Those who relied on the courts to declare the IRPH clause on their mortgage abusive have just received a severe setback. The Madrid Court of Justice has ruled on the matter for the first time after the judgment of the Court of Justice of the EU and has refused to cancel the application of this index to loans, which ended up being much more expensive than the usual Euribor . The court ratifies the correction of a loan from Banco Sabadell for an amount of 143,000 euros that occurred in 2005.
The decision of the Plenary of Section 28 of the Madrid Court - the only one that resolves this type of matter - joins, among others, the hearing in Barcelona , which has also confirmed that financial entities acted correctly. The first decisions of other hearings after the judgment of the CJEU did annul the clause that established the interest under the IRPH and have replaced it with the Euribor, but that trend has been reversed. According to the balance of the association of financial users Asufin, the decisions in favor and against are more or less at par.
The last word to unify criteria is held by the Supreme Court , which in its day rejected the nullity, which makes it very likely that this will be the answer again. There is also the option of a new ruling by the Luxembourg Court on the matter, as several courts have already requested.
The judgment of the Madrid Court considers that the judgment of the CJEU last March does not actually change things and that it continues to be worth the judgment of the Supreme Court denying nullity. The EU Court established that the IRPH index could be subjected to a transparency examination. But that does not imply that the examination concludes that the eventual lack of transparency implies that there was abuse.
The Madrid Court differentiates the IRPH case from the ground clauses , which have been considered abusive and, therefore, void. "In the case of the floor clause, the lack of material transparency is identified, without further ado, with the imbalance between price and performance without the need for an additional finding of that imbalance. The information deficit makes the user, convinced that he agreed a variable interest loan, see your expectation in this regard disappointed when you check that, depending on the behavior of a variable that is fully embedded in the contract, the interest will behave as fixed interest. In short, the user does not properly capture the economic burden of the clause by failing to realize that the variable interest regime under which the loan was arranged may cease to operate. "
On the contrary, the resolution continues, "in the case of the IRPH clause, not only is there no identity between the lack of transparency and the price / performance imbalance, but there is not even a causal link between the former and the latter. In these cases, frustration of expectations that is denounced by the borrower is not generated by undesirable and unforeseen behavior of the chosen index (IRPH), but by the appreciable correlation between the behavior of said index and that of another index that is completely unrelated to the contract (the Euribor) ".
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