The Ministry of Justice is preparing a battery of measures contained in two key preliminary projects to try to solve the great traffic jam suffered by the courts specialized in abusive clauses. They face 240,000 lawsuits pending for four years due to the habit of banks to sue to the end over floor clauses and other abusive conditions, although they lose 97.5% of the cases.
The ministry hopes that the processing of the new law will be completed by early 2022 and a situation created by banks to discourage customers and prevent them from fighting, at the cost of blocking the courts, will unravel.
From the crisis of 2008 to 2012, the bank has pending to resolve the claims of its customers to whom it sold products with clauses that the Court of Justice of the European Union (CJEU) has considered abusive. The sector resolved the wrong placement of preferred and convertibles, but not the floor clauses, the credits referenced to the IRPH or the multi-currency loans. These problems are behind the bad reputation of the sector, which has slowed down compensation by litigating until the end and lengthening the processes.
Nobody defends the bank
A decade after this outbreak, banks have been left alone in defending their strategy of delaying processes. From some members of the General Council of the Judiciary (CGPJ), such as Gerardo Martínez, to the Council of the Lawyers, passing through the main consumer associations, they demand measures. And the Ministry of Justice, led by Juan Carlos Campo, has moved file with two draft bills.
The first of them addresses procedural efficiency measures, which are in process, and advocates that claims for abusive clauses are processed as verbal trials, whatever the amount claimed, report sources from the Ministry of Justice. The verbal trial is simpler and faster than the ordinary trial and the judge may pronounce sentence orally, speeding up the lawsuits.
Secondly, to these lawsuits the witness lawsuit technique may be applied, that is, that only one is processed, suspending the processing of the others until a sentence is passed in which it has been determined as a witness and the sentence acquires firmness. From there, all other citizens may request that the effects of the sentence of the witness lawsuit be applied to them when the cases are the same. “Certain legal requirements must be met, allowing precisely this treatment for mass litigation in the matter of abusive clauses”, point out the aforementioned sources.
Mandatory and binding prior negotiation
The draft law includes a third measure: “a system of adequate means of dispute resolution” so that no claim can be filed without prior negotiation between the parties. In the case of abusive clauses, the consumer will complain to the bank before filing the lawsuit and the latter will have to admit or deny the claim “and will not be able to allege other different reasons in the subsequent lawsuit if an agreement is not reached”. If there is an agreement, the bank will itemize the amounts and pay in just one month. After that period, you will pay the legal interest on the money plus eight points.
If the claim finally ends in a lawsuit, the collaboration that the parties have provided in solving these disputes will be taken into account, “both for the imposition of costs and to consider that there may have been an abuse of the public service of Justice deserving of the imposition of a sanction ”, they indicate from Justice.
In addition, another draft organizational law is being processed in which the future Courts of Instance are regulated. Among the functions of its president and the section presidents will be to unify practices and criteria when there are different interpretations, something important for floor clauses and other abusive ones “which are substantially the same and generate mass litigation.