2023-10-01 22:22:34
Several weeks ago the Constitutional Court published a ruling that was addressed to the Spanish banking sector: if they lost a lawsuit against a consumer for having put abusive clauses in their mortgage, they would have to pay the costs of the judicial procedure. The full sentence reveals that, behind this case, is the story of two young children who lost their father in a work accident and who have sued for years against BBVA, first to prevent their eviction and then for the bank to be condemned. on coasts. “This leads us to ask ourselves the question of how many thousands of euros the financial sector in this country has saved in the last decade in lost lawsuits,” says Gonzalo Carrasco, one of the lawyers who has represented the two boys since the beginning of the process. .
European Justice rules against the “obstacles” of the Spanish courts to return the floor clauses
The case of these two minors was reported a decade ago by the Madrid Mortgage Affected Platform. Two brothers, four and nine years old, respectively, were facing foreclosure by BBVA after their father died in 2012 in a work accident in the construction sector. The mortgage of 130,000 euros, after the death of their father, had become an inheritance of the children that the bank began to claim after terminating the contract unilaterally and early. The reason: the first five monthly payments after the man’s death had been left unpaid.
His mother contacted several lawyers linked to the PAH and several lawsuits began to prevent a foreclosure from being carried out on two children who would take many years to know what a mortgage is and what it means for it to be foreclosed. The bank, the statement then said, paralyzed the process. A first triumph came when the courts established that the mortgage that his father had signed had, at least, an abusive floor clause. Years later, the Madrid courts, upon appreciating this abuse by the bank, suspended the foreclosure against the two children. They also sued for the insurance that her father had taken out for a situation like this to take effect.
The next battle of the lawyers who had represented these two minors was for the bank to take charge of the costs of the judicial process, something that the Provincial Court of Madrid rejected. Among other arguments, the judges argued that their allegations had been partially accepted – not all of the appealed clauses had been declared abusive – and also that Spain did not have specific regulations in cases in which the bank loses the lawsuit.
It has been the Constitutional Court, with the support of the Prosecutor’s Office, that has issued the final ruling on the case and has established that BBVA, and any banking entity in similar situations, must be responsible for the costs of the process. . On the table were the bank’s arguments: it alleged, among other things, that the lawyers had already benefited from legal aid, that there was therefore no legitimacy to appeal and that the clause was annulled ex officio by the court. The Constitutional magistrates argue that not imposing fees on the bank when it loses can even have a deterrent effect for consumers and affects the right to effective judicial protection.
This is, according to the Constitutional Court, a “repeated jurisprudence” from the European courts to the Supreme Court, although this does not diminish the scope of a ruling that casts its shadow on thousands of lawsuits over banking clauses that, for years, have overwhelmed the courts. Spanish, to the point of having had to create a network of specific courts to deal with these issues. In 2021 alone, according to data from the General Council of the Judiciary, these courts handed down almost 124,000 sentences ruling in favor of consumers in more than 97% of the cases.
A “horrible, terrifying” case
Gonzalo Carrasco is, along with Pablo Espinosa-Arroquia and Miguel Antón Bravo, one of the lawyers linked to the PAH who took charge of the case from its beginning to its outcome in the Constitutional Court. “I want to think that they have felt accompanied by us and by the platform, and protected,” he says to questions from elDiario.es about the two minors, but remembers that they are judicial processes that last for years and cause “anguish.” Anguish because, he explains, the normal thing is to think that “against the bank you lose”, there is the possibility of being left “on the street” and now, after this Constitutional ruling, “these are atrocities that have disappeared, now they are very calm, it is “one of the best news.”
The ruling itself recognizes that this ruling will affect other similar lawsuits. “About all those consumers who, as is well known, have been raising in numerous civil proceedings the alleged abuse of certain clauses included in contracts concluded between consumers and banking entities, an issue that has given rise to various express legislative interventions aimed at the protection of the first,” recognizes the Constitutional Court with its president, Cándido Conde-Pumpido, as rapporteur of a resolution approved unanimously by progressives and conservatives.
For Carrasco and the lawyers who brought the lawsuit, the law “is clear” and the costs should be borne by the banks. But he explains that “this has not always been the case,” although it may change as a result of this ruling. “It leads us to ask ourselves the question of how many thousands of euros the financial sector in this country has saved in the last decade in lost lawsuits with consumers. And how many of those families have been left without defense because the coasts are a disincentive for people.”
The banking entities, he denounces, feel “unpunished” to act in these lawsuits. “Not everyone gets involved in these types of cases, you are fighting against a giant and you are going to spend years fighting with an uncertain outcome and in some way you have to allow it, because you know that you are not going to get paid a dime, the right to defense”, he analyzes. One case, that of these two children, which he defines as “horrible, terrifying… and it seemed that the banks have been systemically forgiven for going to court recklessly and that once they lose those lawsuits they have no “to bear the costs.”
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