The Plenary of the First Chamber of the Supreme Court has issued two new ones on credit revolving.
On one hand, the STS 257/2023, of February 15analyzes the determination of the usurious nature of a mortgage loan in which the lender is not a credit institution.
On the other hand, the STS 258/2023, of February 15studies the determination of the usurious nature of the interest agreed on a card revolving. Here the High Court resolves that the interest is significantly higher if the difference between the average market rate and the agreed exceeds 6 percentage points.
STS 257/2023, of February 15
The parties here confronted, both natural personssubscribed two mortgage loans in May and December 2009 for amounts of 13,200 and 9,000 euros respectively for the acquisition of a vehicle.
The amortization term was 10 years, with a fixed annual ordinary interest of 14% (APR 14.93421% and 14.93422% respectively) and late payment interest of 25%.
The encumbered property already had a mortgage of preferential rank in favor of a bank.
“The repayment term was 10 years, with a fixed annual ordinary interest of 14%.” (Photo: E&J)
The borrower filed a lawsuit requesting a declaration of nullity of both loans due to usury, the agreed ordinary and default interest
The Court of First Instance No. 11 of Barcelona dismissed the claim. After ratifying that they were loans signed between individuals, the Judge classified the loans as consumer loans and declared that they were not users because the agreed interest did not exceed double the rates applied by credit institutions in operations with a term of more than 5 years in 2009 (7.16% and 7.19%).
The sentence was appealed by the borrower and the Provincial Court of Barcelona estimated resource. Specifically, the provincial court rejected that the operation was consumer credit and used to make the comparison the applicable rates for mortgage operations (at the dates they were 4.70% and 4.03%).
So, since the agreed APR is more than two and a half times higher, there is a mortgage guarantee and there are no justifications for exceptional circumstances that would explain such a notable difference, the Chamber declared the nullity of both loans by usurers.
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Supreme Court: the statistics of the Bank of Spain cannot be applied
The lender defendant filed extraordinary appeals for procedural infraction and cassation.
Now, the Plenary of the Civil Chamber of the Supreme Court considers that the criterion of the provincial court is not correct and decide to love the appeal.
In the opinion of the High Court, it is not appropriate for the Court to make the comparison with the interest rates of active operations applied by credit institutions. In his opinion, these asset operations carried out by credit institutions do not meet the requirements of specificity and homogeneity with the operations carried out off the banking market.
Consequently, since the lender is not a credit institution, the statistics of the Bank of Spain cannot be taken into account.
The Chamber resolves that, from the point of view of comparison with homogeneous operations, is more suitable comply with the provisions of the Law 2/2009, of March 31, which regulates the contracting with consumers of mortgage loans or credits and intermediation services for the execution of loan and credit contracts. In particular, pursuant to art. 3 of this law, Royal Decree 106/2011, of January 28, regulates a public registry for companies (natural or legal persons) that carry out these activities professionally.
The average rate of these mortgage loans obtained from the information that accesses the registry is offered by the Ministry of Consumer Affairs through its website, and in the year closest to that of the loans (2011) was the 17,94 %with a standard deviation of 5.22% (plus/minus).
Thus, as the APR applied to the loans in the case (14.934%) was lower than the average rate at the time, the High Court rules out classifying her as usurious.
STS 258/2023, of February 15
The consumer signed a Visa credit card contract in May 2004, modality revolvingwith Barclays Bank and under a remunerative interest of 23,9 % TAE.
A decade later, the financial institution ceded its credit to Estrella Receivablean intermediary fund that buys debts from other entities, and this sued the cardholder claiming the amount owed.
Supreme Court. (Photo: RTVE)
The Court of First Instance no. 3 of Huelva dismissed the lawsuit and declared the character usurious of the agreed interest because it is notably higher than the average interest on consumer loans.
After that, the Huelva AP upheld in part the appeal filed by the fund and rejected the suitability of average consumer loan rates for comparison as it is a credit card, and considered proven that the usual interest in this type of contract in 2012 was 20.90% or higher.
In this context, the Court did not consider remunerative interest usurious for not being noticeably higher than the normally agreed.
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Supreme Court: interest of 23.9 % APR is not usurious
Now, the First Chamber of the TS has dismissed the appeal raised by the representation of the consumer.
The recent judgment reiterates that the index that must be taken into consideration to determine if the agreed interest is notably higher than normal is the APR and that the comparison must be made with the average interest applicable at the time of contracting. to the category that corresponds to the questioned operation. Specifically, as is well known, for those contracts that were signed after the Bank of Spain statistical bulletin broke down the type of credits revolving (June 2010), the comparison parameter is the average interest published at each moment.
On the one hand, to identify what is the normal market interest for cards revolving hired in the first decade of this centuryas a general rule, the specific information closest in time must be used, which is that broken down by the Bank of Spain in 2010.
On the other hand, the First Chamber points out that, in the absence of a legal criterion on the acceptable upper margin to avoid incurring in usury, facing the demands of predictability in a context of mass litigationthe court establishes the following criteria: in credit card contracts in the modality revolvingin which up to now the average interest has been above 15%, interest is notably higher if the difference between the average market rate and the agreed rate exceeds 6 percentage points.
Thus, in the specific case analyzed here, the average rate at the time of contracting was slightly higher than 20% and the agreed interest (23.9% APR) does not exceed 6 pointsso it is not considered noticeably superior or usurious.
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