In a recent entry in the magnificent blog Is there law? , professor and lawyer Carlos Javier Galán offers the status questions in the jungle of private moneylenders. Indeed, the financial crisis has limited bank credit and fostered the development of private lenders at risk of a loan shark. Credit intermediaries, by not granting the loan by the bank, offer as an alternative the possibility of going to a private lender. This way you can end up in the hands of shark loans.
Reality surpasses imagination, as can be seen in a case commented on by CESCO, the facts of which are collected in the Judgment of the Valencia Provincial Court of September 30, 2009, where: “The Hearing declares that the actors did not receive as a loan the 30,837 euros for which the aforementioned bill of exchange was issued, but 22,620 by delivering a bank check in the name of the son of the actors for 20,000 euros and 2,620 euros in cash, since the remaining 3,000 euros represented by two bearer checks for amounts of 1,500 euros, were delivered to financial intermediaries, regardless of whether they did not make them theirs, 4,317 euros were withheld by the lender as an early collection of interest ordinary at 14% per year and another 900 euros in payment of other expenses (notary, registration and stamp of the exchange effect) ”.
It seems very good to me to move forward around the proposals that Professor Galán collects in his entry, regarding the control of interests and commissions, with effective surveillance and clear information models. In the same way, I agree to reinforce the notarial function, with notarial faith of the effective delivery of capital and with measures to avoid frontmen.
The Government could anticipate the transposition of Directive 2014/17 / EU, on credit contracts concluded with consumers for real estate for residential use, prohibiting the granting of mortgage loans to consumers who do not pass the Solvency Test, under the control of the Bank of Spain, with Financial Education programs on mortgage credit, requiring professional qualification of private lenders and the use of the European Standardized Information Sheet.
In turn, the Government should amend Law 1/2013 by decree-law, so that the limitation of interest on late payments on loans granted for the acquisition of a habitual residence, guaranteed with mortgages constituted on the same home, applies to any mortgage loan contract with consumers, as the legal interest protected by the regulation is the borrower’s home and that it is put at risk both in the case of mortgage loans granted for the acquisition of the home on which the mortgage, on which there is already a limitation of default interest, as in the case of the mortgage on the home to guarantee loans granted for other purposes.
The Government should also fill in the content of the first paragraph of the art. 1º of the Azcárate Law, considering for its appreciation as shark loans as disproportionate since it is “notably higher than normal money”, the interest that exceeds twice the average market rates, as established by Law in Italy and applies German jurisprudence. For these purposes, the Bank of Spain should periodically publish the average market interest rates, as does the Bank of Italy.
In turn, the Ministry of Justice, through the DGRN, should require notaries to qualify whether or not the operation is subject to Law 2/2009, and, where appropriate, to verify the prior registration of the private lender in the public registry of companies (cf Art. 3 of Law 2/2009) and compliance with the information obligations of Law 2/2009, according to RDGRN of January 18, 2011. It should also require notaries to verify that the borrower receives the entire sum of the loan. In this sense, notaries should refrain from raising to public the deeds of mortgage loans granted by private lenders in which the borrower claims to have received an amount greater than the one delivered, resulting in such contracts being radically void (cf. Article 1 of the Law Azcárate). In consequence, the notary should verify the delivery by the lender on behalf of the borrower of the sum consigned in the deed. For these purposes, notaries should apply the same good practices in the deeds of mortgage loans granted by private borrowers as in the case of loans granted by banks, which implies the payment of the amount into account.
For its part, the Ministry of Health, Social Services, and Equality, through the National Institute of Consumption, in coordination with the consumption authorities of the Autonomous Communities, should carry out the supervision aimed at verifying compliance with the requirements of the Law 2/2009, aimed at sanctioning all private lenders and credit intermediaries who act without being registered or who fail to comply with the transparency obligations of Law 2/2009 with the closure of activity.
