Unfair clauses
Deadline: 10 days
Early termination, default interest, IRPH and abusive expenses are in almost every pre-2019 mortgage. Opposition under article 695.1.4 of the Civil Procedure Act suspends the procedure until a final ruling.
There are several ways to stop a mortgage foreclosure: opposition for unfair clauses, suspension for vulnerability, negotiated deed in lieu or the Second Chance Law. We study your case and apply the strategy that best protects your home.
1. Opposition a la ejecución (art. 695 LEC). El plazo es de 10 business days from notification of the enforcement order. There are two types of grounds: procedural (article 695.1.1 to 695.1.3) and, above all, the existence of cláusulas abusivas en el contrato (art. 695.1.4).
2. Court's duty to review on its own initiative. Desde la STJUE Aziz (14/03/2013), the court is required to review unfair clauses on its own initiative, even if the debtor does not raise them. This doctrine is the basis of most stays.
3. Cláusulas habitualmente nulas. La Ley 5/2019 (LCCI) y el Tribunal Supremo han declarado nulas o restringidas múltiples cláusulas presentes en hipotecas pre-2019: vencimiento anticipado, intereses moratorios, IRPH, gastos de constitución y comisiones.
4. Suspension for vulnerability. El Real Decreto-ley 6/2012, extended until 2028, protects vulnerable consumers with mandatory suspension of eviction for up to 7 years.
5. Final shield. Si pese a todo la vivienda se ejecuta, la Ley de Segunda Oportunidad allows residual debt to be cancelled and starting over.
The strategy depends on the stage of the procedure, the clauses of the loan and the debtor's financial situation. We combine several routes to maximise the chances of stopping the foreclosure.
Early termination, default interest, IRPH and abusive expenses are in almost every pre-2019 mortgage. Opposition under article 695.1.4 of the Civil Procedure Act suspends the procedure until a final ruling.
If the bank triggered early termination on fewer instalments than required by article 24 LCCI or STS 463/2019, the clause is void and the foreclosure is dismissed.
Families with low income, minor children, dependency or gender-violence victims can suspend the eviction for up to 7 years (RD 6/2012, extended).
We negotiate with the bank to hand over the home as full payment of the debt, with discharge of the remaining amount. Applicable under the Good Banking Practice Code or by voluntary agreement.
Capital grace period, term extension or interest rate reduction. If your mortgage is covered by the Good Banking Practice Code, the bank is obliged to consider the request.
If the home is ultimately foreclosed and residual debt remains, the Second Chance Law allows the outstanding balance to be cancelled and starting over without that burden.
Ask us for a free case review and we will get back to you in less than 24 hours.
If you have a foreclosure claim, an auction notice or live with the uncertainty of losing your home, give us your details. A lawyer from the firm will review your deed and the procedural documents and in less than 24 hours you will have a report with the strategy.
STJUE Aziz (C-415/11, 14/03/2013). A turning point: the national court must review unfair clauses on its own initiative at any stage of the foreclosure, without waiting for the debtor to raise them. It completely changed the Spanish mortgage-foreclosure regime.
STJUE Bankia (C-70/17 y C-179/17, 26/03/2019). It established that an early-termination clause, if unfair, cannot be partially integrated: it either stands in full or is fully annulled, dismissing the foreclosure.
STS 463/2019 (11/09/2019).The Spanish Supreme Court ruled that early termination must be analysed case by case, taking into account the severity of the breach. After the LCCI (article 24), 12 unpaid instalments or 3% of the capital in the first half of the loan are required. An effective shield against foreclosures for a few unpaid instalments.
Ten business days from notification of the enforcement order to file opposition. After that, other routes remain (nullity incident, vulnerability, etc.), but opposition for unfair clauses must be filed in those 10 days. Act fast.
Yes, although it is increasingly difficult. The routes are: nullity incident for lack of judicial review of unfair clauses, suspension for proven financial vulnerability, or request to stop for serious procedural defects. Each case is different and needs urgent analysis.
Income below 3 IPREM (4 IPREM with dependent children, 5 IPREM with a dependent disabled child). Proof of a special family circumstance: large family, single parent with minor children, gender-violence victim, dependency, etc. The home must be the main residence and not exceed a maximum appraisal value.
Only in cases under the Good Banking Practice Code (RD 6/2012) when the debtor meets the vulnerability requirements and the bank has signed up. Beyond those cases, deed in lieu is voluntary — but in many ongoing procedures, the bank prefers to accept the deed in lieu rather than continue with foreclosure and auction. We negotiate on the debtor's side.
If the bank takes the property at auction below 70% of the appraisal value, residual debt may remain against you. That residual debt can later be cancelled under the Second Chance Law if you meet the requirements. The key point: what you paid in instalments over the years is not recovered, but future debt can be cancelled.
The initial case review is completely free and no commitment. For the foreclosure opposition we work on fixed fees agreed in advance, proportionate to the complexity of the procedure. If we obtain a costs award against the bank, part of the fees is offset. No surprises — everything is agreed in writing before starting.