Among the open fronts of the bank, one stands out that in recent years has cost it thousands of lawsuits: that of the reimbursement of the costs of establishing a mortgage. Almost all of those who signed before June 16, 2019, when the new mortgage law came into force, had to fully pay for the management, notary and registry bills, despite being considered abusive, so many of them decided to demand its return. European justice has just shed light on when the claim period ends.
Until now, two possible scenarios were being considered, which the Supreme Court transferred to the Court of Justice of the EU: the first, that the period begins from the moment the consumer obtains the ruling of nullity of the abusive clause (option preferred by consumer organizations); and the second, that the period starts from the four rulings of the Supreme Court of January 2019 or the one issued by the CJEU in July 2020.
Starting from this last scenario, the Association of Financial Users (Asufin) proposed that the deadline would be next April 14 or mid-2025, depending on which sentences are taken as a reference. However, the CJEU resolution indicates that the claim period will be extended further, although everything will depend on each case.
The CJEU clarifies that consumers will be able to claim mortgage expenses from the moment they know that the clause is abusive, therefore overturning Spanish jurisprudence that limits the period to begin a judicial claim against the financial institution. For example, the Catalan Civil Code sets the statute of limitations at 10 years.
The court thus rules on the question raised by the Provincial Court of Barcelona regarding four cases in which users claimed reimbursement of expenses from Caixabank, BBVA, Banco Santander and Banco Sabadell. The hearing established that "from the moment the invoices [for the notary, agency and registry] are paid, the deadline began to count," explains lawyer Julia Zaera, from Arriaga Asociados. But the CJEU rules that "in no case does that date mark the beginning."
Nor does it begin to count, the lawyer continues, "from the dates of the Supreme Court rulings" in 2015 that declared the nullity of this and other clauses. Therefore, he continues, "it always has to be proven that the consumer has been able to know the right to complain and the legal consequences, and not only that the clauses are abusive."
According to the ruling of the CJEU, the European directive "opposes" the "consolidated" jurisprudence in the country being proof that the consumer knew his right to complain, contrary to what was ruled, therefore, by the Supreme Court and hearings. provincial areas such as Barcelona and the Balearic Islands. "That is, no matter how much jurisprudence exists, the consumer knows the abusiveness of his clause when he obtains the final ruling," Asufin asserts.
The date to claim reimbursement of expenses begins "from the moment we have the nullity of the clause or the bank proves that the client actually knew at some previous time that he could claim, although this is quite complex to prove," Zaera clarifies.
After the Supreme Court ruling in 2015 in which it declared the nullity of the clause that attributes all of the expenses and taxes to the borrower, some entities forced clients to sign that they would not claim the amount of the expenses from the entity. "In these cases, it is very easy for the bank to prove that the client at that time knew that he had the right to claim and, despite this, signed his mortgage." These consumers "have it more complicated when it comes to complaining," the lawyer acknowledges, although "even in these cases we could continue complaining."
