- According to the court, the reference rates applicable to mortgages are published every month in the BOE, “so it is public and accessible information.”
- “It is easily accessible for an average consumer, normally informed, to know that different variable interests are used,” he says.
- It is estimated that one million families contracted their mortgage with IRPH and not with Euribor which, in the worst of the crisis, was up to 3.4 points cheaper.
- “These people were told that the IRPH was going to be always more expensive than the Euribor?” Protested lawyer José María Erauskin.
- DOCUMENT : Read the sentence of the Supreme Court (PDF) .
“It is easily accessible for an average consumer, reasonably well informed and reasonably attentive and insightful, to know that different systems of variable interest are used and to compare the conditions of the different lenders in such an essential element as the price of the loan”.
With this phrase the Supreme Court justifies its ruling of November 22 that gave the reason to the bank in the case of mortgages referenced to the IRPH. A blow for the million affected who expected the high court to recognize the lack of transparency of a variable interest rate that was always more expensive than the Euribor and that cost about 1,200 euros on average to the mortgaged who included it in their contract.
The adherent can know, without special efforts, what is the reference index applied and the price of the loan in a simple way The Supreme Court, on Thursday, explains in detail that ruling that admitted Kutxabank’s appeal to a ruling of the Provincial Court of Álava that it had annulled the IRPH of a consumer when estimating that there was no transparency when applying the index and that, by not providing evidence of having “negotiated” with its client, it was considered “imposed”.
The reasons for accepting the appeal are several. The first, that the interest on the mortgage is a general condition of the contract “and there is no evidence that it was negotiated individually”. The second, that the IRPH is a legal interest and “as such can not be subject to transparency control”. And the third, the aforementioned training of the mortgaged.
This last point is more controversial. According to the ruling, the mortgage indexes are published each month in the Official State Gazette, “so it is public information and accessible by anyone ” and the client should have been informed of what he was signing. “The adherent can know, without special efforts , what is the reference index applied and the price of the loans in a simple way,” the court said.
“The consumer is not an expert”
“But how will an average consumer know what the average Reference Index for mortgage loans more than three years ago means for the acquisition of free housing ?” Protested José María Erauskin, of Lawyers Res, the law firm that advised the individual whose case – a loan of 250,000 euros to 35 years and an interest of 4.25% referenced to the IRPH – reached the Supreme Court.
We have gone from considering that the consumer does not know anything, to that he has to be very smart “The consumer is not an expert, he will know about his profession, but not about everything”, comments Erauskin. The lawyer, after knowing the reasoning of the Supreme Court, draws an analogy of health. “It’s like I go to the doctor , he recommends me eight pills, I feel terrible and I get sick, I go back to the clinic to tell him what he has prescribed and he answers me … because the side effects and all the information is on the Internet, is that you have not looked there? “
Erauskin observes a change of criteria in the Supreme. It does not understand that the court ruled in favor of the consumer in the case of multi-currency (“they go against good faith,” said the Supreme Court) and the ground clauses (“they are not transparent”) and now does not follow that criterion. “We went from saying that the consumer does not know anything, to that he has to be very smart,” he laments.
The IRPH was always more expensive than the Euribor
The attractiveness of the IRPH, according to the bank, was that in spite of being more expensive it was also more stable than the Euribor. In practice, what meant for a million families was that they would not benefit from the fall of the Euribor. The Supreme diminishes that. “It can not be said that the IRPH is more expensive when the loan [of the complainant] has not reached a third of its validity, it is unknown what will happen in the remaining 24 years ,” he says.
“But it’s going to be always going to be more expensive by definition! “, Argues Erauskin, who remembers that the IRPH is not an interest, but an index of costs. And so it is. There is no reference to the average interest rates in the market, but to the APR, which include the cost of commissions, formalization expenses or notaries. That is to say, that if the bank raised its commissions (as it happened), the IRPH did it even if official interest did not change.
“Were these people told that the IRPH was going to be always more expensive than the Euribor, or that with the APR they were paying the average of the bank’s commissions? The answer is no,” explains this lawyer.
Source: self made.
According to the high court, following the reasoning of the Audiencia de Álava that gave the reason to the client of Kutxabank, “it would also be necessary to declare null the references of the Euribor in other loans if at any stage of its validity the evolution of the Euribor would have been less favorable for the consumer. “
Two individual votes disagree with the ruling
The sentence of the Supreme Court, in any case, has not been unanimous. Two judges have cast a private vote because they consider that the IRPH “does not exceed the control of transparency” , although the solution proposed, unlike that taken by the Alava audience, is not to completely annul the IRPH and leave the loan without interest none, but replace it with the Euribor.
It is not the first time that thanks to a vote of Orduña we managed to get to Europe “That has neither feet nor head”, analyzes José María Erauskin. “The EU says that an abusive clause can not be modulated and that proposal to replace it with another one will be a modulation.If the clause is null, you have to remove it from the contract.The question is, can there be a loan without interest? is that yes, and a million loans? Well that’s the problem … “
“We are relieved that Judge Francisco Javier Orduña [one of the two discrepant judges, along with Francisco Javier Arroyo ] has forcefully exposed a particular vote that gives us the keys to the path to Europe,” says Patricia Suárez, president of the user association Bank Asufin, who sees in the opinion of these two judges a door to raise the case to the Court of Justice of the EU. “It is not the first time that thanks to a vote of Orduña we managed to reach Europe,” says Suarez. “Those affected should not be discouraged.”