Supreme Court judgments on the distribution of mortgage expenses. Sentences 44, 46, 47, 48 and 49/2019 (23/1/2019)

Next we present the note of the Chamber of the Civil of the Supreme Court of January 24. At the end of it, you can consult and download sentences 44, 46, 47, 48 and 49/2019, of January 23.

SUPREME COURT
CIVIL ROOM
TECHNICAL CABINET
Judgments 44, 46, 47, 48 and 49/2019, of January 23.

JURISPRUDENTIAL DOCTRINE ON ABUSIVE CLAUSES: OPENING COMMITTEE, IAJD, NOTARY TAXES AND REGISTRAR AND MANAGEMENT EXPENSES.

The Civil Chamber of the Supreme Court, in full, has issued several judgments fixing doctrine on some issues relating to abusive clauses in contracts with consumers on which had not yet been pronounced.

First, it analyzes the possible abuse of the clause that, in a mortgage loan, establishes an opening commission.

After examining the sectoral regulations applicable to the case (both the national and the European Union), the Supreme Court considers that the commission of opening is not unrelated to the price of the loan; on the contrary, the remuneration interest and the opening commission constitute separate items of the price of the loan, insofar as they are the main remunerations received by the financial institution for granting the loan to the borrower and do not correspond to eventual actions or services. Both the remuneration interest and the opening fee should be included in the calculation of the APR, which allows the consumer to know what the effective cost of the loan will be.

For this reason, the Chamber concludes that the opening commission it is not susceptible to content control, but exclusively to transparency control, which it considers exceeded or fulfilled because "it is of general knowledge among the interested consumers the fact that, in the great majority of mortgage loans, the bank charges a commission of opening in addition to the remunerative interest; it is one of the extremes on which the bank is obliged to inform the potential borrower in accordance with the regulation of the standard information cards and, in fact, is usually one of the ends on which the advertising of the banking entities is concerned. ; it is a commission that has to be paid in full at the initial moment of the loan, which means that the average consumer pays special attention to it as a substantial part of the economic sacrifice that is involved in obtaining the loan; and the wording, location and structure of the clause allow to see that it constitutes an essential element of the contract "
Second, the court pronounces on the effects of the declaration of nullity of the clause that attributes to the borrower all the expenses and taxes, already declared null by judgment 705/2015, of December 23.

1- They are payments to be made to third parties - not the lender - as fees for their professional intervention in relation to the mortgage loan. The declaration of abusiveness can not mean that those third parties (notaries, managers, registrars) stop perceiving what corresponds to them by law.

2- The payment of these amounts must be paid by the part to which corresponded according to the regulations in force at the time of signing the contract.

A- Notarial fee.
The notarial intervention interests both parties, so that the costs of the matrix of the mortgage loan deed must be distributed by half.As for the deed of cancellation of the mortgage, the interested party in the release of the lien is the borrower, for what this expense corresponds; and copies of the different notarial deeds related to the mortgage loan must be paid by those who request them, while the request determines their interest.

B- Registration fee.
The mortgage guarantee is registered in favor of the lender bank, so it is to this that corresponds the payment of the expenses caused by the registration of the mortgage. On the other hand, the inscription of the deed of cancellation is of interest to the borrower, for which reason this expense corresponds to him.

C- Transfer tax and documented legal acts.
The Chamber reiterates that the taxpayer of this tax is the borrower, as already agreed in judgments 147 and 148/2018, of March 15, whose doctrine corresponds to that of the judgments of the plenary of the Third Chamber of this Supreme Court 1669/2018, 1670/2018 and 1671/2018, of November 27, which maintain the previous jurisprudence of that same Third Chamber. This common jurisprudential doctrine is not affected by Royal Decree-Law 17/2018, of November 8, which modifies the revised text of the Law on Transfer Tax and Documented Legal Acts (validated by the Congress of Deputies the following November 22), since said norm, according to its own forecast of entry into force, is only applicable to mortgage loan agreements concluded after its validity and does not contain any retroactive regulation.

D- Administration expenses.
Payment is also imposed for half of them.

Consult sentences.

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