The Supreme Court has given the reason to a marriage that claimed CaixaBank (formerly Bankia) to return the expenses of managing and part of the notary and registration expenses paid by subrogating and expanding its mortgage. The High Court confirms the Nullity of the expenses clause and insists that the bank must respond for the amounts paid by the subrogation of the mortgage, even if it was not a part in the sale
According to the July 2025 ruling, customers signed their mortgage with BBVA in 2001, and subsequently, in 2003, they subrogated and expanded the mortgage with Bankia (today CaixaBank), being forced to assume all expenses related to the operation, such as notary, registration and managing, by virtue of a clause that attributed these costs to the consumer.
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In 2019, after the entry into force of Law 5/2019, of March 15, regulatory of real estate credit contracts, it is established thatUse expenses must assume the bank and which the mortgaged and the sentences of the Supreme Court and the TJUE that declare the abusivity of the clause of over said expenses to the mortgages, filed a lawsuit claiming the nullity of the same and the restitution of the amounts paid.
The court and the hearing disagree on Caixabank’s obligation to return expenses
The Court of First Instance No. 6 of Ceuta proved them right, declaring the nullity of the expense clause and condemning the entity to return 1,242.05 euros, plus 30 euros for delinquency commission, legal interest and coasts.
CaixaBank resorted by arguing the legality of the clause and that in the event that it was considered void, it should only be responded to the expenses strictly linked to the subrogation of the mortgage and not by those derived from the sale because it did not intervene in that operation, that these expenses should be claimed, where appropriate, the seller.
The Provincial Court of Cádiz revoked the declaration of nullity of the expense clause regarding the obligation to return the amounts, considering that the claim could not be directed against CaixaBank.
The supreme is clear: the bank must return the subrogation expenses of the mortgage even if it was not a part in the sale
The mortgages appealed in cassation before the Supreme Court that is right, but modifies the amounts that CaixaBank has to pay.
The High Court begins by remembering that the clause that imposed on the consumer all expenses is clearly abusive. It is supported by article 82 of the General Law for the Defense of Consumers and Users (TRLGDCU) and in Directive 93/13/CEE of the Council, which establishes that abusive clauses do not link the consumer.
Faced with the argument of the audience that part of the expenses corresponded to the sale and that, therefore, the bank should not respond to them, the Supreme recalls that the claim of nullity and restitution can be directed against the bank, at least for the part of the expenses linked to the subrogation and novation of the loan.
He supports his criteria in the Judgment of the TJUE of July 16, 2020 (C-224/19 and C-259/19, Caixabank and BBVA) and in his own No. 35/2021, of January 27, where it makes it clear that the banks must assume the costs generated by the declared clause declared void, although they have not intervened in the sale but only in the mortgage operation, and concludes:
“The nullity of the expenses clause regarding the subrogation and novation of the mortgage loan is confirmed and the entity is condemned to the payment of managing expenses and the return of the notary part and registration corresponding to said operation.”
Therefore, the Supreme Court orders that CaixaBank (formerly Bankia) returns 89.23 euros for Management and the part of the notary and registration expenses that corresponds to the mortgage.