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The “IRPH mortgages” are abusive because the bank did not inform correctly

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The “IRPH mortgages” are abusive because the bank did not inform correctly

Las “hipotecas IRPH” son abusivas porque el banco no informó correctamente
The “IRPH mortgages” are abusive because the bank did not inform correctly

The well-known CJEU Judgment on IRPH mortgages of March 3, 2020, which allows the claim against banks for mortgage loans with IRPH, expressly includes the obligation of banking entities to provide all the necessary information and documentation to the consumer. So, since this has not been the case, the clause that contains the IRPH index as a calculation criterion for the interest on the loan will be declared null and void for abusive.

Our legal system prevents, for the sake of contractual good faith, the need to provide the other contracting party with the necessary information so that he can form his will freely, validly and efficiently. The art. 15 of Royal Decree 629/ 1993 of May 3 requires banking entities to deliver the necessary documentation related to the operation in question. The same precept obliges to keep the client’s receipt of the documentary that has been delivered.

The courts also require banking entities to provide the client with the proper information in the prior negotiation or pre-contractual phase, demanding individual attention to the degree of knowledge of the interested party. In order for the relationship between both parties to maintain a contractual balance, banking entities are required their obligation to provide correct information both in the pre-contractual phase, through mechanisms to guarantee market transparency and adequate information to the consumer ; as in the contractual phase, informing about the current regulations on unfair terms and general conditions; and in the post-contractual phase facilitating claim mechanisms. Otherwise, equality between the conflicting interests of the lender and the borrower would not be guaranteed.

It may interest you:”Everything you need to know about IRPH

The tendency of the legislator and the courts has been more and more protectionist of the consumer and more severe with the banking entities, in the sense of increasing the requirement of the financial professional to inform the client in accordance with the criteria of good faith and due transparency, respecting the duty of loyalty to the client.

Royal Decree 217/2008 of February 15 regarding investment service companies, expressly repeals Royal Decree 629/1993 of May 3, and in its article 64.1 provides that entities that provide investment services must provide their clients, including potential ones, with a general description of the nature and risks of financial instruments.

The description must include an explanation of the characteristics of the type of financial instrument in question and of the risks inherent to that instrument, in a manner sufficiently detailed to allow the client to can make informed investment decisions.

In the opinion of the judgment of the European Court of Justice of March 3, 2020, the main question to determine whether it is appropriate to agree to the nullity of the IRPH clause in mortgage loans lies in the analysis of the information provided by the bank to the client. Hence the importance of this issue in light of the claims that we are presenting on behalf of the multiple affected parties. The sentence expressly says:

“In this regard, as the Advocate General observed in points 106 to 109 of his conclusions, according to the settled case law of the Court of Justice regarding In addition to the requirement of transparency, it is of fundamental importance for the consumer to have, before entering into a contract, information on the contractual conditions and the consequences of entering into the contract. Based mainly on this information, the consumer decides if he wishes to be contractually bound by adhering to the conditions drawn up in advance by the professional.”

There is an obligation for the financial professional to pay a special demand in providing transparency and clarity both to the operations to be carried out and to the explanations that serve to form the will of the client. More specifically, the CJEU ruling of March 3, 2020 understands that banking entities were obliged to report on the last value of the IRPH that had been published, and on the evolution of the IRPH in the two years prior to the signing of the contract. loan.

Similarly, in the opinion of the European Court, the banks should have reported on the economic consequences of applying the IRPH index and its objective comparison with other indices for the calculation of variable interest. It would have been desirable for the bank to present the client with comparative examples between the IRPH and the EURIBOR, so that the client could give full and valid consent.

It is not admissible that the client should limit himself to giving his consent, blindly, trusted by the indication of the Bank, regarding conditions whose consequences in the future he cannot assess with proportionate rationality due to lack of training, while the Bank does have it.

It may interest you:”Analysis of the CJEU Judgment on the IRPH clause

Anyone affected by IPRH mortgage loans could raise the following reasonable doubts at this time: How can I prove that the bank did not inform me correctly about the definition and consequences of the IRPH? ? How can I certify that the bank did not provide me with informative documentation on the IRPH?

Well, in the case of a standard contract or adhesion contract concluded between a consumer and a professional banking entity, it is determined that it will be the lending bank who has to prove the delivery of the referred information or documentation.

We can affirm that the burden of proof falls on the bank, a term known in legal practice as the obligation of the party that must prove what it affirms. In this case, the consumer will be exempted from proving the reality of this lack of information because the burden of proof does not fall on him, but on the bank. This criterion seems logical considering that the opposite would mean requiring the consumer to prove a negative fact, that is to say that it never existed, which would be impossible.

In conclusion to what has been said, and in the event of a legal claim by an affected party, if the bank does not provide proof of having provided sufficient information in the procedure, it must be understood that said information will never it was facilitated. The consequences of the declaration of nullity due to abusiveness in loans with an IRPH index can be consulted in our article NULLITY OF THE IRPH CLAUSE IN MORTGAGES.

Start the procedures to claim

Reclamación de indemnizaciones por hipoteca IRPH
Claim for compensation for IRPH mortgage

If you are affected, please contact us. We are a firm with more than 40 years of history, which studies each case individually. We are not a massive claim platform, our lawyers have extensive experience and we offer you the chance to get to know us personally if you wish.

It may interest you:”IRPH Mortgages: Application of the law of general contracting conditions

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