The branch of banking law deals with the relationship between clients and financial bodies and is our law firm’s main focus and specialisation. Amongst the banking law matters we deal with in our office, we can highlight the following:
- Advice, preparation and negotiation of financing and refinancing operations.
- Nullity of abusive clauses like floor clauses, mortgage formalisation expenses, IRPH or CECA, expenses, multi-currency or delayed interests.
- Nullity of complex toxic product contracts that are high risk like swaps or exchanges, structured deposits, preferred shares, convertible bonds, United Links, investment insurance or annuities.
- Claims for undue collection of commission for return of bills of exchange, exceeded credit cards or overdrafts and claiming of debts.
- Opposition to mortgage foreclosures and loan, credit, sureties or discount policies.
- Resolution of contracts with claims for compensation for damages
- Negotiation and processing of share purchases for financial entities.
FLOOR CLAUSES
At ATO Abogados we are specialists and leaders, in Huelva, in the area of floor clauses, as we have resolved large numbers of legal claims and cases. Our solicitors have initiated hundreds of cases and have achieved many favourable judgements for clients that have declared the nullity of general conditions of employment, required a recalculation of a repayment schedule without the limitation of interest types, and achieved the integral repayment of the amounts that have been overcharged since they began to affect the holder of the loan.
Trust our lawyers to help you with claiming the nullity of these floor clauses in your mortgage contract and recover the money you have overpaid as a consequence of the application of these general conditions of the contract.
MORTGAGE FORMALISATION EXPENSES
After the ruling of the Supreme Court, from the first plenary meeting on 23/12/2015, it is possible to sue a bank for the nullity of the clause which lead to the expenses the client had to pay when formalising the mortgage: appraisal of the property, notary fees, property registration feeds, taxes (IAJD) and fees of the processing agency. Despite there being a discrepancy between different provincial courts with the respect to the refunding or non-refunding of these expenses, once the nullity of the clause has been declared, we claim the whole amount of all the costs.
Many clients have already trusted our solicitors to defend their interests and request the nullity of the clause mentioned above and the return of wrongly paid expenses.
MULTI-CURRENCY MORTGAGES
A multi-currency loan is a mortgage loan in which specific clauses are included so that both the capital and the interest can be paid in different currencies, applying the relevant reference indices of these currencies, changing it, in this way, into a complex financial product that is high risk, as confirmed by the Supreme Court, declaring the nullity of this type of clause when the clients are not appropriately informed.
The solicitors that work in this office have already achieved dozens of favourable outcomes for their clients, achieving the nullity of these multi-currency clauses so that they no longer apply to the loan, being liquidated in euros with reference to the EURIBOR. The bank has to return all of the excess money paid before the recalculation of the payment schedule.
‘PEACE OF MIND’ MORTGAGES
The ‘Peace of Mind’ (Tranquilidad) Mortgage from Banesto is normally sold to couples or newlyweds under the pretext that it is a more accessible loan with regards to the payment of the monthly fees. Over time, however, that does not prove to be the case. The bank, knowing about the low interest rates, ensured that there was a fixed high interest rate for the first ten years, about 5%, far higher than the standard market rate, and an anomalous increasing repayment system that has proved to be disastrous for those affected. The clients that contracted this kind of mortgage loan have found, after the first ten years, that they had a total debt to be repaid and a monthly rate that were far higher than those that they would have if they had a loan with a variable interest rate and a traditional French repayment system.
REFERENCE INDICES: IRPH - CECA
One of the accession clauses that has been added into many mortgage loans, without providing the necessary and obligatory information, is the IRPH and CECA reference indices. Clients affected are in a far worse position than those that the EURIBOR index applies to. Although in December 2017 the Supreme Court ruled in favour of the banks by declaring that these clauses cannot be considered abusive, due to a lack of transparency the mere application of these references means that there are still some options open to clients as, in certain cases magistrates of High Courts have voted in favour of declaring nullity for abusiveness.
In the many cases that have been opened by our solicitors the nullity of the aforementioned indices has been requested, asking for the recalculation of the repayment schedule according to the substituting index, if it is EURIBOR, or with no interest rate if not, and the return of the excess charges.
FINANCIAL SWAPS OR EXCHANGES
Financial swaps or exchanges are, generally, sold wrongly, offered as insurance against possible interest rate raises or inflation, with no explanation of information of the true high risks involved in the product, which is speculative.
The lawyers at our firm have achieved dozens of favourable rulings for our clients, consumers and companies, against the indiscriminate sale of this kind of toxic products by banks, achieving the return of their money and any charges for contracting the product.
PREFERENTIAL SHARES AND SUBORDINATE DEBT
Both preferential shares and contracts of subordinate debt, despite being complex, high end products, have been sold indiscriminately and en mass by financial organisations to cautious, risk-averse clients, as if they were fixed-term deposits. They are in fact hybrids between fixed equity and variable equity, with no guarantee on the capital invested and a right to recuperate the investment dependent on the rest of the company creditors, listing on a little known secondary market such as the AIAF, which involves a high risk of liquidation.
Both products have been sold by banks and even some companies like Eroski, Endesa or SOS, to access funding from their own clients who they, unknowingly, trapped into investment.
CONVERTIBLE BONDS
Convertible bonds are also hybrid products between fixed equity and variable equity as, in principle and for a fixed period of time they act as fixed equity, with the investor, in exchange for building up debt, earning coupons or periodic interest. When they expire, or sometimes voluntarily, they are obligatorily changed into new shares, which means they become variable equity. The problem arises when this kind of complex, high risk product is sold to clients with a conservative, small-scale profile.
