New contradictory judgment related to the claim of the expenses of a mortgage. Just two months after the Court of Justice of the European Union (CJEU) to rule on the abusiveness of the clause in which the costs of formalizing a mortgage loan are distributed, a court in Madrid has decided to charge the client part of the costs after only partially estimating their claim.
And is that the Provincial Court of Madrid has agreed with ING, who appealed the ruling of the Court of First Instance No. 60 of the capital that fully upheld the demand of a client who requested the nullity of the clause of his mortgage that obliged him to pay all the expenses derived from the formalization of the loan. The ordinary court considered the clause abusive and ordered ING to return 1,965.12 euros to the mortgaged person plus the legal interest counted from the date of payment, as well as to pay the costs of the judicial process.
The entity appealed this sentence before the Provincial Court of Madrid, whose decision has been to only partially estimate the initial claim of the client. Following the doctrine established by the Supreme Court at the beginning of 2019, the only section of the Madrid Court that is in charge of all appeals that deal with general contracting conditions considers that 100% of the registration must fall on the bank (understanding that it is who is interested in registering the mortgage loan), while the agency and the notary’s office must be shared 50% between lender and borrower since it benefits both parties equally, and that the Tax on Documented Legal Acts (IAJD) must be assumed by the client, since they are considered the taxpayer of the tax.
However, Carmen Giménez, from G&G Lawyers, explains that the ruling of the Madrid Court goes contrary to the criterion of the Luxembourg Court as regards the payment of costs, since in the ruling issued in July it proposed to free the client from paying them, even if the court only estimated part of his claim, and provided that the clause of expenses was declared abusive, considering that “the payment of a part of the coasts could be an obstacle for consumers to exercise their right to have the potentially abusive nature of the contractual clauses judicially controlled ”.
In this sense, the Provincial Court of Madrid maintains the declaration of nullity of the expenses clause mortgages, but details that, “in terms of costs and partially estimated the claim, there is no place to make a conviction on costs in the instance each party having to satisfy those caused at its request and the common ones in half ”.
According to Giménez, this means that “the consumer has to pay the professionals he hires, which may cost him more than the amount he receives for expenses” and insists that “in this case, who evidently exerts a deterrent effect by not applying the The doctrine of the CJEU is the Court itself, since this ruling can only be appealed before the Supreme Court, this type of resource being very expensive, not only economically, but also has an important legal elaboration and with very strict requirements imposed by the own High Court “.
The lawyer also emphasizes that “seeing the ruling of the Provincial Court of Madrid, it seems that time has stopped on July 15, 2020, the day before hearing the important judgment of the CJEU, since it is neither mentioned nor applied in the ruling, despite the fact that community law is supranational and, therefore, is at a higher level than the law of the member states ”.
In addition, it points out that “the action that is exercised in these cases is that of nullity, and once it has been ruled, the consequences have to be assessed, but it is not about two actions in the same lawsuit, as it is wanted to be seen by many of our courts. And in this way it has been ruled by the CJEU in numerous resolutions: that the consequences (whether economic or simple expulsion of the clause) are an inherent and unavoidable act of the declaration of nullity ”.
As stated in the sentence, the Provincial Court of Madrid close the door to any ordinary resourceTherefore, the mortgaged person would only have the option of filing extraordinary appeals for cassation or procedural infringement.
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