Since on December 23, 2015, the Supreme Court declared the nullity of the mortgage formalization expense clause as it made the mortgage holders have to bear all of said expenses indiscriminately, and without the option of making a distribution. of them, rivers of ink have followed one another and written in sentences handed down by the different Courts and Tribunals that have upheld different criteria, maintaining an anxiety or legal insecurity that has meant that many borrowers have not yet dared to claim, in the face of uncertainty. about what they can claim or what the Courts will give them.
That 2015 ruling opened a door that has given rise to many legal manifestations, since the only thing that was determined was the nullity of the clause, but in no way what were the consequences of the declaration of said nullity that was none other than the expulsion of said clause from the loan contract. That is, it is as if said clause had never existed in the contract.
But the nullity of the expenses clause has inevitable economic consequences, since the consumer incurred and paid, at the time of establishing his mortgage, a series of amounts that were not contemplated in any law that had to be paid by the borrower, and there were also no specific legal regulations on who or who were obligated to pay said expenses. And precisely, it is for this reason that also, in a legal world of quicksand, we have had all kinds of resolutions: that yes the tax yes, that now the tax yes but only a little, that the tax definitely no, that the notary would be paid for half, that the registration would be paid by the bank, that the agency would be paid for half, that now the agency has to be paid by the bank…. In short, in a life of insecurity.
The economic consequences of the nullity of the expenses clause
It is clear that the action to annul the expense clause of a mortgage-backed loan arranged with a consumer entails inevitable economic consequences.
And although from my point of view, everything is a block -nullity and consequences-, there are courts that understand that these actions can be separated, so the deadlines for claiming them are different.
Those who defend this last interpretation, that the actions can or should be two: nullity and restitution; It seems that they find support in the ruling of the Court of Justice of the European Union of last July 16, when said institution comes to say that the fact that a member country regulates and distinguishes the period for claiming the nullity of the directive does not contravene the Directive. clause, of the period for restitution derived from said nullity, as long as the latter does not make difficult or impossible the claim to which the consumer is entitled.
What deadlines are there to claim the expenses clause?
Having said the above, the deadlines that are handled are the following, and taking into account the suspension that we have had for 82 days of all deadlines, as a consequence of the State of Alarm Decree:
- The request for the nullity of a clause contained in a loan contract with a mortgage guarantee entered into with a consumer is imprescriptible. That is, it can be claimed indefinitely.
- The consequences derived from said declaration of nullity, or the restitutionary effects or refund of amounts unduly paid by the consumer, descend again to a level of legal uncertainty, and thus there are several theories supported by the different courts and tribunals of our national map:
It is clear, therefore, that it is absolutely necessary for, at least, the Supreme Court, which is the one that unifies doctrine, to rule on these deadlines for greater legal security for consumers in claiming their rights.
What can we do in this situation, if December 28 is just around the corner?
As can be seen, in terms of deadlines to recover the amounts paid by consumers, we have a maximum (imprescriptibility) and a minimum (until December 28, 2020) to claim, and we must dispense with the rest of the intermediate theories, to ensure that the claim made comes to fruition, being extremely cautious and preventive.
As the limitation period can be interrupted by setting the counter to zero again, that is, from the moment of interruption the five years begin to count again, the recommendation is that the claim be made to the entity before December 28. , by any means by which it can be recorded: burofax or presentation to a branch to have the entry stamped with the date.
2024-01-16 05:37:39
#claim #mortgage #expenses #prescribe #reset #counter
