Abusive clauses

The Supreme Court (TS) has ruled in favor of consumers who requested the bank to refund them the mortgage expenses that they had paid due to a clause that obligated them to assume all the costs of the contract. At the time, these borrowers signed a mortgage loan with a condition that charged them all the expenses , and that is why they went to court asking for two things, to declare null that clause (as abusive) and for the bank to refund what they had paid, in addition to the interests.

In the first instance, the judge declared the clause null and void and sentenced the bank to refund the expenses with interests. The bank appealed, but with an important nuance, it was no longer arguing that the clause was abusive. What it was trying to do was to avoid payment by alleging that the refund claim was time-barred (meaning that the deadline to claim had passed).

The entity argued that the deadline to claim should start counting from when a previous collective judgment became final previous class action that had declared the nullity of that same clause with "ultra partes" effect (i. e., beyond the individuals who participated in that trial). According to the bank, since that abuse had already "notorious" from that moment on, the time to claim would have started earlier.

But the Supreme Court does not accept that approach because, even if there is a collective judgment declaring the nullity with general effect , that does not automatically mean that the deadline for each person to claim the return of the money starts running. The restitution is an individual action and the decisive factor is that the consumer has effective and concrete knowledge that their clause is abusive. Therefore, the Supreme Court rejects basing this start on a supposed "notoriety" derived from specialized judicial judgments or actions.

If you are thinking of carrying out any type of operation or business that includes the formalization of a real estate credit contract, our professionals can advise you on the defense of your interests