Although litigation against banks has been decreasing year after year since 2017, there is a front that is emerging and rising strongly: that of mortgage expenses. Last year, sentences related to this category increased by 60%, which represents the second reason for consumer conflict with the bank, after cards, according to a recent study by the Association of Financial Users (Asufin).
The detailed analysis of the data shows that almost all -98%- of the sentences handed down by the courts of first instance and Provincial Courts in 2022 on mortgage expenses were resolved in favor of the client. The reason is that the clauses of the contracts that establish that the consumer must assume all the expenses of the loan are usually considered null and abusive, which the vast majority of those who signed mortgages before the entry into force of Law 5/2019 paid, of March 15, 2019, regulating real estate credit contracts.
However, at the end of 2015 the Supreme Court had already declared the nullity of this and other clauses considering them abusive, and through several sentences it established jurisprudence regarding how the payment should be distributed between the bank and its client. In addition, the Court of Justice of the European Union (CJEU) ruled that if the clause imposing expenses in a mortgage contract is declared abusive, the entity will be obliged to return the notary, registration, agency and appraisal expenses.
Any person who has had to pay all the expenses of the mortgage contract may demand their return, according to the lawyer Julia Zaera, from Arriaga Asociados. Also in cases where the loan has been canceled or signed years ago. However, she recalls that the Supreme Court has raised a question for a preliminary ruling, still to be resolved, to the CJUE so that it can rule on the moment in which the term begins to compute. For now, the Supreme “rules out that the initial day of the term is the day of the conclusion of the contract.” In the worst scenario that the High Court is considering, she assures, there would be time at least until January 2024 to claim.
In the event of a ruling favorable to the client or reaching an agreement with the entity, the bank must reimburse all the expenses paid as registration fees, as well as agency and appraisal expenses. Likewise, you must return 50% of the cost of the notary. It is possible, however, that the invoices include fees related to the sale of the property “that will not be the subject of a claim and recovery,” warns Jaera. From Asufin they remember that the refund of the amount paid as an opening commission can also be required.
Consumer organizations calculate that on average about 1,500 euros are recoverable, an amount that corresponds to a loan of about 150,000 euros. If the loan is of higher capital, the amount to be recovered increases, since the notary billing base, Property Registry, appraisal and even agency depends on the mortgage liability, according to Jaera.
In the first place, it is necessary to collect both the invoices paid -notary, agency, Property Registry and appraisal- as well as the mortgage deed. However, before filing any claim, it is essential to send an out-of-court claim to the financial institution in order to try to find a friendly solution that avoids trial. It is only possible to recover the amount of the expenses out of court in a minority of cases, according to the sources consulted. Once the claim has been submitted to the entity, if it does not respond within a month or has not given a satisfactory response, you can choose to file the claim.
