The waiver of actions clause and the validity of the novation clause of the floor clause are not valid in the same contract.

Mortgage loans always require a legal support in which the conditions between the banking institution and the client are established. This contract, at the same time, reflects the national laws that support and regulate the transaction in order to avoid problems in the future.
Although the State defines certain rules and laws for mortgage loans, there are some actions that can be used to modify a contract, however, there must be a prior agreement between the interested parties.

Likewise, the banking institution may modify a contract by agreeing it with its client, but at the same time, the laws on which the change is based must be compatible and congruent, otherwise it cannot be carried out.

Waiver of action and floor clause in mortgage loans

mortgage loans

The floor clause is used to establish that, in a mortgage contract, the variable interest rate can never be lower than a certain percentage. In other words, it limits that even if the interest rate is lower, the consumer cannot benefit from this reduction in his installments.
However, in recent years, some credit institutions have reached an agreement with their borrowers, in which the floor clause is eliminated or its amount is reduced. At the same time, the consumer waived the right to claim for the interest charged to date as a result of the application of the floor clause.

Regarding the Law, STS 205/2018, of April 11, Plenary, establishes that as it is a private agreement, it is totally valid, moreover, it indicates that it is a transaction and not a novation. Basically, it is an agreement with clauses that are transparently prearranged.
Although the proposal appears to be a congruent action, the doctrine set forth in this Supreme Court ruling is contrary to Directive 93/13/EC and the case law of the CJEU, and is therefore invalid.

Why can’t both clauses be in the same contract?

For a waiver of action to be valid, it must be transparent and inform the consumer of the amount to which it waives, or ultimately, it must provide the consumer with the mechanisms and ways to know the exact amount of his or her loss.

This was established by the Chamber of the Supreme Court (Plenary) in its Ruling (580/2020) dated November 5, 2020, but in accordance with this consideration, in the contracts carried out in recent years, this information is drafted in a generic manner.
When these contracts state “any action arising from the formalization and clauses of the loan contract, as well as the settlements and payments made to date”, it indicates that it covers issues unrelated to the controversy underlying the alleged settlement agreement and this cannot be valid.

Technically, the clause whereby the consumer himself waives, for future disputes, legal action based on the rights granted to him by Directive 93/13, does not bind the consumer.

Thus, the waiver of actions clause and the validity of the novation clause of the floor clause are not valid in the same contract, as should be applied from the publication of these criteria in the Court of First Instance 25 bis of Valencia and the Ninth Section of the Provincial Court of Valencia.

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