Mortgage loan

When a bank faces a crisis, the banking authority can implement "clean-up" measures or resolution to prevent a collapse . In the mentioned case, a Portuguese bank in difficulties was intervened by the Bank of Portugal , which created a "bridge bank" and transferred part of its assets and liabilities , including mortgage loans that had been transferred to this new bank through subrogation . However, other responsibilities remained with the original bank, such as those related to the nullity of abusive clauses in those contracts.

Several consumers sued the bridge bank seeking the Refund of amounts charged for abusive clauses in mortgages that were now in that bank. The key issue was whether the bridge bank had to respond to those refunds, or if, on the contrary, that economic burden remained with the old bank, as decided in the resolution.

The Supreme Court concludes that the bridge bank does not have passive legitimacy to refund amounts charged for abusive clauses before the resolution measures were adopted, that obligation remains with the original entity. In other words, even though the mortgage has been "transferred" to the bridge bank, resolution, that obligation remains with the original entity. That is, even if the mortgage has been "transferred" to the bridge bank, not all economic consequences derived from previous abusive clauses are automatically transferred if the resolution authority decided to leave them out. derived from previous abusive clauses if the resolution authority decided to leave them out.

The decision is based on the joint interpretation of Directive 2001/24/EC and Law 6/2005, which state that the sanitation measures of the State of origin (here, Portugal) produce full effects in the host State, without extra procedures. And also in the idea that consumer protection cannot change the distribution of assets and liabilities set by the resolution authority, for reasons of banking stability and legal security.

If you are thinking of carrying out any type of operation or business that includes the formalization of a real estate credit contract, our professionals can advise you in defending your interests