THE RETURN OF THE COSTS OF CONSTITUTION OF A LOAN

Claiming loan formalization expenses is becoming an increasingly widespread practice among Spaniards who have or have had a mortgage. This is due to the generalized attribution with which the banking entities charged their borrowing clients, all the expenses that could be generated from the contracting of a loan. They established conditions drafted unilaterally by them and imposed on their clients. Contracts with this type of wording are called general contracting conditions. When the clauses that contain said conditions violate the provisions of the regulations that regulate them, they are liable to be classified as “abusive”.

With this name, the judicial bodies are qualifying the clause that contains the attribution of the mortgage formalization expenses and that is usually a fifth of the deed. Through it, the borrower is made responsible for the expenses of notary, registration, management, appraisal, and the tax of documented legal acts, among others. Likewise, they usually establish, among other barbarities, that all attorney and attorney fees will also be paid by the client when the bank requires their services, even when their intervention in judicial and extrajudicial proceedings and procedures is not mandatory.

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The problem that we find is the disparity of opinions between the different judicial bodies. While on some occasions the judge has ordered the bank to refund the total amounts previously paid by the plaintiff, on others, it has only granted part of those expenses. Among the "non-debatable" concepts are the notary and registration fees, which they understand must always be paid by the bank. This difference in criteria is visible between the different Provincial Courts, without the 2015 Supreme Court ruling serves as a conciliatory element between them.