The lawyer of the CJEU is tilted in favor of the customer and opens the door to cancel mortgages with IRPHCuatro things that you can do before the european court delivered judgment on the corresponding to mrti”When I signed the mortgage it was all small print and fuzzy”
The pronouncement of the attorney general of the Court of Justice of the European Union (JTUE) on the index mortgage corresponding to mrti has fed the hopes of consumers to the possibility of recovering about 25,000 euros on average per case . The lawyer considers that this index should be subject to judicial review to determine whether it is or not abusive because of the mere fact of being an official index does not make it necessarily transparent.
Although the conclusions of the advocate general of the EU are not binding, most of the times coincide with the final judgment. The final decision of the european Court will be known to the end of this year or early 2020 . If finally is favourable to the mortgaged, they may start the corresponding claims, taking into account, that yes, that is a matter for the national court to make the transparency control to check if the client was sufficiently informed about the economic consequences of the contract he signed.
What is the corresponding to mrti?
The index of Reference of Mortgage Loans (corresponding to mrti) is a official index that is compiled each month by the Bank of Spain and that is applicable from its publication in the Official State Bulletin (BOE).
it Is calculated as the average type of mortgage loan more than three years granted by banks and savings banks. It was introduced in 1994 through a ministerial order with the aim of creating a reference mortgage out more stable against the oscillations in the financial markets .
why is it questioned?
The controversy surrounding the corresponding to mrti arises from 2013. At that time, the Euribor starts to fall until reaching values of close to zero –in July 2008, it recorded its maximum when arriving at 5,393%– spurred by the expansive monetary policy of the European Central Bank, while that corresponding to mrti hovered near 2%.
This meant that the mortgages referenced to l corresponding to mrti to be more expensive than the one linked to the Euribor . The Association of finance Users (Asufin) estimated that the difference would be 165 euros on average per month, so the overpayment accumulated since 2004 to today would amount to 25,000 euros for a mortgage.
What is the attitude of consumers?
users allege lack of comprehensibility real on this index, that is to say, that the banks were not informed with sufficient clarity. Asufin estimated that there are around a million of them affected by corresponding to mrti.
What they argue the financial institutions?
The banks stress that they do not participate in the elaboration of the index , and that the marketing of the contracts have always been carried out in a transparent manner. Industry sources insist that this conflict cannot be compared with the clauses soil, since the corresponding to mrti is an official index and not a clause in the contract.
What does the Spanish justice?
To the end of 2017 the Supreme Court ruled that the mere reference of a mortgage to an official index as it is corresponding to mrti did not imply a lack of transparency or was an abuse, and therefore it considered that there was no void those contracts. The High Court adopted, in this way, the criterion of the banks, and gave the reason to an appeal lodged by Kutxabank against an earlier decision of the Provincial court of Álava, which declared the nullity of the clause corresponding to mrti. However, two months after the Court of First Instance number 38 of Barcelona raised the case to Luxembourg.
What has been the opinion of the advocate general of the CJEU?
The advocate points out in its findings, non-binding, which must be submitted corresponding to mrti to a transparency control to check if the mortgaged is explained well the index, if he was aware of the risks, etc noticiable is that, according to the opinion of the advocate general of the CJEU, this matter has to be the object of an analysis of transparency and, in your case, of abusividad, something that will have to be sorted out by the national judges.
How can you claim affected?
“the opinion of The advocate general it is a good news for those affected, but still does not give standing to initiate any type of claim “, recalls José Miguel Blasco, partner of Lean Advocates, who stresses that will have to wait to the final judgment that will be made known at the end of this year or early 2020.
In the event that Europe finds in favour of consumers, these could initiate a legal claim against the bank with the order to quash corresponding to mrti, is to do all the economic calculations of what has led to their improper application, will you give him back the money and stop to apply the index. “All of this always and when the bank is unable to prove that you have been given all the information to the customers and explained the possible scenarios that could have in the future”, concludes Blasco.
