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Farewell to the mortgage opening commission in Spain? 

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After three different courts, one in Madrid, another in Vitoria and the last one in Toledo, these payments are declared null and void. They consider it an abuse, because they pay for a service that has not been proven to be offered.

The bank does not cease to receive judicial setbacks, and in this case, the opening commissions are in the spotlight of the courts of justice because of their possible abusive condition. In a time span of just a couple of weeks, three courts have issued three judgments, in which they prove their nullity with the argument that the bank charges them in exchange for a service that does not prove its performance and that, if it does, it should consider among its obligations already paid. In addition, they indicate that the proportionality of the requirement has not been proven.

The judgments can still be appealed in the three cases before the relevant provincial hearings, so it will be necessary to be attentive to what these judicial bodies dictate in the future.

The same service has always been in question, since traditionally financial institutions have always justified the collection, as a price to cover a previous work of the bank or savings bank consisting of the study of the profile of the applicant for the loan, its solvency, as well as the formalization and availability of the funds to the client. However, and this is an argument in one of the judgments “notwithstanding the above, not even with documentary evidence [the bank] provides the slightest proof of such services”. “It is not correct to perceive what type of service is given to the bank client, because the loan contract is perfected with the delivery of the money”, adds another of the sentences. “And if it is difficult to understand why what motivates the lender to contract should be paid on the margin and also with the financial conditions of the loan -ordinary interest and moratorium- as an expense -of study and of how many inherent to the company’s activity caused by the granting of a loan-, as well as the fact that the sectorial regulation referring to the “expenses inherent to the company’s activity” for the granting of the loan makes the identification of the expense even more evanescent”, finishes another of the sentences.

It is added that, if they are given, it should be the financial entity itself that assumes the costs for these services of preparation of these credits. “The opening is a procedure without which the loan can not be granted, which, and also by legal requirement, determines that the financial institution must perform studies of customer solvency. The financial institution thus seeks to justify the accrual of the commission on the use of material and human resources made available to the client. However, this is an inherent activity of your own banking business, characteristic of banking activity. This is why we are talking about costs inherent in the operation of your business, which are paid for with your own resources, and not at the expense of the borrower who, however, will repay the lender via the interest agreed as the corresponding profit for the commercial operation to be advantageous.

We will have to remain vigilant, because it opens another way for banks to have to return a significant amount of money to their customers with mortgages.

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