Free yourself from your burden as a guarantor in Spain
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.