The jurisprudence has unanimously declared that the action of claim the refund of the mortgage expenses paid by the borrower by virtue of a null clause, it is imprescriptible, that is, it is not subject to a limitation period. This is determined by the sentence of the AP of Santa Cruz de Tenerife no. 276/2021, of March 23, who resolves stating that the request for annulment of an abusive clause is imprescriptible: «As the discussed clause is null by law, it is not affected by the fact that the contract has been terminated in its entirety since the consumer has an action to claim the nullity of that clause, imprescriptible action, and consequently , which is the return of the amounts charged in excess, since it is not an independent action, but the legal consequence of the estimate of nullity». In this way, the PA of Tenerife rules in favor of the consumer against Banco Popular for a mortgage loan contracted in 2004.
The AP of Asturias, Oviedo, Sec. 1ª, núm. 1796/2020, of October 22 and the AP of Girona, Sec. 1ª, no. 1147/2020, of October 2, who stating that the claim for mortgage expenses is linked to the action for the nullity of the clause, both being imprescriptible since the return is the consequence of the claim and therefore, they have the same character without being able to apply a limitation period (even when the loan contract has been canceled).
Likewise, the ruling of the AP of Vizcaya (Section 4), rec. 847/2017, of April 26, 2018, stated that «Finding ourselves before an assumption of absolute nullity, the relationships affected by it, as they are non-existent in law, cannot be validated over time, since the nullity action is imprescriptible».
However, the pronouncement of the enunciated judgments contradicts the criteria of the Ministry of Consumer Affairs dated December 4, 2020, which determined that on January 21, 2021, the deadline to exercise the claim for mortgage expenses was prescribed.
Ultimately, the judgment of the Provincial Court of Tenerife resolves the uncertainty and confirms that the computation of the prescription of the nullity action of an abusive clause is imprescriptible. Since Rocalisa Legal Services we are specialized in making claims for mortgage expenses and floor clauses. We take care of the entire process, you will only have to dedicate at most two hours of your time.
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