The Constitutional Court (TC) has rejected the appeal for protection presented by a couple from Granada against several judicial resolutions that refused to review a possible abusive early maturity clause in their mortgage. The key to the ruling is that, for the court, the mortgage foreclosure procedure had already ended in 2018, when the decree awarding the home to the bank became final, although the launch had not yet been executed due to the suspension agreed due to vulnerability.
The ruling (available at this link) studies a case in which the home was auctioned and awarded to BBVA within an execution that began in 2016. Years later, and when the second suspension of the launch was about to end, those affected requested the annulment of the process, understanding that the court had never examined whether the clause that allowed the loan to be terminated early was abusive.
The appellants argued that control of this clause could still be carried out because they had not been evicted from the home. Furthermore, the Public Prosecutor’s Office supported his position and maintained that the court should have gone in to review this possible abuse.
Even so, the Constitutional Court concludes that this review came too late. The court recalls that those affected could have opposed the execution, then raised the abusiveness of the clauses or appealed the adjudication decree, but they did not do so. The request did not arrive until November 2023, that is, five years after the award was final.
The most important change in the sentence
The fundamental part to take into account about this ruling is that the Constitutional Court reviews its own previous doctrine. Until now, in several resolutions it had maintained that the foreclosure did not completely end until possession of the property was delivered to the successful bidder. Now it qualifies this criterion for the procedures initiated after Law 1/2013.
According to the ruling, in these cases the transfer of ownership occurs with the final adjudication decree, not with the material release. Therefore, if the home has already been awarded and registered and the affected party has not appealed at the time, the judge may reject a subsequent examination of the abusive clause without violating the right to effective judicial protection.
In this way, the Constitutional Court understands that the resolutions of the Court of First Instance number 9 of Granada were motivated and did not arbitrarily apply either Spanish law or European jurisprudence. For this reason, it dismisses the appeal for protection and consolidates a doctrine that may influence other similar mortgage lawsuits from now on.