Despite the ruling of the Supreme Court in favor of IRPH, we must transmit calm to all those affected by this index in their mortgage deeds. Just a few days after the ruling of the Supreme Court, a Marbella Court has chosen not to follow the Supreme Court’s criteria and has declared the IRPH in a mortgage deed to be abusive.
Last November 22th, the Supreme Court estimated that the mere referencing of a mortgage loan with IRPH index “does not imply lack of transparency or abuse.” And this is true, these clauses cannot be cancelled in a generalized manner, but must be proven in each specific case to be null. We must remember that the nullity of the floor clauses had a similar course in the Spanish courts – each specific case must demonstrate the lack of transparency and abuse.
In Spain, there are one and a half million families that have contracted their mortgage with IRPH and not with Euribor, which has been up to 3.4 points cheaper. The bank assured its clients that the IRPH was more stable and secure, but according to the calculations of the Organization of Consumers and Users (OCU) these families have paid about 1,200 euros more per year for an average mortgage.
Experts in mortgage law and the Congress itself question the validity of the IRPH index, and trust that the CJEU will indicate to the Supreme Court, as happened with the floor clauses, the abuse of this mortgage index.
On December 4th, the Court No. 3 of Marbella ruled that Banco Popular had to eliminate the IRPH index of a mortgage loan deed and return all the money overpaid by the consumer from the beginning of the loan. The Magistrate-Judge of the Marbella court based his verdict on the fact that the bank did not provide sufficient information to the borrower, did not carry out “simulations of different scenarios related to the reasonably foreseeable behavior of the reference interest rate (IRPH)”; neither there was any prior information clear and understandable about a comparative cost with other lending modalities of the entity itself. This evidences in a clear way that the lender did not warn the borrower of the true scope of the clause “. Thus, in this ruling, the IRPH is declared null for lack of transparency.
We understand that the declaration of nullity of the IRPH indexes will have a similar route to the floor clauses one, in which we will have to justify in each specific case the abuse and the lack of transparency; and as we have seen with this Marbella verdict, the jurisprudence in this regard won’t necessarily be unanimous following the criteria set by the Supreme Court. Therefore, we must remain calm.