August 3, 2021

The great judicial collapse of abusive bank clauses | Economy

The great judicial collapse of abusive bank clauses | Economy

The great judicial collapse of abusive bank clauses

The story of Concepción Gómez, a 42-year-old nurse, begins like so many others: "An acquaintance recommended me …". Only it was not a cure for the cold or the latest fashion band, but a mortgage for the apartment that was going to be bought with her husband. It was 2008, just before the financial crisis, and the banks promoted the so-called multi-currency mortgages: loans subscribed in foreign currency to take advantage of the low interest rates of the moment. "I did not understand anything and they did not explain it to me either," he says. He trusted. Some firms, and their domestic economy had been left unknowingly at the mercy of the fluctuation of the international currency market. He contracted a mortgage in Swiss francs, which soon began to skyrocket, with increasingly high odds. In 2016 he filed a lawsuit against Bankinter. Ten months later, he won.

Today that speed is unthinkable. Last year, after European courts forced banks to pay back everything paid for land clauses, 54 special courts were created – one per province in the peninsula; two in the Balearic Islands and two in the Canary Islands- to face the avalanche of demands from those affected. 260,000 have already been submitted and 52,000 have barely been resolved, two out of ten. The specialized courts can not cope. The affected say that they wait more than a year just to start processing their cases, and recognized by judges, lawyers and officials. A traffic jam in the first instance that begins to move also to the second, to the provincial audiences. Because the banks, despite losing 97% of the sentences handed down, are resorting and creating a second bottleneck for the desperation of the mortgaged.

Concepción's ruling says that the bank was not transparent and that the couple lacked the necessary financial training to know the risks of what they signed. That is why he condemned Bankinter to cancel the mortgage and recalculate the amortization in euros. But the bank appealed, and now the family continues to pay "huge fees." "My husband was unemployed for a few months and we had a bad time. Luckily I am an official, "he says. The couple asked for 210,000 euros of loan. After 10 years paying, the debt is 258,000 euros. His case will be seen in section 28 of the Provincial Court of Madrid, which is the one that centralizes the lawsuits by abusive clauses. "They tell me there are between two and four years of waiting," he sighs.

Gerardo Martínez, member of the General Council of the Judicial Branch, coordinator of the plan for the special courts, does not believe that we can speak of collapse, but simply of "concentration" of issues. Faced with the opinion of some associations of judges that criticize the decision to create specific courts, Martinez believes that it would have been much worse to distribute the lawsuits in courts already overburdened and dealing with "very important issues, such as bankruptcies in which thousands of people are at stake. Job positions". "We did this to avoid collapsing the entire civil jurisdiction," he says, and lists some advantages of the plan: "Efficiency in the media and greater legal security because the sentences are more uniform."

The great judicial collapse of abusive bank clauses

"The system has not been effective," says Celso Rodríguez, spokesperson for the Professional Association of Magistrates (APM). "It has caused an authentic funnel. It is not possible to give an answer in a reasonable time. There are thousands and thousands of lawsuits without opening in Madrid, "he says. Distribute them among all the courts "would reduce the effect," he adds. The magistrate Miguel Angel Chaparro, head of the specialized court of Barcelona, ​​decided a few days ago to suspend the accusations (designation of a day for oral trial or hearing) until the collapse is resolved. I was giving appointments more than a year ago.

One appointment every 10 minutes

Silence is requested. " Several posters papered the tiny waiting room of the court specialized in abusive clauses in Madrid, the 101 bis, where a score of lawyers ignore the request and chatter waiting for their turn. A screen shows the appointments of the day. There is one every 10 minutes in each of the five viewing rooms. Almost like in the doctor. "We are going to pine because the volume is huge", points out the magistrate José María Ortiz Aguirre. In 80% of cases the citizen does not have to step on the courthouse. Most lawsuits are resolved with a prior hearing attended by the attorney and the plaintiff's attorney, and the lawyer and attorney of the opposing party, the bank. They do not go to trial. "The issues of banks are paper, documentation. Procedural questions are settled and they are left to dictate sentence ", explains the magistrate.

