A Divided Supreme now says that the mortgage is paid by the client - The Province

The clients, and not the banks, will pay the Tax on Documented Legal Acts (IAJD) that taxes the mortgages.After two days of debate, theSupreme Court(TS) retracted yesterday and changed its position for the second time in fifteen days. The decision reinstates the doctrine in force for the past 23 years, until last 18 the Second Section of the Third Chamber of the High Court issued three judgments that imposed the payment of the tax to the bank to consider it as the beneficiary party in the public deed of the loan with mortgage guarantee. Criticism from the political, social and judicial level came after the result was known.

The total division marked the outcome, with fifteen magistrates imposing themselves on the thirteen who defended to move the burden away from the citizenry. These numbers show the impossibility of reaching a unanimous resolution, as was intended once the president of the room, Judge Luis María Díez-Picazo, in an unprecedented and enormously controversial action, announced on October 19 that, although the three rulings were firm for the sentenced cases, the jurisprudence and effect that emanated from such resolutions would be submitted to reconsideration by the plenary session.

That call was made public less than twenty-four hours after the failures of the second section of the courtroom transcended and when the Spanish banking securities were suffering a strong collapse in the stock market. Yesterday they closed again in red (except Unicaja), when it was not yet known the decision of the plenary of the room, which did not transpire until past seven in the afternoon.

Decisive vote of Díez-Picazo

Precisely the vote of Díez-Picazo was decisive to tip the balance. According to sources consulted by Europa Press, during his speech was favorable to the third way raised by Judge Pilar Teso, who proposed that the tax should fall on the bank but without retroactive, which prevented him from disbursing some 5,000 million euros.

However, when the time came to vote, the President of the Third Chamber changed his position after observing that there was a draw between those who bet to charge the tax to the banks and those who defended that the citizen did. Voted the last one and opted for the bank.

The resolution, very controversial and that immediately provoked strong criticisms between consumer organizations and political forces, does not seem to dispel by now the situation of enormous uncertainty and legal uncertainty that was created in October, since several groups had announced that, if a new jurisprudential overturn occurs, they would appeal to the Court of Justice of the European Union (CJEU).

All the lawyers consulted agreed that it will be Europe who will set the path to follow. In the opinion of María Luisa Martínez, that "puts the image of Spain very much in doubt". In the same line, the lawyer Andre Roda described as "regrettable" the decision and warned that causes citizens to perceive "an unfocused image of Justice." According to that opinion, "there are judges who are independent" and apply the law and jurisprudence, something that "does not seem to happen in the dome".

For his part, the also Canary lawyer Eugenio Rodríguez said that there is "a principle of normative hierarchy and a regulation can not contradict a law". The first points to the borrower as a party that must pay the tax, while the second, "weakly drafted," according to Martinez, says he must pay the part that benefits from raising the mortgage publicly. "At least, the tax should be paid in equal parts, because the bank benefits as much or more," Rodriguez concluded.

The association Judges and Judges for Democracy requested the resignation of the president of the TS, Carlos Lesmes, and Luis María Díez-Picazo. "We disagree with the manner in which the TS has handled the issue of mortgages and the damage to citizens and justice, we ask for the immediate resignation of Lesmes and Díez-Picazo and we appeal to Parliament to act in defense of consumers", He noted the association on his Twitter account, reports Europa Press.

On the other hand, the general secretary of UGT, Pepe Álvarez, affirmed that the Justice "has returned to put of the side of the most powerful". Meanwhile, the Association of Users of Banks, Savings Banks and Insurance in Spain (Adicae) blamed the decision on "a monumental campaign by the bank not to pay".

The Organization of Consumers and Users (OCU) described the decision as "embarrassing" for damaging more than 12 million families in Spain. "Today the bank wins and the consumers and the whole society lose," the association said in a statement.

The Government of Pedro Sánchez will analyze the impact on the Council of Ministers tomorrow. For his part, the president of Ciudadanos,Albert Rivera, described the performance of the TS as "incomprehensible". "You can not subject this uncertainty to millions of families and offer this show," he said. Meanwhile, the general secretary of the PP in the lower house, José Antonio Bermúdez de Castro said it is "difficult to understand" that the TS has ruled "one thing and its opposite in such a short time."