The lawsuits presented by the abusive clauses that the bank imposed on its mortgage clients and the requests for arbitration total 1.8 million cases. Of these, almost 600,000 have reached the special courts since 2017 and 240,000 lawsuits remain to be resolved. The banks lose 97.55% of the processes, but they litigate until the end, blocking the courts. For the first time, a member of the General Council of the Judiciary asks that a 20% interest be applied to them when they appeal cases equal to those lost. The Bar Council claimed him in 2017, but no one listened to him. The Asufin association denounces the high public cost that this attitude of the banks supposes.
Ruth Trujillo is 42 years old and in 2008 she asked for a mortgage of 124,000 euros. In 2017, it found that a floor clause was improperly applied to it, which prevents it from getting cheaper even if interest falls. Following the advice of the Association of Financial Users (Asufin), he sued his entity, then Caja Canarias and today CaixaBank. The case was admitted for processing in 2018 in court 101 bis in Madrid, but it is still waiting for its turn. Trujillo is in ERTE and could use the money very well, but she is desperate. “Sometimes I think it will be a supplement to my retirement,” he protests wryly.
Like her, LM (she requests anonymity because she fears reprisals from her entity, Bankinter) also fell in a special court against abusive clauses. His case is a mortgage in yen and the judge agreed with him in 2018, but the bank appealed and is still waiting for the response of the Provincial Court. Like Ruth Trujillo, LM continues to be a client of the bank with which he is suing. “The deal is not bad, but I think they cheated on me,” he admits resignedly.
These examples reflect the underlying problem. The abusive clauses – among which the floor clauses stand out – that made mortgages more expensive and have been claimed by bank customers have caused 1.6 million files to entities. These figures make it a unique case in the sector, which has led to several rulings by the Court of Justice of the EU.
A total of 1.22 million claims have been processed via voluntary arbitration between the client and the entity. Through this channel – highly criticized by the associations for the defense of banking users – customers have lost more than half of the cases: they have only been right in 44.27% of the files. The effectiveness is very high: 99.4% of the cases presented have been resolved.
More than 97% of cases won
In the judicial process the situation is completely different. Since 2017, almost 600,000 lawsuits (584,000 until last December) have been filed in the courts created expressly for abusive clauses. However, the efficacy is lower, since 239,445 cases, 41%, are still pending resolution. Of course, the result for customers is very satisfactory, as they have won 97.55% of the time.
Gerardo Martínez Tristán, the member of the Judicial Branch that organized the creation of the special courts, does not hide his discomfort at the insistence of the banks to continue litigating, although they only win 2.45% of the cases: “It is incomprehensible and unjustifiable that go ahead with cases identical to others that you have lost. It has no explanation and there are negative consequences due to the accumulation of work in the courts ”.
Martínez Tristán affirms that in May of last year a crash plan was drawn up with legal reforms to stop this tireless litigation by the banks. The judge asks the Ministry of Justice to apply the principles of the moratorium law and the insurance law, which establish surcharges ranging from 9% to 20%, when litigated until the end with cases equal to those that have been lost . “It is a good measure to discourage unnecessary litigation,” he adds. The General Council of the Judiciary also requested that a “witness lawsuit” be established, that is, one that serves as a model when thousands and thousands of the same arrive later and a sentence is passed without processing them.
The request for a deterrent surcharge is not new. He arrived at the Ministry of Economy, then of the PP, in November 2017, a few months after the special courts were created. It was proposed by Vicente Pascual, dean of the Elche Bar Association and representative of the General Council of the Legal Profession (which groups the 83 bar associations), in the committee for monitoring the arbitration of floor clauses, chaired by the deputy governor of the Bank of Spain , Margarita Delgado.
Pascual continues to demand “a default interest rate payable by the banks, due to abusive clauses, similar to that of article 20 of the Insurance Contract Law, the effects of which since 1981 have been extraordinarily positive for companies and policyholders. ”.
The Spanish Banking Association (AEB) considers that “any surcharge in judicial proceedings, such as 20%, would be inadmissible and contrary to the right to effective judicial protection”. The AEB maintains that the banks are fighting to the end because the Supreme Court recognized “the validity” of the floor clause used. “And if the banks consider that they are transparent, they must defend themselves,” add sources from the sector’s employers’ association.
Four years later, Pascual continues to defend the same, as do Asufin and judges like Martínez Tristán. “Justice cannot withstand 650,000 new lawsuits. In this conflict, all the powers of the State have opted for the protection of the bank. The Supreme Court, imposing limits on the retroactivity of the floor clauses, later corrected by the Court of Justice of the EU. The Executive imposed a prior claim procedure, with the consequent delay in the effectiveness of their rights. And then the arbitration system and the special courts, which have been a failure for the client ”, affirms the lawyer Tristán.
This expert recalls that for more than three years the number of unsolved cases has been maintained: 250,000, “to the despair of consumers and the shame of the financial system. The capacity of the banks to abuse does not seem to have an end to the purchase of the house: clauses on the floor, expenses, multi-currency mortgage, the IRPH … ”.
Patricia Suárez, president of Asufin, believes that the current system only deters the consumer but never the banks. “The most dramatic thing is when agreements are reached in the first instance before trial and the bank is not sentenced to costs,” he says. And he adds that the costs paid by the bank are about a third of the real expenses that the Administration of justice has for maintaining the procedure. “This strategy of pleading to the end is a cost paid by the State, that is, the taxpayer,” says Suárez.
Another association, Adicae, present in the monitoring commission, does not believe in the usefulness of the 20% surcharge. “The condemned banks already pay default interest from the application of the clause to the sentence at 3.5% of the legal rate, in addition to the costs, in many cases,” says its president Manuel Pardos, who believes that the economic cost does not They care: “They do it to discourage customer demands (only 20% sue) and to postpone paying the money they owe to customers. They bear the cost in reputation. There is no solution without a change of attitude ”.
Madrid: three years of delay in a court without windows
The court 101 bis of Madrid, the only one in the province for toxic products (floor clauses, multi-currency mortgages, swaps…) is a black hole in the system. It has not resolved one out of every three files entered in 2020. The General Council of the Judiciary admits that it is a “problem of internal organization of government bodies” and exonerates the Department of Justice of the Community of Madrid, despite the fact that it is the person responsible for providing the court with material means. Despite these negative figures, Madrid is not the one that supports the most cases in relation to its inhabitants; there are three communities ahead. According to the Association of Financial Users, Asufin, in Madrid there are delays of three and four years for the claim of mortgage expenses and floor clauses.
“They are with cases from 2017 and 2018. It is a court in which they work in terrible conditions. In reality, it is a floor that has some rooms where trials cannot now be held because there are no windows and most judges cannot work there because they do not have their own offices, ”says this association. At the end of 2019 they were going to move to new facilities, but it was not done, they add. The other court in the worst situation is that of Barcelona, with pending cases since 2017. “It is serious because the demands for land or multi-currency involve money that can fix the life of a family,” they say in Asufin.
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