The Supreme Court closes the door almost permanently to banking customers in their claims for the use of the IRPH index referenced to the mortgages, with the communication today of new sentences favorable to the entities.
The Association of Financial Users, Asufin, describes the sentences as scandalous, and affirms that the High Court opts for “the most unfavorable interpretation for the consumer“.
The affected consumers awaited the decision of the Supreme Court after the High Court of Justice of the EU pronounced leaving open the possibility that the Spanish courts were the ones to decide in each case.
The Supreme says that the offer by a bank of an official index, “cannot by itself violate good faith”
Despite the fact that Community Justice has already ruled out that the IRPH index has an intrinsic abusive nature, and that in previous rulings the Supreme Court was also inclined to agree with banks, the Spanish financial sector has recently encountered unfavorable rulings .
This same month two sentences of the Court of first instance number 7 of Pamplona, which enable the affected party to choose between the nullity of the mortgage contract or the change to the Euribor.
Today, Friday, from the Technical Office of the First Chamber of the Supreme Court, the notification of the first sentences dictated on the clauses that incorporate the IRPH as a reference index for mortgage loans, after the orders of the CJEU of November 17, 2021, which answered the new questions formulated by two courts of Barcelona and Ibiza.
Goldman Sachs estimated that an adverse sentence would cost up to 44,000 million for Spanish banks
“In the first place, the CJEU has reiterated that if a national court assesses the lack of transparency of the clauses that define the main object of the contract, as is the case of the clauses that incorporate the IRPH as a reference index, you must next examine whether said clause is “unfair” in the sense of Directive 93/13 (.. .)”, explains the Supreme.
In this sense, “the offer by the banking entity of an official index, approved by the banking authority, cannot by itself violate good faith”, affirms the Spanish court.
“Furthermore”, he adds, “the Central Government and several regional governments have been considering, through regulations, that the IRPH index was the most appropriate to use as a reference index in the field of financing official protection housing, so that it is illogical to consider as acting contrary to good faith the incorporation of that same index to arranged loans outside that scope of official financing”, explains the Supreme Court.
The Supreme Court has upheld an appeal filed by Kutxabank, and orders the plaintiff to pay the costs
In particular, the Supreme Court has upheld an appeal filed by Kutxabank against judgment of the Provincial Court of Álava (Section 1) of May 31, 2016, which is annulled, as well as another unfavorable for the entity of the Commercial Court no. 1 of Vitoria of October 29, 2015. It also dismisses the lawsuit against Kutxabank for the use of the IRPH index, expressly ordering the plaintiff to pay costs.
With the sentences communicated today by the Supreme Court, the Spanish banking system drives away the ghost of the multimillion-dollar provisions that a few years ago frightened a good part of the financial entities.
Goldman Sachs came to estimate in 2019 that a final adverse judgment of the CJEU would cost up to 44,000 million for Spanish banks.
No banking client would have accepted such a contract, if they had known,” says the president of Asufin
“As we are used to, the High Court opts for the most unfavorable interpretation for the consumer,” he declared. Patricia Suarez, president of the Asufin association, after knowing the sentences.
“We cannot understand that from the mere publication in the BOE of this index it can be inferred that an average consumer was in a position to understand that he was going to systematically pay more for his mortgage. No banking client would have accepted such a contract, if they had known.“, he stresses.
“Even more scandalous seems to us the consideration that the IRPH was the most appropriate to use as a reference index in the field of financing official protection housing, and that this therefore demonstrates the absence of bad faith in the incorporation into the conventional loans”, he added.
“We are facing a clear abuse which, fortunately, many judges in our country understand. We have to trust, once again, in all of them and, most importantly, not give up the battle to eliminate IRPH from all contracts,” he stressed.
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