We explain the out-of-court settlement procedure for mortgage floor clauses under Royal Decree-Law 1/2017, of January 20, on urgent measures for the protection of consumers regarding mortgage floor clauses.
Since January 21 of this year, Royal Decree 1/2017 has been in force, which, among other considerations, has as its main objective to establish a voluntary out-of-court settlement procedure aimed at achieving the restitution to consumers of the sums unduly paid to banking entities as a result of the application of floor clauses to their loan or credit contracts with mortgage guarantee, avoiding having to resort to a judicial procedure to obtain it.
It is worth highlighting that those who can avail themselves of this procedure will only be those who meet the condition of consumers, that is, natural persons who act for a purpose unrelated to their commercial, business, trade or profession (article 2.2 of the Royal Decree-Law) and that it is voluntary, that is, consumers may make use of it or not, and may go directly to the judicial route without going through the extrajudicial procedure.
The Royal Decree-Law obliges banking entities not only to implement a prior claims system and have a specialized department or service to handle them, but also to ensure that it is known to all consumers who have floor clauses included in their mortgage loan, advertising its existence in their offices and on their website.
How does the out-of-court settlement procedure for mortgage floor clauses work?
The out-of-court procedure will begin with the consumer filing a claim with the bank , and once the claim is received, the bank may adopt one of the following three positions:
1) inform the consumer of the amount to be refunded (breaking down principal and interest),
2) reject the claim, stating the reasons for your decision,
3) not to make any response to the claim submitted.
In case 1, the consumer must inform the bank whether they agree with the calculation, and if so, the parties will agree on the refund of the offered amount through cash payment. However, regarding this last point, the possibility is established for the bank and the consumer to agree that the amount to be refunded will not be paid in cash but through another type of financial compensation.
The extrajudicial procedure will be considered concluded, and the consumer may resort to civil jurisdiction to claim the sums unduly paid in the following cases:
a) the consumer rejects the offer made by the bank,
b) that the bank rejects the consumer's claim,
c) that three months have passed since the claim was filed without the bank having made any offer or
d) that within the same three-month period the bank does not make the offered sum available to the consumer,
It should be noted that in any case the extrajudicial procedure will be free of charge and that while the claim is being processed through this channel, it will not be possible to file a judicial claim demanding the same items
In what case will costs be passed on?
We must point out that the Royal Decree-Law also regulates the possible imposition of procedural costs within the judicial procedure followed in the claim for the sums unduly paid by the application of floor clauses after an extrajudicial procedure has been followed.
In that regard, it establishes that:
· Whoever obtains in court the same thing that they had rejected out of court, will not be favored by the imposition of costs on the bank, which will only be subject to them if it is finally forced to pay more in court than it had offered out of court.
· If the consumer files a legal claim without having previously resorted to the extrajudicial procedure, he will not benefit from the imposition of costs on the bank in the event that it acquiesces to his request before the response to the claim and if that acquiescence is partial and the bank deposits what is admitted as owed, the costs will only be imposed on him if he is finally condemned to pay more than what was deposited.
If you would like more information or advice on how to proceed with your mortgage floor clause claim, please do not hesitate to contact us; we can help you.
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A graduate in Law from the University of Barcelona and with a Master's degree in Business Law from the same university, he worked at the law firm Alonso-Cuevillas Advocats and later joined the Civil and Commercial Litigation department of the law firm Bufete Bueno Bartrina. He then joined the team at the firm Casamitjana-Cuyas-Morales, and subsequently continued his career at Bufete Herrera Advocats, in the Commercial and Litigation department. In November 2015, he joined aÀmbitJurídic i Econòmic, SLP, as a professional partner, to head the Commercial and Insolvency practice.
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