July 28, 2021

The Supreme Court decides this Wednesday what is the deadline to claim the mortgage expenses


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The Supreme Court will foreseeably decide this Wednesday, June 23, until when it is possible to claim the refund of mortgage expenses. This ruling will allow to know the period of time with which the mortgaged ones have to initiate your claims of mortgage formalization expenses.

Until now, various Spanish courts had followed different criteria to establish when that period begins and ends, a situation that will be resolved with the judgment of the high court.

Specifically, according to HelpMyCash, this ruling will determine whether those who contracted their mortgage before June 16, 2019 can still demand that they be reimbursed for the incorporation costs that the banks improperly charged them, whose price would reach an average of 1,500 euros.

This ‘online’ comparator indicates that article 1964 of the Civil Code establishes that those affected have up to five years to demand the return of the money. However, this regulation clarifies that this period must begin to count “as soon as the fulfillment of the obligation can be demanded”, that is, as soon as the mortgaged person becomes aware that they were improperly charged incorporation expenses. “This is where the main problem lies, as there are different legal interpretations of when it was known that it could be claimed,” he says.

So, there is three judgments of the Supreme Court in this regard: in which it declared null the collection of all mortgage expenses -of January 23, 2015-, since the ruling in which it was established for the first time which costs corresponded to the bank and which to the client -January 24, 2019- and from the ruling that specified that the appraisal should also be paid by the entity -January 27, 2021-.

Therefore, depending on the point at which that period is considered started, those affected will no longer be able to claim because it is already prescribed or they may demand the return of expenses unduly charged until January 2024 or 2026, if the other two are taken into account. sentences.

Precisely, the Supreme Court will decide this Wednesday which of these interpretations would be correct and will mark the way forward for the rest of the Spanish courts.

The high court, however, “must respect the jurisprudence of the Court of Justice of the European Union on the matter.” Specifically, according to this body, national legislation can establish a limitation period for claiming compensation, but this should not make it “impossible or excessively difficult” to recover the money. In addition, it cannot start running from the conclusion of the contract, that is, from the signing of the mortgage.

Consumer knowledge

From the Asufin association it is considered that until the consumer knows the nullity of the clause of his contract, that is, when the sentence materializes, “he cannot begin to compute the term to demand the restitution of amounts.”

In addition, the association recalled that the Ministry of Consumer Affairs issued a statement on December 2, in which it stated that the deadline expired on January 21, 2021, so it would already be prescribed in most cases, upon completion of the five years since Sentence TS 705/2015 was made public. “In this way, the department endorsed the most restrictive interpretation and the one preferred by the banks,” he says.

In this sense, it stands out that the reform of the Civil Code of 2015 reduced the statute of limitations for personal actions from 15 to 5 years, establishing that, for contracts carried out prior to the reform, the statute of limitations for the liability action would remain set on October 7, 2020.

However, due to the state of alarm, it was agreed to suspend the deadlines and delay the prescription of the liability action for this matter until December 29, 2020, the association collects.

Scenarios

For its part, reclamador.es explains that there are various scenarios. In the first, which qualifies as «positive», it is the one in which the Supreme Court declares that since the clause of expenses of formalization of the mortgage loan is considered void as abusive, «there is no specific term or period of time in which the mortgaged must initiate his claim ».

In this stage, all those affected by this abusive clause could continue claiming the bank for the refund of the amount paid more for concepts such as the appraisal of the home or the Property Registry, among others.

The reclamador.es experts consider that this situation would be “the most consistent” with Spanish law by not “separating the two actions, the declaration of nullity and the return of the overcharged, since the latter is contemplated as an inseparable effect of the first ».

On the opposite side, this platform indicates that there is another scenario in which the Supreme Court judges rule that the action of claim prescribes when the loan was signed, which would leave out all five-year mortgages backwards – ten in the case of loans signed in Catalonia, by its Civil Code that establishes a longer limitation period).

Finally, reclamador.es points to other “intermediate” scenarios, such as the one in which the judgment recognizes the prescription of expenses, but as soon as the clause is declared invalid. That means that the term does not begin to run until there is a sentence declaring it so.

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