The new sentence expected by millions of mortgages | Economy



The mortgaged and the banks face again in a fierce judicial battle. After the floor clauses and the tax of documented legal acts comes the mortgage fiasco with IRPH (Mortgage Loan Reference Index). The matter is already in the hands of the Court of Justice of the European Union (CJEU), which this year will decide whether that index is exempt from any kind of transparency control, as the Supreme Court says in a ruling of 2017.

There are more than 1.3 million people who one day blindly trusted what their box or bank sold them, according to the calculations of the IRPH Stop Gipuzkoa platform, pioneers in beginning the judicial battle already five years ago in the courts of San Sebastian to demand the disappearance of the index and the return of the amounts paid retroactively. The IRPH was until recently the second most used reference index in mortgages in Spain, especially those signed in 2006 and 2007. Many entities offered it as a less volatile alternative to the Euribor, including Caixabank, Kutxabank, Sabadell , Santander, BBVA and Bankia.

The banking is played much more than with the floor clauses. Goldman Sachs estimates an impact of between 7,000 million and 44,000 million euros for entities if the opinion of European justice is not favorable and, in addition, retroactivity is recognized. JP Morgan has indicated that it is one of the biggest risks in the Spanish financial sector ahead of 2019.

For that reason, some entities are already moving tab. "They are offering those affected an agreement to change the mortgage at a fixed rate," says Alberto Cañizares, of the Cañizares Abogados law firm, which has more than 300 cases. But, they are forced to sign a clause that closes the door to any subsequent claim, so "we recommend not signing anything and requesting the suspension of proceedings initiated until the ruling of the CJEU is known," adds Francisco García, director of services of Arriaga Asociados, which has been involved in IRPH since 2012 and has more than 10,000 clients affected.

Because signing these contracts was a bad decision for millions of people who now pay between 200 and 400 euros more each month with respect to the Euribor. The value of this index has always been higher (without taking into account the differentials). In November of this year the IRPH Entities placed at 2.009% with respect to the Euribor (-0147%). As an example, "for a mortgage contracted in 2006 from 180,000 euros to 20 years, the additional cost of a variable rate of IRPH plus 0.25% against the Euribor plus 0.25% is more than 20,000 euros", calculates Yaiza Muñiz, lawyer of Voyadefenderte.com.

An official index

The index is extracted from the data that the entities send to the Bank of Spain regarding the average price of the mortgage loans granted in the country that, in addition, include the commissions and expenses for the calculation. The position of the bank is that it is an official index and "settled with almost 25 years of operation (circular 5/94)." At this time, the IRPH is below the interest rate of new mortgage loans. Europe there are references of types calculated in a similar way, with the double objective of reinforcing the transparency and the stability of rates ", comments José Luis Martínez, spokesman of the Spanish Association of Banking (AEB). It refers to the differentials of mortgages with Euribor subscribed today are around 1% and 1.5%, which makes the mortgage more expensive.

However, the index is accused of being "manipulable, since a bank could raise its rates through its commissions and how they affect the APR would end up raising the IRPH", defends Almudena Velázquez, legal head of the Banking Department of Claims. is.

"The clients were not informed of what the index was, nor were simulations done," says Alberto Cañizares. It does not even appear with the name of IRPH in contracts (it appears as the average rate of mortgage loans for more than three years for the acquisition of free housing granted by the group of entities). Until the crisis took him out of the shadow. With a falling Euribor, all the mortgage payments of friends and acquaintances fell. Those of those affected, no.

The entities applied IRPH to all types of housing, including protected homes and second homes purchased by foreigners. "In Costa Blanca we take the cases of 50 people and we have 20 lawsuits filed," says Ignacio Pellicer, co-director of the Pellicer & Heredia law firm. He says that there are families who have paid up to 40,000 euros more.

During the last four years those affected have gone to the courts of First Instance and Provincial Courts, remembers Urtzi González, a lawyer from the Sanahuja Miranda office. And some have even recovered their money. Not so lucky Mireia Andreu, 42, whose case is Sanahuja Miranda, who signed with La Caixa (now Caixabank) a mortgage with IRPH in September 2000. She was 24 years old. In 2015, he realized that his quota never fell. "We came to pay 1,050 euros a month." In 2016 we discovered that we had IRPH that at that time we did not know what it was. "Although the bank replaced the index with the Mibor, Mireia wanted to recover the overpayment, but" the trial was lost, we resorted and now we have to pay 8,000 on coasts. "Now wait for Europe.

Controversial statement

Halfway through the year it will be known if European justice contradicts the Spanish one, once again. The CJEU holds an oral hearing on February 25. It must answer to three questions referred by the first instance court number 28 of Barcelona. On the one hand, the IRPH index is questioned is exempt from any transparency control, after the Spanish Supreme Court affirmed it in its ruling of December 14, 2017. "The Supreme Court intended to shelve the issue of IRPH, with a ruling that has made the bank breathe easier. a particular vote subscribed by two magistrates, who affirmed that it contradicted the jurisprudence of the CJEU, "says Jon Etxaniz, of the IRPH Stop Gipuzkoa platform. Jon, 40, is another affected. He signed in 2006 with Kutxabank because "you trust the bank without asking anything else". In 2013 he got his index replaced by the Euribor and since then he pays 300 euros less each month. Even so, he wants to recover the money he has been "stolen".

The second question is to define how these mortgages will be in the event of nullity of the IRPH: if with zero interest or is replaced by another index, such as the Euribor, indicates the lawyer Francisco García. And, finally, you must answer the question of whether the return of the amounts and interest is applied retroactively.

Those affected have in their favor the European Commission, which has presented a devastating report disagreeing with the Spanish Supreme Court (says that it should only be admitted if it was marketed with total transparency) and that it has been brought as a cause. Also the Spanish Government, but aligned with the position of the bank. Affected and lawyers hope that European justice will follow the guidelines of the Commission's report, since it has seldom been separated from its opinion. Before the sentence, we must wait for the report that the Advocate General will make, which will not be binding. "If the European Court comes to give the reason, each affected should go to the courts of justification and file a lawsuit for ordinary trial and wait about a year to get a favorable ruling in the first instance," says Urtzi González.

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