On January 27, 2021, the First Chamber of the Supreme Court issued a ruling in plenary session in which the expenses that the financial institution may pass on to its clients in a loan with a mortgage guarantee are detailed in detail.
Being true that the entities have committed important abuses, for a long time, attributing to the clients all the expenses of the operation, the Supreme Court clarifies that the declaration of nullity of the clause of a contract does not prevent the client from being the responsible for any of the expenses because it is expressly provided for in another standard.
For all this, the date of conclusion of the contract will be decisive and analyze both the clause and current regulations. As a summary, we will indicate which are the EXPENSES THAT CUSTOMERS CAN RECOVER:
You must pay them on “interested”. Both the bank and the client are interested in the loan and its eventual modifications, so the expenses should be distributed in half.
As an exception, in the mortgage cancellation deeds, the only interested party is the client, so he must attend to said payment.
The expenses must be paid by whoever registers their right. The mortgage is a guarantee that is registered in favor of the lender, so it will correspond to the bank your compost.
Loan contracts signed before March 2019 (date of approval of Law 5/2019, of March 15, regulating Real Estate Credit Contracts) the bank must return the entire of the amount in case of declaration of nullity.
Regarding contracts concluded later, the criterion is that the steps are carried out for the benefit of both parties, so the expense must be covered in half.
- TAX ON DOCUMENTED LEGAL ACTS
The corresponds to the client, the one who receives the loan (borrower) as stipulated by the law that regulates the tax.
We find ourselves in a situation similar to that of management expenses. The contracts concluded before Law 5/2019, of March 15, regulating real estate credit contracts, allow the customer to recover the entire expense in case of declaration of nullity of the clause.
Regarding contracts of a later date, the current regulation expressly establishes that their amount corresponds to the client (borrower).
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