Revolving cards and nullity of general contracting conditions

revolving card

Is it possible to claim a revolving card credit by canceling your general contracting conditions?

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The Bank of Spain publishes statistics on the average rate of credit cards and revolving cards since 2018. The difference between the rate applied to the borrower and said reference may lead to various resolutions., due to the ambiguity of the concept of the Usury Repression Law: When does a loan have a type "Noticeably higher than normal money"?  There are judgments that consider that the 24% in revolving cards is not usurious, Compared to him 20% of the statistics of the BDE and others that understand the opposite.

Given this "legal insecurity" in this post we review another claim route that can be raised to obtain the cancellation of a credit articulated by "Revolving Card": The nullity of general contract conditions.  This strategy can be considered as principal or subsidiary. But in any case it is convenient to use it. It should only be taken into account that in case our client is sued, it will not be possible to use it through counterclaim in the event that the main procedure is a verbal trial, as the nullity of the general contracting conditions is limited to the ordinary trial channel (art. 249 1 5º LEC).

The Judgment of the Supreme Court 4 March 2020, we discussed here, established the viability of said strategy and the Provincial Courts have recently been collecting this criterion.

In this post we review the claim for credit on revolving cards for not exceeding the incorporation or transparency controls of the general contracting conditions, based mainly on the judgments of the Provincial Court of León (section 1) and the Provincial Court of Palma de Mallorca (section 5), both of 15 May 2020.

Nullity of the revolving card for not passing the incorporation control

The remunerative interest is a general condition of hiring and defines the main object of the contract. So, price control does not fit, pero en cualquier caso, must overcome the control de incorporación and if the borrower is a consumer, the control transparency.

The control de incorporación (SSTS 24 March 2015) exige que,  so that the general conditions are binding, the client has been able to know the existence of the same, as indicated in the article 5 of the LCGC. This control is not passed if not reported the existence of said conditions or a copy has not been provided of them or if does not meet the clarity criteria, precision and simplicity.  Specifically the art. 7 LCGC establishes that the general conditions that the adherent has not had the real opportunity to know at the time of the conclusion of the contract will not be incorporated into the contract,  are not signed, or are illegible, ambiguous dark and incomprehensible.

So although the remunerative interest, even if you define the object of the contract, must pass incorporation control.

It is relatively frequent in this type of contract that the general conditions of the revolving card appear in an application whose letter size makes it unreadable. Although the minimum font size was included by modification of the Law 3/2014 in the Consolidated Text of the Law for the Defense of Consumers and Users,  readability is a requirement of the article 7 of the LCGC of 1998.

If the reading is not "simple", it will not be incorporated into the contract and its nullity must be declared.

Sometimes the "card usage conditions" are found in a "separate" Regulation that were not delivered to the borrower at the time of contracting (SAP Mallorca section 5 of 15 May 2020 with Wizink as defendant).

In these cases, both the clause establishing the remunerative interest, like the rest of commissions or the protected payment insurance, are not incorporated into the contract for not exceeding the articles 5 and 7 the LCGC

Nullity of the revolving card for not passing the transparency control

In the event that the incorporation control is passed, if the borrower is a consumer, the control transparency. Transparency control is that the borrower can know the true legal and economic burden what does the contract bring. The clauses must not be masked with multiple data, with omissions or ambiguities that make such understanding very difficult for the client. And if the transparency control is not passed, we will have to check that they are abusive, namely, that produce a imbalance to the detriment of the consumer.

On some revolving cards, the actual cost is not clearly established assumed by the borrower in the contract. In the case of the aforementioned SAP León de 15 May 2020 the general condition 12 de CETELEM establecía que “theThe monthly fee is calculated by applying a percentage between the 2,5% and 33% on the amount of the line credit actual”,  which is an unacceptable lack of definition. In addition, the lender reserved the right to modify the APR in the condition 14 of the contract and as well as the penalties and commissions of the contract, and even any other condition of it (paragraph 15).  Ultimately, does not pass the transparency control and also there is an evident imbalance between the parties to the detriment of the consumer.

The revolving card issuer's defense

As clearly indicated by the SAP Mallorca of 15 May 2020, using the card,  the remittance of bank statements with expenses owed and the payment of fees do not make up for the lack of transparency that is seen at the time of hiring, and even less, confirm and / or validate the denounced clauses, forthe doctrine of own acts is not applicable to cases of radical or legal nullity.

Other null clauses

In addition to the remunerative interest, In revolving card credit agreements, the presence of other abusive clauses is frequent, such as the setting of a default interest that exceeds the remunerative interest by two points, the commission for claiming unpaid or early maturity. In other posts we have discussed these clauses in detail.

Result of the claim on Revolving Cards

Either by way of the Usury Law of 1908, either because of the general contracting conditions, the result must be the declaration of nullity, condemning the lender to repay the amounts improperly charging the borrower for their application, increased with legal interest from your payment date.

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