The Supreme Court has again ruled in favor of a self-employed person who may claim the floor clause imposed on his loans. If more than a year ago the High Court agreed with some mortgaged people who had requested a loan to buy a place where they were going to establish a hairdressing business, this time he has ruled in favor of a taxi driver who had requested a mortgage to buy his taxi license. The floor clause required him to pay a minimum interest of 6.5% per year.
For the second time in a row, The Supreme Court has made it clear that non-consumers, that is, the self-employed, professionals or businessmen, can also claim the refund of amounts overpaid as a result of the imposition of the floor clause on your home loans.
Thus, in its judgment 168/2020, won by reclamador.es, confirms the invalidity already obtained in the Provincial Court of Madrid in a clause imposed on a client of this legal platform who had requested a loan from Abanca to buy his taxi license.
Thanks to this ruling, the self-employed, companies and professionals, in short, non-consumers, They can claim this clause imposed on their loans. And it is that this group of citizens encountered again and again with the impossibility of applying their own consumer legislation, Council Directive 93/13 / EEC, on abusive clauses in contracts concluded with consumers and the Consolidated Text of the General Law for the Defense of Consumers and Users).
But nevertheless, The Law of General Contracting Conditions, which also regulates the abusiveness of the contractual clauses, does provide for its application not only to consumers but also to entrepreneurs, because as recognized in its explanatory memorandum, there are also situations of abuse when contracts are signed between companies.
In these cases, the defense must be oriented to the argument that the Supreme Court has finally accepted, inclusion control, and what does that mean it is not enough that said clause is in the contract and that it can be grammatically understandable, but also its real possibility of knowledge, which was not fulfilled in this case because nor was the Personalized Information Sheet delivered (FIPER, old Binding Offer), nor did the Notary expressly consign the warning of its existence in the deed Consequently, the client and his wife had no real opportunity to know that the loan was subject to a limitation of the variability of the interest rate.
The entity must return to the person affected by the floor clause the amounts overpaid as a result of the difference between the 6.50% that had been imposed and the Euribor applicable from May 9, 2013 (the loan was signed a year before with a fixed rate in the first 12 months, as is usually common in mortgage loans): more than 20,000 euros.
The second ruling of the Supreme Court that agrees with the autonomous
In January 2019, the Supreme Court agreed with some borrowers who had applied for a mortgage loan to buy a place where they were going to establish a hairdressing business, so their performance for said loan was as non-consumers.
In this case, Carmen Giménez, lawyer at the firm G&G Lawyers, Remember that the Supreme Court indicated that the following requirements must be met for the return of the overcharged for the floor clause:
- That the mortgage debtor has had a real opportunity to know the clause at the time of the execution of the loan contract and,
- That the clause must have a clear, concrete and simple wording that allows a normal grammatical understanding.
That is, the borrower must have at his disposal, prior to the signing of the deed, and incorporation of the floor clause, express information, by the entity, of the existence of said clause, and also the clause has to be written in a clear, concrete and simple way.
In the specific case prosecuted by the Supreme Court, after the evidence practiced in the proceeding before which the initial claim was made, it was justified that the borrowers did not have the possibility of knowing the very existence of the clause at the time of signing the loan deed.
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