On May 17, the Court of Justice of the European Union published a resolution that will give a lot to talk about and that will greatly affect the floor clauses.
They point out that those courts that have some type of case involving unfair clauses in their hands have the capacity to check ex officio if there is any type of irregularity or infraction.
In this way, they would have the option to return in full those amounts that had been paid in excess for those clauses in a mortgage without it being necessary for the affected client to present the appeal.
This ruling is especially relevant in regard to the return of floor clauses, without a doubt one of the most controversial issues in recent years when it comes to mortgage loans.
Forced to return the clauses since 2013
This position adopted by the European court is intended to be a starting point for the future. Said resolution refers to the case of a Spanish woman who had contracted a mortgage in 2009 with the bank Ceiss, currently part of Unicaja, and whose floor clause was considered null after the decision of a Spanish court, forcing said entity to return the important overcharged since May 9, 2013.
In 2016, the European Union court ruled that “all clauses considered unfair should be declared null and void.” This will imply, at the same time, that the amounts paid in excess will be refunded from the date on which the nullity was declared, and not only from May 2013, as had been estimated by the Supreme Court.
In the ruling that has just been made known recently by the TJEU, said body confirms that the national jurisprudence does not limit in time the return of what was paid for abusive clauses. Therefore, the client has the possibility of requesting the return of all those excess amounts that have been charged.
The mortgage floor is a clause that establishes the minimum interest of a variable mortgage. The aforementioned rate is applied when the reference index plus the spread does not reach the marked value.
It must be said that during the stage prior to the crisis it was very common for the floor clause to be included in variable mortgages. It was rare for the interest to drop below 3%. At the moment in which the Euribor began to suffer a fall, many mortgage holders were able to see how a minimum rate that led them to pay more money than they would have assumed in the event that this limit did not exist.
Necessary conditions to be able to claim the abusive clause
Only those who have the legal status of consumer will have the right to file a claim for abusive clauses, leaving out of the jurisprudence of the Supreme Court the entrepreneurs and people who carry out their work in the economic, financial or legal field.
The second condition that must occur is that there is a lack of transparency in the application of the land, which makes the clause unfair. One of the following cases must occur for it to be considered as such:
- The inclusion of the minimum interest without the consumer being informed of its effect.
- That the clause did not appear in the binding offer, but in the final contract.
- That there is an important difference between the floor and the mortgage ceiling.
Therefore, all those who are affected by the floor clauses and include these conditions that we have just mentioned, have the option of requesting its elimination, including those who acquired their property by subrogating the mortgage with the developer’s land.
Claim through an extrajudicial mechanism
Those consumers who so claim may demand from their financial institution the return of what they paid for the land through the Free extrajudicial mechanism established by Royal Decree-Law 1/2017. The process to follow would be the following for claimants.
Submit a formal claim to the Customer Service of the bank that has applied the mortgage floor. In the event that said has lost its original identity, the claim will be made on the entity in charge of the absorption.
In the event that the bank accepts our request, they have to calculate the amount that corresponds to us, showing the figures of the operation in detail. They must make a return offer and always in cash. There’s a possibility also that they also present us with an alternative solution, which would happen, for example, by lowering the capital of the mortgage that is still pending payment or investing said money in one of its financial products.
If an agreement is reached with the bank, they have the obligation to make the return in the initially agreed manner. And for this they have a maximum period of three months from the beginning of the procedure.
If the claim is not accepted or an agreement is not reached within those three months, the process will be terminated.. During the length of the procedure, the consumer does not have the possibility of filing legal actions against the bank. If there is a complaint, it will be frozen until there is a resolution.
The last option that the plaintiff has is to go to court.
Follow the topics that interest you
–
