In recent years, we have heard about revolving payment cards, or revolving credits, but do you really know what you have contracted?
It is a modality of granting fast consumer credit, which as such, is usually carried out with a total absence of formalities (the possibility of hiring it even by phone) and without even an analysis of the solvency of the client or the risks that it entails. the operation.
In this type of credit, normally formalized by means of a card, the client (in many cases young people without their own financial means, or heads of families without work; but in others, consumers and users with fundamental solvency problems derived from some type of addiction gambling or others) has a limit of money that you can use at will, money that is available again to the extent that it is amortized. So far, everything seems to be working fine. However, the problem is that, if the fee paid by the client is very low, the part of capital spent, but not amortized, will continue to generate new interest that will be added to the interest accrued and not covered by the fee, which far of reducing debt, causes it to gradually increase and can sometimes become endless debts that do nothing but aggravate pre-existing solvency or health situations already referred to.
That is why, although the client’s position has always been questioned with the eternal criticism that some live or have lived beyond their possibilities, the truth and truth is that (as they have recognized for consumer credit the judgment of the CJEU of March 27, 2014; Y judgment of November 9, 2016 in cases C ‑ 565/12 and C ‑ 42/15, respectively, and the Supreme Court in judgment no. 149/2020 on which we will stop later); in granting credit, consumer or mortgage is to credit institutions who are required to assess the creditworthiness of the client precisely to avoid over-indebtedness and, in this way, the aggravation of certain situations such as those mentioned above. However, these companies, aware of the huge benefits that these products could bring them, chose to do so, because after all, the delinquency rate predicted the collection of more than 90% of the loans granted. And it is normal that even those who have been branded as living beyond their means, do everything possible to fulfill their obligations.
Such is the problem of this type of product, that the Bank of Spain defines revolving credit What: “… One of the services most offered by entities – especially by financial credit institutions – for the acquisition of consumer goods and obtaining quick liquidity. They are characterized by a small amount of principal taxed by high interest rates and a form of repayment in monthly installments that, due to its low amount, lasts for several years. On many occasions, the chosen installments may not cover the interest generated, in which case, the return may be delayed for a considerable time, which in the end causes the debt grows in such a way that it can hardly be satisfied with this form of payment”.
Echoing this problem in 2015, the Supreme Court brought to light a great debate with the SYGMA Judgment (STS 628/2015 of November 25) whose conclusion was that the agreed rate was “significantly higher” (24.6% APR) than the average rate of the reference market, an increase that had no justification, therefore considering it usurious. This Judgment caused that in 2017, the Bank of Spain was “obliged” to publish statistics distinguishing revolving cards within consumer loans.
A clear example is the request, by a consumer, of a revolving credit for the purchase of a quad, as well as to be able to have quick liquidity to be able to use it in sports betting. The interest in having the money quickly and instantly is such that the credit institution signs, in April 2016, a credit card contract with an APR of 19.21%, which together with the rest of the commissions and expenses, supposes an APR of 21%. It is enough to observe the statistics published by the Bank of Spain that for April 2016 the APR should be 8.74%, that is to say, it was notably superior to the legal interest of the moment.
However, after the November 2015 ruling, there was a great doctrinal debate due to the interpretation and application of the Sygma jurisprudence, in which one part was positioned by the application of transparency and inclusion control and another by the control of usury.
This made a leap in jurisprudence, and on March 4, 2020, the Supreme Court again ruled on a revolving card (STS No. 149/2020). In it, the Usury Repression Law is maintained, considering that (i) for there to be usury it is not necessary that there has been acceptance of the borrower due to a desperate situation (ii) the reference element is the APR, which is to compare with the statistics of the Bank of Spain and not with the legal interest of the money and thus be able to observe if it is notably higher than the normal of money.
This extreme is essential (although not sufficient by itself) so that the clause, which establishes the remunerative interest, can be considered transparent, since it not only allows to know in a clearer way the onerous burden, which for the borrower really involves the operation , but also allows a reliable comparison with the loans offered by the competition.
What happens when we claim and it is established undoubtedly that the revolving credit is usurious, in addition to not exceeding the incorporation filter and of course the formal transparency provided in the Law of General Contracting Conditions? Article 3 of the Usury Repression Law is applied, which clearly states that at the time a contract is considered usurious “the borrower will be obliged to deliver only the amount received; and if he had satisfied part of that and the interests due, the lender will return to the borrower what, taking into account the total amount received, exceeds the capital borrowed “, In other words, there is a radical nullification of the contract as a whole, with the possibility that the lender can recover the loan capital without any type of update of the interest rate applied.
In some cases, this situation seems inappropriate to achieve the dissuasive effect that the Consumer Credit Directive seeks, and unfavorable for those consumers or users who do not have, of course, the capital that is borrowed and have not finished paying it.
In this sense, the solution accepted by the aforementioned community jurisprudence seems more appropriate, that is, the penalty of deprivation of interest to the lender who fails to comply with his obligation to assess the consumer’s solvency and in general, diligence and good faith; so that the credit could continue to be in force condemning the financial institution as compensation for the breach of its information and solvency analysis duties, not to charge remunerative interest for the contract, which will have to be returned only in terms of its principal , option allowed by art. 1755 CC.
And it is that you can find yourself in two situations (i) that you have contracted a revolving card and continue to pay since then or even (ii) that you have been unable to pay the fees imposed because, despite continuing to pay the monthly fees by month the debt increases. Faced with this last situation, it is most likely that the credit institution ends up formulating a request for an order for payment procedure claiming the amount owed, a request that does not begin to be resolved until the corresponding allegations about possible abusive clauses are previously made, being the best Defense do not wait for this situation and previously claim compensation in the terms indicated above.
–
