The Court of First Instance number 1 of Arrecife has condemned Banco Santander to return to a client everything charged "unduly" for a floor clause of a mortgage and for the IRPH index of the same. Likewise, the court has declared the nullity of two other clauses that the bank applied in the mortgage contract, specifically the one that established default interest and the one for early maturity, for considering them "abusive".
The plaintiff signed a mortgage loan deed on April 22, 2010, but in May 2018 filed a lawsuit against Banco Santander requesting the nullity of those four clauses. Regarding the floor clause, he argued that he had not been "at any time" informed of its existence and scope and that, therefore, there had been "a clear lack of transparency" on the part of the bank, arguments that have been endorsed by the Court of First Instance number 1 of Arrecife.
"It has not been the subject of an individual and consensual negotiation with the client, but imposed by the bank as an irrevocable offer", says Judge Silvia Muñoz in a ruling of March 18, where she also states that the floor clause of the mortgage loan "does not" offer "a desirable clarity".
The floor clause is "abusive" and appears "clearly obscured"
According to the ruling, it was stipulated that the minimum annual nominal interest rate applicable in this contract would be 3.820% and from there "the creation of the confusion that a mortgage loan with a variable interest rate was being contracted is derived, when in reality it was a loan with a minimum fixed interest rate and variable only upwards with respect to said minimum rate", which makes "illusory the expectations of the borrower in case of the Euribor falling below that minimum rate".
Consequently, the Court of First Instance number 1 of Arrecife concludes that "the floor clause is not transparent" and that, in addition, "it is abusive as it implies a significant imbalance to the detriment of the consumer", since "the borrower does not benefit from the downward variation".
Furthermore, the court points out that the clause appears "among another multitude, without standing out from all the complexity of clauses that a contract of this nature entails", so it considers that it appears "clearly obscured". Therefore, it declares the nullity of the floor clause and, according to the ruling of the Court of Justice of the European Union of December 2016, condemns Banco Santander to return to the client the amounts "unduly received" since its application.
Applied the IRPH without offering the client other "more advantageous" indices
The ruling also pronounces in the same sense on the IRPH index of the mortgage loan, which has also been annulled, condemning the bank to return to the affected party the amounts "unduly charged". And it is that, in the opinion of the Court of First Instance number 1 of Arrecife, it has not been proven that the bank provided the plaintiff with "quality and sufficient information".
Likewise, the court concludes that the bank "did not offer the client other different indices such as the Euribor so that they could choose between them", something that it is believed that the plaintiff would have done as they were "more advantageous" for him, which is why the Court believes that "they were omitted".
"Lack of transparency that, in the opinion of this judge, is established as sufficient to declare the nullity", says the magistrate, who thus orders its elimination, ordering that it be maintained "only as a reference rate the Euribor, plus the spread of 0.25%", with condemnation to the bank to return to the client "the amounts that could have been charged in excess during the application of said clause".
A default interest "disproportionately high"
Regarding the default interest, the ruling states that it is 19% and that it was calculated "adding four points to the ordinary interest rate", pointing out in this regard that the Supreme Court has established as jurisprudential doctrine that "default interest in mortgage loans that exceed the remunerative interest by two percentage points will be considered abusive".
Therefore, the ruling stipulates that the default interest must be reduced "to 3.67%" and declares the "nullity of the agreed default interest" considering that it is "disproportionately high" and that it violates the doctrine of the Supreme Court.
Finally, with respect to the early maturity clause, which was established "in the event of non-payment of a single installment", Judge Silvia Muñoz has also declared its "abusiveness" due to the "evident disproportion it generates in terms of rights and obligations between the parties to the detriment of the borrowing consumer", annulling it.
The Court of First Instance number 1 of Arrecife also condemns Banco Santander to pay costs, although an appeal can be filed against the ruling, which would be resolved by the Provincial Court of Las Palmas.
