When the mortgage ends up in court: all the disputes between banks and their clients | My finances section

by time news

The last episode aired on January 5. That day the most recent decision of the Supreme Court on the abusive clauses of mortgages was known. With a ruling dated December 15, the High Court once again agreed with the banks regarding the validity of the agreements signed between entities and clients, in which the latter waive legal action —and the eventual reimbursement of the money paid in excess—by the floor clause contained in your loan. This is just one of the many chapters —not even the definitive one— of the soap opera of judicial litigation on mortgages in which the Spanish banks are involved, and which, beyond the floor clause, concern such relevant aspects as the IRPH, the attribution of the expenses associated with these products, the appraisal and multi-currency mortgage loans. At what point is each of these litigations, what are the latest determinations of the judges in this regard and what awaits us in the coming months?

Floor clause

With two rulings of November 5, 2020, the Supreme Court established that the so-called novations —that is, the agreements between the client and the bank to eliminate or reduce the floor clause of the mortgage loan contract— are valid, except in the part in which that customers waived future legal action in exchange for this change. The user had the possibility of requesting that he be reimbursed for everything he had paid in excess of the floor clause up to the date of signing the novation.

However, with the ruling of December 15, 2020, the same judges considered that, if the waiver to sue for the ground clause appears explicitly in the agreement that suppresses or lowers the ground clause, and is not only a formula applicable to any part of the contract, is considered to be transparent and, by the criteria already enunciated by the CJEU, valid. For this reason, in these cases, the banks will not have to return to their clients the excess paid for the floor clause.

“Now, to know if we are facing one assumption or the other, we will have to observe if the part related to the waiver of legal actions contains an express reference to the floor clause or if it is a generic statement such as ‘it is waived to the exercise of any action related to the mortgage loan’ or similar”, highlights Almudena Velázquez, legal co-director of the Reclamador claims company.

multi-currency mortgages

The case of mortgages whose monthly installment was returned to the bank in a currency other than that of the mortgagee’s payroll or other income (especially Swiss francs or Japanese yen) may be the only one for which users express full satisfaction. . Following the doctrine established in 2017 by the CJEU, which considered that these loans can be classified as abusive when clients have not been properly warned of the risks involved, the Supreme Court ruled that same year to the same effect.

During the financial crisis that began in 2008, the Swiss francs and the yen appreciated against the euro to such an extent that, when the Supreme Court ruling was known, those mortgaged in these currencies could claim the return of an average amount of 75,840 euros and 51,275 euros, respectively, according to calculations by the Association of Financial Users (Asufin). “In 95% of the cases, the Spanish courts have issued sentences in which the clauses referring to the operation of multi-currency mortgages are declared null and void for being abusive and due to a lack of transparency,” says Velázquez.

However, on November 27, the Supreme Court considered a loan of this type valid, because from the exchange of emails between the client and the entity it was deduced that he knew how multi-currency mortgages work. “Despite the negative result for the consumer, this sentence confirms the doctrine of the High Court: if the bank cannot prove that before signing the user knew the true nature of this type of loan and the risk to which it is subjected (the fluctuation of the currency and its repercussion on the quotas and the borrowed capital), we cannot speak of a risk that it voluntarily assumes and that cannot give rise to nullity, but rather of a lack of transparency”, points out Velázquez.

IRPH

Through four sentences, the content of which became known on November 13, the Supreme Court declared that the clause that linked some variable mortgages to the Mortgage Loan Reference Index (IRPH), instead of the more common and cheaper Euribor, did not It was completely transparent, but neither can it be said that it was therefore abusive. By marketing these products, the banks did not violate good faith, according to the judges. A ruling that generated stupor and indignation among user associations.

“Practically all the courts of first instance are favorable to the consumer in IRPH cases, while the Provincial Courts are divided”, explains the president of Asufin, Patricia Suárez, who considers that this index “has to be eliminated not only from the contracts, but as a real alternative to the Euribor”. And she promises: “We have to continue fighting a tough battle in Europe.”

Before the Supreme Court ruling, Judge Francisco González de Audicana, head of the Court of First Instance number 38 of Barcelona, ​​sent six preliminary questions to the CJEU, which were admitted for processing on December 21. The magistrate asks the Luxembourg Court, among other things, if the publication in the BOE of the IRPH Cajas —the one used when the banking system was divided between savings banks and banks— “saves the transparency requirements for all cases”. He also asks that it be clarified whether it is contrary to community regulations on consumption to conclude that a clause is not transparent and subsequently carry out the control of abusiveness, as the Supreme Court did.

Pending the resolution of the CJEU, this Monday from Asufin they once again asked the Supreme Court for the precautionary suspension of the proceedings on this matter. “The association has verified that up to fifty appeals on IRPH have been inadmissible for processing even though the new clarifications required by the court of first instance 38 of Barcelona are pending. On the contrary, the Supreme Court is admitting for processing the resources that the banks have lost,” reads a note issued by Asufin. “This situation reminds me of what happened with the floor clause, when thousands of affected people lost the opportunity to recover their money because the Supreme Court declared that nullity did not imply retroactivity,” says Suárez. “European justice then corrected the criteria followed by the Spanish courts, but their sentences in many cases had already become final. The Supreme Court was forced to modify its doctrine, but for many the damage was already irreparable”, he adds.

mortgage expenses

After the ruling of the CJEU of July 16, 2020, the Supreme Court has been adjusting its doctrine and, despite having maintained that 50% of notary expenses correspond to the consumer, on October 26 it recognized that the amounts paid as agency, which until then was also divided in half between the client and the bank, had to be returned 100% to the consumer, since no rule justified this distribution.

In this way, the user can request the reimbursement of the expenses that he may have incurred when he signed his mortgage, or when he signed his modification, novation or subrogation: half of those borne by the notary, and the whole in the case of the agency and the property registry fee.

Appraisal

Regarding the expenses for the valuation that is carried out to put a property as collateral for a mortgage loan, the decision of the Supreme Court in this regard is not yet known, although it was scheduled at the beginning of last November, according to Velázquez. In any case, this lawyer is convinced that, by applying the same criteria established by the CJEU, this expense must also be borne entirely by the entity and, therefore, be returned to the client, in the event that this have already paid for it. “In fact, there are several places that follow this doctrine, such as Madrid, Ciudad Real and the last one, Oviedo”, she points out.

legal uncertainty

turn the page This is the wish expressed for the future by the spokesman for the Spanish Banking Association (AEB), José Luis Martínez Campuzano. In his opinion, both clients and entities need “to resolve the different judicial interpretations that can generate uncertainty.” And he adds: “The Supreme Court has already settled many of these issues, starting in most cases from the responses of the CJEU”, so now “it is important that past litigation be overcome”.

On the contrary, in mid-January the Association of Financial Users (Asufin) filed a complaint against the Supreme Court before the European Commission. The reason? “For not having peacefully accepted the doctrine of the CJEU, maintaining a clear legal contradiction that continues to generate serious damage by introducing cuts, limitations or restrictive interpretations of the consumer protection criteria”, they affirm from the association.

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