The Provincial Court of Burgos has been able to get rid of over the last few weeks the jam of sentences referring to non-binding agreements on floor clauses, matters that had been pending for many months while waiting for the Court of Justice of the European Union to resolve a prejudicial question. Specifically, and according to judicial sources, there were around 40 cases in the province that have been resolved cascadingly, also with the help of the Supreme Court’s jurisprudence, which issued a ruling along the same lines in early November.
Since the middle of last month, different lawyers have received notifications in this regard, and they establish that the new agreements (the renewal of the floor clauses signed by customers and banks, even if they were down) are valid, but not the amounts collected from the initial moment these clauses are imposed until they are renewed with the consent of both parties. Likewise, the waiver of legal action against the entity is declared null.
The lawyer Víctor García Gutiérrez is the defender of one of the first known cases and explains that his client signed in 2005 a first mortgage in which a variable interest rate was agreed, of Euribor plus 0.65-0.75 points , without any limitation.
But 2011 arrived and, taking advantage of the termination of the condominium on the house as a result of a couple breakup, the loan was modified and a floor clause of 2.50 was then introduced. For the second time, in July 2015 and when these types of limitations were already in question, a new modification of the mortgage was signed and this time the clause was lowered to 2%.
It is in this modification when the parties “ratify the validity and force of the loan, consider its conditions adequate and consequently waive, expressly and mutually, to exercise any action against the other that brings cause of its formalization and clause, as well as for the liquidations and payments made to date, the correction of which they acknowledge. “
Return of amounts. Similar circumstances happened to dozens of Burgos with different financial entities in the course of a few years. In the present case, the judgment annuls the first modification of 2011 and condemns the plaintiff to return “the amounts improperly charged in application of said clause, with legal interest from the date of each collection, until July 22, 2015 “. Although the court decision does not include this amount, García explains that in the specific case he has represented, the amount amounts to approximately 3,000 euros.
However, and following the doctrine of the Supreme Court, it validates the novation of 2015 because, unlike the imposition of 2011, now more information is offered to the client, a graph of the evolution of the Euribor is included and therefore could know that the interest they were lower “despite which a new floor of 2% was accepted for the entire life of the loan.”
On the other hand, the waiver of legal actions is annulled “not because there has been a lack of information, or because the clause is not balanced, but because its wording goes beyond the resolution of a controversy over the floor clause.” That is, it was a general and not a specific resignation.
Despite the partial estimate of the claim, which derives from an appeal after a judgment of the First Instance, no costs are imposed.
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