IRPH declared null in Castellón
The Court of First Instance No. 3 abusive declared void by reference to the clause in sentence IRPH Boxes 23 May 2016.
Customers hired a mortgage loan with La Caixa (CaixaBank currently S.A.) in 2006, which he was tied to variable interest IRPH Boxes.
Considering that it is a cláusula abusiva, not negotiated between the parties and that earned them an important economic damage, They filed lawsuit seeking its nullification, the repayment of amounts overpaid and recalculation of contributions by reference to the Euribor.
The bank claimed that the IRPH It was agreed between the parties, that adequately it reported, that is not abusive and expiration of the action.
For the Court, it is a contract between a professional and a consumer,es, thus under Article 3.2 Directive 1993/13 / EEC, It is for the employer the burden of proof that there really was a negotiation.
To judge the abusiveness of the clause establishing the IRPH as benchmark, is necessary to check if it exceeds the control transparency (art. 4 Directive 1993/13 / EEC).
And this is exceeded when the adherent knows or can know simply economic and legal burden of the contract (STS plenary 9 May 2013). some criteria established in that judgment to determine if it exceeds the control transparency, namely:
a) clear information that is a defining element of the main object of the contract.
b) Roof and floor joint insertion as apparent consideration.
c) Simulations or scenarios absence of.
d) Lack of comparisons with other products or indications that are not offered to the customer.
and) Insertion between an overwhelming amount of data that increase the confusion.
For the Court, in this case we see that the information provided in the clause itself is deficient IRPH, thereby not exceed the transparency control, you can come to appreciate the abusiveness of IRPH.
To overcome abusiveness control, clauses can not generate a significant imbalance in the rights and obligations of the contract to the detriment of consumers and contrary to the requirements of good faith.
Being a mortgage loan contract at variable interest, you should verify risk sharing variability.
The Court endorses the judgment of the Commercial Court No. 1 San Sebastian in sentence 29 April 2014: The IRPH boxes is invalid abusive, as:
“(….) the reference to it without explaining the influence that the lender had in its formation and quantification involves the violation of rules of mandatory nature (art. 1256 the Civil Code and 60.1 legislation of consumers and users) and banking discipline rules requiring a level of information and transparency that has not reflected in the mortgage loan deed ".
It further relates to the judgment of the Commercial Court No. 3 de Valencia 29 March 2016, in that in the years IRPH 2009 a 2013 He has always been above IRPH IRPH Banks and Institutions, and this only benefits the lender to the detriment of customers.
It rechaza caducidad of the Joint citing the doctrine of the Supreme Court in its judgment of 12 January 2015.
Ultimately, demand is estimated, declaring abusive nullity of the clause fixing reference to the IRPH Boxes, with a refund of amounts paid more and condemning the payment of costs to the bank.