Claim and advice by expert lawyers in floor clause.
Land Clause Lawyers,
Self-Employed Companies and Individuals
What are the Floor Clauses?
The floor clause is a contractual clause inserted in a multitude of mortgage loans that sets a minimum to be paid in the mortgage installments, even if the index to which it is linked (for example, the Euribor) is lower. Therefore, that interest will always be paid.
Before and during the crisis, many of the variable mortgages that were granted had this floor clause, whose value normally did not fall below 3%. Consequently, when the Euribor (the most widely used benchmark) began to fall, many mortgaged were applied a minimum rate that made them pay more money than they would have paid if that ceiling did not exist, without being able to benefit from the fall in such an index.
Why are the Floor Clauses void?
The vast majority of the floor clauses were incorporated into the mortgage loan with a lack of transparency on the part of the banking entities, since in many cases the consequences of having this clause in the mortgage were not explained.
On May 9, 2013, the Supreme Court established the nullity of the floor clauses due to lack of transparency. Later, on December 21, 2016, it was the Court of Justice of the European Union who confirmed the nullity of the floor clause, establishing that the return of interest overpaid under said clause should be computed from the beginning of the loan, along with legal interests. Likewise, the Supreme Court established in its Judgment of July 4, 2017 that, if the demand on floor clauses was upheld, the bank should be ordered to pay the procedural costs, by causing the consumer to have to go to court.
Land Clause for Companies and Self-Employed
The biggest concern when claiming the nullity of the floor clause is the condition of the lender. In principle, only with the condition of consumer is the Law of Consumers and Users applicable.
However, the new jurisprudence of the Supreme Court has opened the door for companies and the self-employed to claim the nullity of the floor clause, even if the loan was made for professional or commercial purposes. This new doctrine is based on the fact that the Law of General Contracting Conditions – which also regulates the abusiveness of contractual clauses – also provides for its application for legal persons, since, according to the explanatory memorandum of the aforementioned law, there are also situations of abuse when contracts are signed between companies. In this sense, the Supreme Court has already ruled in its judgment of March 25, 2019 and in the judgment of March 11, 2020; the Provincial Courts, such as that of Girona in its judgment of July 19, 2019; and a multitude of courts of first instance.
Individual Floor Clause
In the case of individuals, the nullity of the floor clauses is endorsed by the Consolidated Text of the General Law for the Defense of Consumers and Users (TRLGCU) approved by Royal Legislative Decree 1/2007 and by all the jurisprudence cited when We have set out the reasons for the nullity of the floor clause.
According to this Law, consumers or users are natural or legal persons who act in a field other than a business or professional activity. This concept of consumer comes from Directive 93/2013 of the European Union, which regulates abusive clauses.
What if I have reached an agreement with the bank? Discount Agreements.
At BBS Abogados, experts in floor clause, we have been litigating this issue for years. Our position is clear: said signed agreements are null and void. The vast majority of the time it is not a negotiated agreement between the bank and the consumer, but rather the agreements are imposed by the bank without the consumer having the real possibility to influence their content. In addition, consumers were not informed about the economic resignation that this agreement implied.
Recently, the Court of Justice of the European Union (CJEU), has declared that these agreements are not valid if the consumer was not properly informed.
How do I know if my mortgage has a Floor Clause?
A very frequent question of the clients who come to our office is whether their mortgage contains a floor clause. It is not a strange question, since the truth is that it is not easy to identify a floor clause in a mortgage loan. That is why we recommend that those who may be affected get in touch with us in order to assess their situation.
However, there are some tricks that can make a floor clause easier.
Review the loan deeds, specifically clause third bis. The expressions that are usually used to incorporate a floor clause are “Minimum limit of the applicable interest rate of (…)%” or “The interest rate accrued by this loan may not be less than (…)%
Review the mortgage receipt, and check if the interest that is being applied is higher than the last value of the Euribor (or the index to which the mortgage is subscribed) plus the agreed differential. If your interest is higher than 3%, surely your mortgage has a floor clause.
Steps to claim a Floor Clause
First of all, we arrange a free first visit to be able to evaluate the case. It is very important that in this first meeting they bring the mortgage loan deed (not the sale) and, as far as possible, the amortization and interest table. If you do not know how to get it, you can contact us and we will explain how.
Also, it is very important to carry out an economic calculation of the damage derived from the floor clause. This is not only necessary for the client to know the impairment suffered, but must also be provided with the claim. At BBS Abogados, we have been collaborating for years with an expert in mathematical economics who is in charge of preparing it.
Likewise, we advise making an out-of-court claim to the bank. The purpose is to reach an agreement with the bank that benefits our client and thus saves going to court.
If the out-of-court claim is unsuccessful, we initiate a legal proceeding, that is, we file a lawsuit against the bank to get the nullity of the floor clause to be declared and the amounts paid overpaid from the signing of the loan are returned to the client. legal interests and procedural costs.
BBS Abogados, experts in floor clause
At BBS Abogados, leaders in floor clause, we attend to all your queries and offer you comprehensive and individualized advice to get rid of the floor clause and recover all your money, be it an individual, a freelancer or a company. Likewise, we also take care of advising you in the event that the floor clause is incorporated with other clauses (IRPH, late payment interest, undue commissions, mortgage expenses, etc.). Therefore, you can contact us by writing to bbsabogados@bbsabogados.com or by calling 93 760 53 77.
