On the 23rd of December 2015, the Supreme Court passed a sentence declaring that the clause that most banks use to force consumers to pay all costs involved in the setting up of mortgages (Notary costs, Property Register and Tax on Documented Juridical Acts (IAJD) is null and void.

The aforementioned clause is almost identical on all loans:

It is exclusive responsibility of the loanee to pay all taxes, commisions and costs caused by the preparation, formalization, rectification, processing of deeds, modification, including division, segregation or any other change that implies an alteration of the guarantee – and implementation of the contract, and the payments and reimbursements derived from such, along with the constitution, conservation and cancelation of your guarantee, also being your responsibility all costs corresponding to damage insurance, which the loanee obliges themselves to have.

Specifically, the Supreme Court considers that who has the main interest in the documentation and inscription in the register of the guarantee is without doubt the bank, and it’s they who must affront these costs.

Therefore, the Supreme Court harshly criticizes the banks, who by way of an enforced clause and without possibility of negotiation forces those costs on the mortgage requester when in reality the party with the most interest in the property being registered is the bank as it is them who will use this and its executive character if the buyer misses their payments.

The solution is to sue the bank claiming for the return of Notary costs, Property Register costs and Tax on Juridical and Documented Acts (IAJD) which, in an average 150.000 € mortgage would be over 3.000 €. These clauses, in contravention with the articles 87.5 and 89.3 of the Consolidated Text of the General Law for the Defense of Consumers and Users given that the clause, against the interest of the consumer, is imposed and doesn’t admit any possibilities to negotiate.

All consumers that have assumed these formalization costs can claim, as long as less than 4 years have passed since they finished paying their mortgage.

If the claim prospers you’ll be returned the amount overpaid in costs of inscription of the mortgage escritura (Notary, Property Register) as well as the amount paid in IAJD, along with the legal interest from the moment you paid said amounts.

The claim is directed against the bank with whom you took out the mortgage.

The collective claim is much slower than the individual claim and is subject to third party events that could affect the development of the claim, therefore RD Asesores advice an individual claim to treat each case in an individualized way.

The average length of these claims is around 9 months in first instance, and if a sentence is appealed, around another 5 months, according to data from the statistical service of the General Counsel of Judicial Power (CGPJ).

In most cases, going against what’s established by the Supreme Court – that defends that the interested party in registering the mortgage is the bank, and therefore it is they that must affront the costs implied-, the bank defends that the client must affront those costs as it is ultimately they who have an interest in the registering, as it is they that require a mortgage, and this is an indispensable requirement for the mortgage to be granted.

The claim is presented in the court of first instance of the consumer’s place of living.

We have a success rate of 99%, managing to get the bank to return the paid amounts plus their legal interest. The Supreme Court’s sentence sets a binding legal precedent for courts of first instance, who can’t ignore said court’s criteria.

The fact you have qualifications or experience in contracting complex financial products doesn’t affect the claim in any way. The most important thing is to meet the condition of being a consumer. In the case of companies, each case must be studied and analyzed to check that they meet the criteria.

When the sentence is won, 20 working days must pass for it to become final. After this, the bank has 1 month to voluntarily deposit the money. If the do then the deposit must be requested to the court. That is done via a document called a payment order and can take another month approximately to be emitted and for the money to reach your account. If the bank doesn’t voluntarily pay we must send an enforcement claim, which can take around 3 months. However, the normal case – considering we’re dealing with banks, which are presumed to be solvent – is for them to pay voluntarily within the first one month period. These time periods are estimations and vary in each procedure.

• No funds provision
• We charge 15% of the amounts we recover + VAT, be it via the courts or not, with a minimum charge of 150 € + VAT.
• If the bank is convicted, the legal costs, which the bank will pay.

• Lawyer services
• Complete processing of the claim, in or out of court, in all instances up until the Supreme Court, including enforcement costs.
• Telephone and email attention, along with in person service to prepare the trial if necessary.
• Solicitor services. Complete processing in 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.