A few days ago, we learned of the Supreme Court ruling that imposes limitations on the retroactivity of the floor clause.
But what does this ruling really imply, and how can it affect you?
First of all, it is important to point out that the high court’s ruling only affects those consumers whose contracts include a floor clause, i.e., a limitation on the lowering of the interest rate that unilaterally benefits the financial institution.
A relatively simple example that can make you that your mortgage has a floor clause and that it is being applied to you is the following: knowing that the interest rate of your mortgage is variable and noticing that despite the successive and important reductions in the Euribor rate reported in the news, the instalment that you pay each month does not vary.
Secondly, it is very important to note that the ruling of 21 December 2016 of the High Court of Justice of the European Union (CJEU), which granted full retroactivity to clauses declared null and void, i.e. eliminated the limit of May 2013, opened the door for those affected by floor clauses declared null and void to recover all the money unduly charged by the entity since the abusive clause was applied to them.
Thus, the CJEU ruled in favour of the retroactivity of the floor clause, qualifying the controversial ruling of the Supreme Court that considered the floor clauses of certain banks to be null and void, but limited the return of the money (retroactivity) to May 2013, without obliging them to return the amounts paid prior to that date.
In this context, and as we have been able to see this week, the high court has once again established another limit in the area of floor clauses: those who already have a final judgment prior to the CJEU ruling (as we have pointed out, December 2016), will not be able to invoke this ruling for its application, on the understanding that it is res judicata.
It is paradoxical that the people who are not covered by the CJEU ruling are those who have already obtained a final judgment in this regard, either because of their pioneering action in claiming against the banks or because of the unusual speed of certain courts, the latter being reduced to pure chance.
The door remains open, however, to all consumers in whose proceedings there is no judgement or whose judgement has not yet become final, as well as to those who have not yet sued their financial institution and even, in certain cases, to those who filed a class action at the time.
IN SHORT, IF THERE WAS A FINAL JUDGEMENT PRIOR TO DECEMBER LAST YEAR YOU ARE NOT COVERED BY THIS NEW RULING, WHICH WE AT BUFETE SALMERÓN UNDERSTAND TO BE HIGHLY DETRIMENTAL FOR THOUSANDS OF PEOPLE AFFECTED BY ABUSIVE CLAUSES OF THIS TYPE.
However, our advice for those who do not know whether they are entitled to unlimited retroactivity or not, whether they have a mortgage with a floor clause or not, or even what they can claim from their bank, is to contact specialised lawyers to carry out a comprehensive review of the clauses in their contract.
