The new strategy of banks: request the testimony of the borrowers. Banks are up against the wall. Especially with regard to floor clause claims.
The Bank’s chances for obtaining a ruling in favour of their interests are very unlikely. Especially, after the ruling of the Court of Justice of the European Union 21/12/2016. Although the former Spanish Government had put spokes in the consumers’ wheels by disposing of specialised courts working with little means and facilitating the banks treating the claims directly with their clients, the reality is that banks are disbursing astronomical amounts because of the capital refunds they unduly charged for abusive clauses in their mortgage contract.
Banks are desperately inventing new strategies. In recent months, we have seen an unusual event: banks requesting the testimony of their clients in court. Court testimonies mean the evidence emanated from the statements made by witnesses before a judicial authority, as part of a process. Although banks are in its legitimate right to request assistance at the borrowing party’s judgment, this party is obligated to attend if the judge decides so. Even if it is about people living abroad. Obviously, the travel expenses are also claimed to the bank if this is losing the case.
Rather than being a litigation strategy, Banks miserly intend to affect their clients or former clients -especially those who live abroad- banks requesting clients’ testimony in court, with the purpose of the case being dismissed if they do not appear and the claim is terminated.
The motivation for the borrower to attend the trial is the need to assess the transparency of the floor clause in an individualized manner and taking into account the specific circumstances of each case: “other means could be taken into account through which comply with the requirement that the clause in question was overlooked by the consumer”. Sentence of the First Chamber of the Supreme Court of March 9th (Casación núm. 2223/2014).
There are many cases of claims for abusive clauses in the mortgage contracts that we carry out in Del Canto Chambers. And although we have only found a minimum percentage of requests of witnesses from the borrowing party, we do not doubt that the bank will continue to request it whenever it sees in it a possibility to win the case.
At Del Canto Chambers we will advise and accompany you during the brief trial. They are a few simple questions in a trial of a duration of between 15 and 20 minutes maximum. Keep in mind that the Courts are collapsed by this type of claim and have scheduled many views of this type throughout the morning. It is a pure formalism that aims to the client try to cease the claim.
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