ABUSIVE CLAUSES IN BANKING & MORTGAGE LAW

  • Floor clauses
  • Abusive clauses that pass on to the borrower the costs and taxes for the setting up of the mortgage
  • Other abusive clauses

Clauses which limit the lowering of the variable mortgage interest rate, commonly known as “cláusulas suelo”, are being abolished by the Courts and Tribunals following Judgement nº 241/2013 passed by the Supreme Court on 9/05/2013. Furthermore, the recent judgement on 21/12/2016 of the European Court of Justice, adopted by the Supreme Court by agreement on 15/02/2017, establishes that the judicial declaration of the abusive nature of a clause must result in the reestablishment of the situation in which the consumer would have found themselves if said clause had not existed with retrospective effect from the date of the contract was set up, and permits the borrower to claim and obtain a total refund of the amounts improperly charged by the Bank in the application of said clause from the outset.

Also, the borrower will be able to claim even if they have signed with the Bank a private modifying mortgage document, then the previous renouncing of rights recognised to the consumer that said document may contain, according to that set out in RDL 1/2007 LGDCU (Art. 10), becomes void, likewise the acts carried out in abuse of the Law, in accordance with that set out in article 6 of the Civil Code.

On the other hand, you should know that in addition to the ground clause you may have the right to claim other amounts, e.g. the expenses and taxes relating to the set up of your mortgage and any other expenses arising from it (notary, land registry, legal fees and taxes), emphasising the Supreme Court judgement of 23/12/2015 that states that the passing on of such expenses and taxes to the consumer is an abusive clause and, therefore void, giving rise to the refund of said expenses.