The Plenary of the First Chamber of the Supreme Court, which today was debating the deadlines that clients have to claim mortgage expenses improperly charged by the bank, has unanimously agreed to open the hearing process to the parties, prior to the possible submission of a question for a preliminary ruling before the Court of Justice of the European Union.
There is no white smoke on the prescription date that clients will have to claim their banks for improperly collected mortgage expenses. The CJEU with a brief note has informed that, unanimously, “open the hearing process to the parties, prior to the possible approach of a preliminary ruling before the CJEU”. That is to say, it will be in a high European court where the terms are decided.
The next few days, once the decision has already been advanced to the attorneys of the parties, the Supreme Court will draft the resolution for the matter to go up to Luxembourg.
The distribution of mortgage expenses, like the cases of other abusive clauses, have gone through the supreme court of the European Union. Although to a large extent it has affected the behavior of the bank, most of the time it has not been exhaustive. The CJEU has left a wide margin to the Spanish courts to adapt their resolutions to Spanish laws within the European directives. But in mortgage expenses, the Government was forced to reform the mortgage law to end the controversy. The , on how the distribution of mortgage formalization expenses should be before the new law.
But currently there is a problem that there is no fixed criteria in the deadlines that the client has to claim. Several Spanish courts have followed different criteria to establish when this period begins and ends.
But currently there is a problem that there is no fixed criteria in the deadlines that the client has to claim. Several Spanish courts have followed different criteria to establish when this period begins and ends. According to article 1,964 of the Civil Code, it establishes that those affected have up to five years to demand the return of the money. But the problem is that there is no consensus on when the term began to run.
There are three Supreme Court rulings in this regard. In one, the collection of all mortgage expenses, from January 23, 2015, was declared void. In another, it points to January 24, 2019, when the ruling in which it was established and another interpretation is from January 27, 2021, when it was included
Depending on at what point this period is considered to have started, those affected will no longer be able to claim because it has already expired or they will be able to demand the return of the expenses improperly collected until January 2024 or 2026, if the other two sentences are taken into account.
And now that? The CJEU is not usually very clear, but it does lead the way
The only clear thing is that the CJEU will not decide a date and that’s it. It will give a series of guidelines for the Supreme Court to finally decide. From the Asufin association it is considered that until the consumer knows the nullity of the clause of his contract, that is, when the sentence materializes, “the term to demand the restitution of amounts cannot begin to be computed.”
In addition, the association has recalled that the Ministry of Consumer Affairs issued a statement on December 2 in which it stated that the deadline expired on January 21, 2021, so that it would already be prescribed in most cases, upon the expiration of five years since Sentence TS 705/2015 was made public. “In this way, the department endorsed the most restrictive interpretation and the one preferred by the banks,” he points out.
For its part, reclamador.es explains that there are various scenarios. In the first, which qualifies as “positive”, is the one in which the Supreme Court declares that since the clause for formalization expenses of the loan with mortgage guarantee is considered null and void, “there is no specific term or period of time in which the mortgaged must start his claim”.
In this scenario, all those affected by this abusive clause could continue to claim from the bank the return of what was paid in excess for concepts such as the appraisal of the home or the Land Registry, among others.
The firm considers that this situation would be “the most consistent” with Spanish Law by not “separating the two actions, the declaration of nullity and the return of the overcharge, since the latter is considered an inseparable effect from the first”.
On the opposite side, this platform indicates that there is another scenario in which the Supreme Court magistrates rule that the claim action prescribes when the loan was signed, which would leave out all mortgages from five years back, ten in the case of loans signed in Catalonia, by its Civil Code that establishes a longer prescription period).
Finally, reclamador.es points to other “intermediate” scenarios, such as the one in which the sentence recognizes the prescription of expenses, but since the nullity of the clause is declared. This means that the term does not begin to run until there is a sentence that so declares.
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