The Court of Brindisi declared the default interest agreed in a mortgage to be usurious, making it null and void
The Court of Brindisi, with sentence no. 1401/2024declared the default interest agreed on a mortgage to be usurious, including insurance policy costs and preliminary investigation costs, deeming them void and uncollectible.
It thus significantly reduced the debt of a consumer who had obtained a personal loan from a well-known financial company.
The fact
A consumer signed a mortgage contract with a well-known financial company for the amount of €56,000.00, to be repaid in 120 monthly installments of €695.10. The total to be repaid amounted to €83,412.00, of which €21,989.00 for interest and €5,423.00 for insurance, in addition to the principal amount.
The impact of the cost of living led said consumer to not be able to regularly pay the mortgage installments due, thus accumulating a series of installments on which – as provided for by the contract – late payment interest was applied. This was until the Bank, by notifying the injunction, required the borrower to pay all the overdue installments in addition to the residual amount due; all increased by late payment interest.
Against the injunction, the borrower, assisted by the writer’s law firmfiled an opposition before the Court of Brindisi.
The appellant contested the usury and oppressiveness of some contractual clauses which provided for:
- Immediate payment of overdue and unpaid installments;
- Capitalization of the residual capital with a penalty;
- Application of a late payment rate of 14.60% per year;
- An additional 10% indemnity calculated on overdue and unpaid installments.
According to the plaintiff, the combination of these conditions generated an overall rate higher than the threshold rate of 19.3625% established for the period January-March 2013 (personal credits), in violation of the anti-usury law (Law 108/1996) and of the ‘art. 1815 cc, which provides for the nullity of usurious interests.
The official technical consultant confirmed the disputes, calculating an effective APR of 129.408%, including insurance costs and contractual penalties. This data confirmed the usurious nature of the contractual conditions imposed by the finance company.
The Court’s decision
With ruling dated 17 September 2024, the Court of Brindisi declared the default interest to be usurious. The judge observed that default interests fall within the anti-usury regulations, as established by the Supreme Court (Cass. Civ., SU, n. 19597/2020).
Exceeding the threshold rate entails the nullity of late payment interest and contractual clauses that provide for costs linked to late payments. While recognizing the validity of the interest paid at the rate of 6.95%, the Court held that the sum of the costs linked to the delay (including those for insurance policies and preliminary investigations) brought the APR beyond the permitted limit.
This approach is consistent with the interpretation provided by the Supreme Court (Cass. Civ., SU, n. 19597/2020), according to which the anti-usury regulation extends to every sum agreed in the contract, also in relation to non-compliance or delays.
In particular, the Judge evaluated the results of the technical accounting assessment according to which the APR calculated by the expert witness largely exceeded the threshold rate of 19.3625% applicable in the reference period.
Therefore, it declared the usury of default interest, underlining that the nullity concerns exclusively the contractual clauses relating to delays and related costs and is independent of the validity of the corresponding interest, which in this case had been set within the limits established by law.
The ruling contributes to rebalancing the relationship between consumer and financial institution, eliminating oppressive clauses that could have seriously damaged the borrower’s position, especially in the event of economic difficulties or delays in payments.
Lawyer Silvia Vitale – Lawyer Vincenzo Vitale
VITALE LAW FIRM Via F. Petrarca n. 21 bis
72013 Ceglie Messapica (BR) tel – fax 0831/377971
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