Editorial transparency and use of artificial intelligence
This article forms part of the CostaLuz Lawyers blog and is published for general informational and educational purposes only. It was prepared with the assistance of artificial intelligence tools and, before publication, was substantively reviewed and editorially approved by Maria de Castro, a Spanish-qualified lawyer registered with the Cádiz Bar Association under number 2745, founder of CostaLuz Lawyers and the person responsible for the editorial review of the published content.
This article does not constitute legal, tax, immigration, employment, estate-planning or investment advice and does not replace an individual assessment and the professional work of the appropriate CostaLuz Lawyers specialist. No action or omission should be based solely on this information.
I volunteered as a guarantor of my son’s mortgage loan (I am an avalista) and want to see if I can get rid of that burden.
Can I stop being a guarantor?
Yes, there are two arguments based on Consumer Law for you to argue against the bank for the nullity of the guarantee clause:
One is the lack of transparency because with the endorsement clause, the waiving of the benefits of division and excussion are usually imposed with no explanation of the legal and economic significance of such benefits or no indication of joint and several liability.
Another is the argument of the “over guaranteeing, disproportionate to the risk assumed” (contrary to 88.1 TRLGDCU) In the case of mortgage loans, unlike what can happen with a personal loan, the mortgaged property backs the amount of principal and interest. An even higher amount if funding does not reach the 100% of the property value.
How is this right exercised?
You can start by attempting a settlement with the bank but you will most likely have to initiate a judicial action to declare the nullity due to the abusiveness of said clause.
Is the action time-barred?
The abusive clauses for lack of transparency or proportionality are null and void and therefore do not prescribe.
Can I challenge it myself or should it be done by the debtor?
Either of you can challenge the validity of the guarantee.
Mortgage holder in Spain? Your mortgage may contain abusive clauses (floor clause, IRPH, excessive expenses, early maturity). CostaLuz offers a free mortgage review to check if you are entitled to a refund.
Legal Notice: The content on this page is provided for general informational and educational purposes only. It does not constitute legal advice and should not be relied upon as such. No action should be taken based solely on this content without first seeking independent professional legal counsel. Each case requires individual assessment based on its specific circumstances. CostaLuz Lawyers accepts no liability for actions taken or not taken based on this content.
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