Including Floor clauses in mortgages in Spain has been a regular practice since the start of the “real estate bubble” (1997-2007). Most mortgages from that era, and until 2013, had a variable interest rate (fixed usually as Euribor plus a differential that the bank applies). On many occasions, the banks would establish a minimum percentage to be paid by the buyer of the property (floor) even when the Euribor plus the differential established by the bank was lower than said minimum.

The inclusion of said Floor clauses was done by the banks knowing that the Euribor was set to dramatically decrease, something which the consumer was unaware of. The inclusion was done with a complete lack of transparency and information, which made it impossible for the consumer to be aware of the true meaning of what they were signing.

With this practice, which managed to affect 40% of mortgages, and that at today’s date is estimated to have affected 3.800.000 people, the bank assured themselves a fixed income, regardless of the Euribor’s movement, with which they were able to convert a lot of their assets (mortgages) in fixed rate assets, when the mortgages had been negotiated and signed as variable rate mortgages.

During all this time, the banks have earned over 30.000 million euros, money they wouldn’t have won without the application of these Floor clauses.

These abusive Floor clauses have meant on average 200 € extra in every monthly payment, which is a 2.400 € extra cost each year.

Since the European Union Justice Tribunal’s sentence on the 21st of December 2016, you have the right to be handed back all the money the bank has overcharged you, not since May 2013, but since the moment your floor clause came into effect. Therefore, the retroactivity is absolute.

The solution, firstly, is to try to establish a negotiation with the bank with a view to reaching an agreement. We recommend sending a prerequisite, which, on occasions, is met.

If the bank doesn’t eliminate the Floor clause and doesn’t pay back the overcharged amounts, the only option is a judicial claim. In 99% of cases the Floor clause has been removed and the overcharged amounts have been recovered and paid back by the bank. The most common outcome is the bank also having to pay all legal costs.

Since the approval of the Royal Decree Law on the 20th of January 2017, in which a specific procedure for out of court procedures for the annulment of Floor clauses and the reimbursement of the overpaid amounts, you must bear in mind:

• The out of court procedure is voluntary.
• It’s a procedure that lasts 3 months.
• The bank decides if it removes the Floor clause and if it gives back the overpaid amounts or not.
• The bank also decides how much it believes you overpaid.
• The banks are allowed to give back the money through compensating you with other financial products, which will be valued by the bank itself, which means in most cases you won’t recover the money in cash.
• It could be that after 3 months the bank choses not to even reply, which would be understood as a rejection of your request.

In this situation, we recommend:

• If you want to take this action you should be advised by a lawyer. The banks will try to solve the issues in the most beneficial way possible for them.
• This advise will allow you to know the exact amount that you’re legally owed so that you can compare it to the amount you’re offered.
• In the case of your request not being successful, you’ll have a lawyer that can process the corresponding judicial claim.
• Also, all of this process won’t involve an additional cost, we will only charge you a percentage of the amounts you recover in this way.

Yes, it’s possible to claim the annulment of your Floor clause as long as you weren’t informed properly by your bank of the consequences that having a Floor clause entails, i.e. if the bank acted with a lack of transparency.

The Supreme Court has understood that there is a lack of transparency and therefore the Floor clause is abusive when:

i) There is a lack of sufficient information that it is a defining element of the contract

ii) It’s inserted along with a “roof” to give an appearance of reciprocity

iii) There wasn’t a simulation of different scenarios

iv) There wasn’t clear and concise previous information comparing it to other modules of loans the bank offers

v) It’s situated among a large amount of other details that mask the clause.

Either way, RD Asesores will study your case for free before making your claim.

The claim can also be made if the investment was done by a company, as long as the requirements of transparency weren’t upheld and as long as the Law of Consumers and Users (RDL 1/2007, 16th of November) is applicable to them for being the ultimate user of the property.

Therefore, people and companies can claim because of the lack of transparency about the implications of the Floor clauses.

First of all, if since July 2008 you haven’t noticed a large drop in your payments or they have remained the same it’s very likely you have a Floor clause. The banks have masked the clause under chapters such as “limit to the variability of interest rates”, “limits to the application of variable interest” or “variable interest rate”.

As long as the claim prospers the Floor clause will be removed, with which you’ll be given a considerable drop in mortgage repayments as well as being able to recover the amounts you’ve been overcharge by the bank because of the clause.

The Supreme Tribunal sentenced on the 9th of May, 2013 that Floor clauses are null and void, limiting the amount banks must return to that date.

However, on the 21st of December 2016, the Supreme Court of Justice of the European Union has revoked the judgement of the Spanish court by establishing that the repayments must be of all that that’s been overpaid, not since May 2013, but since the Floor clause has been applied.

The out of court procedure covered in the Royal Decree Law of the 20th of January 2017 establishes the obligation of the banks to open a process for the annulment of the Floor clauses and the return of the overcharged amounts. These procedure is mandatory for the bank (who decides who to give money back to and how much) and voluntary for the affected party, who can always decide if they want to go through legal channels, understanding that they are the most secure and impartial channels.

If this happens you can always go through the judicial procedures to annul your Floor clause and achieve the money you’ve been overpaid by the bank.

The procedure has a maximum period of 3 months. If after 3 months a reply hasn’t been obtained from the bank, we understand that the claim has been denied.

