2023-12-25 14:20:33
Mortgagors who have not yet complained to the bank with which they contracted their credit for the money that it made them overpay at the Property Registry, the notary office and the agency by charging them their bills in full have just one month, until the 23rd. January, to activate the procedures that ensure that they will be able to formalize the request for their refund.
January 23rd marks five years since statement block by which the Supreme Court determined that the expenses of the notary and the agency must be covered in halves by the mortgagee and the bank. This is because both benefit from the documentary formalization of the agreement. Meanwhile, the Property Registry invoice corresponds entirely to the financial institution, since it is the only one interested in registering the lien.
The part of these expenses that had been abusively endorsed to the mortgagee, that is, half of the cost of the notary and the manager and the entire cost of the Registry, must be returned to him with interest from the date of payment.
In that case the so-called legal interest on money, a rate that is established in the general State Budgets. In the last 25 years, this has fluctuated between 3% and 5.5% annually and in the last decade it has ranged between 3% and 4%. This is equivalent to multiplying the amount improperly charged by 2.7 in the first case and by 1.4 in the second.
However, two years later, the First Chamber of the Supreme Court decided to raise a preliminary ruling whose resolution by the Court of Justice of the EU (CJEU) entails the risk of practically deactivating the way to recover that money overpaid by the mortgaged, to whom these expenses have historically been charged as a kind of hidden clause of the loan.
The resolution by the CJEU entails the risk of practically deactivating the way to recover that money
Specifically, the Spanish court asked the community that it had to determine the statute of limitations for that debt owed by the bank to the mortgagee, that is, the time during which the latter can claim it. This opens up a range of possibilities, ranging from maintaining that there is no limit to five years from the Supreme Court’s rulings, which would end in practice on January 23.
Although, in any case, a complaint or a formal announcement of the intention to claim those amounts would allow that five-year counter to be reset to zero.
“The distribution of expenses is clear. The question is where the period to claim the mortgaged’s share begins and where it ends,” explains Sara Benedí, from the Zaragoza-based SBA lawyers and expert in mortgage and credit matters.
In this scenario, the CJEU, which has already ruled on other aspects of mortgage abuses, and which has normally done so in a manner favorable to consumers, has several options that revolve around three basic axes.
One consists of establishing that the nullity of this clause of the contract does not prescribe, as the consumer and banking user entities maintain. Another in determining that, as claimed by the financial sector, the limitation period is a maximum of five years, but it begins to run on the date of the invoices.
The third points to the possibility of ruling that there are five years to claim the money from the Supreme Court rulings, a milestone that could date both in January 2019 and also two years later if another similar resolution from 2021 is taken as a reference.
The reliable claim before the bank or the court
“If the CJEU endorses the most restrictive criterion, the deadline for anyone who has not previously submitted a reliable claim will be January 23,” says Benedí.
And what does a credible claim consist of and what practical effects does it have? An action of this type interrupts the limitation period and guarantees a new one of five years, or the period determined by the CJEU, to claim expenses, and can be carried out in several ways.
Sara Benedí, lawyer: “It is enough to inform the bank of your intention to claim the unduly charged expenses”
“It is not even necessary to file a formal claim, although of course it can be done. It is enough to communicate to the bank the intention to claim the unduly charged expenses, and this can be done by submitting a letter to the financial institution, always requesting acknowledgment of receipt, or by sending an email to customer service,” the lawyer notes.
In all cases, the notice must include a copy of the invoices, since without these documents it is not possible to claim expenses with a minimum guarantee of success.
“It is not necessary to formalize the claim, but the claim must be submitted before January 23 to guarantee a period of five more years to present it,” adds Benedí.
This framework is valid for all mortgages regardless of the type of property to which they are linked, whether houses, garages, warehouses, plots of land or fields. Also the date on which they were formalized and whether the bank with which it was contracted is still active or not, since those that have been absorbing others during the process of rescues and mergers of the past decade are subrogated to the obligations of The missing.
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