The Supreme Court has ruled for the first time on mortgages with IRPH after the latest pronouncements of the European courts and it has been to agree with the bank. In a resolution made public this Friday, the civil chamber has agreed with Kutxabank against a client who contracted a mortgage with interest calculated based on this variable index and explains that the entity did not incur an imbalance or bad faith in doing so. The IRPH, among other things, is an index regulated by public administrations and the bank has no obligation to offer comparisons with other indices such as the Euribor.
The Supreme concludes that the mortgages with IRPH were not very transparent but not abusive
The Mortgage Loan Reference Index (IRPH) is an indicator that appeared in the Spanish banking scene in the mid-1990s and changed in 2013. An indicator to calculate the interest on a mortgage drawn up by the Bank of Spain, which accounted for billions of euros in the portfolios of the large Spanish banks and which, according to the banking regulatorarose from making the simple average between "the weighted average interest rates of loan operations with mortgage guarantee of a term equal to or greater than three years for the acquisition of free housing initiated or renewed by banks and savings banks".
A variable index that, at a given moment, began to make mortgages more expensive for Spaniards, who began to go to court. The latest decision of the Court of Justice of the European Union came last november: the IRPH could be used and the judges could analyze if the clause had been introduced by the bank in a non-transparent way. But this lack of transparency, for example, is not just because the bank does not present its clients with a brochure with detailed information on how it works and how it can evolve.
The Supreme Court has just resumed the resolution of cases on this type of mortgage and in the first one that it has sentenced, it has agreed with Kutxa. The judges have studied the case of a man who in 2012 signed one of these mortgages with Kutxabank and that he claimed in court just two years later. Both a court in Vitoria and the Provincial Court of Álava agreed with him and declared the nullity of the clause that tied the interest to the IRPH, he said, due to "lack of transparency and being abusive".
Now it is the civil chamber of the Supreme Court that agrees with the bank and endorses the contract. The judges put on the table the latest resolutions of the European courts and their criteria to declare the possible abusive nature of this type of clause: that they generate imbalance and that the entity acted in bad faith. In this sense, the ruling recalls that the IRPH cannot be considered little transparent by itself: it is published in the BOE, which according to the Supreme "allows the average consumer to understand that the aforementioned index is calculated according to the average rate of mortgage loans for more than three years for the purchase of housing, thus including the differentials and expenses applied by such entities.
That the bank does not offer, for example, a comparison between the IRPH and another type of indicator does not lead to a nullity of the clause. "In addition, the central government and several regional governments have been considering, through regulations, that the IRPH index was the most appropriate to use as a reference index in the field of financing official protection housing, for which it is It is illogical to consider the incorporation of that same index to loans arranged outside that area of official financing as an action contrary to good faith," they reason.