The Commercial Court Number 2 of Las Palmas has annulled the floor clause of a mortgage loan signed by a resident of Lanzarote with Banco Popular and has forced the financial institution to return the amounts collected "unduly" for that concept. The affected party, who does not even speak Spanish, took out this mortgage to buy his home in Puerto del Carmen.
According to the lawyer who handled this procedure, Santiago Lleó, "the bank included the floor clause in the loan with a limit on the interest rate of 5 percent per year, without the possibility of lowering it despite the evolution of the Euribor, which since 2008 has gone from 5.5 percent to being below 1 percent".
In the ruling, dated June 13 and against which an appeal is still possible, the judge points out that the bank did not demonstrate "compliance with the sector regulations on transparency" nor did it prove that it had duly informed the client of the conditions of this clause. In addition, he emphasizes that the affected party "does not know the Spanish language" and they did not even deliver the documents translated into his language.
In any case, beyond the added difficulty of not knowing Spanish, the judge also highlights the lack of clarity of the contract regarding this point. "The challenged floor clause is included in stipulation 3.3 of the aforementioned deed on page eleven, reverse, located among an overwhelming amount of data among which it is masked, and which dilutes the consumer's attention," the ruling questions.
"Control of abusiveness"
The judicial resolution refers to different jurisprudence on this issue and the judge clarifies that "not all floor clauses are illegal". In fact, they are regulated in the sector regulations, although the judge emphasizes that this "does not exempt them from the control of abusiveness", as has happened in this case.
Among other things, the Supreme Court has already established that these clauses "cannot be masked among overwhelmingly exhaustive information that, ultimately, makes their identification difficult and casts shadows on what, considered in isolation, would be clear".
In fact, the Commercial Court Number 2 of Las Palmas considers that this is what happened in this case, where the deeds made it "very difficult to understand the reality" of what was being signed, and where other requirements were not met to guarantee that the complainant freely and consciously assumed the conditions of that contract.
Other affected parties awaiting judgment
The lawyer Santiago Lleó, from the All-Law office in Costa Teguise, has stated that "this ruling opens the door for other borrowers residing in Lanzarote to claim through judicial channels the elimination of this clause and the reimbursement of the amounts charged in excess since the contracting of the loan". In fact, this same lawyer is handling other proceedings in the same Court against the same bank on behalf of different residents of Lanzarote and expects "new rulings with the same content to be issued in the coming weeks".
The ruling, in addition to annulling the floor clause, keeping the rest of the contract in force, obliges Banco Popular to recalculate the installments and return to the client the amounts that were unduly charged to him by virtue of that clause. According to Santiago Lleó, this will mean the return of about 7,000 euros to his client, as well as a reduction in the mortgage payment of about 150 euros per month.
According to the lawyer, a 2010 report by the Bank of Spain reflects that one in three mortgages in this country has the floor clause.
