also not annulled in the cases of mortgages for publicly protected homes.
This has been agreed by the Plan of the
Civil Chamber of the Supreme Court
in a sentence that replicates in these cases the criterion that has already been applied to most of the cases.
The Civil Chamber found that the mortgage clause linking payments to the
Mortgage Loan Reference Index
had not been presented to clients in a transparent manner.
But that did not mean that it was an abusive clause and therefore void.
With this argument, the Supreme Court agreed with the banking entities in four decisions announced on October 21.
Now it extends the decision to the case of a consumer who had been subrogated in a loan granted to finance a social housing development.
In the deed of sale and subrogation, it had been specified that the interest rate was the result of adding 0.10 points to the interest legally established for officially protected housing loans, which was calculated on the IRPH-Entities index.
The borrower requested the nullity of this clause considering, among other reasons, that it did not meet the
parameters of the transparency control
This claim was rejected in the first and second instance and the Plenary of the Chamber, unanimously, has dismissed the appeal.
The Supreme Court maintains that its decisions follow the criteria set a few months ago by the
Court of Justice of the EU
The CJEU revoked the Supreme Court's opinion that the transparency of an index expressly included in the law could not be reviewed.
Luxembourg said yes, but left open the decision as to whether that should lead to a nullity.
According to the Supreme, no.
According to the Civil Chamber, "in the event that the lack of direct information by the credit institution on the evolution of the benchmark index in the previous two years could be considered as a determinant of the lack of transparency of the challenged clause, such lack of transparency would not necessarily determine the nullity of the clause ".
The consequence "is not nullity, but the possibility of carrying out the abusiveness judgment", that is, assessing whether this clause causes an imbalance to the detriment of the consumer and user.
The Chamber makes this examination and concludes that "the offer to the consumer of a loan subject to the financing system provided for public housing housing in its regulatory regulations cannot be considered as an action contrary to the requirements of good faith."
The decision has been criticized by consumer associations.
, for example, they consider that the Supreme Court has made "an absolutely twisted interpretation of the doctrine of the EU Court. The president of the association, Patricia Suárez, demand that the Government regulate public housing without the IRPH clause. And he announces that they
will take the matter back to the Luxembourg Court
According to the criteria of The Trust Project
EconomyThe Supreme Court rejects that IRPH mortgages are abusive despite acknowledging their "lack of transparency"
Q&A What happens to IRPH Mortgages after the Supreme Court ruling?
Where and how can the money be claimed
LanguageThe Supreme Court demolishes another resource of the Generalitat to maintain the preferential use of Valencian in the Administration
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