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Opening commission: There is still hope

By September 30, 2021Mortgages, Sin categoría

Although the Supreme Court had ruled in its Judgment 44/2019 of the Civil Chamber (Plenary) that the arrangement fee was part of the price of the mortgage contract together with the remunerative interest, on 16 September 2021 it referred a new question to the Court of Justice of the European Union (CJEU) for a preliminary ruling.

The Spanish High Court argues that the question initially referred to the European Court (and which gave rise to the CJEU Judgment of 16 July 2020) was inaccurately, incompletely and distortedly formulated.

The reality is that most consumer and user associations see the reformulation of the preliminary ruling as an act aimed at protecting financial institutions, given that the initial decision of the Court of Justice of the European Union opened the door to claims for the nullity of the clause that imposes the arrangement fee on mortgagors by considering that this fee cannot be considered an essential element of the contract.

Practically all mortgage loans granted in Spain have such an arrangement fee. Considering the average capital of a home loan (€150,000) and the usual amount of this fee (1%), if the clause were to be declared null and void, a consumer could recover €1,500. This amount could be increased by the legal interest rate from the date on which it was paid.

We only have to wait a few months to know the new pronouncement of the CJEU and assess whether, despite the nuances incorporated by the Supreme Court in the approach of the new preliminary ruling, it ratifies its previous position, opening the door to a new wave of legal claims against banks.

Portillo Estudio Legal will study your mortgage deed without any obligation in order to assess the viability of the legal actions to be taken.