The Court of First Instance number 1 of Arrecife has upheld the claim filed by a client from the island against a bank, in reference to the nullity of the clause relating to the variable interest rate with the fixing of the IRPH reference interest rate.
According to the Judgment dated January 25, 2019, obtained by the lawyer Alicia Martín Borreguero, "the defendant entity is ordered to pay the plaintiff the amounts charged as remuneration interest calculated on the basis of the aforementioned reference index from its application. Amount that will accrue legal interest from the date of each collection"
In addition, said resolution declares the nullity of the clause referring to the limit to the variation of the interest rate (known as "floor clause"), the elimination of said clause from the loan, the return of the amounts paid in excess for this concept and the accrual of legal interest, as well as the nullity of mortgage expenses, the return of amounts referring to these, legal interest and the defendant party is ordered to pay costs.
The Judgment considers fully applicable to the specific case, what was reasoned by, among others, the Judgment of May 2016 issued by the Court of First Instance number 5 of Arrecife.
According to the file, and also based on the STS 9 of May 2013, "in no case would it be proven that the plaintiff was provided with sufficient quality information that would allow him to perceive the nature and true operation of the IRPH. Nor is any documentary evidence provided about what could be explained to the borrower about the IRPH and other alternative indices such as the Euribor". And it continues "The clauses cannot pass the transparency filter, it was incorporated into the contract without the bank ensuring that the client understood its content, without explaining how this index is determined by the Bank of Spain or the differences between the IRPH and the rest of the indices, nor its behavior in recent years... and, what is more important, without being able to choose between this index and others such as the Euribor".
The lawyer Alicia Martín Borreguero, who represented the client of the bank, emphasizes that the importance of this Judgment, precisely at this time, is due "to the fact that it does not follow the criteria adopted by the Supreme Court, which argued that the mere reference to an official index, as is the case of the IRPH, does not imply a lack of transparency or abusiveness. And currently in the majority of Spanish Courts and Provincial Courts are dismissing the claims or are suspending the procedures that request the nullity of the IRPH until the resolution of the European Court of Justice is produced soon, who will hold the oral hearing within a few days, on February 25, and presumably in the middle of the year it will be known if European justice contradicts the Spanish one regarding the IRPH. This Judgment at this time helps and encourages other Spanish Courts and Audiences to do Justice, waiting with hope that the CJEU helps consumers, who have been very harmed with a supposedly more opaque and harmful product than the floor clauses".
However, the lawyer warns that said Judgment is not yet final and it is presumed that the bank will appeal it.
The IRPH has been until recently the second most used reference index in mortgages in Spain, especially in those signed in 2006 and 2007. The number of mortgage loans referred to any of the IRPH varieties exceeds the amount of 1.3 million throughout the Spanish state and its use could mean today an average of between 200 and 300 euros more in mortgages. Many entities offered it as a less volatile alternative than the Euribor.
Loans signed with the IRPH index can cost 44,000 million to the banks, and everything seems to indicate that it will be the next banking scandal after the so-called "floor clause".
Finally, Martín explains that "in view of the upcoming European pronouncement, many entities are already offering those affected an agreement to change the mortgage to a fixed rate. But, this agreement forces them to sign a clause that closes the door to any subsequent claim". Therefore, the lawyer advises "not to sign any agreement until the decision of the CJEU is known".
