A judgment of a court in San Sebastián has completely annulled effectively, For the first time in Spaina mortgage contract referenced to the IRPH, so the plaintiff will recover all the amounts and interests paid to the bank, to which the loan capital must restore. The sentence has first recognized in our country the client’s right of a banking entity to opt for the nullity of its mortgage After declaring the clause abusive which established the loan reference index.
This Resolution of the Court of First Instance number 8 of the Guipuzcoan capital specialized in abusive clauses, to which EFE has had access, recognizes the consumer’s right to opt for the replacement of the annulled reference index of its mortgage by another reference or the “Radical nullity of the contract”option to which the plaintiff is accepted, represented in this case by the lawyers José María Erauskin and Maite Ortiz.
This decision is a direct consequence of the Prejudicial issue With 21 questions that this same court raised in April 2023 to the Court of Justice of the European Union (TJUE) on the application of the IRPH index as a mortgage reference.
The Donostiarra court sought that the TJUE set the jurisprudential interpretive criteria To continue from the national judges in these types of demands, in order to apply them to the specific case of the aforementioned client that, after subscribing in 2006 a mortgage to 35 years, referenced to the IRPH, with the savings and mount of piety of Gipuzkoa and San Sebastián (today Kutxabank), In 2022 this clause appealed for considering it abusive.
In response to the question of the Donostiarra Court, the European Court issued on December 12 a sentence in which it established that Moor faith cannot be ruled out In mortgages referenced to IRPH for the mere fact that this is an official index and that the clauses in question can be abusive if the requirement of transparency.
Now, following this resolution of the TJUE, the Donostiarra Court establishes in its sentence that the clause referred to the IRPH-salajas in the case of the Kutxabank client “It does not exceed transparency control”among other reasons because “it does not collect the complete definition” of this mortgage index or its calculation method, “it does not refer to a reliable direction to locate them” and “does not quote the relevant circular of the Bank of Spain that illustrates in this regard.” Consequently, the sentence cancels the controversial clauseeliminates it from the injured mortgage and has it not put.
Nullity of the contract
In this line, he also declares the nullity of the contract to understand that “It cannot subsist after expulsion” of the clause, as the Supreme Court already established at the time. For this reason, it decrees the “radical nullity” of the contract and condemns the client to reimburse Kutxabank “the capital received in loan without addition to any interest” and the bank to reintegrate this ” amount of monthly fees and expenses paid so far “, increased with the corresponding interests.
“Compensation between both liquidations, that part that is debtor must pay the part that is creditable The amount of the compensation carried out, “concludes the sentence, which imposes on Kutxabank the payment of the procedural costs and establishes a period of twenty days for possible challenge.
In statements to Efe, the lawyers José María Erauskin and Maite Ruiz, of the Dispatch that has defended the affected consumer, have congratulated themselves for this resolution that,, “After years of disappointments and dislikes” It reflects on paper most of the arguments that have wielded “before countless national judges and courts” in numerous similar cases. For his part, Kutxabank has announced that The sentence will resort before the Provincial Court of Gipuzkoa.
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