The Supreme Court has eluded this Wednesday from ruling on the period in which customers can claim from banks the return of mortgage expenses paid as a result of an abusive clause. Before making this decision –delicate due to its impact on banks and on a good number of citizens-, the judges advocate submitting a preliminary ruling to the Court of Justice of the EU (CJEU), a possibility that they have already raised with the parties. . With this measure, the Spanish high court maintains uncertainty about the period of time that the mortgaged ones have to address the financial entities that granted them the loans, since until now there were different legal interpretations about when that term ended. “The Plenary of the First Chamber of the Supreme Court has unanimously agreed to open the hearing process to the parties, prior to the possible presentation of a preliminary ruling before the Court of Justice of the European Union,” he stated in a note.
In January, the Civil Chamber of the Supreme ruled that in cases where the bank client paid all the expenses as a result of an abusive clause, the bank must return 100% of the expenses of the property appraisal. And previous rulings already indicated that the same happens with the registry and the agency, while the amounts paid before the notary must be divided 50%. Only the Tax on Documented Legal Acts (AJD), precisely the one that raised the greatest stir in the high court as a result of a 2018 ruling, is completely in charge of the client.
Although it is already known how the distribution of expenses is, the ruling of this Wednesday should shed light on the deadlines. The Supreme Court had to determine whether those who contracted their mortgage before June 16, 2019, when the real estate credit regulatory law came into force, which clearly indicated who each expense corresponds to to resolve the problems caused by the previous lack of definition, could still demand that They are reimbursed for the incorporation costs that the banks improperly charged them, the price of which is around 1,500 euros on average. And until when could they do it. If the prescription had been eliminated, the banks would face a millionaire bill in the face of the flood of potential claims to come, a risk that has not yet disappeared with the pending case before European justice.
A change in the Civil Code in October 2015 lowered the expiration periods to claim from 15 to 5 years. And until now there were several legal interpretations about when that term should expire. Among the deadlines that are being considered, the most restrictive was December of last year, five years after the first ruling of the Supreme Court that declared the clause of attribution to the buyer of the expenses in the mortgage loan null. Another interpretation postpones that prescription until January 21 of this year, when five years have passed since the aforementioned sentence was published. Although there are those who point to the possibility of adding the 82 days in which the state of alarm last spring suspended the statute of limitations, which would have brought that threshold limit until April 13.
According to the Court of Justice of the European Union, national legislation may establish a limitation period for claiming compensation, but this must not make it “impossible or excessively difficult” to recover the money. And it cannot start running from the conclusion of the contract, that is, from the signing of the mortgage.
The Association of Financial Users (Asufin) insists on defending that until the consumer knows the nullity of the clause of his contract, that is, when the sentence is materialized, “he cannot begin to compute the term to demand the restitution of amounts ”. In addition, the association criticized that the Ministry of Consumer Affairs issued a statement last December in which it stated that the deadline expired on January 21, 2021. “In this way, the department endorsed the most restrictive interpretation and the one preferred by the banks. ”.
Given the unrest created, the Ministry of Consumer Affairs published a second version of that note, more prudent, in which it recommended “to carry out the claim as soon as possible” and pointed out that the Supreme Court had not yet ruled on the moment when that the five-year period indicated in the Civil Code must begin to be computed. In addition, he recalled that expenses can also be claimed even if the mortgage is canceled. “Any borrower who has signed a loan contract that includes an abusive clause can claim expenses, regardless of the fact that the mortgage is active, is canceled, the property on which it was incorporated has been sold or there have been novations on the contract of initial loan ”.