The ruling on mortgage fees and arrangement fees, handed down on 16 July 2020 by the Court of Justice of the European Union (CJEU), brought back legal uncertainty about mortgage fees, which has been a hot topic for four years now. Although we were beginning to get a glimpse of stability about which costs can be claimed after the latest Supreme Court rulings, it is still unclear what the deadline is for claiming or when it is no longer possible.
The CJEU said in its July 2020 ruling that it does not contravene the Directive for a Member State to regulate and distinguish the time limit for claiming the nullity of the clause from the time limit for restitution arising from that nullity, provided that the latter does not make the claim to which the consumer is entitled difficult or impossible; advancing already that this time limit can start to run as soon as the consumer has had or may have knowledge that he or she can claim.
It is after this statement by the CJEU that the foundations of legal certainty begin to shake again, and we start to move in quicksand again, when we had already practically established that the amounts to be reimbursed to the consumer had the same common thread as the nullity of the expenses clause, i.e. that it was not time-barred.
In my opinion, the amount to be reimbursed to the consumer as a consequence of the nullity of the expenses clause should follow the same route as that clause, although sometimes we find that the paths of justice are “inscrutable”, until they are homogenised or ordered by our Supreme Court. This has not yet happened in the case we are commenting on: whether or not there is a statute of limitations to claim the amounts accrued due to the declaration of nullity of the clause.
Let us remember that the definitive distribution recently established by the Supreme Court is that the bank must assume 100% of the appraisal, agency and registry fees, as well as 50% of the notary fees in those deeds prior to the mortgage law of June 2019, and provided that the mortgage expenses clause is considered null and void. The client, on the other hand, must pay the Stamp Duty (AJD), as well as the other 50% of the notary’s fee.
For a better understanding, I will summarise the differences between claiming in one way or another, as well as the different deadlines in which the different legal sources operate. In my opinion, we can establish a twofold approach:
If the nullity of the clause and its economic consequences are requested, that is to say, that once the clause is declared null and void by the Court, the economic consequences of this declaration of nullity are derived within the same procedure, for which the invoices paid by the consumer will have to be submitted to the legal action, the action is not time-barred.
If, on the other hand, the nullity of the clause and its consequences is requested, but the invoices for the determination of the amounts by the Court are not attached to the lawsuit, the time limit to claim these amounts in another procedure will be 5 years from the date of the judgement declaring the nullity of the clause.
This is my own criterion and that of many other jurists, but we are not, in the end, the ones who dictate the sentences.
The deadlines that are (for the moment) on the table
Now, as we already know, the alarm bells went off last December, when it was announced that the last day of the deadline for claiming mortgage expenses was the 28th of that month. This is the most restrictive deadline and has been treated as a preventive deadline.
But what other deadlines are being considered, or more specifically, if the claim for the amounts can only be made after a certain date, what would that specific date be? And, therefore, when would this deadline expire?
The lawyer recalls that the answer is not known with certainty, although she clarifies that “there are several that we will see below, and to which have been added, of course, the 82 days of the state of alarm in which all legal proceedings have been suspended and all legal deadlines, both for expiry and prescription”.
The Ministry of Consumer Affairs announced at the time that the deadline for claims was 21 January, taking as a basis the date of publication of the first Supreme Court ruling on the expenses clause, dated 23 December 2015, which was published on 21 January 2016. But the Ministry did not realise that, in any case, if that were the date on which the five-year period would have to be started, the 82 days of the first state of alarm would have to be added to it, so that it would not end until 13 April 2021.