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last week, the Court of Justice of the European Union (CJEU) ruled that the money paid in the past for mortgage expenses linked to clauses declared abusive must be reimbursed to the consumer. However, the exception introduced that reads verbatim “ except that the provisions of national Law applicable in the absence of such a clause imposed by the consumer for the payment of all or a portion of such charges” , leaves some doubts in relation to the proportion of the amount to be paid back by the banks.
In this regard, the experts of HelpMyCash.com explain that the sentence at european level can have two interpretations. On the one hand, if the judges, which include as a “provision of national Law,” the jurisprudence of the Supreme Court Spanish on the awarding of costs mortgage, the consumer is entitled to recover the full costs of registration and 50% of the notary and agency. In the opposite case, the affected clients will be able to recover everything paid for by the notary office, the agency, the registration and the appraisal, except as paid by the tax on documented legal acts (IAJD). Therefore, from the comparator financial urge you to wait to see how they interpret the Spanish judges the ruling of the CJEU.
In the first option, if a client hired a few years ago, a mortgage loan by means of 200,000 euros and the bank forced him to pay the expenses associated to the constitution, could now retrieve them, according to the calculations of Helpmycash, about 575 euros for the expenses of notary’s office; about 490 euros for the registration and 200 euros for the agency . In total, therefore, could claim the refund of about 1.265 euros.
While in the second case, the financial institution would be obliged to pay all that the client paid in expenses of constitution, with the exception of the IAJD. For the previous example, would be 1,150 euros for costs of notary office; 490 € registration, € 400 in agency and 300 euros in appraisal , with what would add up to a total of € 2340.
however, from the Association of finance Users (Asufin) understand that they can recover all of the expenses of constitution of a mortgage loan, except for the derivatives of the IAJD. “From Asufin we defend that the return has to be total, but we have to be prudent and wait for the first court decisions since the Supreme court argued provisions allowing spreading the cost of the notary, for instance,” says the president of the association, Patricia Suárez. “In a mortgage average, the expenses that correspond to the services provided by a notary public, registered, and the corresponding to the recording of the deed can amount to about 1,300 euros, half”, he adds, Suarez.
From the complainant.it is also interpret that you can recover all of the expenses . “Although some sectors are indicating that the judgment of the CJEU does not change the doctrine of the Supreme Court as fixed in their resolutions of January 23, 2019; what is certain is that the European Court has made clear that a judge cannot refuse the return of the amounts paid as a result of the imposition of an unfair clause, except that the law already attributed that payment to the consumer, or set a cast in such payment”, remarks the co-legal director of complainant.it is , Almudena Velázquez.
In this sense, on the basis of data of the complainant.that is, the claim for expenses of formalization of the mortgage would amount to € 1,300 on average for a mortgage type of 150,000 euros, once excluded the restitution of the Tax on Documented Legal Acts.
The exception of the IAJD
In any case, the IAJD could not claim, as the Spanish law provided before November 10, 2018 that this tribute should be paid to the consumer. This issue was ratified by the Supreme Court on 6 November of that same year
finally, the application of the commission opening could also be considered abusive and for a mortgage of 200,000 euros, the calculated refund would reach 1,000 euros. This charge carries a cost that varies between 0.5% and 3% of the entire loan amount . In addition, for all cases, we must add the legal interest accrued since the last payment of the amounts, which can result in a 50-60% surcharge to the claim. “It is important to add that the judgment of the ECJ opens the door to have that examined transparency in the incorporation of the opening committee. That is to say, with respect to this commission, the judgment makes it clear that the national judge will have to verify ‘responds to services already rendered and expenses already incurred,'” explains Suárez.
Five year period
Over the term of prescription, some lawyers and associations have interpreted the stopwatch begins to run from the judge’s ruling, but the dealer has claimed that this point is not so clear in the sentence. “The period of limitation that establishes the CJEU in its judgment is five years from the invalidity of the clause, but we also expect a debate by the courts because there is contradiction,” says the president of Asufin.
“What is also clear, contrary to that he held banking and some courts unfortunately had to be assumed, is that such a period does not start counting from the signature of the loan, a matter that is expressly excluded by the CJEU in its judgment. What is true is that both this resolution and another issued just a week before, on July 9, 2020, provide that this period begins to run from which the consumer can reasonably know that your loan may have a clause null and void or when the invalidity is declared by the judge , criterion more logical and reasonable and that, for example, is sustained by the Court specialized in unfair terms of Madrid and the Ciudad Real,” says Velazquez.
From HelpMyCash point out that citizens who already have a statement in strong on this case not be able to claim, as they are considered “res judicata”. The rest of consumers may have the option to pursue the claim with the bank itself. The procedure is simple as it is to be directed through the Customer Service of the Entity, which has a month to respond. If you do not or refuse it, can rise to the complaint before the Department of Conduct of Entities of the Bank of Spain.
In case you do not get anything by the court, the other possibility to consider would be to report to the bank before the court in the unfair terms of the province concerned.
