Civil Chamber of the Supreme Court
today released the full text of the judgments in which it refused to annul the IRPH index that was applied to thousands of mortgages.
Along with the reasoning of the majority, already communicated a few weeks ago, the private vote of one of the magistrates, in favor of canceling that index and replacing it with the Euribor, is attached.
"The damage caused to the consumer is evident, in that due to lack of sufficient information
it has not been able to compare with other offers on
the market, for which it was deprived of the exercise of a legitimate right of option, of which it was dispossessed due to the lack of transparency ", affirms
Francisco Arroyo Fiestas
The magistrate agrees with the rest of the members of the Civil Chamber in the lack of transparency of the clause in which this mortgage index was included, since no information was offered to consumers on how it had evolved in the previous two years.
But it diverges in the next step, in that of concluding whether this lack of transparency led to a situation of abuse towards the consumer by financial institutions.
The ruling of the majority considers that this was not the case, since an index that included the law and had the blessings of the
Bank of Spain
cannot be considered abusive
On the contrary, the dissenting vote affirms that this lack of transparency limited the options of consumers and, therefore, the clause that included it should be annulled.
"It is not the Chamber that must assess which index was more interesting to the plaintiff, but it was the consumer who had to make said decision with the information that was not provided. [...] There has been an imbalance, in terms of Information was stolen from him, which deprived him of the exercise of an economic option between the IRPH and other alternative indexes, "says the vote, which also concludes that there was bad faith on the part of banks and savings banks:" The professional did not treat the consumer in a loyal, by not offering the legally required information on the evolution of the IRPH index, and the manifest breach of said regulatory mandate deprives the professional's conduct of good faith ".
The conclusion of the above is that "the Chamber should have declared the clause that established the IRPH as the loan index to be abusive, insofar as it was biased in the absence of good faith and to the detriment of the consumer."
Once the index has been canceled, the magistrate explains that the best solution would be to replace it with the Euribor, the index used mostly in mortgages.
The refusal of the Civil Chamber of the Supreme to annul the IRPH index comes after the Court of Justice of the EU issued a ruling in which it held that, despite being formally stated in a legal norm, the clause that included it could be subjected to a transparency review.
In the four sentences notified this Friday, the Supreme Court affirms that it had already upheld the same in a first sentence and that the
that referred the preliminary question to Luxembourg provided erroneous information on what
the Supreme Court
It is very likely that the matter will return to the EU Court.
After the European ruling, numerous courts considered that the IRPH clause should be annulled.
The contrary thesis of the Supreme Court could be brought back to Luxembourg with the support of the private vote.
According to the criteria of The Trust Project
Banking What exactly is the IRPH index and how can I know if my mortgage has it?
EconomyThe Supreme Court rejects that IRPH mortgages are abusive despite acknowledging their "lack of transparency"
Courts The Supreme Court agrees with Santander, CaixaBank and Bankia for the Castor case and obliges the State to pay them 1,350 million
See links of interest
CSKA Moscow - TD Systems Baskonia
Barça - Fenerbahce Istanbul