“They are worrying and create insecurity” – idealista / news

Upset among lawyers by the latest rulings of the Madrid justice on mortgage expenses. Despite the fact that the Supreme Court already ruled at the beginning of 2019 that the bank and the client should share the cost of the notary, the agency and the registry, in recent days the controversy has focused on the payment of the procedural costs and the legal fees and solicitors.

The Court of Justice of the European Union (CJEU), in the ruling of July 16, 2020, already established “the payment of part of the costs could be an obstacle to consumers to exercise their right to have the potentially abusive nature of the contractual clauses judicially controlled”.

However, and despite the fact that the opinions of the Luxembourg Court are supranational and valid for all the countries of the European Union, the Provincial Court of Madrid has given the reason to ING, which appealed a ruling of the Court of First Instance No. 60 of the capital that fully estimated the demand of a consumer.

The client 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 court considered the clause abusive and ordered the bank 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.

But ING appealed and the Court has decided distribute the expenses of the loan formalization (The entity must assume 100% of the registration, while the Tax on Documented Legal Acts must be paid 100% by the client, and the notary and agency expenses, in equal parts between consumer and bank), and also the coasts.

Although it considers the mortgage expenses clause that appears in the contract to be abusive, the Madrid Provincial Court maintains 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 by its instance and the common ones in half ”.

And something similar happens with the second litigation that again has as its protagonist the Provincial Court of Madrid. In this case, the affected entity is Bankia And, although the court considers several clauses of the mortgage contract abusive (loan formalization expenses, commission for debtor positions and commission for early maturity) and orders the entity to return 590 euros to the consumer, it does not condemn him to pay the procedural costs.

Furthermore, from the point of view of Carmen Giménez, from G&G Lawyers and the lawyer who has directed this ruling, “in an intolerably unfair way the costs are imposed on the consumer on the party that appealed, which is none other than the non-imposition of costs in the First Instance. In other words, the professionals hired by the consumer already considered what the European Court has now said and confirmed the Supreme Court: if the clause is declared null, the costs must be imposed on the entity; and it was for that reason that the consumer formalized the appeal, who has not only been dismissed, but has to pay the professionals who have intervened on behalf of the bank an amount possibly much higher than the amount they will receive for the expenses clause ”.

The judgment of the Hearing obliges each party to pay their professionals, “and this is another disproportionate situation in view of the amounts that the consumer has to receive, which causes a dissuasive effect for the consumer to whom the professionals can get more expensive, and open your hand to the abuse that we are having with the high litigation caused by the banks ”, Giménez emphasizes.

The Supreme is pronounced

The curious thing is that these judgments were known hours before the Supreme Court issued a ruling on the same matter and in which the High Court endorsed the position of the Luxembourg Court.

Specifically, the plenary session of Chamber I of the Supreme Court upheld the appeal of consumers and imposed the bank the costs of the first instance, considering that, “in line with another ruling of the Plenary (judgment 419/2017, of April 4, July) and with the doctrine recently established by the CJEU in its judgment of July 16, 2020, in litigation on abusive clauses, the consumer, despite winning the litigation, had to pay in full the expenses derived from his defense and representation , the situation of fact and law that would have occurred if the abusive clause had not existed would not be restored and, therefore, it would not be immune despite having in its favor a national procedural rule whose general rule would exempt it from these expenses. In sum, there would be a reverse deterrent effect, as banks would not be deterred from including unfair terms in mortgage loans, but rather would deter consumers to promote litigation for moderate amounts ”.

Generates legal uncertainty

With this scenario on the table, the lawyers consulted by idealista / news speak of surprise, stupor, concern and an increase in legal uncertainty on an issue that, after the European ruling, should already be clear.

The lawyer of G&G Abogados classifies this situation as “an injustice” and ensures that in these cases and only one appeal could be presented, with the economic and temporary cost that it entails, which ends up generating legal insecurity.

“The average term to resolve in cassation has been two years, a term that will increase if we continue to obtain sentences like these, generating in this way a serious legal insecurity and an absolute mistrust in Justice“, Explains the lawyer, although she adds that” professionals who work in the Administration of Justice see how litigation increases and continues with the same means and personnel, so falling into errors is much easier and more frequent.

In that same line, Almudena Velázquez, legal co-director of reclamador.es, qualifies the situation as “scandalous, controversial and surprising”, Since“ it seems that there are courts and tribunals in Spain that rely on judicial independence and forget a fundamental issue: the rulings of the Court of Justice of the European Union are mandatory, as established in article 4.bis of the Organic Law of the Judicial Power, and precisely it is created so that there is a common application in Europe ”.

Also remember that this is not the first time we have faced such a case. And it is that, “despite the fact that the Provincial Court of Madrid was a pioneer in the defense of consumers in cases such as preferred shares or SWAPS, last March did not follow Luxembourg guidelines in an IRPH case. Despite the fact that the CJEU decided which were the criteria that should be considered to consider this type of interest in mortgages null, days later the Madrid court maintained the validity of the clause ”. For this reason, Velázquez speaks of concern and unnecessary legal uncertainty, since “on these issues the CJEU left no doubt and there is not much left to discuss.”

The good news is that lawyers believe we should not see more contradictory sentences in this sense.

“With the judgment of the CJEU and that of the plenary session of the Supreme Court, which creates jurisprudence, It must be clear that if the invalidity of the clauses requested is decreed, the costs must be paid by the bank. I also find this criterion very correct, because it is about dissuading banks from their abuses, both in the imposition of abusive clauses on consumers, and in the indiscriminate use of the Administration of Justice, exhausting consumers. It is not a question of dissuading consumers, which would happen if the criterion of not imposing costs continues to be maintained, ”adds the lawyer from G&G Abogados.

In that same line, Esther Álvarez, partner of the firm Gabeiras & Asociados, explains in the Confilegal newspaper that the recent ruling of the Spanish High Court “is a call for attention to certain Provincial Courts that they do not solidly estimate the order to pay the banks. What this does is that the banks themselves continue to litigate. Now they will not be able to extend the case if the lack of transparency in their mortgage loans has been demonstrated ”.

For her part, the legal co-director of the claimant gives as an example the Provincial Court of Salamanca, which has ordered a bank to pay a fine of 1,000 euros for having forced some clients to take a case of abusive mortgage clauses to court, knowing that they were right.

“Justice should tend to prevent banks from going to court in cases where the abusive clauses are clear, and not only because of the collapse of the courts, but also because it does not discourage the consumer from exercising their right to judicial claim if necessary. ”, He concludes.

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