Home Mortgage loan The IRPH mortgage loan clause could be void

The IRPH mortgage loan clause could be void

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The IRPH mortgage clause could be void.

IN today’s article, we will talk about the invalidity of the IRPH, in loans contrary to Law 14/2013. Although most courts do not agree with the invalidity of the IRPH, there is one type of IRPH clause that is declared invalid.

Legal approach

Law 14/2013, relating to entrepreneurs, removed certain criteria of interest. Thus, it removed those known as IRPH for banks and IRPH for savings banks (cajas). Accept that these be replaced by what is called the IRPH of the entities. What name is: The average rate of mortgage loans for more than three years, for the acquisition of free property; granted by credit institutions in Spain.

Invalidity of the IRPH clause in certain cases

Some mortgage loans contain an interest clause, which referred to the IRPH of banks or savings banks, which has disappeared. And on the loans, it is established that if these disappeared, the loan would be governed from that moment, according to the last calculated interest, before the removal of rights from this IRPH. Thus, these loans are contrary to the stated 2013 law. Because, when the IRPH of the banks and savings banks disappeared, it was necessary to refer to the IRPH of the Entities.

Or to Euribor if this has been agreed in the mortgage loan. But this is not the case, since the bank has established in its clause that the last interest that could have been calculated would be applied, for the remainder of the loan.

Typical example of a null IRPH clause

Typical examples of this type of clause are:

First, it is specified that the interest would be calculated according to the banks’ IRPH.

Second, they said that if the IRPH for banks were to disappear (which happened in 2013), the IRPH for savings banks would be applied. Who also disappeared.

Finally, it is indicated by the bank, that if the two preceding indices disappear, the last calculated interest would be applied, for the remainder of the loan.

The reason for the invalidity of this type of IRPH clause

Thus, this type of IRPH clause is declared null. And the reasons are as follows.

  1. These are contracts where instead of replacing the IRPH of savings banks and funds, by that indicated by the law of 2013; it is replaced by another interest. Therefore, he is not following the law.
  2. In addition, when these IRPH have disappeared, the last interest of the last revision calculated before the disappearance of the year 2013, applies to the rest of the loan. This means that it becomes a fixed rate loan. This defeats the purpose and the nature of the contract. Well, it was a variable interest loan.

Judicial precedents

Thus, the Provincial Court of Alicante, section: 8, in its court order 918/2020, stated:

That apart from the arguments indicated, this clause itself is not transparent. Well, if the IRPH indices disappear, the loan becomes fixed, without the consumer having been sufficiently informed of the consequences.

Legal consequence of the invalidity of this type of IRPH clause

The legal consequence of the invalidity of this type of IRPH clause is:

– The application of the IRPH of the Entities, in accordance with Law 14/2013, instead of the last calculated interest rate.

– The recalculation of the amortization table and restitution of the overpayment.

For more information on bank receivables, please contact us.

The information provided in this article is not intended to be legal advice, it simply conveys information relating to legal matters.

Carlos Baos (Lawyer) – White & Baos
Phone. : +34 966 426 185 [email protected]
White & Baos 2021 – All rights reserved.

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