Your mortgage may have clauses null and void, even after many years
The action to claim a clause soil abusive does not prescribe. We studied their writing without initial cost and will tell you clearly if your case is viable before you claim anything.
01
Why the clause soil can be null
A clause floor sets a minimum limit to the interest rate variable, so that, although the euribor lower, the customer is still paying a higher interest rate than the ones agreed in appearance. The case law is not declared null and void by his mere content, but when the bank has not exceeded the so-called double transparency control: it is not enough that the clause is included and readability in the write control (incorporation), it is necessary that the customer understood really affordable legal and real in the moment of hiring (transparency control material), including simulations of scenarios and comparison with mortgages without limit.
✓ The invalidity does not depend on the amount of the floor, but of how it is reported to the client.
✓ Applies to mortgages as void as to mortgages in force.
✓ Apply to consumers; lending to firms, the analysis is different.
Action is imprescriptible
The Court of Justice of the European Union in its judgment of 21 December 2016 (issue Gutiérrez Naranjo, C-154/15, and to date), established that a clause declared abusive you have not start from the origin and with full restitutionary effects, without any limit in time the return of what was overcharged. The action of nullity of a clause abusive, the result of a nullity and void, is not subject to prescription: can be exercised at any time, irrespective of the date of the deed or the loan is already cancelled. What is subject-term is the action of a claim of any amount already refunded, but not the declaration of nullity in itself.
02
What if I signed a novation or an agreement with the bank?
It is customary that, after the controversy about the terms ground, many banks offer to their customers to sign a novation of the mortgage loan, reducing or eliminating the land in exchange for the customer to renounce his claim to the charged until then.
Such waiver is not always valid. The Court of Justice of the European Union has established that the waiver included in the agreement of the novation must also overcome the control of transparency: the bank should have informed the customer, clearly, that the clause native soil could be null and void and the economic consequences specific to waive the claim. If the customer signed a novation without being aware that he was giving up a right —because the bank is not explained with the clarity required—, the waiver may be declared null and void, opening the possibility of reclaiming the period prior to the novation.
So before you dismiss your case because "already renegocié the mortgage", you should review the document novation specifically signed.
03
Expenses of the constitution of the mortgage
In addition to the clause soil, we look to see if your bank had improperly costs of formalization of the mortgage loan. The criterion of jurisprudence consolidated by the Supreme Court distributes these costs between bank and client depending on what part is the primary beneficiary of each procedure:
✓ Notary: - sharing between both parties, to the benefit of the two.
✓ Agency: deal between both parties.
✓ Registration of the Property: in charge of the bank, as the main interested in registering your warranty.
✓ Appraisal of the property: in charge of the client, unless agreed differently.
✓ Tax stamp duty (AJD): in charge of the bank in loans prior to the reform of 2018, since November 2018, the passive subject of the tax is legally the lender.
04
The process, step-by-step
01
Study free of your writing
We analyse to fund your mortgage writing, the chart of depreciation and the document of novation to determine with accuracy if exists clause soil.
02
Non-judicial grievance to the bank
We present previous complaint to the customer care service, a mandatory requirement before going to court, demanding the cancellation of the clause and the return of what was taken.
03
Court action, if there is no agreement
If the bank rejects the complaint, or you do not respond, we brought a lawsuit asking for the nullity of the clause and the novation, with return of amounts and interests.
04
Execution and payment
Obtained a judgment or a favorable settlement, we manage the actual receipt of the return and the costs imposed on the bank by estimating the demand.
Typical case
Mortgage signed in 2007 with clause soil 3%
A marriage you signed your mortgage in 2007 with a variable rate indexed to the euribor, but in the binding offer, or in writing containing any simulation or comparison with a mortgage without clause soil. When the euribor fell below 3% since 2009, continued paying the 3% fixed without really knowing why.
To not be credited sufficient prior information about the actual scope of the clause, the requirements are met to declare its nullity for lack of transparency, with a refund of the overcharged from the source of the loan, not only from a later date, according to the criteria of restitution in full set by the CJEU.