The hearings last three minutes of the clock. Some five, because small discrepancies are addressed. They are cases of floor clauses or mortgage expenses that are even scheduled by joining several lawsuits against the same bank so that their lawyers do not have to get up from the chair between sight and sight. "It's very agile," confirms a bank lawyer on the way out. In more complicated cases, such as some multi-currency, there is oral trial, with the plaintiffs and witnesses in the room, and can last almost an hour. In total, the 10 specialized judges of the 101 a have 1,000 views per month, 100 each. And even then they can not cope.

Patricia Suárez, president of the Association of Financial Users (Asufin), believes that the system is a deterrent for those affected. "There were already judges with years of experience resolving floor, multi-currency and preferential clauses. But they decide to create specialized courts, with people fresh out of the race, and without providing means. First they put a magistrate, then two, then three, and they saturate the system. Where once there was an admission to process in a month now there is in one year. We have demands of June 2017 that are not admissible, "he laments. The 101 bis of Madrid began with two judges; months later four more arrived. There are already 10. Last week the fourth lawyer from the Administration joined. There are currently 24 officials, appointed by the Community of Madrid, which has promised to reinforce the staff with 12 others.

It is surprising not to find huge piles of paper in precarious balance in the 101 bis. You can barely see a few piles of files and some dozens of storage boxes. A trifle if you take into account that in just over a year have entered more than 25,000 lawsuits. "Here you will not see the judges coming out or dragging a suitcase. If this were a normal court, we would not have so much paper ", says Juan Carlos Conde, the lawyer of the Administration that coordinates the judicial office. All records are digital. Judges do not have their own offices, so, except when they hold hearings, they usually work at home with laptops connected to the system. Almost all bank locations are made electronically. "It is the only court in Spain that processes paperless," stresses the president of the Superior Court of Justice of Madrid, Francisco Vieira, who has seen in the creation of the court an opportunity to try a more modern judicial office model.

Digital or on paper, to the 101 a continue to come demands (more than 5,000 in the second quarter of the year) that accumulate to those who already waited turn. And many of those that are resolved go to second instance because the banks, explains the lawyer Jesus Ruiz de Arriaga, "resort everything". "The game for them is 'I'm going to lose all cases but with this system I discourage citizens from claiming'. Keep in mind that in many cases are small amounts, 1,500 or 2,000 euros, if it is mortgage costs, but for banks all together are several billion. In Arriaga we have already recovered more than 900 million, "he adds.

The president of the Superior Court of Justice of Murcia, Miguel Pasqual del Riquelme, has been the clearest at the time of pointing to a culprit of the traffic jam. Last week, at the beginning of the judicial course, he assured that the banks are "unjustifiably undermining" the system with an "easily preventable and easily avoidable litigation that consumes enormous public resources" because they do not negotiate extrajudicially with clients in cases in which courts have already set criteria. And they do, he added, after having benefited from "huge public aid to overcome their financial crisis."

Claim what was overpaid with illegal ground clauses

The estimates of consumer associations speak of more than three million affected by the land clauses, of which almost half have already filed a claim to recover what they overpaid. A judgment of the Court of Justice of the European Union, of December 2016, determined that the banks should return in full (with retroactivity) the money charged for the application of the floor clauses, which prevent clients from benefiting from the rebate of the Interest rates – abusive. It corrected the Spanish Supreme Court, which in 2013 ruled that only money should be returned thereafter.

A decree of the Government established an extrajudicial channel, simple and free, so that citizens could request a refund. The client must go to his entity and submit an application, either on the bank's form or with a written document written by himself or a lawyer, which the bank is obliged to respond within a maximum period of three months. The entities received more than one million claims in 2017 and compensated 450,000 people. If the bank denies the request or offers less than the client considers fair, it is time to go to trial.

You can also file a claim with the Bank of Spain, which in 2017 beat its own record by serving more than 40,000 claims (eight out of ten, on mortgage terms). A third gave them the reason, although their opinions are not binding.


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