Request for a preliminary ruling from the Juzgado de Primera Instancia de Palma de Mallorca (Spain) lodged on 22 May 2013 – Barclays Bank, S.A. v Sara Sánchez García and Alejandro Chacón Barrera
(Case C-280/13)
Language of the case: Spanish
Referring court
Juzgado de Primera Instancia de Palma de Mallorca
Parties to the main proceedings
Applicant: Barclays Bank, S.A.
Defendants: Sara Sánchez García and Alejandro Chacón Barrera
Questions referred
Must Council Directive 93/13/EEC 1 of 5 April 1993 on unfair terms in consumer contracts, and the principles of Community law concerning consumer protection and a balance in the parties’ contractual rights and obligations, be interpreted as meaning that they preclude Spanish legislation on mortgages which, although it provides that the mortgagee may request an increase of the security where the valuation of a mortgaged property decreases by 20%, does not provide, in the context of mortgage enforcement proceedings, that the consumer/debtor/party against whom enforcement is sought may request, following a valuation involving the parties concerned, revision of the sum at which the property was valued, at least for the purposes stipulated in Article 671 LEC, 2 where that valuation has increased by an equal or higher percentage during the period between the creation of the mortgage and the enforcement thereof?
Must Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and the principles of Community law concerning consumer protection and a balance in the parties’ contractual rights and obligations, be interpreted as meaning that they preclude the Spanish procedural rules on mortgage enforcement which provide that the creditor seeking enforcement may be awarded the mortgaged property at 50% (now 60%) of the sum at which the property was valued, which entails an unjustified penalty for the consumer/debtor/party against whom enforcement is sought equivalent to 50% (now 40%) of that valuation?
Must Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and the principles of Community law concerning consumer protection and a balance in the parties’ contractual rights and obligations, be interpreted as meaning that there is abuse of rights and unjust enrichment where, after being awarded the mortgaged property at 50% (now 60%) of the sum at which the property was valued, the creditor/party seeking enforcement applies for enforcement in respect of the outstanding amount in order to make up the total amount of the debt, despite the fact that the sum at which the property awarded was valued and/or the actual value of the property awarded is higher than the total amount owed, even though such action is permitted under national procedural law?
Must Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and the principles of Community law concerning consumer protection and a balance in the parties’ contractual rights and obligations, be interpreted as meaning that, upon the award of the mortgaged property with a valuation and/or actual value which is higher than the total amount of the mortgage loan, Article 570 LEC is applicable and supplants Articles 579 and 671 LEC, and that, accordingly, the creditor seeking enforcement must be considered to have been repaid in full?
____________1 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
2 Ley de Enjuiciamiento Civil (Law on Civil Procedure).