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Judge hammer on white paper and table






A sentence is always the beginning of something. And in this case it is a decision that can alleviate the family economy, today almost subsistence, of thousands of families from Malaga. The Provincial Court has confirmed a judgment of the Mercantile Court number 1 of Malaga in which a floor clause was declared invalid and also ordered the refund of what was paid retroactively, something historic in the province, since the ratification of the The ruling means that other trial judges already have a criterion to follow in this type of case and, therefore, what the Sixth Section has done is open the door for entities to return to clients what was received in excess until it is annulled. the clause.

Most of the country’s First Instance and Commercial Court judges were declaring the floor clauses of mortgage contracts abusive. In other words, the affected party should not continue paying since the nullity of the condition was decreed, but what happened to what had been paid up to that moment? The Supreme Court, in relation to a series of specific steps, has already decided that the clauses could be abusive, but that banks could not be forced to repay those amounts retroactively without damaging the national economic order. The trick is that this sentence of the Supreme Court referred to a series of specific cases and not to the generality.

Thus the scenario, each first instance judge in the country and each hearing decided in most cases the nullity of the clauses, but they did not agree on returning what had been paid up to then. Some said white and others black.

La Opinión de Málaga has already announced exclusively that the Provincial Court planned to unify doctrine in this regard in a series of judgments from February and March, of which the first was notified yesterday. Specifically, it is a person with a mortgage whose floor clause is declared null and the decision of the Commercial Judge 1 of “the retroactive return of interest” is confirmed, judicial sources reported.

The judge of Mercantile 1, Antonio Fuentes, already explained to this newspaper on January 20, the following: «For us and for all of us, the decision of the Court is very important, because it is the one that sets the tone. Although there is no obligation to follow it, the custom is to do so. In other words, the judges of single-person bodies, the first to decide on these matters, do not have to follow the Sixth Section guideline – only the Supreme Court generates jurisprudence and, therefore, mandatory compliance – but the normal thing, the usual thing is they do.

“Now we have to return what was overcharged in this specific case,” the sources specify. The sentence is a presentation by Inmaculada Suárez-Bárcena and, although there are usually three magistrates who deliberate it, the historical circumstance of this ruling caused the five that make up the Sixth Section to enter the meeting yesterday to deliberate: Suárez-Bárcena herself Bárcena, Soledad Jurado, José Javier Díaz Núñez, the president of the Chamber and of the Provincial Court, Antonio Alcalá, and Nuria Orellana. «The five have entered because the spirit of the Chamber was to establish a criterion. The decision was by five to zero, unanimously, “indicate the sources. The meeting took place at 12:00 yesterday.

A maxim widely used in Law is “to each, his own.” That is to say, that, despite the existence of general criteria on a global conflict, it is always necessary to descend to the case, which means that yesterday’s decision, which will be appraised and tied even more in short in future sentences of the Hearing, is only a general indication for the judges who are investigating the three thousand lawsuits filed for this matter in the First Instance and Mercantile bodies. The Civil Chamber of the Supreme Court has the last word on this matter.