practice areas

MORTGAGE AND INSURANCE REGULATION

Mortgage Financing regulation is strongly related to Banking, as Financial Institutions are the main economic agents that grant loans and/or credits to individuals and companies.

At LEXPYME we have a team of professional experts in banking and financial Law with extensive experience defending our clients’ interests and obtaining the best judicial and extrajudicial solutions.

We also regularly provide advice related to insurance activity throughout a wide range of legal services: advice on insurance regulatory law, pension plans and funds, and insurance contract law, among others.

Besides, Lexpyme offers advice on contracts, regulation and supervision: we advise on the drafting of terms and conditions and the adaptation of policies to Spanish Law. We also provide support to our clients in those regulatory aspects that may be necessary.

We provide advice and due diligence on coverage and legal assistance. Even if there is no dispute about the extent of the content, it is advisable to determine that the insurance contracted or the supplier’s policies are adequate. We also advise our clients on the occurrence of claims through advice on the preservation of evidence, the adaptation of expertise to possible lawsuits, assistance in criminal or administrative proceedings.

Our extensive knowledge, specialisation and interdisciplinary vocation allow us to provide comprehensive advice in insurance practice, adding value to our clients.

More information on Mortgage and Insurance Regulation

Which are the main risks in mortgage contracts?

The importance of an expert and professional advice in this legal branch lies in the very nature of mortgage loans and credits, as well as the intrinsic risks contained in these contracts, which can be summarised as follows:

  • They are long-term contractual relationships that usually bind both parties for a period as long as 30 years (longer in some cases).

  • There is usually a certain imbalance between the parties, insofar as loans and credits are granted by banks and financial institutions that are professionals in the sector, and as such, have in-depth knowledge of the subject. In contrast, a client usually does not have the necessary experience and expertise.

  • In some cases, a series of clauses are included in the contract without prior negotiation with the clients and even without complying with the duty of information and minimum diligence required. These clauses can be considered abusive, some of the most common being the following:

  • Multicurrency mortgage clause

  • Floor clause

  • Clauses that set the IRPH as a reference rate.

  • Early termination clause due to non-compliance with deadlines

  • Abusive delay interest rates.

  • Loan securitisation and lack of entitlement of the financial institution

  • Abusive personal guarantees or joint and several guarantees from third parties without prior detailed information.

  • Incorrect valuation of the property.

Which clauses in this type of contract can be declared null and void?

All these clauses can be declared null and void according to the Law on General Contracting Conditions, if the debtors are professionals or legal persons, or for not exceeding the standard of transparency and, therefore, considered abusive, if the debtors are consumers (in those cases the Consumer Defence Law applies).

The collateral provided by the customer to guarantee and formalise these operations is real estate. As such, in the event of non-payment, the financial institution may sue the customer in foreclosure proceedings to collect the unpaid amounts once the corresponding property has been auctioned.

However, the Law allows debtors to take legal action to stop foreclosure proceedings under a series of circumstances. Therefore, having professional advice in a foreclosure lawsuit and during the rest of the procedure is crucial to determine the possible judicial or extrajudicial actions that the Law allows in the debtor’s protection.

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