Banks believe that the CJEU ruling on abusive mortgage expenses will have a very limited impact – idealista / news

Banks are not afraid of the impact of the ruling of the Court of Justice of the European Union (CJEU) last week on the refund that the sector must make of money overcharged to customers for abusive expenses related to the formalization of the mortgages and commissions such as the opening.

Financial sources assure that the impact on their accounts will be very limited, because the Luxembourg Court ruling actually underpins the decisions that the Supreme Court has taken in the last year and a half. A stance that clashes with those held by law firms and the main consumer organizations and banking clients, who applaud the decision. In fact, their calculations suggest that millions of consumers could benefit from the ruling.

But, according to banking sector, so that the return of the money overcharged must be made, those expenses or the opening commission they must first be declared abusive by a national court (Spanish, in this case), so it is not a generalized procedure for all mortgages, but will depend on each contract.

“The Supreme Court has already done this exercise of saying who pays what at the beginning of 2019, and what the CJEU has done is to underpin the decision of the High Court on the distribution of expenses. It is totally consistent with national regulations and that is why it will have a limited impact ”, say financial sources. From Barclays, for example, they put the risk of the European judgment for banking at 1,000 million, according to Europa Press.

In January 2019, the High Court already ruled a Solomonic distribution of expenses. For example, the bank and the client would bear equal parts notary and agency expenses, while the entity must bear the cost of registering the mortgage in the Registry and the consumer the cost of cancellation. The client, for his part, must assume the Tax of Documented Legal Acts (AJD).

In line with the financial sector, David Viladecans Jiménez, Director of Legal Counsel at Tecnotramit, a service company for financial entities and real estate companies, maintains that, in reality, what the CJEU has said is that “when the loan clause that says that the expenses must be borne by the consumer is canceled, it is necessary to act as if did not exist. And that, in that case, it is admissible that, once the agreement is annulled, national law is applied – in this case, Spanish law – that regulates who must pay each expense, even if that rule imposes the assumption of all expenses to the consumer”.

That is, the lawyer continues, “that once the clause is annulled, Spanish law is applied to determine what expenses the consumer assumes, what expenses the Bank, and what expenses are split. And this is what the Supreme has been saying for a long time ”.

That thesis also supports it Jesús Alfaro, professor of Commercial Law at the Autonomous University of Madrid, what in statements collected by the newspaper Voz Pópuli maintains that “the only thing it says is that the expenses generated by the mortgage loan (those of the constitution of the mortgage, notary, records, taxes, etc.) have to be paid by whoever the law says has to pay them, that is, , in some cases they are in charge of the bank, in others it is the client and in other cases they are divided in half “.

From the financial sector they believe that the interpretations that have been made by the legal world and consumer associations are interested and that the fact of constantly questioning the regulations generates legal insecurity, which “ends up damaging the bank, the country and the everything to the customer ”.

Abusiveness, the key

The key set by the CJEU is the abusiveness of both mortgage expenses and the commission for opening the loans.

In this sense, the judgment holds that “contractual clauses that have not been individually negotiated will be considered abusive when, contrary to the requirements of good faith, they cause a significant imbalance between the rights and obligations of the parties to the detriment of the consumer. derive from the contract. A clause will not be individually negotiated when it has been previously drawn up and the consumer has not been able to influence its content, particularly in the case of adhesion contracts “. Furthermore, the Luxembourg Court clarifies that “contracts must be drawn up in clear and understandable terms, that the consumer must have the real possibility of being aware of all the clauses and that, in case of doubt, the most favorable interpretation to the consumer”.

The European court ruled on the issues raised by the courts of first instance number 17 of Palma de Mallorca (case C-224/19) in proceedings against Caixabank, and number 6 of Ceuta (case C-259/19) against BBVA , and in the judgment it explains that “the referring courts essentially ask whether Article 6 (1) and Article 7 (1) of Directive 93/13 must be interpreted in the sense that they oppose that, in the event of invalidity of an abusive contractual clause that imposes on the consumer the payment of all the expenses of constitution and cancellation of the mortgage, the national judge denies the consumer the refund of the amounts paid under said clause “.

And it adds that “the fact that it should be understood that a contractual clause declared abusive has never existed justifies the application of the provisions of national law that may regulate the distribution of the expenses of constitution and cancellation of the mortgage in the absence of an agreement between the parties. However, if these provisions place all or part of these expenses on the borrower, neither Article 6 (1) nor Article 7 (1) of Directive 93/13 preclude the consumer being refused restitution of the part of said expenses that he himself must bear “. Therefore, “they are opposed to the fact that, in the event of the nullity of an abusive contractual clause that imposes on the consumer the payment of all the expenses of constitution and cancellation of the mortgage, the national judge denies the consumer the refund of the amounts paid in under this clause, unless the provisions of national law applicable in the absence of such clause require the consumer to pay all or part of these expenses “.

And in this part where the discrepancies in interpretationWhile the banks and other experts defend that what should be taken into account is the Solomonic distribution established by the Supreme Court at the beginning of last year, lawyers and consumer associations consider that expenses should be 100% restored if they are considered abusive (except AJD).

Under the mortgage law that came into effect in June of last year, the consumer is only obliged to pay the home appraisal and the copies of the mortgage deed requested.

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