QUANDO IL MUTUO FONDIARIO E' NULLO
Tempo di lettura: 3 minuti

Banca condannata a non vedersi più pagare gli interessi del mutuo da parte dei loro clienti – con grande gioia di questi ultimi- . E’ questo ciò che potrebbe accadere per chi ha stipulato con la banca un contratto di mutuo fondiario In questo breve articolo scopriremo quando un mutuo fondiario è nullo e le conseguenze per il cliente che lo stipula.

Si, alcuni mutui fondiari sono stati dichiarati nulli, per la presenza di un vizio, che analizzeremo nelle poche righe che seguiranno, con conseguente non debenza degli interessi a vantaggio del cliente (mutuatario).

In questo breve articolo spiegheremo cosa accade quando il mutuo fondiario è nullo , descrivendo uno dei casi di nullità.


L’art. 38, comma 2, Tub letto unitamente alla delibera CICR 22.04.1995 – a cui rinvia – stabilisce la soglia massima di finanziabilità dell’80% del credito fondiario.

Esempio

Se il mutuo è stipulato per il finanziamento di lavori di ristrutturazione di un immobile del mutuatario, che devono avere un costo di €.100.000,00, il limite di finanziabilità dell’80%  del costo delle opere da eseguire è di € 80.000,00; pertanto, si ha violazione dell’art. 38 Tub se il credito erogato è maggiore di tale somma, ad esempio è pari a €.90.000.00.

ECCO COSA HA STABILITO LA CASSAZIONE:

Quali sono le conseguenze giuridiche se si supera tale soglia?

La Corte di Cassazione con la sentenza n. 17352 del 13/7/2017 – e con numerosissime successive pronunce – statuisce che il mutuo che non rispetta il limite di cui all’art. 38 Tub è nullo per violazione di norme imperative, salvo che non sia possibile convertirlo in un ordinario finanziamento ipotecario per assenza dei requisiti e presupposti e che non risulti dai comportamenti delle parti la volontà di procedere a tale conversione (vedi anche sentenza della Corte d’Appello di Torino del 15.04.2019, n. 663).

Quindi, in altre e più semplici parole, una volta accertato il superamento della soglia dell’80% del credito fondiario, bisogna verificare se il contratto di mutuo presenta tutti i requisiti e presupposti per essere convertito in un altro finanziamento ipotecario.

Da tale verifica possono conseguire le seguenti due strade percorribili:

  • se il mutuo fondiario, pur superando il predetto limite, può essere inquadrato in un’altra tipologia di finanziamento ipotecario – poiché ne presenta tutti i requisiti e presupposti -, il Giudice dovrà verificare se la Banca o il mutuatario con il loro comportamento hanno espresso la volontà di convertire tale mutuo fondiario in altro finanziamento ipotecario. Se tale volontà non viene riscontrata dal Giudice, allora non si potrà convertire il mutuo in altra tipologia di finanziamento ipotecario e quindi lo stesso sarà dichiarato nullo. Se, invece, dal comportamento tenuto dalle parti emerge la volontà di convertire quel mutuo in altro finanziamento allora si applicheranno le norme di quel finanziamento ipotecario;
  • se, invece, non può essere inquadrato in nessun’altra tipologia di finanziamento ipotecario perché carente dei requisiti e presupposti, il Giudice procederà a dichiararne la nullità.

Quale è la conseguenza della nullità del mutuo fondiario per superamento del limite di finanziabilità?

La conseguenza della nullità del contratto di mutuo fondiario, per il superamento del limite di finanziabilità, è la debenza in restituzione alla Banca della porzione di capitale mutuato e non ancora corrisposto, maggiorato di interessi legali (e non più di quelli indicati nel contratto di mutuo) che decorrono dalla data della domanda giudiziale al saldo effettivo. Quindi ad esempio, se il capitale mutuato è pari ad €. 100.000,00 ed il mutuatario ha già restituito alla Banca a titolo di capitale €.50.000,00, dovrà restituire altri €. 50.000,00 (senza gli interessi indicati nel contratto di mutuo) più gli interessi legali (sicuramente ad un tasso più basso di quelli pattuiti e indicati nel contratto di mutuo) calcolati solo sulla somma residua da restituire (nel nostro esempio: sulla somma di €. 50.000,00 e non sull’ intera somma mutuata di €. 100.000,00) da quando la Banca o il mutuatario ha agito in giudizio.

HAI UN CONTRATTO DI MUTUO CON LA BANCA E VORRESTI UNA VALUTAZIONE O UN’ANALISI PER CONOSCERE EVENTUALI VIZI CONTRATTUALI O LA PRESENZA DI OPPORTUNITA’ PER RIDURRE I TUOI COSTI?


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371 Responses

  1. Buongiorno ho stipulato un mutuo di centomila euro a Maggio ho pagato l’ultima rata vorrei sapere se la Banca co me si è comportata bene nel duemila quando ho incominciato pagavo quasi un milione e mezzo col passare del tempo ho pagato sempre di meno le ultime rate di 565 quasi botto sapere se è giusto o no il mutuo era variabile grazie

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