Conclusions of the Advocate General
THE much-awaited conclusions of the Advocate General Mr Szpunar were published on September 10 regarding Case C125-18. This case had been presented to the Court of Justice of the European Union CJEU. It related to a mortgage finalised in Spain using the IRPH interest rate to calculate the amount to be charged.
As we have recorded in previous articles, although it is normal for Spanish mortgages to be linked to the EURIBOR rate, there are an estimated 10 per cent of them which are referenced to the IRPH index (which can be the IRPH of CAJAS, IRPH BANKS, or IRPH ENTITIES).
The problem with mortgages referenced to IRPH is that this index is higher and therefore more expensive for customers than the usual EURIBOR rate, the main reason for this, being that this index is fixed to the average of loans granted by Spanish banks but takes into account, not only the average interest at which the Spanish banks lend their money, but also the commissions they charge, etc.
In addition, the way this is calculated is quite complex and there are suspicions concerning the possibility of the banks themselves being able to influence the IRPH, in order to make the interest rate increase, which would benefit them, since they could earn more money on those mortgage loans referenced to IRPH.
The IRPH has several modalities CAJAS, BANKS or ENTITIES, although at present only the IRPH of Entities continues to subsist.
On this issue, we are waiting for the CJEU to issue a judgment in case C125-18, which particularly refers to a Bankia mortgage.
Although of course it is necessary to wait for a final court decision, the truth is that the conclusions of the general lawyer presented in this procedure are very clear, and basically of interest to us as they propose that;
- These types of clauses in which a mortgage loan is referred to an index such as IRPH, are subject to directive 93/13 and therefore could be declared abusive, due to lack of transparency, etc.
- That the entities making the loan must provide sufficient information so that the consumer has full knowledge of the index that will be used in his loan and therefore, of the elements that compose it, its regulations and how it is calculated.
- It is for the national judge in each specific case to check if the bank transparently explained in detail the method of calculating the interest rate and the elements that form part of the IRPH.
As stated above, we must wait for the final ruling from the CJEU but the conclusions are clear and we understand that it would be difficult for the CJEU to rule against the advice received.
Our office of expert lawyers has extensive experience in claims against abusive mortgage loan clauses, floor (suelo) clauses, expenses, early maturity, multi-currency mortgages, etc. and has initiated a campaign to help those who have their mortgage referenced to the IRPH, by offering a service of NO WIN NO FEES.
If you have a mortgage loan referenced to IRPH now, or have had one in the past and wish to obtain expert advice about making a claim, contact us and we will help you.
The information provided in this article is not intended to be legal advice, it simply transmits information related to legal issues.
Carlos Baos (Lawyer)
C/Diana 19, 2º D, 03700 Denia (Alicante) Spain
Tel. +34 966-426-185 Fax +34 965-784-471
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