If that happens, you can always go to court and if they convict the bank to pay back more than they offered, the bank will be convicted in legal costs and therefore your claim won’t imply any cost to you.

In the case that the bank is convicted to pay the same amount they offered, they won’t have to pay the legal costs, and the cost for you will be 10% of the recovered amount.

The out of court procedure establishes the possibility for the bank to offer you a financial product to substitute cash reimbursements. Our feeling is that banks are going to resort to this, and the problem is that it’s the bank that quantifies the value of the financial product offered, therefore we understand the valuing of said product will always go against the client. That is why it’s necessary to go to the out of court procedure advised by a lawyer.

The bank tends to defend itself from two perspectives: (i) The floor clause is legal and is agreed by both parties and (ii) that the implications of the floor clause were explained to the clients and they knew the consequences of it when they signed the mortgage.

The out of court claim is presented to the bank itself. The court claim is presented in a specialized court for these cases, depending on the address of the claimant. In the province of Málaga, all floor clause claims go to the 18 BIS court.

We have a success rate of 99%, getting the bank to remove the floor clause and in a large amount of cases managing a reimbursement of the overpaid amounts. In many occasions we’ve managed to eliminate the floor clause without having to go to court.

Yes, since the Supreme Court’s 9th of May sentence all the floor clauses are being removed despite the existence of a binding quotation (“oferta vinculante”). The aforementioned sentence has established transparency criteria that no bank has adhered to despite the binding quotation.

In theory, no, because the claim is based on the lack of transparency and on the defense of consumers and users, but each case must be studied to evaluate the viability of the claim, but as a general rule the court forces the bank to prove that they correctly informed the client of the floor clause, which they are obliged to do, and the claim is based on this argument.

When the sentence is won you must wait 20 days for it to be confirmed. After that, the bank has a month to voluntarily deposit the money. If they do, we must present a document called a payment order to the court and that takes another month approximately. If the bank doesn’t voluntarily pay, we must present what is called an enforcement claim, which can take around three more months.

The worst scenario is that our claim gets rejected and we get convicted to pay legal costs. The legal costs would be, as a maximum, a third of the amount claimed, but that scenario is practically impossible with the Supreme Court’s judgement that have repeatedly declared floor clauses null and void.

Since the taxation of the recovered amounts depends on the individual situation of each cliente, at RD Asesores we have a team of economists and fiscal advisors that once your money is recovered can advise you on its taxation.

Yes, as long as they prove they are the heirs. This type of claims are presented and won. Any heir can act on behalf of the estate and process the claim, although it’s convenient to do it through a majority of the heirs if it’s still yet to be distributed.

If the mortgage was signed while in the gained goods regime, both parties must present the claim.

Because we win.

Because we know how to recover the money, the results back us.
Because you’ll receive a personalized treatment, you won’t be one of thousands of clients.

Because you’ll have your claim presented in two weeks and you won’t wait months..
Because our rates are very competitive, we charge when you win.
And because we offer this with a high degree of professionalism and quality.

The answer is yes. All you need to do is present a written document to the court extending the claim because of new developments that weren’t known in the moment of the claim.

Mandatory:

• Power of attorney
• Professional order to RD Asesores
• RD Asesores questionnaire
• Public mortgage escritura
• Binding quotation from the bank (if one exists)
• Banking abstract of the quotes from the mortgage
• Administrative authorization
• If you’ve begun the out of court claim, the original form presented in the bank and the answer (if you’ve received one)

Complementary:

• Claim to the client attention service of the bank
• Claim to the Bank of Spain

There is no provision of funds. RD Asesores takes care of all the necessary costs for the processing of your claim, including the fees of all the professionals involved in the process.

Advisory in out of court claim: 7,5% of the recovered amounts + VAT

For in court claims: 10% + VAT of the amounts recovered plus all the legal costs.

It’s an amount of money quantified by the court, depending on the amount of the claim, to cover the costs of the lawyer and solicitor that the winner of the trial has had to pay.

The legal costs are given when the judge sides completely with the winning party in a trial.

Since the Supreme Court’s May 2013 sentence it’s practically impossible to lose a case, therefore it’s extremely unlikely to be convicted in legal costs.

• Lawyer services.
  
• Complete processing of the claim, in and out of court, in all instances up to the Supreme Court, including enforcement.
• Telephone and e-mail service, as well as in person attention to prepare the trial if necessary.
• Solicitor services. Complete processing of all instances.

Power of attorney

It’s a document that’s signed in front of a notary and that empowers the lawyer and solicitor that will represent you in court.

This document can be signed in any notary office in Spain and tends to be handed to you in the moment and without appointment. It has an approximate cost of 50 €.

We have a model at your disposal that you can take to your notary or we can indicate to you the various notaries RD Asesores work with.

Rates

Only companies are obliged to pay court rates. The amount is calculated over a fixed 300 € for amount over 6.000 € and 150 € for claims under 6.000 €, in both cases, plus 0,5% of the amount claimed, as long as your claim is over 2.000 €.

Additional Costs

The costs of getting to the location where the services are contracted, telephone calls and photocopies are included.

What isn’t included is the mandatory deposit (between 25 € and 50 €) and the delivery of certified post, messengers and burofax, which the client will have to pay.

Before incurring in any extraordinary cost in the processing of the case, the client will be consulted and will have to agree to the cost.