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We blog legal and tax information targeted to resident and non resident UE citizens in Spain to help them with these issues and to solve doubt and generate controversy about these matters.

FLOOR CLAUSES
29 April 2015

On 24th and 25th March 2015 were passed two judgments by the Supreme Court (TS), which have come to clarify certain legal controversies that existed regarding the “floor clauses”.

We remind you that the floor clauses are those established in mortgages with a variable interest rate, under which the interest rate cannot be lower than that provided in this clause. The current economic situation, where the rate of reference (usually 1-year Euribor) has reached historic lows, has resulted in the client/borrower paying a higher interest rate due to the application of such floor clauses.

The first time the TS addressed in general terms the issue of the floor clauses was in the Judgment 241/2013 of 9th May, which came to void, for being abusive, the floor clauses in the mortgages of the entities BBVA,  CAJAMAR and CAJAS DE AHORRO DE GALICIA, VIGO, ORENSE Y PONTEVEDRA.

But this judgment of 2013 opened two big questions left unresolved:

1) Not all the floor clauses were declared illegal: only those that by their lack of clearness did not allow the consumer to identify the real economic consequences of the clause.

2) It was not clearly established from the time when it was possible to claim back the interest unduly charged by the bank.

The Judgments of 24th and 25th March 2015, have clarified these issues in the following sense:

1) All the floor clauses applied by the financial entities, due to its redaction, are void by lack of clearness, independently of the education or economic situation of the customer. This reasoning is one more argument to declare void in the future those floor clauses in the mortgages of companies and individual entrepreneurs that have not the condition of consumer (in the sense of the Spanish Law of Consumers and Users). The Supreme Court has not yet ruled specifically about this possibility, but different Provincial Courts (among which is that of Murcia) have done it, giving the reason to the company.

2) It is only possible to claim back the interests unduly charged by the Bank since 9th May 2013.

If you have any doubt regarding floor clauses, please do not hesitate to contact us.

salvadormv@serveco.es



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