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The Supreme Court annuls eight floor clauses due to lack of transparency

The Civil Chamber of the Supreme Court has annulled eight clauses of Caja Segovia (today integrated into Bankia) because the entity failed to comply with the special duty of transparency that he had regarding these clauses with the clients with whom he signed the mortgage loan contracts. This is the second ruling issued by the Supreme Court onfloor clauses, after May 9, 2013 I will cancel them in contracts from BBVA, Cajamar and Novagalicia Banco.
In this resolution, the high court outlines in more detail the bank's special duty of transparency and real understandability of the clause to clients and rejects the entity's allegation that the deeds were read by notaries and that the clients were warned of “the possibility of reading it”. According to the magistrates, “this does not replace the entities' duty of explanation and transparency to users.”
The ruling known today reaffirms, therefore, the doctrine already established then and "definitely" enshrines the control of "real transparency that is part of the general control of abusiveness and that implies the necessary compliance by the predisposing party with some special duties at the time of configure these contracts that allow the consumer to truly understand the legal and economic consequences of the product or service offered. And this transparency control is not reduced to the need for the clauses to be simply clear from a grammatical point of view,” says the Supreme Court.
The ruling concludes that the Chamber is unable to examine the consequences of the declaration of nullity of the floor clause when declaring whether the amounts collected by the bank in application of said clause should be returned to the consumer, since this issue was rejected in the first instance and was not appealed by the injured party.
Currently, the Supreme Court considers the floor clauses of mortgage loans to be lawful when there is transparency and clarity in the information provided and considers that in the case of annulled floor clauses, based on the general principle of legal certainty and the “economic public interest ", the nullity should not entail the obligation of banks to return the amounts paid by those mortgaged based on said clauses, explains the lawyer specializing in banking law, José María Peyra.
Just one week has passed since the general conclusions of the lawyer of the Court of Justice of the European Union were published, in which suggests that judges annul clauses that they consider abusive, instead of adapting them to the law, as is currently happening in Spain. The report refers to delay clauses applicable to mortgage foreclosures due to non-payment and it is not a binding resolution until a ruling is issued, but some experts point out that, if it goes ahead, this criterion could also affect other types of abusive banking clauses such as floor clauses, in which for the moment the amounts received are not returned despite being declared null.

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