Teresa Sanchez VicenteSEGUIRDaniel CaballeroSEGUIRMadrid Updated: Save Send news by mail electrónicoTu name *
Your email *
The dealer has in the Court of Justice of the European Union (CJEU) one of his greatest scourges. Historical are already sentences as clauses soil, and yesterday received a new blow for this instance. The Court of Luxembourg ruled that the financial institutions will have to return all mortgage expenses charged to the client with unfair terms. In particular, the constitution and cancellation of loans; without forgetting that the community justice opens the door to claim the opening commissions.
The Supreme Court had determined that in this type of assumptions the costs should be distributed between the client and the bank , at 50%. Now, the ruling european strip down that thesis and sets out that only you can divide the cost between the parties if it is required under the national legislation. This last is the only exception, as the CJEU makes clear the way to act to the courts: “it Should be considered that, in principle, a contractual clause declared abusive has never existed, so that may not have the effects in front of the consumer. Therefore, the judicial declaration of the unfair nature of such a clause must have as a consequence the restoration of the status of fact and Law in which would the consumer of there being no such clause”. In other words, you can not charge the client a fee that would come under the umbrella of an illegal clause.
with Respect to the opening commission, which is imposed on the consumer by hiring a loan, the Luxembourg Court has also questioned its legality in according to what it’s supposed to. The ruling refers to the national court to be check the transparency under which it is signed hipotec to, that is to say, “if the financial institution has informed the consumer the sufficient evidence for this to acquire knowledge of the contents and of the operation of the clause that imposes the payment of a commission of opening, as well as their function within the loan agreement”. And also justify the efforts that the bank has done to justify the commission. The director is a legal Claim By Me, Cristina González Piñeiro, notes that this expenditure can be of course in certain cases a large outlay: “Some banks charged higher amounts, up to 5,000 euros , which now can claim,” he says.
From the associations of consumers celebrate this decision and have already given figures from the “invoice” that may face the banking. Adicae estimates that there are nearly 7.7 million mortgages on which it could claim to be “without doubt”. The range of recovery of money, according to estimates this organization, is between 700 and 2,500 euros, what would a blow to the entities of at least 5,300 million; for the upper part, of more than 19,000 million.
Also, the sentence comes to elucidate the time of the commencement of the limitation period for reclaim . Being five years, this will not begin from the signing of the mortgage, but since the judge’s ruling on an unfair clause in particular. And also resolves that cannot be charged to the customers a part of the costs of the proceedings arising from the claims against the banks in court. is “This creates a significant obstacle that can deter consumers from exercising the right”, indicates the fault.
Despite the shift that has given the CJEU mortgage expenses, banking sources convey total peace of mind to this new scenario. is “limited Impact” , repeat. Also play a role in this sentence does not imply per se that the financial entities have to pay this money back; first the Spanish courts must declare the abusividad of each clause, which will be analysed case by case. Without forgetting that “peace of mind”, which exposes the sector is mainly due to the Tax on Documented Legal Acts, that is the major expense on these loans, it is outside of this situation. It is worth remembering that on this tribute to the Room of the Contentious-Administrative of the Supreme Court decided in 2018 that the obliged to pay it was the client.