July 25, 2021

What banks and mortgages play with the sentence of the Supreme Court – La Provincia

What banks and mortgages play with the sentence of the Supreme Court - La Provincia


The Plenary of the Contentious-Administrative Chamber of the Supreme Courthas begun to deliberate at 10.00 this Monday if it confirms or revokes the jurisprudential turn given a few weeks ago by one of the sections of this court, which ruledin favor of them beingthe banks that assume the payment of the tax of legal acts documented -on mortgages-, which up to now the clients have supported.

The purpose of the meeting, convened only a day after it was known thatit is the banks that must take care of the taxit is not to correct this doctrine, but to review, qualify and analyze its consequences and its scope.

That is to say, if indeed the entities must pay the tax of documented legal acts (AJD) of the mortgages, and since when. The question is not trivial, since given that the tax prescribes after four years, all those who havesubscribed a mortgage loanin that term.

Judgment on the tax on mortgages

The risk measurement agency Moody's believes that it is most likely that banks will only pay the tax for mortgages from now on, but in case the retroactivity is extended up to four years,the bill would amount to 2,300 million euros. This would be the amount that could be recovered by hundreds of thousands of families based on the final decision adopted by the Plenary of the Contentious-Administrative Chamber of the Supreme Court.

For now, and only in the fall of the stock price,the banks have already suffered a setback of more than 5,000 million euros.

Meanwhile, the bank is waiting cautiously for the decision of the Supreme Court. The CEOs of banks and banking employers agree that the possibility of retroactivity is not contemplated, since "the entities acted according to the law" and is "a matter of legal security.

Despite this, some jurists believe that being a sentence of "absolute nullity in full" for the abuse,its action does not prescribe, according to the director of the firm Arriaga Asociados, Jesús María Ruiz de Arriaga.

Therefore, several scenarios are proposed. On the one hand,Supreme Courtcould make a contradictory decision andrevoke the jurisprudence of October 18 by which it was determined that the taxpayer is not the borrower of the tax in the deeds and not apply it to the doctrine.

This first assumption, would give the reason to the banks and would prevent any type of claim since the clients would continue taking charge of the AJD, as until now, with an average cost of about 2,500 euros.

On the other hand, the members of the Contentious-Administrative Chamber could keep the last sentence and apply the doctrine of the Supreme Court thatit is the banks and not the clients who take charge of the payment of the AJDin the inscription of the scriptures.

In this sense, the claims of the banking employers' association that has argued that in the event that the new ruling annuls the current norm to date, legal security is respected and retroactivity is not applied.

In case there is no retroactivity, the banks should take over the AJD from the date of the judgment, so those who formalize their deeds before October 18, 2018They could claim the return.

However, the option of the Supreme Court betting on alimited retroactivity,only those who paid the tax since October 2014 – around 1.5 million taxpayers according to Gestha – could claim their return to the Ministry of Finance of the Autonomous Community.

In this case, being an undue payment and not having prescribed, the autonomous communities would automatically return the amount paid, and they would do so without cost to their coffers, since they would charge directly to the banks. In this case,the cost for banks could amount to about 3,631 million euros, to which should be added the interests of delay, according to Gestha.

Third, the worst scenario for banking would be the ratification that banks must pay the AJD without retroactive accounting. This would be a serious blow for the financial sector, since it would allow claiming to the Treasury those who signed in the last four years, and would give the option to the rest to go to court to claim the banks without deadline, through the nullity action .

In this stage,at least eight million Spaniards who have an active mortgage todaythey could complain to the banks about these costs and plead their return in the specialized courts. However, the usual thing is that only claim between "10% and 20% of those affected", according to the Association of Financial Users, Asufin.

A final option would be that the conflict be extended before the discrepancy of the Civil Chamber and Contentious, so the matter would end in the Room of Conflicts of Jurisdiction or even reach the European Court of Justice.

More than 8,000 paralyzed mortgage operations

While waiting for a final decision, theFederation of Associations of Real Estate Agencies(FAI) estimates that at the moment there are more than 8,000 mortgage operations paralyzed throughout Spain.

"The uncertainty generated has meant that the bank has postponed many of the mortgages firms committed for the next few days, more than a third of those planned," according to the president of the organization, Nora García Donet.

The federation has warned of the consequences generated by these postponements and has claimed the entities thatact "responsibly" to their customers, since, "they can end up incurring in breaches of the contracts already signed because of the delays in the mortgage loan companies".

The postponements of firms by banks can cause many buyers are in "a situation of non-compliance with the deadline in the private deposit contracts that have signed to buy your home."

"Some buyers may lose the amounts delivered as apenitential arrasif the banks do not react on time, "warns the FAI.

This federation, constituted in March 2013, is composed of a total of twenty real estate associations of regional or local scope throughout Spain. Currently, it groups more than 850 real estate agencies and 3,730 professionals.

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