{"id":21611,"date":"2024-03-20T13:22:20","date_gmt":"2024-03-20T12:22:20","guid":{"rendered":"https:\/\/www.in-diem.com\/extension-of-time-limits-and-consumer-protection-in-cases-of-abusive-mortgage-clauses\/"},"modified":"2026-08-12T14:42:27","modified_gmt":"2026-08-12T12:42:27","slug":"extension-of-time-limits-and-consumer-protection-in-cases-of-abusive-mortgage-clauses","status":"publish","type":"post","link":"https:\/\/www.in-diem.com\/en\/extension-of-time-limits-and-consumer-protection-in-cases-of-abusive-mortgage-clauses\/","title":{"rendered":"Extension of Time Limits and Consumer Protection in Cases of Abusive Mortgage Clauses"},"content":{"rendered":"
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IMPORTANT<\/strong>: This article analyzes the extension of deadlines for filing claims regarding unfair mortgage charges<\/strong> in accordance with the applicable case law at the time of its publication. Currently, any claim must be reviewed on a case-by-case basis, taking into account the mortgage deed, payment documentation, and the Directive 93\/13\/EEC<\/strong><\/a>, the Law 5\/2019 of March 15<\/strong><\/a> , and the current case law of the CJEU and the Supreme Court regarding the statute of limitations for restitution claims. <\/em><\/p>\n\n

Extension of Deadlines for Filing Claims Regarding Unfair Mortgage Charges<\/h2>\n\n

The January 25, 2024, ruling by the Court of Justice of the European Union marked a significant change in the analysis of the statute of limitations periods under which consumers may claim reimbursement from banks for certain mortgage expenses<\/strong> paid as a result of a clause that was declared unfair.<\/p>\n\n

This issue particularly affects consumers who took out mortgage loans before the entry into force of Law 5\/2019, of March 15, regulating real estate credit contracts<\/strong><\/a>\u2014a law that significantly altered the allocation of costs in mortgage agreements.<\/p>\n\n

In this article, we analyze the origin of the dispute, the CJEU\u2019s ruling, the Supreme Court\u2019s subsequent position, and what consumers should keep in mind if they wish to claim reimbursement for notary, registry, administrative agency, or other fees related to the execution of a mortgage loan.<\/p>\n\n

Background and Legal Context<\/strong><\/h2>\n\n

The issue stems from several complaints filed by consumers against various banks, requesting a refund of fees associated with the arrangement of mortgage loans. These complaints were based on the existence of clauses that required customers to pay all or nearly all of the mortgage origination fees. <\/p>\n\n

The Provincial Court of Barcelona referred several questions to the CJEU for a preliminary ruling in December 2021, in proceedings in which it was disputed whether the action to claim the return of those amounts could be considered time-barred. Among the institutions affected by these lawsuits were banks such as Caixabank, BBVA, Banco Santander, and Banco Sabadell. <\/p>\n\n

The debate did not focus solely on whether the clause was unfair, but rather on when the statute of limitations for claiming a refund of the amounts paid should begin to run<\/strong>. This distinction is essential: the action to declare an unfair clause null and void is governed by different rules than the action to recover amounts unduly paid. <\/p>\n\n

In January 2016, the Supreme Court had already ruled that the clause requiring consumers to pay all costs associated with the origination of a mortgage loan without exception was unfair. Subsequently, case law clarified which costs could be claimed and in what proportion. However, European case law reinforced the idea that consumers cannot be deprived of their right to file a claim due to an excessively rigid interpretation of the statute of limitations. <\/p>\n\n

Update 2026: Current Status of the Claim<\/strong><\/h2>\n\n

At present, the key issue is not to automatically assert that all claims are either still valid or have expired, but rather to determine when the consumer actually became aware of the unfair nature of the clause and of their right to claim a refund<\/strong>.<\/p>\n\n

The CJEU\u2019s ruling requires that the statute of limitations for an action for restitution comply with the principle of effectiveness of Directive 93\/13\/EEC on unfair terms in consumer contracts<\/strong><\/a>. This means that national laws cannot make it impossible or excessively difficult to exercise the rights recognized by EU law. <\/p>\n\n

For its part, the Supreme Court has adopted this approach, noting that if the bank fails to prove that the consumer was aware of the unfair nature of the clause and of his or her right to file a claim before the judgment declaring the clause null and void became final, the statute of limitations on the action for restitution cannot be automatically applied.<\/p>\n\n

Therefore, when faced with a claim regarding mortgage expenses, it is advisable to review the loan agreement, payment documentation, correspondence with the lender, and whether there is a prior court ruling that has declared the clause null and void.<\/p>\n\n

Determining the Statute of Limitations According to the CJEU<\/strong><\/h2>\n\n

The Supreme Court and the CJEU agree on a basic principle: an action to seek the nullity of an unfair term on the grounds of absolute nullity is not subject to the same rules as an action to claim the return of amounts paid. The clause may be declared void, but the refund of the money may be subject to a statute of limitations, provided that such a limitation period is compatible with the principles of equivalence and effectiveness. <\/p>\n\n

The principle of equivalence requires that actions based on Union law not be treated less favorably than similar actions based on domestic law. The principle of effectiveness requires that the time limit and its conditions not make it impossible or excessively difficult for the consumer to exercise his or her rights. <\/p>\n\n

From this perspective, the CJEU considers that it is not sufficient to assert that the consumer could have been aware of the existence of national case law on mortgage expenses. The consumer is at an informational and technical disadvantage vis-\u00e0-vis the bank; therefore, it cannot be automatically presumed that the consumer was aware of the legal scope of his or her right to file a claim. <\/p>\n\n

Consequently, the final payment of expenses arising from the unfair term cannot, on its own, be considered the starting point of the statute of limitations. Nor can it be presumed without further ado that the consumer was aware of the applicable national case law simply because there were previous court decisions on the matter. <\/p>\n\n

This ruling has undermined the strategy of many banks, which had been rejecting out-of-court claims on the grounds that the deadline for requesting a refund of mortgage expenses had already passed.<\/p>\n\n

What Mortgage Expenses Can Be Claimed<\/strong><\/h2>\n\n

The validity of the claim depends on the specific deed, the date the loan was taken out, and the payments made. Generally speaking, the following items are typically analyzed in claims regarding mortgage expenses: <\/p>\n\n