The disparity of criteria of the provincial hearings to sentence the interests of the revolving credits as usurers is generating a feeling of inequality among the lawyers who defend both the clients and the banks. The incidence of these judicial decisions is essential for a sector that moves close to 14,000 million euros and that has two million customers who have contracted this product until December 2021, according to the Bank of Spain.
The litigation over the consideration as users of the interests of the revolving cards has been very high since the beginning of the commercialization of these products. The expected ruling of the Supreme Court of March 4, 2020 did not resolve this conflict and has caused a barrage of contradictory resolutions and non-jurisdictional agreements of the provincial courts that interpret differently what should be considered as interest notably higher than normal money. .
Jesús M. Sánchez, a lawyer specializing in financial and community consumer law, acknowledges that there is a “jurisprudential bazaar when applying the usury law, which has grown exponentially over the last two years, generating clear legal insecurity in our country. and in the financial market.
When a citizen of Cádiz or Barcelona wants the courts to analyze whether their credit meets the objective usury criteria, they must document that their APR is six points higher than the normal interest rate for consumer loans and revolving cards published by the Bank’s Statistical Bulletin from Spain. However, if you sue in Jaén, the judges value that the referential APR is increased by two points to be usury. In Madrid, where most banks are based, the differential applied by the courts is 3.7 points.
Jorge Couso, a lawyer at CCS Abogados, has prepared a map analyzing the jurisprudence and trying to interpret the doctrinal criteria on the usurious interests of the 52 provincial courts. In his report, the lawyer has detected that “within the same judicial body there are discrepancies”, as occurs between the fourth and seventh sections of the Court of Asturias, which classify these credits as usury if they are respectively two and three points above the regular interest.
The notable differences on the percentage limits to determine usury are “a serious symptom of legal insecurity. For a citizen it is incomprehensible that in Barcelona or Cádiz their revolving card is not usurious with an APR of 24 or 25% and in Cantabria or Granada, yes”, criticizes the lawyer.
Currently, 36 of the 52 provincial courts maintain a guiding criterion to qualify a revolving loan as a user. The remaining 16 courts have issued residual rulings without conforming to criteria, but “they are usually favorable to the consumer and rule based on the ruling of the Supreme Court without further ado,” says Couso.
While 18 provincial courts establish usury from two points on the average rates of the Bank of Spain, 12 maintain a differential from three points and 4 courts establish usury when it increases between three and six points. However, there are two audiences, Barcelona and Cádiz, less sensitive to customers and consider that it is usurious interest from six points.
Jesús M. Sánchez believes that the solution will come from the “community legislator through the proposal for a consumer credit directive that provides that the Member States set maximum limits on interest rates, the APR and the total cost of credit for the consumer , regulating the maximum rate of remunerative interest that can be agreed on in a revolving loan”.
In the absence of clear legislation and jurisprudence, Daniel Sánchez, a lawyer from Seville, has submitted a letter to the Ombudsman asking him to file an appeal for amparo or unconstitutionality and avoid the difference of criteria on usury since “it violates legal certainty guaranteed by article 9 of the Constitution.
The maximum limit that can be agreed in a revolving credit is already regulated in several EU countries. In Portugal it is at a differential over the average rate of 25%; in France it is 33%; in Denmark, 35%; in Italy, 25% plus 4 points, and in Sweden it is 40%.
- contracting. Credit institutions must include from October 9 a representative example in the marketing they carry out of revolving credits, according to Circular 3/2022 of the Bank of Spain that develops the information obligations that entities must provide to their clients at market these products, both before contracting and during the life of the contract. Before contracting a revolving credit, the entity must provide a representative example with information on the credit limit, the total amount owed, the interest rate applied and the APR, the repayment term and the installment to be paid. To calculate the example, a credit limit of 1,500 euros will be used in general, unless the client has requested another amount.
- Communications. The financial entity must communicate to the user examples of savings scenarios and, if the repayment installment is less than 25%, the amount of the installments that would have to be paid will be simulated if it were increased by 20%, 50% and 100%. In addition, you have to inform the client of the total amount that they will end up paying, breaking down principal and interest, and indicate the date on which the credit will be paid in each of the three scenarios. This circular can reduce the high litigation of revolving cards, which, according to the 2021 case law study prepared by Asufin, was 108% compared to 2020.