Floor Clause: claiming as soon as the mortgage is signed
The Provincial Court of Madrid has recognised a consumer's right to claim from a financial institution the amounts unduly charged for floor clauses from the time the mortgage was signed, and not only from the time the clauses were declared null and void. In a ruling dated 19 April, the Madrid High Court upheld an appeal by a customer of the Credifimo financial institution against a previous ruling by the 33rd Court of First Instance of Madrid.
The ruling allows those affected by floor clauses declared null and void to recover the amount paid in excess since the signing of the mortgage in 2007, despite having a final ruling with which they could recover what was unduly paid since May 2013, which is the retroactivity limit established by the Supreme Court.
The case law of the Court of Justice of the European Union (CJEU) states that mortgage clauses considered abusive must be declared null and void, which means that the consumer has the right to be reimbursed the amounts unduly received by the bank as soon as the court declares the clause null and void. In Spain, the Supreme Court set 9 May 2013 as the deadline for claiming unduly collected amounts, without retroactive effect and regardless of the date on which the mortgage was signed.
Now, the Madrid court goes further and allows consumers to recover the amounts unduly charged from the time of signing the mortgage, which opens the door to thousands of claims from consumers who took out their loans before 2013. The ruling puts the effective judicial protection of those affected by the floor clause before res judicata, something that the consumer association Asufin describes as "very important and innovative, because it moves in the direction of consumer protection".
The Provincial Court judges Miguel Ángel Lombardía, Ramón Badiola and Lorenzo Vaquero emphasise that the time limitation imposed by the Supreme Court is tantamount to depriving consumers who signed a mortgage before that date "of the right to obtain full restitution of the amounts they have unduly paid to the bank".
And this only guarantees "limited protection" to those mortgaged before that date, making such protection "incomplete and insufficient and not an adequate and effective means of stopping the use of that clause", the judgment continues.
