clauses (floor, IRPH, multi-currency, expenses), the nullity also affects the guarantee. We pursue both routes simultaneously to maximise the outcome.
Ask us for a free case review and we will get back to you in less than 24 hours.
Four basic questions and we tell you which line of defence is most likely to work in your specific case.
If you guaranteed family members, a business or a rental and now the bank is claiming against you (or you fear it may), give us the details. A lawyer from the firm will personally review the deed and the pre-contract documentation. In less than 24 hours you will receive a report with the viability of nullity and next steps.
The legal framework of bank guarantees combines the Civil Code, Act 5/2019 on Real Estate Credit and CJEU doctrine. These are the three key references we apply.
Any extension, modification or refinancing of the main loan made without the guarantor's express consent automatically extinguishes the guarantee. One of the most effective and frequently unknown defences.
The CJEU confirms that a relative (parent, spouse, sibling) who guarantees a consumer also enjoys consumer status and, therefore, all the protections of Directive 93/13 against unfair clauses.
For mortgages signed from June 2019: specific pre-contract information to the guarantor, mandatory notarial warning, verification of financial capacity. Breach leads to nullity of the guarantee.