The amounts paid in respect of mortgage expenses that are included in a clause declared abusive must be returned to the consumer unless national law establishes otherwise, according to a ruling of the Court of Justice of the European Union (CJEU) published this Thursday. According to the CJEU, if an abusive clause that charges the client with the payment of all the costs of the constitution and cancellation of a mortgage is declared void, Community law precludes the national judge from denying the consumer the return of the amounts paid under that clause. According to ASUFIN (consumers association) figures, there would be eight million clients of financial institutions in this situation.
The only exception would lie in the event that the provisions of national law applicable for this purpose impose on the consumer the payment of all or part of those expenses. In this way, the CJEU reminds that if the clause is declared abusive, the refund of the amounts can only be moderated when the mandatory law so agrees, which means that, except for the Tax on Documented Legal Acts (AJD), the rest of the Amounts paid will have to be 100% refunded. In this line, the judgment stresses that the client could only be charged “all or a part” of the mortgage expenses if so stipulated by “provisions of national law applicable in default of that clause”.
This supposes a setback for the jurisprudence established by the Supreme Court. This concluded that, when a clause was annulled, the mortgage expenses had to be divided between the lender and the borrower at 50% each. A “moderation” of expenses. European justice now overthrows this thesis and obliges banks to reimburse the total costs of the constitution and the cancellation of a mortgage.
The CJEU’s position regarding the refund of money paid under abusive clauses is clear: “It should be considered that, in principle, a contractual clause declared abusive has never existed so that it cannot have any effect on the consumer. Consequently, the judicial declaration of the abusive nature of such a clause must have as a consequence, in principle, the reestablishment of the factual and legal situation in which the consumer would find himself if there were no such clause. In other words, if it is declared as such, the client cannot see his rights impaired and the money that should not have been paid should be returned to the consumer.
At Blasco Solicitors, we are highly experienced in Spanish civil litigation against the banks and we would be delighted to assist you with any matter you may have in relation to banking claims.
Should you have any queries do not hesitate to contact our office on 015545711 or directly with our Spanish Abogado, Javier Soto, at email@example.com.