On 21 January came into force the Royal-Decree Law 1/2017 of 20 January, on urgent measures to protect the consumers in terms of floor clauses.
This legal provision establishes an alternative system for consumers that want to claim damages – the restitution of the money improperly paid- related to void floor clauses, in an easier and faster way compared to the judicial system. This process provides a mechanism to make it easier to banks and consumers to reach an agreement by themselves.
It must be pointed out that this procedure is completely voluntary, so consumers can always go to Court.
1. Scope of application
The measures will apply to all loan or credit agreements secured by a mortgage that includes a floor clause and that affect a consumer. In this case, the fact of having cancelled the mortgage doesn’t deter the consumer to use this procedure to ask for the restitution of the money affected by floor clauses.
Moreover, any judicial procedure may be suspended if both parties decide to initiate a negotiation under this process.
Nevertheless, it is not sure if the agreements arranged between a consumer and the bank in advance to this regulation can be revoked in favor of this proceeding.
A floor clause is any stipulation that restricts the variation in the reduction of the interest rate in variable mortgages.
2. Beginning and duration of the process
This process must be initiated at the request of the consumer, who is the one that has to go to their bank office and ask for the restitution of the money paid due to floor clauses.
This regulation enables the bank and the consumer to reach an agreement within a period of 3 months since the day of request. Otherwise the process will be concluded.
3. Obligations of the bank
The banks will have to inform about this alternative system, posting the details on their web and giving clear information in the bank offices. Furthermore, they have to constitute a special department within a month, so it is compulsory for them to treat all the requests related to floor clauses.
Likewise, banks must answer to all the requests and, if they deny the consumer’s petition, they have to justify why.
4. Ways of compensation
If the bank accepts the request, it has to make a quantitative offer to the costumer, specifying the calculation where it comes from and the sum of interests applicable.
The offer is decided by the bank and, if the consumer accepts it, the bank hast to pay them within a maximum of 3 months.
Nevertheless, the bank may also offer another kind of compensation rather than money, such the partial redemption of the mortgage or the offer of other financial products.
Anyway, consumers have a 15 days period to think about the offer before they have to make a choice.
As it has been said before, this process is completely voluntary and alternative, so if the consumer does not like the offer or does not even want to start this type of negotiation, they will always have the chance to go to court.
5. Tax effects and consequences on the litigation costs
The process itself is completely free for the consumers.
The formalization of the corresponding public deed and the inscription in the Register that may come from the agreement will have the minimum costs possible.
Regarding the litigation costs, it has to be underlined that, if after this process the consumer goes to court, and the judgment establishes the same amount of compensation offered by the bank, the parties shall bear their own costs. Therefore, only if the judgment establishes a higher compensation than the offered by the bank, it is possible to make the bank pay for the litigation costs.
Finally, it should be noted that the money earned because of the compensation, either through this alternative process or the judicial one, won’t be part of the tax base of the IRPF.