2023-05-10 08:40:47
The historic ruling handed down in December 2016 by the Court of Justice of the European Union (CJEU) that ruled in favor of the full retroactivity in matters of ground clauses marked a before and after and led to a barrage of mortgage lawsuits. The phenomenon did not end and even today several lawsuits continue to enter daily. With such an avalanche, the judicial delay came into play and many affected had to arm themselves with patience to recover their money. And good proof of this is a litigation promoted in the city of Olívica in September 2016, a few months before the European resolution was even known, which has had to wait until now for a final judgment and for, ultimately, the mortgaged person can finally recover part of what was overcharged by the banking entityjust over 5,000 euros, for the application of the controversial floor.
To understand what happened, we must go back to 2015, when this man filed a lawsuit requesting the annulment of the floor clause that was included when, in 2003, he signed a mortgage loan contract with the then Banco de Galicia. Indeed, the Commercial Court of Vigo, in June 2016, declared said stipulation null and void. Two months later, in September, the affected party filed a second lawsuit in which he went further and requested that, with the clause annulled, be refunded the amount you had paid in excess since May 2013which was what at that time had been set as the limit to claim by the Supreme Court.
Well, the first court that assessed this claim, the First Instance 2 Court of Vigo, partially upheld it and ordered the bank in January 2017 to restitute 5,063 euros to the affected party, along with legal interest. The case came on appeal to the Sixth Section of the Provincial Court of Pontevedra, which at the end of that same 2017 revoked the first sentence and agreed with the bank, which it acquitted, when appreciating the exception of res judicata for the existence of that 2015 lawsuit that had declared the mortgage land null and void. The mortgagee did not throw in the towel and decided to present extraordinary appeal for procedural infringement and appeal before the Supreme Court.
“Legal uncertainty”
It was there, in the Civil Chamber of the High Court, where things took a long time. And it is that, since 2018 when the appeal arrived there, there was no sentence until now, specifically until April 21. And what the magistrates conclude is that the sentence that was handed down in the first instance must be confirmed, that is, the one that gave the reason to the mortgaged person. The court considers that there is no res judicata due to the legal peculiarities that surrounded this issue of floor clauses. On the date of the first lawsuit in which only annulment was requested, in 2015, the room affirms, “the controversy over the scope of the restitution after the declaration of the nullity of the clause was not definitively settled”, they affirm, recalling that this did not happen until the famous judgment of December 2016 of the CJEU. So, since said “legal uncertainty” existed at that time, it is Justified that the return of the money was instituted in a second litigationwhich has now come to an end.
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