IRPH declared null in Valencia
The Court of First Mercantile No. 3 Valencia has declared void the application of IRPH as benchmark sentence 18 November 2015.
The client signed a mortgage loan 60.000 euros with Banco Sabadell, in November 2003. according to this, in writing unilaterally he incorporated a clause which referenced the interest rate payable to "The reference rates of the official indices for variable rate mortgage loans for the purchase of average housing mortgage loans over three years saving mode Boxes, that they are published monthly in the Official Gazette”. The advice of the plaintiff by the prestigious lawyer Gonzalo Lucas was conducted.
To the client, that clause is unintelligibly, confused and does not describe what the benchmark, its calculation mode, nor informed about the "decisive influence" that the bank itself would fix when that index.
The bank, Inaction alleged ex lege for lack of litigious object regarding the reference interest rate IRPH Boxes.
The Magistrate dismissed the allegation as the clause is likely to be regarded as unfair, under TRLGDCU.
the alleged lack of action also rejects expiration, as a vice of consent is not invoked, but a nullity by abusive of a general condition of recruitment.
Entering the merits, and referring to the judgment of the Commercial Court No. 7 Barcelona DE16 March 2015, indicates that the IRPH we face a general clause of the contract for the following reasons:
- It is a contractual clause, not derived from a law enforcement.
- It has been prerredactada by the bank.
- It has not been negotiated with customers. The clause "IRPH"He did not appear in the original loan in which the customer is subrogaba. No exchange of letters has, emails or emails in which other alternative indices propusiesen to IRPH. No binding offer is provided.
- It is aimed at a general clause be incorporated into a plurality of contracts.
To the Judge, Spanish courts can analyze the main object of the contract and the adequacy of the price and remuneration, for
“(…. ) one thing is that the courts are unable to assess whether the agreed price was high or low, or high or low quality, and a different, observe basic principles of procurement law, as the right balance of benefits, or respect for peremptory norms in areas specially protected, as in the case of banking contracts, very particular when it comes to the acquisition of housing for family home ".
For the sake, we have a loan agreement that our system is naturally free (art. 1755 C.C.).
Ultimately, bis third clause that includes reference to the IRPH It is likely to be under the control of abusiveness.
On the possibility of manipulation IRPH
He concludes that the respondent company influences the formation of the index, to be built on the information she provides (together with other entities). Is, to be disappearing boxes, this influence has grown. And this is contrary to the prohibition on the enforcement of contracts remains at the discretion of one of the contracting, prepared by art. 1256 C.C.
And this ability to "influence" is not noticed in the contract, or how it determined the amount of explained IRPH.
Moreover, Order 5 May 1994 It required the benchmarks not depended on the credit institution itself nor were susceptible to influence by it. And in the same vein he pronounced Circular 8/1990.
Ultimately, IRPH violates administrative rules cited anteriomente, Article. 1256 the C.C. and art 2 Act 2/2009 procurement consumer loans and mortgages, which leads to invalidity pursuant to Article 6.3 the C.Civil.
Not forgetting the consumer status of the plaintiff and therefore the implementation of legislation for the protection of consumers and users (RDL today 1/2007): right to protection of their interests (art. 2.1), right to information, right not to be misled (art. 10), right to information (art 13.1.d), inter alia.
In contracts that use terms not individually negotiated specificity required, clarity and simplicity, accesibilidad y legibilidad (art 80.1 TRLGDCU). The customer should be informed about the economic burden and the legal burden associated with the contract.
No evidence that information on the influence of the lender will facilitate in shaping the index.
It is not evidence of negotiation. No binding offer,es. No simulations or scenarios were provided on IRPH nor was any comparison with other indices. other indices were not offered.
Effects of the declaration of invalidity
The contract can subsist and the clause should be deleted, fulfilling the spirit of Directive 93/13 in his article 6.1.
However, for various reasons both legal and material justice, the plaintiff requested repayment of interest paid over and replacement of IRPH by the Euribor as benchmark, plus 0.50%, as he stated in the original mortgage in which they subrogated, and the Magistrate accepts this request.
Ultimately, the nullity of IRPH declared I is replaced by the Euribor more 0,50 and ordering the return of 5.204 more euros paid by the customer, with the bank to pay costs.