MADRID, 18 Oct. (EUROPA PRESS) –
The Supreme Court has supported applying the effects of usurious interest, contemplated in article 3 of the Usury Law, although only the remuneration interest clause has been declared null and not the entire credit, as stated in judgment 662/2022, of October 13 to which Europa Press has had access.
Specifically, the case goes back to 2006, when a consumer contracted with Cajamar a Visa Classic Credit credit card with a remunerative interest of 16.08% APR.
Subsequently, the user filed a lawsuit against the entity in which she requested that the general condition that establishes the remunerative interest for “usurious” be declared null and void and that the bank be sentenced, in application of article 3 of the Usury Law, to pay the amount that exceeds the total of the capital that has been lent, taking into account the total of what has already been received for all the concepts charged and received outside of said capital.
In the first instance, the Provincial Court of Santander estimated the client’s claim. In its ruling, the Supreme indicates that this court understood that the APR of 16.08%, on that date, was “more than double the ordinary average interest that was applied at that time (…), 7.75% “. The Provincial Court considered that this interest was “notably higher than the normal interest of money” and did not notice the concurrence of any circumstance that would justify it.
Consequently, Cajamar was ordered to pay the user the amount that exceeded the total amount of capital that it had lent her, “taking into account the total amount already received for all the concepts charged and received outside of said capital and that have already been paid by the plaintiff”, especially the amounts that would have been charged for “commission for cash withdrawals, interest, commission for unpaid fee claim, payment protection insurance and annual card fee, as determined in execution judgment, plus legal interest”.
This sentence was appealed by Cajamar before the Provincial Court of Cantabria, whose fourth section estimated in part. This court ratified the usurious nature of the interest, but revoked the sentence in relation to the effects. The court understood that the “consequence” of considering the loan as usurious, in application of the Usury Repression Law, is the nullity of the contract, but that, in this case, “the nullity of the contract was not requested, but of the general condition that establishes the remunerative interest”.
Therefore, in the appeal, the Provincial Court indicated that, if the “strict consequences” of the nullity of this clause continue, the consequence “will be to restrict the sentence to the return of the interest received, since it has not been declared the nullity of the contract or of the clauses that set commissions, insurance, fees or other different “.
The plaintiff decided, however, to appeal the decision of the Provincial Court, presenting an appeal that was upheld by the Supreme Court, arguing that the appealed judgment infringes the Usury Law, which establishes the consequences of the declaration of usurious character. of a credit.
In addition, it argued that the sentence went against the doctrine of the Supreme Court, it dictated in its sentence 628/2015, of November 25, that it considers that the nullity of a usurious credit is “radical, absolute and original, and that it does not admit confirmatory validation, because it is fatally irremediable”, among other reasons.
After admitting the cassation appeal, the Supreme Court has upheld it and has recalled its judgment 539/2009, of July 14, in which it stated that “the usurious nature of the ‘revolving’ credit entails its nullity, which has been qualified by this Room as “radical, absolute and original, which does not admit confirmatory validation, because it is fatally irremediable, nor is it susceptible to extinctive prescription”.
In addition, in the ruling of October 13, it states that “the consequences of said nullity are those provided for in article 3 of the Usury Repression Law, that is, the borrower will be obliged to deliver only the amount received.”
Thus, it applies this doctrine to the appeal and, although it recognizes that the declaration of nullity requested “is limited to the clause of remunerative interest”, it is not “inconsistent, if so requested, to apply the legal effects of the appreciation of usurious interest provided for in article 3 of the Usury Law”.
The Ortega Law Firm
The firm’s lawyer, Juanjo Ortega, however, recalls that “the cassation must respect, in any case, the ‘ratio decidendi’, and the proven facts established by the Courts, therefore, in terms of what interest supposes usury or not , the Supreme Court has little room for action but yes, as is the case, it may intervene stating that usury is not subject to prescription,” he says.
“That is to say, it cannot be limited in any way to the last five years. This is going to entail a very high cost for banking and financial entities since, until now, in certain Hearings, only the period included in the last five years”, values ??the lawyer.
