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Ground Clouses

Recently, there has been a ruling by the European Union Court on the full remittance effects of the declaration of nullity of the floor clauses of mortgage loans (STUE 21/12/16, EDJ 22605).

The floor clause is a contractual clause that is established in mortgages, by which a minimum limit is set to the interest to be applied in the installment even if the interest rate falls. It is clear that this type of clause benefits the banking entity and harms the individual who has applied for the mortgage loan, because even if the interest rate is lower or negative, that clause prevents this from being reflected in the monthly fee.

These clauses were already declared illegal in Spain and in the judgment of the Supreme Court of May 9, 2013, illegal and abusive clauses were declared, although this ruling limited the return of the amounts collected at the date of the sentence.

The judgment of the European Union Court, in its judgment – which is unappealable – has ruled against this limitation set by the Supreme Court in Spain, on the understanding that the retroactivity of the nullity of this clause charged by banks and savings banks Of savings must be returned to the individual since the signature of the mortgage for the acquisition of the house.

There are different procedures for their return: extrajudicial or judicial route.

What if you have already filed a lawsuit and are in the process? You can suspend by mutual agreement with the bank the procedure in order to resolve the issue through out-of-court settlement.

The deadline for resolution by out-of-court settlement must be concluded within 3 months, if after that period there is no agreement or even if the bank has not made available the amount committed or you are not satisfied with the Amount offered, you can go to court.

If you file a claim without a prior extrajudicial claim, it may happen that the bank will stay on your request before answering the claim, which would prevent your sentence in costs, since it would be understood that there is no procedural bad faith for it.

To point out that the judgment of the European Union Court does not resolve other issues that may arise in practice and that, for example, it would be to determine the budgets, interpretation and scope of that good faith of the parties and whether the risks caused should be considered Only in relation to the consumer or also in relation to the employer.

For any question, do not hesitate to request an appointment in the office.

Sara Benjelali González


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