On November 22, the Supreme Court issued its ruling in the case of those affected by mortgages referenced to the IRPH index, the Reference Index of Mortgage Loans. The magistrates gave the reason to a financial institution to consider that the use of this index in mortgage contracts is not in itself opaque or abusive . They estimated that the mere reference of a mortgage to this official index does not imply consumer abuse. Almost all the judges agreed, but not all.
There were discrepancies. In the opinion of the judges Francisco Javier Orduña and Francisco Javier Arroyo, this argument is “not adjusted to law”; they consider that the clause does not go beyond the transparency control . Encouraged by the private vote of these two magistrates of the Supreme Court, the clients with mortgages referenced to the IRPH index (approximately one million families) already think about raising their case to European courts.
Two judges questioned that the clients had sufficient information about what they were signing For Orduña and Arroyo, the entities that use the IRPH compared to other more usual indices at the time of contracting such as the Euribor, would have to establish their “scope and specific functioning , so that the consumer is able to assess, based on accurate and intelligible criteria, the economic consequences assumed “. Especially since it is a complex product for the average customer, both because of the way it is calculated and because of its “peculiar configuration”, which makes it “necessary” to actively facilitate adequate and comprehensible information about its application.
They thus adopt the position of the two previous instances on the abusive nature of the clauses introduced by Kutxabank in a mortgage contract, as the lack of information in the pre-contractual phase, as well as in the perfection and execution phases, is proven “. The judges Orduña and Arroyo explain that limiting this control to formulations that “disregard or do not reflect the importance or incidence that this index has to assess the scope of the commitment” is incorrect, which is why they question this point of the judgment.
Specifically, the verdict ensures that it was “easily accessible” to an average user, “normally informed and reasonably attentive and insightful”, to compare the conditions used by different lenders in an element “as essential as the loan itself”. Reason for discarding that, to determine the transparency of the clause, it is necessary for the bank to verify that the consumer has noticed the economic and legal importance of the operation.
In addition, the Supreme Court contends that comparing the evolution of the IRPH with respect to the Euribor , which has had a “more favorable” behavior for the mortgaged, “can not serve as a guideline for transparency control” since it is done from a retrospective bias. And he insists that it can not be said that the IRPH is more expensive when the loan in question, agreed in 2006 for a period of 35 years, “has not yet reached the third part of its term and it is unknown what will happen in the 24 years that still remain for its extinction. ” But, as the private vote says, since its application, the index has remained in values ”superior to other more usual and known”.
The EU Court has already ruled against the ground clauses The lack of a full consensus on the part of the plenary session of the civil court keeps the clients who subscribed mortgages of such characteristics, who return to point to the community justice after the success harvested a year ago in the Court of Justice of the European Union (CJEU) with the retroactivity of the ground clauses.
A way to which they came after hearing the disagreeing opinion of Judge Orduña, who supported the reimbursement of the amounts charged by the entities in an improper way for this concept in the ruling, now revoked, in which the high court imposed the 9 May 2013 as the time limit for making the returns. This is highlighted by the president of the Association of Financial Users (Asufin), Patricia Suarez, who encourages the fight against bank abuses and, in particular, against an IRPH whose resolution begins to approach Luxembourg.