On the subject of a topic as recurrent nowadays as that of the bank claims arising from mortgage loans we comment on a very recent judgment of the Supreme Court dated November 28, 2018 and issued in Appeal number 2825/2014 which establishes as a doctrine of the Supreme Court the consequences of the declaration of abusivity of mortgage loans. moratorium interest.

Indeed, the surcharge agreed in the mortgage loan deeds for the cases of debts owed by the borrower has been a controversial issue in the Courts and Tribunals.

In the Appeal on which the Supreme Court has ruled, the plaintiff, who obtained a ruling on the abusiveness of the clause, sought the annulment of all types of interest, including interest on remuneration, as a consequence of the clause.

In this particular case, the
mortgage loan
granted by the former CAM, now Banco Sabadell, establishing a default interest rate of 25% on the amount of the loan. interest, which was considered abusive by both the Court of First Instance and the Provincial Court, which considered that the interest rate should be applied. interest rate increased by two points.

The appellant, not satisfied with the reduction of this rate, claimed that the effects of the nullity should affect all interest and therefore, by means of his appeal, sought not to pay the remunerative interest either.

Well, the Supreme Court has resolved this appeal by means of a judgment that we understand to be of great importance because it establishes that the effects of a declaration of nullity due to the abusivity of interest in arrears will be the elimination of the the surcharge in its entirety but never the ordinary accrual of the interest agreed in the mortgage loan.

In other words, according to the High Court, the surcharge should be completely annulled, but it continues to fulfill the essential function of remunerating the borrower’s disposal of the money until it is repaid.

It is clear that if money is received and has been disposed of, and this has been done by establishing an agreement to remunerate the money lent and disposed of, the borrower must remunerate this money according to the agreed rate, because otherwise there would be an imbalance and the person who granted the money would be harmed. surcharge the same will disappear in its entirety without the Courts or Tribunals having among their faculties to reduce or not the same, they simply cannot and must limit themselves to not applying any increase, but the borrower must continue to pay the rate agreed in the public deed of sale.