I have had my mortgages with Banco Herrero from 1998 who were merged with Sabadell in 2003. The whole period I have had IRPH which at some times were near to 6%! (I also had Clausula Soil, which they claim to have repaid me but I don \ ‘t know when and how much?). We had a hearing in Malaga in 2021 where I lost against Sabadell, and was forbidden to make an appeal. I was graciously not made to pay costs. Will the new information from the ECJ allow me to make a new claim? or is this information still undecided and could still be given back to the Spanish judges to interpret how they like – in my case against my extremely high interest rates. From the update in July 2023 – it sounds like its still in the air?
1 Respuesta
Dear Amanda,
Your inquiry regarding the status of claims related to the IRPH (Mortgage Loan Reference Index) and the «cláusula suelo» (floor clause) in your mortgage with Banco Herrero, later merged with Sabadell, is quite pertinent given the recent developments in this area. I understand your concerns, especially in light of your previous legal challenges and the high-interest rates you’ve been subjected to.
First, let’s discuss the IRPH. The recent ruling by the Court of Justice of the European Union (CJEU) on July 13, 2023, is indeed a significant development. According to this decision, in order to assess the transparency and potential abusiveness of a mortgage loan clause that uses an interest rate index (such as IRPH), it is relevant to consider the content of the information provided in related official circulars. This includes understanding whether a negative differential should be applied to the index to align it with market interest rates and whether this information is sufficiently accessible to an average consumer.
The CJEU’s stance emphasizes the need for clear, understandable, and accessible information regarding how the IRPH is calculated and applied. This is crucial because, without such transparency, consumers like you cannot make well-informed decisions.
On the other hand, the Spanish Supreme Court (Tribunal Supremo), as of January 28, 2022, upheld the use of IRPH by financial institutions. The court did not find the index to be more easily manipulable than other official indices, despite the discontinuation of LIBOR for similar reasons and the technical deficiencies in the IRPH calculation method. This stance of the Supreme Court has been a subject of debate and criticism, especially considering the fewer data sources contributing to the IRPH calculation, which might make it a more questionable reference.
Regarding your specific situation, the inability to appeal your case in 2021 and the high-interest rates you’ve been subjected to are indeed concerning. While the CJEU’s decision provides a new perspective on the assessment of IRPH clauses, whether this allows for reopening your case or filing a new claim depends on several factors, including the specifics of your original case and the interpretation of the CJEU’s ruling by Spanish courts.
As for the «cláusula suelo,» if you believe that you haven’t been adequately compensated for the overpaid interest due to this clause, it might be worth reviewing the terms of your mortgage agreement and the calculations used for the repayment. The compensation for «cláusula suelo» should align with the excess interest paid due to this clause, and you have the right to a clear and detailed explanation of how it was calculated.
In summary, while the CJEU’s ruling sheds new light on the assessment of IRPH clauses, the application of this ruling in Spanish courts, particularly in your case, is not entirely straightforward. It would be advisable to consult with a legal expert specialized in mortgage law to explore the possibility of taking new legal action or reviewing your compensation for the «cláusula suelo.»
Please remember, every case has its unique aspects, and a detailed analysis of your specific circumstances is crucial for any legal advice.
Sincerely,
Pau A. Monserrat
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