European justice declares the right to claim back abusive mortage clause claim expenses
This judgement overrules a Spanish Supreme court decision from 2015 that declared that legal expenses would be split 50/50 between banks and customers.
According to the European Courts, if a mortgage clause is deemed to be abusive and therefore null before a Spanish court then the consumer may claim all costs incurred as a result of the claim process, in addition to all money improperly paid to the bank as a result of the abusive clause.
This is good news for more than 8 million consumers who have discovered they signed an abusive clause relating to mortgage expenses and were paying more interests than necessary. In addition to claiming back these amounts, they can now be refunded for other expenses such as legal, notary, registry and appraisal fees as well as taxes.
What expenses can I claim back?
According to this new ruling you will be able to claim back any expenses that were incurred during the constitution or cancellation of your Spanish mortgage when there was an abusive clause involved, as long as the mortgage deed was signed before 15 March 2019 which was when the new law regulating real estate credit contracts came into force.
The only expense you may not be able to be refunded for is the opening commission you paid, if the bank can prove that there was complete transparency and that it acted in good faith when providing this service to the consumer.
How long do I have to make this claim?
The Luxembourg court has not established a time frame to claim, however Spanish law states that the statute of limitation would be 5 years.
Seeing as there is no actual official time frame , this could mean that these 5 years could start ticking from the day that the clause was deemed abusive and not when it was signed. Spanish courts seem to disagree with this however, saying that if there is no statute of limitations for the abusive clause to be declared null then there shouldn’t be one to claim these expenses.
What does the claim process involve?
In order to make this claim, you or your lawyer must first go to the Customer Service department of the bank you have your mortgage with and attempt to resolve this issue amicably. If after a month the bank rejects the claim then a formal complaint must be made to the Bank of Spain Entity Conduct department, that will emit a non-binding resolution. If the bank still rejects the claim after this then the matter should be taken to court.
If you suspect you could have a claim that meets the above criteria, feel free to contact us for legal advice at firstname.lastname@example.org or by calling +34 952 764 483.