This Thursday the Court of Justice of the European Union (CJEU) has admitted the possibility that a clause on the Mortgage Loan Reference Index (IRPH) may be considered abusive and as a consequence canceled due to lack of transparency.
The European High Court has concluded in its ruling that the validity of the IRPH cannot be accepted for the simple fact that it was an official index recognized by the Bank of Spain and published in the Official State Gazette (BOE), as it has defended. until now the Supreme Court (TS), and that Its abusive nature must ultimately be determined on a case-by-case basis. by the competent courts if it can be verified that the transparency requirement was not met.
This decision restores hope of recovering the money they have paid plus one million households whose mortgage is referenced to the IRPH instead of another index, such as the Euribor, which has been shown to be more advantageous for the interests of consumers.
Now, the Supreme Court is expected to resume all matters related to the IRPH that have been paralyzed for a year and a half waiting for this ruling and apply what European justice has dictated.
This change of criteria in the highest Spanish judicial body would greatly facilitate the work of the Spanish courts and, in turn, would have disastrous consequences for the banks, which would be forced to return the money overcharged to your clients. Below are the main keys to take into account in the future regarding the IRPH.
Is the CJEU ruling good news?
Yes. It is more than evident that this is good news and that is why all consumer associations and law firms specialized in this type of claims against banks and finance companies have applauded the ruling of the European justice system. “The CJEU once again gives oxygen to consumers with IRPH mortgagesconsidering that European regulations, applicable in Spanish territory, allow the IRPH to be declared null and void,” Arriaga Asociados stated.
What does the ruling change?
The CJEU in its previous rulings had never made it clear that the fact that it was an official index recognized by the Bank of Spain and published in the Official State Gazette (BOE) was not enough for it to be transparent. In this way, The ruling overthrows the criterion of good faith which the Supreme Court had argued.
What will the Supreme Court do now? Does it mean that it will rectify?
In the end everything will depend on the Supreme Court’s final interpretation of the ruling. Although there is a consensus among specialized lawyers that this latest ruling questions the doctrine that the Spanish High Court has maintained to date, the truth is that the Supreme Court has not moved from its thesis since November 12, 2020, when he issued a series of sentences where He said that the IRPH was not transparent but it was not automatically abusive.
How do I prove abuse?
Many organizations consider that the one who now has to demonstrate that there was transparency is the bank. From the Association of Financial Users (Asufin) they consider that now “the CJEU places the burden of proof on the banks” and, therefore, “they are the ones who have to demonstrate that they informed their clients.” “In none of the cases handled by Asufin have we seen a document that proves that the consumer was informed of the economic consequences of signing a mortgage with IRPH and, like floor clauses or multi-currency mortgages, we are dealing with clauses imposed by financial entities. for their own benefit,” they say.
What can be considered abusive?
For example, a clear indication of abuse is the fact that the financial institution has not informed the consumer of how the IRPH is formed, which actually does not constitute an average interest in market operationsbut an Annual Equivalent Rate (APR), which means that it will always be above another average.
Will I be able to get my money back?
Only If it can be determined that the IRPH was marketed with a lack of transparencysomething that consumer associations and law firms consider more feasible after the new ruling. However, as we have said, the Supreme Court is the one that has the final say.
How much money is at stake?
In 2013, when the Euribor began its decline to values close to zero, the IRPH remained stable at 2%. This meant an increase in the installments of the affected mortgages between 200 and 300 euros per month. The average repayment is around 17,000 euros, so for a million mortgages referenced to the IRPH It would be about 17,000 million euros.
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