December 4, 2020

“The Supreme Court turns its back on consumers once again”


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Many doubts and unanswered questions remain in the air after the Supreme Court decision on mortgages referenced to the IRPH. The High Court has ruled in a note and without making public the sentence that in loans linked to IRPH there is no abusiveness, although there is a lack of transparency. The First Chamber of the Supreme Court has pronounced like this in the Plenary called for today, although it has not yet drawn up the details and arguments in depth.

The ruling refers to four cassation appeals and another is pending on the same matter but on a public housing.

The legal co-director of reclamador.es Almudena Velázquez, interprets, in the absence of knowing the sentence in depth, that the High Court “once again turns its back on consumers.” «It produces us an absolute disappointment and stupor the decision of the Supreme Court, which leaves those affected by IRPH unprotected in Spain, “says Velázquez. “The High Court, according to the press release, appreciates that there is a lack of transparency in the cases it has followed but does not consider the clause abusive. We need to examine the sentence to be able to pronounce on what have been the elements that the Supreme Court has taken into account to consider that the clause is not abusive, “says Velázquez.

From Claim for Me, like other law firms consulted by this newspaper, they underline the difficulty of deciding now whether or not it is favorable news or not for consumerss. “We only know the headline, we know that the Supreme Court says that there is no abusiveness but there is a lack of transparency, so we will have to wait to have the full sentence, read all the content well and understand what it is based on. From there we will draw the conclusions and we will know which path to take ”, they point out from this legal platform.

Faced with this situation, the experts at Claim for Me make it clear that after the press release and awaiting the opinion on the fifth case tried, they are numerous questions and doubts about the final interpretation in the absence of the full sentence. Thus, the four questions on the table are about whether or not those affected can claim, if the lack of transparency implies abuse or not, what the Supreme Court refers to when it says that there is no abusiveness following the doctrine of the CJEU and finally, elucidate if the lack of transparency has been a sufficient element to declare the four contracts void.

For his part, Facua’s spokesman, Rubén Sánchez, interpreted that it is very difficult to draw conclusions without a sentence but he wanted to make it clear that it seems “that the Supreme Court wants to save the bank again” and called what was decided today as “absolutely embarrassing.”

In reclamador.es they calculate that in Spain there are currently a total of 300,000 mortgage loans that are currently referenced to this index.

Review case by case

The Court of Justice of the European Union (CJEU) ruled last March that Spanish judges had to review case by case whether mortgages with an IRPH index were abusively marketed. With that sentence, the door was opened to claim in the mortgage contracts in which the banks included it without explaining to the client how the installments were calculated. With the judgment of the Supreme Court, it is now up to the air that those affected can recover everything overpaid.

For its part, the Spanish Banking Association (AEB) assessed in March the judgment of the CJEU considered “the use of the IRPH index to set the interest rate on mortgage loans” fully valid. The AEB already interpreted then that when a judge considered that in a specific case the clause was not transparent, the final effect would be the replacement of the IRPH savings banks (or the IRPH banks, as the case may be) applied, by the IRPH entities, whose value is practically identical.

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