The Supreme Court changes the criteria for mortgage expenses and forces the bank to assume 100% of the management
On October 26, the Supreme Court issued a very novel ruling related to the distribution of the costs of formalizing mortgages and that tips the balance in favor of the consumer, since it allows them to save the agency.
Despite the fact that the High Court decided at the beginning of 2019 to establish a Solomonic distribution of the expenses of notary, agency, registration and taxes between client and bank. Specifically, the consumer had to bear 50% of the cost of the notary and the agency and 100% of the Tax on Documented Legal Acts (IAJD), while the entity had to pay half of the notary and the agency and 100% from the register.
But in the October ruling, the Supreme Court changes its criteria and obliges the financial institution to assume 100% of the expenses of the agency, thus freeing the consumer from paying half of said cost. This modification, according to the Supreme Court, supposes an adaptation of its doctrine to the criteria of the Court of Justice of the European Union (CJEU), known last July.
The judgment of October 26, which responds to an appeal filed against the judgment of the Provincial Court of Asturias (Section 4) of December 14, 2017 (roll 512/2017), and has Liberbank as bank involved, details in the legal foundations that “regarding the expenses of management for the processing of the deed before the Property Registry and the tax settlement office, in sentence 49/2019, of January 23, we understood that as when the services of a manager have been resorted to, the procedures are carried out in the interest or benefit of both parties, the expense generated by this concept must be covered by half, “the recent ruling details.
And he adds that “this criterion does not fit well with the doctrine contained in the STJUE of July 16, 2020, because prior to Law 5/2019, of March 15, on Real Estate Credit Contracts, there was no regulatory provision on how should these management expenses be paid “.
In this situation, the Supreme Court continues, “in the absence of a national norm applicable in the absence of an agreement that imposed on the borrower the payment of all or part of these expenses, the consumer could not be denied the return of the amounts paid in by virtue of the clause that has been declared abusive. For which reason, we also consider the appeal at this point “.
Thus, as Carmen Giménez, a lawyer at G&G Abogados, explains, “the distribution of expenses today, according to the Supreme Court, would be as follows: 50% notary between lender and borrower; IAJD 100% the borrower, and registration and management, 100% the lender “.
The lawyer also recalls that it remains to be seen what happens with the cost of the property appraisal, an essential step for the bank to grant the mortgage, although in her opinion this expense should also be assumed by the entity.
“The Supreme Court has not yet ruled, but according to the criteria of most of the Provincial Courts, and the lack of national regulations that determine the allocation of the expense to one or the other party, and being that in the appraisal, at the moment If the loan is constituted, the bank is interested, since it needs to set a price or value for auction purposes in case it had to initiate a foreclosure procedure, 100% should correspond to the lender “, emphasizes Giménez.
Giménez, like other lawyers, already warned in July that the CJEU ruling opened the door to the claim of 100% of all mortgage expenses, except the Tax on Documented Legal Acts (AJD), despite the fact that since The financial sector insisted that the Luxembourg Court simply upheld the decisions that the Supreme Court had made on mortgage expenses.
But the latest ruling makes it clear that the Supreme Court is adapting its doctrine to European dictates and this change should encourage consumers to claim the overpaid when setting up their mortgage.
How to claim your mortgage expenses
Carmen Giménez explains that the first move is to file a claim with the Customer Service of the entity with which the mortgage loan was signed (or, where appropriate, of the new entity that has merged or absorbed the former). who was asked for the money for the constitution of the mortgage). [Download here the model for claiming the costs of formalizing the mortgage]
After two months from the filing of said claim, and provided that the Customer Service has not answered or that the answer has been negative, the consumer may proceed to file the corresponding lawsuit before the court of the domicile of the borrower or debtor. or the bank’s registered office, indistinctly.
What must be requested in the claim that is presented before the Court will be the nullity.