The Judgment of the Court of Justice of the European Union of March 3, 2020 opens the door for customers harmed by mortgages referenced in the IRPH index to be able to obtain the return of the interest paid in excess if it is declared judicially, and case by case, that the clause is void for being abusive.
At Badia)advocats we analyze each case individually, offer a personalized proposal and accompany the client throughout the judicial process.
Recently, the European Court has ruled that the reference index IRPH Caixes is included in the scope of application of Directive 93/13 on unfair terms and, therefore, the rules on consumer protection are applicable regulate, contrary to what the Supreme Court had determined in 2017.
This sentence opens the door for mortgage debtors, with existing or overdue loans, referenced in the IRPH Caixes reference index to be able to obtain a refund for the interest paid in excess due to the fact that a non-transparent and abusive interest rate was applied to them.
The IRPH, as an index, was eliminated by Law 14/2013 of September 27, which decreed the complete disappearance of the following official indices: a) Average rate of mortgage loans for more than three years, for the acquisition of vacant housing, granted by banks; b) Average rate of mortgage loans for more than three years, for the acquisition of vacant housing, granted by savings banks; c) Reference asset type of savings banks. Loans referenced to one of these indexes are now referenced to the established substitute rate and, in the event that there is no valid one, to the EURIBOR.
The judgment of the Supreme Court of December 14, 2017 ruled in favor of the banks on the understanding that the IRPH index was legal and transparent, which in practice precluded the possibility of carrying out a transparency control.
But the recent judgment of the CJEU contradicts this position and establishes that the courts of a member state are obliged to examine the clear and comprehensible character of a contractual clause that is essential in the contract as is the interest rate clause.
The IRPH index has always been higher than the EURÍBOR and, moreover, when it disappeared, the financial institutions replaced it with another interest rate, without the agreement of the clients. This differential is what can be claimed now if the clause is declared void for being abusive.
Each case requires an individualized solution, since the judge must assess whether in each specific operation the information was given in a correct, comprehensible and transparent way for the client and if, with the disappearance of the index year 2013, the parties negotiated the replacement index in good faith and in a manner not detrimental to the customer.