Is the mortgage opening commission clause abusive?
The opening commission clause charged by banks when we ask for a loan can be considered abusive if certain transparency requirements are not met. Several courts have ruled on their nullity as they consider that they do not correspond to any effective service provided by the bank.
On 16 March, the Court of Justice of the European Union overturned the approach of Spanish jurisprudence and opened the door to the opening commission of a loan or mortgage being considered an unfair term. The CJEU ruling establishes that the opening fee for a loan or mortgage does not constitute a part of the main object of the contract, having an “ancillary” nature and, therefore, can be an unfair fee.
The European court was responding to the case between CaixaBank and a customer after a court forced the bank to return 845 euros that it had charged him as the opening commission on a mortgage-backed loan, considering this fee to be abusive.
After unsuccessfully pursuing the matter, CaixaBank decided to take the case to the Supreme Court, which asked the CJEU to rule on a specific Spanish law, which considers that the opening commission regulates an essential element of the contract and cannot be considered abusive if it is drafted in a clear and comprehensible manner.
Even so, for the CJEU it is a non-essential obligation of the contract, or in other words, it considers that it is an invention of the bank in order to make money, which does not really obey any specific service or expense differentiated from the activity of the loan itself.
On the nullity of the opening commission
Firstly, it should be borne in mind that an opening commission will not always be declared abusive. The nullity of this fee will be determined after investigating whether the bank duly accredited, prior to the signing of the contract, that it carried out a risk study of both the client and the financial operation, and once the judge has assessed whether there is a significant imbalance between the rights and obligations of the two parties, evaluating whether the client was informed in a clear and comprehensible manner.
That said, to date, several courts have already ruled that some of these commissions are null and void, considering that they do not correspond to any service provided or justified expenses, and forced banks to refund the amount of these fees plus interest since the initial fee was paid. Therefore, banks could face a new wave of legal claims as happened after the European court also overturned the “ground clauses” and the IAJD.
In the event that you consider that the opening commission for your mortgage may be abusive, you can complain directly to the customer service department of your bank to demand that they refund the fee you have been charged. On the other hand, you can contact a legal advisor to contract the services of a lawyer who can advise you on your particular case and defend your rights.
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