The Supreme Court had already reached a decision previously, specifically at the Judgement of the Supreme Court (STS) on the 9th of May 2013 regarding the invalidity of the ground clauses, understanding them to be invalid, within full rights to consider them as abusive clauses, but still no decision has been made on the retroactivity of the amounts paid more as a result of the invalidity of said clause; the Provincial High Courts are divided on this matter, with Courts such as Malaga that ruled in favour of returning the amounts paid, given that it constituted the mortgage, or Courts such as Granada which didn’t accept the return of these amounts.

Date 20/04/2015

In the Sentence of the 25th of March 2015, the Supreme Court set the doctrine to follow in this area, avoiding disparities on the matter existing between the various Provincial High Courts, thus the Plenary Session of the Supreme Court has determined “that when in application of the doctrine set in the court’s judgement on the 9th of May 2013, validated by the judgement on the 16th of June 2014, Rc.1217/2013 and the one on the 24th of March 2015, Rc. 1765/2013, it is declared abusive and, for that matter, invalidates the so-called ground clause inserted into a loan agreement with a variable interest rate, and will proceed with the return of the interests, paid in application of said clause from the publication date of the 9th of May 2013 judgement, to the borrower.”

A consequence of the enactment of said Judgement is that when a financial entity is demanded, because there is a ground clause in the mortgage loan deed, to consider the same clause as invalid within full rights to consider it as abusive and request for the return of the extra amounts paid for the application of the same clause, we now know that they will only return these amounts from the date of the publication of the Judgement made on the 9th of May 2013, which involves the financial entities’ obligation to reimburse said payments, although not all the payments made since the signing of the mortgage, only from the aforementioned date.

However, said judgement relies on the personal vote of one of the Magistrates of the Supreme Court, who understands that the invalidity must have, as it is established in the Civil Code, “ex tunc” effects, and the amounts should be returned from the confirmation or conclusion of the contract, and the injured party must recover the entire amount paid and not only one part of the amounts as the High Court has established.

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