The thousands of mortgage holders in Spain who signed a loan based on the controversial Mortgage Loan Reference Index (IRPH) will be able to claim a refund of the money that the entity with which they signed could have overcharged them. It is the main consequence of the ruling issued today by the Court of Justice of the European Union (CJEU), which admits the possibility that these clauses could be annulled due to lack of transparency, although it imposes a series of conditions for it to be considered that a contract was abusive.
It must be remembered that the IRPH is, like the Euribor, an index used by banks to calculate the interest on variable mortgages. If the second represents the interest at which banks lend money to each other, the IRPH indicates the average interest they apply on the mortgages they grant each month.
The problem is that For many years, entities advertised this product to their clients, guaranteeing that it was not very volatile. and safer than the Euribor, which is true, but in many cases they did not explain that it almost always trades above the reference index.
When it began to be applied in 1994 it was very popular, so much so that becoming present in 10% of the mortgages signed in Spain, but its prestige and popularity declined until it appeared in only 0.28% of the contracts agreed in 2018. If it is still valid today it is because it is in the outstanding loans of those who had the misfortune of signing one of these mortgages, many of the which they claimed before the courts.
This CJEU ruling comes as a result of the case of a resident of San Sebastián who in 2006 subscribed a loan of this type with the Caja de Ahorros y Monte de Piedad de Guipúzcoa and San Sebastián, which would later become Kutxabank. The fact is that in 2022 the client decided to go to court to denounce the alleged lack of transparency of the mortgage he signed, and the Basque court ended up presenting a preliminary ruling to Europe.
Analyze case by case
Until now, the jurisprudence of the Supreme Court in Spain indicated that the IRPH clauses were not null because they are an official and public index; Its value, by the way, is established by the Bank of Spain through the information provided by the banks.
However, in its ruling this Thursday the CJEU rules that The fact that the IRPH clauses are published in the Official State Gazette does not imply that an average consumer can understand the nature of the product, and that it is the bank’s responsibility to draft the contract in an understandable manner so that the consumer can evaluate it in an informed manner and be aware of the economic consequences that may arise.
From there, the ruling continues, it can be inferred that a lender has fulfilled the obligation to be transparent if it has provided information that is sufficiently accessible to an average consumer. That is to say, that the ruling is not completely final or in any case it indicates that whether or not the clauses are abusive will depend on the specificities of each case. What is clear at this time is that the ruling opens the door to a flood of claims that will have to be resolved one by one, court by court.
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