The plenary session of the First Chamber of the Supreme Court has decided that the bank must pay the legal interest to the consumer after the cancellation of the clause of expenses of a mortgage loan contract from the date on which the consumer made the payments, and not only from the date of the extrajudicial claim.
The court of first instance declared the nullity of said clause and condemned the bank to pay the user various amounts for appraisal and management expenses, plus their legal interests from the date on which the consumer made such payments. The Provincial Court, however, considered that the legal interests to be paid by the bank would be accrued from the date of the extrajudicial claim.
The Supreme Court had not yet discussed how interest accrued should be calculated for the amounts that the bank must pay the borrower after the cancellation of the mortgage loan expense clause.
According to the ruling, the House has considered the appeal filed by the consumer, considering that interest accrues from the date on which he paid the expenses in question. "The consequence of the abuse of the expense clause is (…) to act as if the clause had never been included in the contract, each of the costs discussed having to face the part corresponding to it, according to our legal order, "the text indicates.
Therefore, the Supreme Court has ruled that the creditor should be imposed the payment to the consumer of the amounts that would have corresponded to pay had the abusive provision not existed, since otherwise the bank would "have profited unduly" by saving costs that legally would have corresponded to him to assume and that, by means of the abusive clause, displaced to the consumer.
Likewise, it considers that it has analogical similarities with the payment of the undue, in that the consumer made an improper payment and the lender entity, even if it had not received said payment directly, would have benefited from it when the consumer assumed it and had saved it. entity.