Are legal fees for refund that charge your bank?
In most cases, los cargos de los bancos como “comisión por devolución” por efectos impagados es ilegal y puede reclamarse su devolución.
With delinquencies by clouds, SMEs have suffered loss as added the comisiones por devolución que los bancos les han aplicado. No ha sido extraño que les cargasen comisiones del 3% to the 6% o incluso superiores. Aunque no se puede generalizar y hay que hacer una revisión caso por caso, en la mayoría de las ocasiones se trata de una comisión ilegal y que puede ser reclamada ante los tribunales. Also, you can claim latest 15 years old duly return of unpaid fees: Many companies may find it a truly succulent figure.
On this topic, We publish an entry you can see here. En la jurisprudencia menor de las audiencias provinciales son abundantísimas las sentencias que declaran ilegal la comisión por devolución both individual cases (some of the known financial are especially "recalcitrant"), as in SMEs in their financial relationships with major banks.
On this occasion, we reviewed in the Judgment of the Eleventh Section of the Provincial Court of Madrid 11 December 2015.
The commercial Humanes Electricity S.L.. (hereinafter Humanes) He worked for years with Banco Santander. The Bank is charged a fee discount or negotiation. Y como añadido a la misma, other fee of the unpaid bills. Also, They were charged overdraft fees and exceeded current account (18% annual), despite perceived interest in the same discovered (29% annual).
Ante la imposibilidad de llegar a un acuerdo amistoso, Humanes filed a lawsuit claiming 11.536 euros illegal collection of fees and expenses for the return of unpaid bills and 5.745 euros improper collection of overdraft fees.
Banco Santander alleged that the fees were due so have been agreed, that the amount corresponding to the rates had communicated to the Bank of Spain and obeyed services actually provided and requested by Humanes. Also, the client had paid religiously for more than seven years without protest.
The Court of 1st Instance No. 83 Madrid, in Case 27 October 2014, He granted the application and ordered the Banco de Santander to pay 17.101 euros, con intereses legales y las costas.
Despite being an uncontroversial fact that we are not facing consumers and therefore, It does not apply the rules to use, in banking contracts between the parties, not specify what would be the interest, fees and expenses applicable to the discount retrocession, when it should have been set clearly and transparently.
The Lounge, It refers to conditions to be met by bank fees, according to the circular 8/90 Bank of Spain:
1.- Which are provided for in the contract.
2.- Not exceeding the established rates.
3.- To respond to a service actually provided, accepted or requested by the customer.
Summarizes the doctrine applicable to the case, Madrid citing SAP S21 13 October 2005:
“In the specific course in question, we can not admit (…), there is an express agreement to justify the fee accrual discount that we have been referring, and that since there is no specific clause in which the accrual of such a commission be agreed, without the generic reference made in the fourth clause of the contract negotiation documents linking litigants…it is sufficient to consider that there was such a pact, because that aside from not reflect the same with sufficient clarity pact discount fee accrual, conviniéndose no commission on this concept, plus either the amount or method of calculation thereof is prevented, or settlement date, is not valid referral to the “rates” for this purpose (….)”
The burden of proof the justification of the disputed fees rests with the Bank, by the principle of probation ease of Article 217 the C.C.
In this particular case, in contracts the fees and expenses discussed are not collected. There are generic references that do not meet the requirements of clarity and precision demanded, for referrals to published rates they are not sufficient and not justified that actually lend a service.
Return on commissions in the contract discount, Hall cites his Sentences 12 July 2013, 27 January 2014 and 13 March 2014 y concluye:
"In the present case, has failed to prove that the payment of “Return commissions” by the plaintiff he was agreed with the bank and was settled as agreed and responded to a “service actually provided”, and not a mere mechanical operation of refund, logically, It would be integrated into the collection management. "
As it regards the "postage", the Court reaches the following conclusion: Aunque hay una referencia genérica en la póliza de descuento, not the same materialize and only generic references are made to rates, sin haber sido éstas comunicadas. No se justifica tampoco que realmente se efectuase un servicio. Ultimately, opposition rejects Bank.
For particular, there are only referred to the same contract on a current account. El resto carece de soporte contractual alguno. In any case, para la Sala:
"Now, good, these commissions, although agreed in the contract do not disclose any specific service or management by the Bank, as he has already had occasion to rule this same Chamber, and no evidence exists of effective provision of that service, beyond mere accounting entry. The allegation that the commission return offsets the risk faced by entities is not eligible, because regardless of whether the risk of the transferor is already compensated by way of interest is set to discount the fact is that there is no risk arising from the debtor to the bank, as it takes the documents for collection subject to collection ( article 1.170 Civil Code ), namely, without assuming any risk arising from default.”
Las comisiones, besides being agreed, They should enjoy reciprocity, namely, except against payment of the same, the customer receives a service. In this case, no evidence that the bank has had any spending motivated by the situation overdraft or debit positions nor has taken any action or service.
The tacit acceptance
The Lounge descarta la existencia de aceptación tácita y la doctrina de los actos propios. Citing its judgment of 6 March 2015 indicates:
"It can not be considered as tacit acceptance by the same accrual of discount commission , by the fact that he shall come to meet it without giving anything against, since it is not satisfied that the client has voluntarily these commissions , but that were directly charged by the corresponding turns into account, why can not stay there gone against some acts not directly executed by it.”
That argument is discarded Bank therefore.
Ultimately, Banco Santander's appeal is dismissed and the judgment of the first instance is confirmed, which requires it to reimburse customer fees for return, mailing expenses and commissions overdraft.