The anticipated maturity of the mortgage loans after the STJUE of March 26, 2019 and the STS of September 11, 2019

Abstract

The early maturity clause of the mortgage loan constitutes the foundation of the foreclosure and allows the real mortgage action to be exercised by the creditor on the mortgaged asset. Based on the initial wording of artículo 693.2 LEC, the clauses included as a general condition for contracting real estate loans to consumers allowed the debtor to lose the benefit of the term for non-payment of a single repayment installment. These clauses were considered abusive by the jurisprudence of the Court of Justice of the European Union (STJUE of March 14, 2013) as it did not determine the loss of said benefit based on the amount and duration of the debt. Law 1/2013 amended artículo 693.2 LEC in the sense of allowing the validity of the clauses in case of stipulation for the non-payment of three monthly installments. The financial entities adjusted their praxis to said legal provision, pretending that the foreclosure would continue in cases of non-compliance with three or more monthly installments, even if the contract contained the said abusive clause. This solution was accepted by the Supreme Court considering that despite the nullity of the clause, the specific exercise of the anticipated maturity had to be evaluated (that is, if it adjusted to the legal minimum and the parameters indicated by the STJUE of March 14 of 2013), as this could result in the benefit of the consumer. The question was referred for a preliminary decision by the Supreme Court to the Court of Justice of the European Union, specifically, on the application of the blue pencil test and, subsidiary, on the application of artículo 693.2 LEC to allow an integration of the contract in favor of the consumer. The Court considers that if the mortgage loan contract cannot subsist without the early expiration clause and its total nullity entails procedural consequences particularly harmful to the consumer, an integration of the contract proceeds through the wording that has the legal precept base of the clause, after the conclusion of the contract. The STS of September 11, 2019 refers for this purpose to the wording given to artículo 693.2 LEC by Law 5/2019 (wording that refers in turn to artículo 24 of this rule).