In this article we are going to see how part of the Provincial Courts estimates the opposition to monitoring in a credit card contract when the financial institution (creditor) does not provide with the request for the monitoring procedure the documents that must justify the debt.
What we deal with, DO NOT PROVIDE SUPPORT FOR THE DEBT, is very frequent on the part of financial entities when they present demands for monitoring proceedings in the Courts.
He article 812.1.2ª Civil Procedure Law (LEC) establishes that the monitoring process may be used by anyone who seeks from another the payment of monetary debt of any amount, liquid, determined, due and payable, when the debt is proven, among others, in the following way:
The decisions of the Courts and Tribunals in these cases are divided:
to) A sector of the Provincial Courts makes it clear and established that execution office is not admissible when only one called “certification” of balance owed for the use of the credit card in which the specific uses that have been made of the credit card and the charges and credits made are not detailed (example: AP La coruña of November 20, 2007).
b) Some sentences understand that the presentation is enough with the monitoring request of the account statements which describe the purchases made by the client with the card, the dates of the withdrawal made with it, the partial sums and the total amount claimed, without it being necessary to present the credit card issuance contract. (example: AP of Barcelona of May 13, 2008 -section 13-).
c) While others consider that For admission to the monitoring process, it is necessary that the credit card issuance contract be accompanied.. (among them, the AP of Madrid, section 21, in orders of July 4, 2007, and the AP of Barcelona, section 19, in order of April 25, 2007).
Opposition to monitoring in a credit card contract when the contract is not provided:
In line with this position by the Courts (letter C of those previously indicated), we must point out that the arguments given in this regard to conclude on the need to provide the contract or the bank receipts that prove the use of the card, are mainly the following:
– It is common in daily commercial traffic that credit cards are issued without a written contract having been documented or signed, as well as that the debt does not arise so much from the very existence of the card as from the use that the card holder makes of it (which implies acceptance of the contract for use of the card).
– In traffic, the document that usually reflects and initially certifies the existence of the debt is the remission, normally monthly of movements made with the card, expressing the establishment or destination of the amount arranged with the card and the date on which it was made, said movement being sufficient to prove the debt.
– If the financial institution presents in the request for monitoring only the noted certification of the balance owed, issued by herself, without even proving that the debtor had requested the issuance of the card either whatever the provisions that motivated the balance claimed, it would not be one of the documents indicated in the article 812.1.2ª of the LEC for the admission of this procedure.
– It would be a reason for opposition to monitoring in a credit card contract (in the event that the Judge has admitted the procedure) the allegation that the documentary that provides the financial institution ("debit balance certificate«) IT DOES NOT JUSTIFY THE DEBT CLAIMED BY ITSELF.
– If the opposition to the monitoring is made in these terms, the creditor (financial entity) does not prove in the Verbal judgment or Ordinary into which the monitoring process is transformed, the existence of the credit card contract signed by the customer or contribution bank statements or receipts of charge movements, THE LAWSUIT SHOULD NOT PROSPER.
- The burden of proof of the debt falls on the creditor (art. 217 LEC). The company that granted the credit card is the one that must prove the existence of the debt in the procedure.
Rulings opposing monitoring in a credit card contract
Finally, we leave you extracts from the following sentences:
PROVINCIAL COURT OF VIZCAYA (Section 3), sentence of February 27, 2014:
«The plaintiff company, in application of the principle of the burden of proof, is responsible for proving the monetary provisions that the client has made using the card; and such proof is not achieved with the document provided by the financial entity, which merely records the execution of operations, debts, since 2006. without details of bank receipts that justify the use and making of such charges for this credit card; In fact, the plaintiff calls this document extracts, and it is nothing more than a mere execution of movements, not statements of the account associated with the credit card, which, according to the plaintiff, the defendant owns.
PROVINCIAL COURT OF LA CORUÑA (Section 5), ruling of 09/21/2015:
»Therefore, the documentary supports that justify the reality of the movements that it includes are not accompanied, and this is not saved by the fact of admitting having signed the card contract, nor by recognizing its use because, as the ruling of the Valencia AP dated 02/06/2006 , the reality of those statements accepted by the defendant does not raise the obligation of the plaintiff, once the extracts and the certification of the balance have been challenged as has been done (...) to have to provide all of the concepts, duly justified, of each of the items from which the debit balance claimed arises; That is, you have to justify the accounting notes that you report in your list of movements.
Likewise, the ruling of the AP Valencia of 06/30/2014, establishes that it is necessary that the base document for the claim must respond not only to the movements but also to the documentary justifications that prove the debts and the accessory elements of interest, commissions and expenses so that it can be said that they have been calculated in accordance with the agreed, and in view of the nature of the contractual type we are talking about that they also adapt to simple banking legal regulations.
The plaintiff must prove that the certification she claims to present has been issued in accordance with the agreement, and that it responds to the movements, not of a policy where they are fixed monthly and determined, but to the specific acts of use of the card. , specific characteristic of the credit, which gives rise to different notes, in accordance with the requirements of art. 217 LEC.
Along these lines, the ruling of the AP of Córdoba of June 2, 2006 says that those documents issued by the establishments or service providers attached to its card system must be provided, which must be classified as essential support for their own settlements (in this sense, Supreme Court Ruling of December 21, 2001). Well, the claiming entity has not provided supporting documents from the establishments in which the credit card was supposedly used in order to prove the reality of the charges and, as a result, the certainty and enforceability of the claimed debt; nor the proof of having withdrawn money from ATMs with the card.
IMPORTANT:
It could also be alleged as reasons for opposition as long as the requirements for it are met, for:
– exercise the right to withdraw disputed credit
– nullity of the clause because it was written in microscopic and difficult to read font.
– nullity of remunerative interest for usurers (very high).
– nullity of remunerative interests when the transparency control is not passed said clause.
SOURCE: Mundojuridico.info (READ THE NEWS ON THEIR WEBSITE)
