Specialized in Banking and Financial Law

Mortgage Constitution Expenses. Goodwill claims

The claim for mortgage expenses is processed alleging that it is an abusive clause contained in your mortgage loan and that therefore it must be null and void and the amounts generated by virtue of it must be returned. These amounts are the notary invoice, the property registry invoice, the agency invoice and the AJD Tax.

Regarding the Tax on Documented Legal Acts (AJD), there are two judgments of the Supreme Court that consider the nullity of the clause as abusive but, in the judgment of the Plenary of the Supreme Court of March 15, 2018, it was established that The Tax must be returned, causing all the courts to abide by that decision. However, in the judgment of October 16, 2018 of the Third Chamber of the Supreme Court and two others issued in the same sense, they annul the article on which they based their arguments (art. 68.2) and understand again that it is the bank who should take over.

Despite the fact that this was recently published by the Supreme Court, a ruling in which it was established that the payment of the tax corresponded to the borrower, after a vote of 15 to 13 votes. However, we have observed that some courts despite this, and due to the publication of Royal Decree-Law 17/2018, of November 8, which modifies the Law of Tax on Patrimonial Transmissions and Documented Legal Acts, promoted by the Government, and which establishes that from then on it is the bank who pays the tax, they have condemned the Bank to return the Tax.

On the other hand, we are also claiming the Opening Commission in conjunction with the mortgage expenses, since we observe that, due to the sentences that are coming out, it is a viable option to recover amounts that were paid under said clauses that are currently being considered null.

To all this, it must be taken into account that legal interest is requested from each collection of each invoice.

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