
IRPH annulled in Ceuta ruling
The Court of First Instance and Preliminary Investigation number 5 of Ceuta has issued a judgement declaring the nullity of the IRPH reference index (mortgage loan reference index) for the calculation of the variable interest of a mortgage loan dated 29 July 1999 in which the lender was the bank Cajamar, to which the borrowers had been subrogated in 2002 through a deed of sale and subrogation.
The judgement takes into account the recent judgement of the Court of Justice of the European Union of 3 March 2020, and applying its considerations regarding the mandatory judgement of unfairness of clauses inserted in a consumer contract, it establishes that consumers were not sufficiently informed about the main characteristics of the IRPH, its calculation, its evolution and its difference with the Euribor.
The case file does not show that the consumer was informed about the evolution of the index applied and "although it is true that he could know the value at a certain time as it was officially published, it should be borne in mind that the evolution and the aspects that could affect this evolution required specific information mainly in relation to other applicable indexes so that the consumer could have at least an approximate overview of the evolution of the index and thus know the possible impact that the specific vicissitudes of this index would have on the cost of the contract", indicates the magistrate. This index is considered "null and void" due to "lack of transparency" and "it cannot be understood, when analysing the subsistence of the contract without it, that there would be a loss of cost, which would clearly affect the prospects of a certain profit on the part of the bank, which could, given the clear loss of its expectations, agree to terminate the contract".
The judgment annulling the IRPH orders its substitution by the Euribor, condemning the Bank to return all the excess amounts it had charged for the application of the IRPH with the corresponding legal interest, also establishing the costs of the proceedings to be borne by the bank.
The ruling is very important not only because it is the first ruling on this issue in Ceuta, but also because in this city and in all of Spain there are many people affected by the IRPH index who signed their mortgage without knowing that this reference index is much higher than the Euribor reference index (2 points higher) and that its evolution is not objective as it depends on the data provided by the banks to the Bank of Spain.
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