Frequently asked questions about the procedure to recover overpaid mortgage interest

Marisa
January 25, 2017

View more post about Banking litigation

Last friday was approved the Royal Decree regulating the procedure on how to reclaim the overpaid mortgage interest.

These are the most frequently asked questions about how to reclaim:

1) First of all, how do I know whether I have a floor clause or not?

It is usually written down in the mortgage title deeds. This will be the first step to know whether you are entitled to reclaim or not.

2) Who are entitled to reclaim?

Anyone who has or had a mortgage with a limitation in the minimum interest rate applicable have the right to seek repayment of what they overpaid to the banks.

3) How long do I have to reclaim?Those mortgages paid off have 15 years from the date they were repaid.

4) How do I start my reclaim and who should I address my reclaim?

From January 21st the banks have been given a one month period to set up a specific department to deal with the reclaims.

Every bank will publish in their websites when this period starts and how to reclaim.

It is extremely important to remember the Royal Decree does not mention the banks have the obligation to notify individually afected consumer by the floor clause.

5) How do I know how much is the overpaid mortgage interest?

The bank will make a calculation on how much will pay back ( not only the overpaid mortgage interest but also any interest accrued) and will make the offer.

The consumer will have then a period of 15 days either to accept the offer or to reject it.

In case there is a disagreement with the proposal made by the bank, the case should be taken to the Spanish Courts.

In anycase the Royal decree stipulates a maximum period of 3 months from the date the reclaim has been addressed to the bank to take the case to court, either the impossibility ro reach an agreement with the bank or no communication from the bank at all.

6) Are all mortgages with floor clause entitled obtain repayment of overpaid mortgage interest?

Spanish law requires two conditions are met for a clause to be flagged as abusive:a) The clause must inflict harm on the consumer, whether financial or of some other nature. The consumer can either be a physical or legal person.b) The clause must benefit the professional who’s drafted the contract within a business relation. This professional will be either a company or professional acting privately or publicly.

7) Could I pay legal fees if I take my case to court?

Yes, only in the case the court agrees the consumer is entitled to an inferior amount of the one has been reclaimed for.

8) Am I going to receive the overpaid mortgage interest in cash?

The Royal Decree stipulates should be paid in cash although the bank and the consumer could agree a different way to be paid, such as the novation of the mortage conditions.

In any case the agreement reached must be in writting, with no doubt of the acceptance of the consumer of such agreement.