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Wednesday, 02 August 2017 11:46

The Supreme requires banks to pay costs in cases of abusive land clauses

The ruling comes from the First Chamber of the Supreme Court, following a cassation appeal filed by a private person against CaixaBank. In that appeal, it was requested the total return of all the amounts paid by this person by the clause soil. These amounts can be considered abusive, since they were associated with the abusive grounds that the financial institution imposed on the individual, when signing the mortgage loan.

The appellant has not only been able to repay these amounts, he will not have to pay anything in court for the proceedings. All this according to the STJUE of December 21, 2016 (LAW 179803/2016).

Change in the criterion of jurisprudence

After this important sentence, the Banks have the obligation to pay the judicial costs generated in the two instances prior to the appeal, when adjudicating cases related to abusive land clauses. One of the purposes of this ruling is to avoid that the expenses of this type of processes can be a serious obstacle and dissuade the consumer to undertake the corresponding procedure.

The Civil Chamber of the Supreme Court, currently presided over by Judge Francisco Marín Castán, has defended this new criterion. It has been proved that if individuals, even if they succeed in litigation, have to pay court costs, there is a deterrent effect. This may mean that other affected persons, in the case of minor amounts, do not go to court to avoid costs.

This judgment implies a change of approach in the case law that deals with everything related to soil clauses, clearly benefiting all affected clients. Following these changes, the General Council of the Judiciary is making forecasts of an increase in demands for soil clauses, which may exceed 190,000. By provinces, Madrid, Barcelona and Valencia are the most litigious.

More details of the sentence

In addition to obliging the Banks to pay the costs, the judgment of the particular case against CaixaBank affects the conduct of the financial institution, for attempting that the appeal be suspended and refuse the obligation of restitution.

As a consequence of the judgment, the consumer is given a reason in his claim of what was paid to CaixaBank by the floor clause, and the entity's request that it is not required to pay the costs of the procedure is resolved negatively.

From CaixaBank, it has been argued that the case law of the TS has been changed, according to the bank, by an earlier decision of the European Union Court.

The reply of the Spanish High Court is as follows: "If, by virtue of this proviso, the appellant, in spite of being successful in the dispute, had to pay in full the costs of his defense and representation in the courts or in his If expert reports or payment of the fee, would not restore the situation of fact and law that would have been given if there had been no abusive ground clause, and therefore the consumer would not be undamaged.

If the above criteria were ratified, there would be what has been called the "inverse deterrent effect", not for banks to no longer include land clauses in mortgage loans, but for consumers not to lodge small claims litigation.

With this ruling, which has had the paper from the president of the Chamber, and the private vote of three judges, it will be the banks that will face this type of costs. 

Writings SF Lawyers