On December 21, 2016, the European Union Court of Justice issued a resolution that represents an important step forward in the fight for the rights of individuals affected by the abuses of “Floor clause” imposed by banks in recent years.
This Judgment establishes, contrary to what was established by the Spain’s Supreme Court in its Judgments of May 9, 2013 (in a collective action procedure against several credit institutions) and in that of March 25, 2015 (in a proceeding of one Against a credit institution) that the sums paid over by the consumer for the application of the floor clause will be returned to him / her since the application of the same.
The Supreme Court, however, limited in one and the other Judgment the return of the overpaid to the amounts paid since May 2013, since it was on that date when the first Order was issued by this Court annulling the floor clauses.
The reasons given by the ECJ to dismantle what was established in the Supreme Court Judgments, giving new criteria to it are:
- That the European legislation provided for in Directive 93/13, which regulates consumer rights against unfair terms, provides that a clause declared void can never have effects against the consumer.
- That the consequence of its nullity will always be the reestablishment of the factual and legal situation in which the consumer would be found in the absence of such a clause.
- That the national judge declaring the clause null and void is obliged to impose the obligation to refund the amounts collected as a result of the application of said clause by the entity.
- Due to the fundamental requirement of a uniform and general application of Union law, the Court of Justice is the only one which can decide on the time limitations to be applied to the interpretation of the Union rules which The same Court does.
- That the Judgment of May 9, 2013 only guarantees limited protection to consumers who have entered into a mortgage loan agreement containing a floor clause prior to the date of judgment of said Judgment.
- That such protection is incomplete and insufficient and does not constitute an adequate and effective means to cease the use of said clause, contrary to what is established in the Union Directive.
Finally the Court declares:
That the limitation in time of the restitution of amounts overcharged by the entity in contracts concluded between consumers and professionals is contrary to the provisions of the Consumer Directive of the union 93/13 / EEC.
1.- There are many consumers affected by these Supreme Court Judgments limiting the restorative effects of excess amounts paid.
2.- Some people have not claimed anything yet from the entity, and continue to pay more interest for the floor clause.
3.- Others no longer pay such interest, but have not been refunded the amounts overpaid.
4.- Others have been returned the amounts they paid since May 2013, but not the ones they paid earlier.
5.- Some already have judicial decisions in this regard; Some firm, some not.
6.- Some signed waiver writs to claim the entity for the amounts overpaid until May 2013, provided they removed the floor clause and / or refunded what was paid more since May 2013.
7.- Others were foreclosed for mortgage defaults, in which it was agreed to eliminate the floor clause from May 2013, compensating for what has been paid in excess since this date, but that they have not obtained compensation for what was paid more before That date.
All these assumptions will be worthy of different extrajudicial and judicial treatments.
If you are affected in your mortgage by “floor clause”, you can freely contact us, and you can ask us for free your query and we will solve it in a personalized and professional way. In order to deal with the effects that this Judgment is going to have in practice, the jurists who are dedicated to this matter are studying, both this Judgment recently issued by the CJEU and previous rulings issued by this Court and Spanish Courts. This in order to be able to give full satisfaction to consumers, so that they are compensated in all their rights, at the lowest possible cost. Consult us without commitment.
Sáenz & Associates, Lawyers / Abogados
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