The Supreme Court has ruled in favor of two mortgage holders against CaixaBank and has declared three clauses included in their mortgage loan signed in 2002 void. The ruling annuls the commission for claiming non-payments, the early maturity clause and late payment interest, and also forces the bank to return the amounts charged for commissions that had not been refunded, along with the legal interest from each payment.
According to the ruling, it all begins when the cooperative society acted in defense of two of its associates, Gabriel and Isidora, to request the annulment of several conditions of the mortgage contract signed with the then Caixa d’Estalvis i Pensions of Barcelona, today CaixaBank. That deed included a commission of 18.03 euros for each unpaid installment, a clause that allowed the entire loan to be waived for non-payment of a single installment, and late payment interest of 20.50 percent.
Now, both the court of first instance and the Provincial Court of Teruel rejected the claim. The reason was the lack of active legitimation of the cooperative. That is, both courts understood that, since it was not registered in the State Registry of Consumer and User Associations, it could not go to court on behalf of its partners, in an interpretation of articles 33 and 37 of the TRLGDCU in relation to article 11 of the LEC.
The Supreme Court corrects this interpretation by explaining that a legally constituted association or cooperative, although not registered in that registry, can defend “the individual rights and interests of its members.” The difference is that without this registration it cannot act as a consumer association in defense of general, collective or diffuse interests, but that does not prevent it from representing its partners in a dispute like this one.
The ruling considers the commission abusive
Once that first obstacle was resolved, the Supreme Court ended up saying that the three clauses were abusive. Regarding the non-payment fee, remember that it cannot be applied automatically or repeated without real and effective management. In this case, the clause provided for the collection of 18.03 euros for each overdue installment and the court understands that it did not meet those requirements. For this reason, it declares its nullity and condemns it to return the amounts collected that had not been returned.
The resolution also annuls the early maturity because it allowed the bank to terminate the contract with the non-payment of a single installment. For the magistrates, such a clause “must be considered abusive”, since it does not link this consequence to a serious breach nor does it give the consumer sufficient margin to catch up.
The same applies to the late payment interest of 20.50 percent. The Supreme Court recalls its own doctrine and points out that, in mortgage loans with consumers, this surcharge cannot exceed the remunerative interest by more than two points. By clearly exceeding that limit, the clause is also nullified.