New judgment of the Court of Justice of the European Union on the costs of formalizing the mortgage
On July 16, 2020, the Court of Justice of the European Union (CJEU) ruled again in a ruling (which you can consult at the bottom of the report) on the costs of formalizing the mortgage, such as the notary fees, registration or management.
This sentence joins the one issued by the Supreme Court in December 2015, when it declared null, considering them abusive, some of the clauses imposed by the banks in the constitution of these loans. Although the sentence indicated that it was abusive to only charge the consumer with these expenses, it did not clarify which of them should be paid by him and which by the financial institution.
Now, the CJEU goes a step further by considering that the mortgage constitution expenses must be assumed "to the applicant for the service in question or in whose favor the right is registered”. And this is none other than the lender, that he should assume them in full, “Unless the provisions of national law applicable in the absence of such a clause impose the payment of all or part of these expenses on the consumer”.
Also, the European Court pronounces in this sentence on the payment of the opening commission and the procedural costs in the case of lawsuits against banking entities:
- In the case of the Opening commission, the Court considers that it can be considered abusive when the financial entity does not demonstrate that this commission responds to "services actually provided and expenses incurred".
- Brianda court costs, the payment corresponds to the financial entity, in the event that the reason is given to the consumer.
You can consult a summary table with the main mortgage formalization expenses and who must assume them at the bottom of this report.
You can consult more information about mortgage formalization expenses in the next report.
How to claim the mortgage constitution expenses?
Given the complexity of the issue and the multiple rulings that have been handed down in this regard, it is convenient to go, first of all, to an expert, a consumer association or a legal professional, so that they can advise you and study your case.
The banks they are not obliged to repay the overcharged amounts on a voluntary basis, so if you want to claim, you have two options:
- File a claim with the Customer Service of your entity. If after one month from the date of presentation of the claim, you do not receive a response, or you are not satisfied with it, you can go to the Claims Service of the Bank of Spain.
- Go straight to court. The judge will decide if the conditions are met to consider the clause as unfair, in which case it will be considered null. The court will also determine the scope of said annulment, and may therefore recover the amounts in excess that the financial institution has received.
Remember that the current Mortgage law recognizes that the expenses of setting up the mortgage correspond to the bank, since it is the main beneficiary of the signing of the mortgage, so if your mortgage is after June 2019, these expenses will not have been passed on to you . You can consult more information about mortgages in the next section.