There are already four known sentences handed down by Spanish Courts that have decided annul the remuneration interest clause contained in the IRPH as a reference (Reference Index of Mortgage Loans), due to lack of transparency. This indicator is replaced by the Euribor.
The sentences (one from a Court of Burgos, two from a Court of Lérida and the last known, of April 20, 2020, of Palma de Mallorca), follow the doctrine issued by the European Court, in its sentence of the past 3 of March 2020, contrary to the one dictated by the Supreme Court in December 2017. Europe considers that the IRPH, although it is an official index and published in official gazettes, can and should be subjected to the control of abusiveness and transparency. Carmen Giménez, lawyer at the firm G&G Lawyers, points out that this means that it is the national judges who must control whether the professional, and at the time of marketing, was facilitated, to the consumer, mandatory pre-contractual information, so that the latter could adopt a considered and well-founded decision to hire precisely that index and not another.
Giménez recalls that the banks that have been convicted, to date, are Caixabank and Banco Popular (which is currently Banco Santander).
In essence, these four sentences pose in the cases analyzed individually (it should be recalled that in the case that reached the CJEU the Advocate General found, in his conclusions, that in this specific case the marketing had been transparent), that:
- There is a lack of precision in the definition of the IRPH, establishing that its definition is found in a Circular, so it is a clause with normative reference, which cannot be considered valid for the purposes of pre-contractual information.
- The IRPH presents a special complexity, both due to its configuration and its calculation formula, which makes it an ideal element for judicial control of transparency and, therefore, to analyze whether the professional provided the consumer with adequate pre-contractual information that would lead the latter to understand, not only the mechanism of application of the index, but also how he was going to behave economically throughout life of the loan contract, and therefore, how it was going to influence the consumer’s own economy.
- It is analyzed in some of the aforementioned sentences that No information was provided to the consumer indicating the possibility that Savings Banks and / or entities have of influencing the IRPH, as well as that for its calculation the APR (Annual Equivalent Rate) was taken into consideration, comprising commissions and expenses.
The consequences of said declaration of nullity (following the instructions established by the CJEU) do not go through leaving the loan without interest, as it would distort its commercial nature, “since the intention of the professional is not for it to be free”, clarifies Carmen Giménez. Therefore, what is done is reinstate the clause, determining that the loan must be recalculated from the beginning with the Euribor interest rate, and the interest paid in excess during the application of the IRPH must be reimbursed to the consumer, plus the legal interest of said amounts from each of the payments.
How to claim the IRPH
It is recommended that you put yourself in the hands of a qualified professional with experience in banking matters, from the beginning, who, after studying your mortgage loan and how much pre-contractual information, or at the time of formalization of the contract, will be delivered to you, will indicate the viability of your claim. Remember that not all claims are viable, and that each specific case must be studied, in addition to the fact that the IRPH must be claimed individually and not collectively.
It will be this professional who will write the prior extrajudicial claim to the entity, who has a period of two months to answer. After this period has elapsed, if the entity has not answered or has done negatively to its interests, the claim may be filed before the competent court, which will require the intervention of a Lawyer and Attorney.
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