The ruling requires the recalculation of the loan to euros and the automatic return of the overpaid amounts, which amount to an average of 60,000 euros, without the affected party having to sue again or claim in the branch.
The Court found that the multi-currency clause, which exchanged instalments and capital into yen or Swiss francs, did not pass the transparency test and annulled it as abusive.
Inherited from the banking malpractice of the previous financial crisis, an estimated EUR 1.45 billion was underwritten in foreign currency.
All Fx loans marketed by Barclays during the previous financial crisis and inherited by CaixaBank have been considered abusive and therefore null and void due to lack of transparency, according to the ruling of the collective judgment that ASUFIN has won against the bank. In addition, in a novel approach in the collective ones, the magistrate of the Commercial Court 3 of Barcelona, establishes that the bank is obliged to recalculate the loan in euros and return the amounts overpaid ex officio, without the affected party having to take an individual lawsuit or go to the bank office.
Fx loans were marketed before the financial crisis with the claim that, if taken out in a currency that was weak at the time, especially the yen or the Swiss franc, they would be cheaper. The problem came when these currencies increased their value against the euro and the person concerned had to pay considerably higher instalments, as well as seeing his debt increase, the second perverse effect. According to ASUFIN’s expert estimates, 1.450 billion euros have been subscribed in foreign currency with an individual loss of 60,000 euros on average.
Patricia Suárez, president of ASUFIN, stresses that “for the association, this represents the culmination of a process of defending these mortgagors that has been won despite the slow and dissuasive system. This ruling is very representative of the financial crisis of the previous decade, when banks placed a multitude of toxic products that in court have been shown to be highly detrimental to financial consumers; we only have to remember that lawsuits for abusive banking clauses are ruled in favour of the client in 97% of cases”. The multi-currency clause, in particular, “was marketed with a total lack of transparency, preventing the consumer from knowing in detail the consequences of taking out a loan in yen or Swiss francs, and comparing the cost it would have in relation to another in Euribor”, he adds.
The magistrate states in the ruling that this clause “does not pass the transparency control” that “is not innocuous for the consumer, but is abusive” and that it “causes a serious imbalance” since it prevents the consumer from “comparing the offer of the Fx loan with other loans in euros in which these risks do not exist”. It condemns the entity to “leave the loan referenced in euros according to the parity at the date of its subscription” and condemns it “to recalculate the fees paid with restitution of the excess paid.
The successful class action, which was led by María José Lunas, is the third brought by ASUFIN against these multi-currency loans. After Barclays, filed in 2017, the judgments of Bankinter and Banco Popular, filed in 2016, have yet to be heard.
Disappearance of Libor
ASUFIN has also reported to the National Securities Market Commission (CNMV) and the Bank of Spain (BdE) that the ten or so entities with Fx loans are still not informing their clients about the consequences of the almost certain disappearance of the Libor on 31 December, which could open a new judicial front because most of the deeds contain back-up clauses that could be abusive.
Although the CNMV recommended on 13 January that exposed entities adopt “measures to adequately manage the transition”, the association is aware that no entity has issued a communication to its clients to inform them of the disappearance of the libor and, if applicable, of the reference rate that would be applied to their mortgage as an alternative.
ASUFIN has informed the regulators of the varied casuistry that those affected will encounter when their loan ceases to have the reference index for which they signed. Most deeds contain alternatives that could be abusive, such as Kutxabank’s IRPH or an early maturity that would oblige them to repay the entire loan within one month.
