The floor clauses extrajudicial procedure, wastepaper for Spanish banks
The floor clauses affectees are claiming Spanish banking’s non-compliance of the extrajudicial procedure approved by the government two months ago.
The Royal-Decree 1/2017 of 20th January approved by the government establishes an extrajudicial procedure to claim for floor clauses. It is in force for two months and different bank entities are starting to answer the various claims send by their clients.
In this sense, one of the main consumer and user organisations, ADICAE, send to the Bank of Spain and to the Ministry of Economy a dossier reporting the barriers that the Spanish banking sector is putting up to their clients with regard to floor clauses claims and the banks non-compliance with the Royal-Decree itself, following the journal Cinco Días.
During this RD’s processing, there were a strong controversial because of the numerous gaps and black spots for clients included in the Royal Decree’s text. In this line, answers to the floor clauses’ claims that banks are receiving from their clients are also being, mostly of time, obscure. The banks’ tricks are the following ones:
– Neglecting of going through the extrajudicial procedure in case of ongoing trial: banks are neglecting themselves to be gone through this procedure if there are a floor clauses ongoing trial. They are ignoring that the RD allows both parties to call ongoing legal proceedings off in order to reach an agreement on this new extrajudicial procedure.
– Neglecting submitted claims in application forms different from that of offered by the bank: some entities do not accept the received claims by alleging that they have not been submitted in the elaborated ad hoc application forms when the RD establishes that the bank must directly submit any received claim.
– Barriers to the client’s petitions: another bank entities oblige affectees to claim at their bank branches. In this sense, the RD makes it clear that the bank must provide the information to claim for the floor clauses in all their opened offices and to offer this service both through a postal address and online.
– Deficiencies in the claims’ answers: the RD states that the banks must deliver the client a floor clauses’ substantiated and disaggregated proposal of repayment including both the loan principal and interests to be returned. However, some banks are giving their clients uncompleted proposals, with a lack of information, even by telephone or by standard answers without explaining the reasons of rejection.
– Paying for the claim without detailing the concept of payment or origin: consumers organisations also report that some bank entities do accept extrajudicial claims but when paying the floor clauses’ overpaid amount of money they do not detail nor the payment nor its precedence. This harms users who are obliged to justify their payments for income tax purposes with the tax office.
Besides, the Spanish Supreme Court has recently ruled that sentences which are no longer final will not have to be benefited from the floor clauses’ retroactivity and the affectees would not be able to claim for their overpaid money before that date. Its argument is that of the current CJEUS’s jurisprudence is not considered as new documentation with regard to an already case closed, thus, there is no option to appeal for an extraordinary review process.
This behaviour from banks and some courts are bypassing the rights of the floor clauses’ affectees citizens in order to claim for their money back. Putting up barriers (even in the extrajudicial procedure’s framework approved by the government) and taking actions against a CJEU’s final and binding judgment in favour of claimants is not the best way to address a social problem (which is not merely particular) such as the floor clauses’ one.
Claudio Rodríguez Vera (@rvclaudio)
Lawyer in Del Canto Chambers