The Constitutional Court judgment of 28 February 2019: procedural preclusion, res judicata and right of property in the assesment of the unfairness of a contractual term

Abstract

The Constitutional Judgment 31/2019 of 28 February grants the “amparo” (appeal for constitutional protection of fundamental rights) sought after the national judge’s refusal to review the unfairness of the accelerated repayment clause contained in the mortgage loan contract that supported the possibility of calling in the totality of the loan and bringing enforcement proceedings. The Court interprets the ECJ Banco Primus Judgment considering that when lodging an objection of nulity, before the eviction takes place, such review must be carried out and that the judicial resolution initiating the enforcement proceeding must contain sufficient motivation as to consider that an ex officio review has taken place in a resolution with the force of res judicata thus preventing such review from being carried out. The work analyzes the judgment of the Constitucional Court and the doubts that arise regarding
the moment in which the enforcement proceedings should be considered definitely  terminated, as well as in relation to the protection of the property rights already acquired.