The best-known bonds that had to be converted into shares, thanks to the losses incurred and their indiscriminate sale to small-scale investors as if they were guaranteed deposits, were those sold by Santander Bank, known as Valores Santander, and by Banco Popular. Both of these organisations have been sanctioned by the CNMV after their mass sale to clients without the appropriate investment profile.
STRUCTURED DEPOSITS
The options for investments in structured deposits or products are broad and diverse. You can find anything from structured instruments which guarantee the full recovery of 100% of the capital invested to others in which there is a risk of losing 100% of this capital.
Without doubt, a structured deposit is an investment type whose profitability is contingent on changes in the price of one or several underlying assets, sometimes variable or fixed equity, sometimes one reference index of interest rates and sometimes mixed. The profitability or loss of the investment will depend on the appreciation or depreciation of this underlying asset. Some organisations have sold them as a-typical financial contracts. If you have any of these products, turn to our solicitors for convenient advice.
SAVINGS AND INVESTMENT INSURANCE
The Directorate General for Insurance defines these products as annuity insurance products that guarantee the payment of an amount to the insured party every year of their life. They can be adapted to particular conditions and combined with additional benefits in case of death or for the return of contributions. The norm is to sell these products as if they were an insurance policy, not a complex, risky financial product for which the holder makes a financial contribution, in the form of a single premium, guaranteeing an annuity until their death, at which time there may be an heir that will benefit from the invested capital.
The problem arises when the owner of the product or policyholder decides, for any reason, not to wait until death and asks to surrender of the operation, which is when heavy losses can be incurred because their money is invested in risky products. If you have contracted any of these products, do not hesitate to contact us.
UNFAIR COMMISSION
The lawyers at our firm are specialists in suing financial entities for the return to their clients of wrongful charges for abusive or illegal commission, when these charges do not correspond to a real service provided to the client by the bank or involve an additional cost or expense incurred without due cause, meaning the charge is unjust. Amongst the most common unjust commissions are:
Commission for returns. This is an amount that the bank charges a client whilst processing a payment it has returned as unpaid. In this case, the crediting organisation proceeds to charge an amount that tends to be a percentage of the value of the charge and is independent of the return of the quantity being charged if there has previously been a discount.
Commission for non-payment claims or overdrafts. This is an amount that credit organisations automatically transfer to the accounts of those who have failed payments or have a negative balance. This tends to happen when a loan payment is not made, when the current account becomes overdrawn, or in similar circumstances.
Commission for overdrawing a current account or exceeding a credit account. This includes cases in which the bank charges a certain amount, normally a higher percentage of the amount owed, when the current account or credit account has gone into negative numbers.
If you have been charged a commission for a service that you have not requested or that does not correspond to a cost incurred, we can help you to claim and sue to be able to recover the amounts that the bank may have wrongly charged you.
MORTGAGE FORECLOSURES
When a legal procedure is begun by a financial entity against a client due to the non-payment of a mortgage loan, it is usually done through the presentation of a notice of a foreclosure procedure, which the holder of the loan should object to within ten working days and on grounds approved by the law which need to be known, like the existence of abusive clause that make up the basis of the foreclosure or determine the amount demanded. Our solicitors are experts in this issue and have already managed to freeze and archive large numbers of mortgage foreclosure procedures.
If you have been the subject of a mortgage foreclosure procedure or think that you could be in the near future, ask for the help of our expert solicitors that help reduce the quantity demanded, avoid costs and even discontinue or archive the procedure, for reasons of form or substance.
CREDIT CARDS
Credit card contracts, not debit, have the possibility to make a full payment of the money used in the previous month on billing or make a deferred payment, fixed monthly, as a reimbursement of this amount, whether a fixed amount or a percentage of the credit.
The problem tends to arise when, at the end of the month, the total spent on purchases or withdrawing cash has not been paid, and the bank or organisation that issues the card applies extremely high interest, generating an enormous and disproportionate amount of interest.
This type of card contract can contain a series of abusive or usury clauses such as: elevated nominal interest, delayed interest, commission on failed payments, capitalisation of interest, a commercial year of 360 days, an insurance premium for payment protection, unilateral imputation by the bank of payments or discretional modification on the part of the bank of the conditions of the cards.
As our High Court has confirmed, it cannot be understood that there has been an acceptance of the incorporation of the general conditions of the contract when the organisation has not expressly informed the client of their existence and provided an example. Further, they cannot add conditions or clauses that are difficult to read due to the small size of the letters, the complicated wording or if the document is only signed on the back but not on both sides. Finally, insisting on a high interest, both nominal and in cases of delayed payment, can be declared null due to abusiveness, usury or onerous, as it is not proportional or agreed upon at the moment that the deal was made.
PAYMENTS FOR UNDELIVERED DWELLINGS
If you paid, through the bank account of a developer, money for the acquisition of a dwelling that was not VPO, before January 2016, without being given any guarantee for the amount and, in the end, said property was not delivered to you, our solicitors can help you to claim and recuperate your money.
Consult the requirements to be able to do so here.
REGISTRATION OF DEFAULTS
We help you to be able to make claims from financial entities and other companies for the illegitimate interference in the right to privacy of those who have been wrongly entered onto a default register or have stayed on one after the debt has been cancelled, with a claim to indemnification for the harm caused, both morally and economically. We also manage the removal of these default registrations once the debt has been cleared.
According to current legislation regarding this issue, personal information can only be included on these registers if they are necessary for judging the financial solvency of the affected party, as long as they meet the following requirements:
1.- Previous existence of a specific debt, expired, enforceable, which is non-litigious.
2.- Six years have not passed since the date on which the debt should have been paid or the expiration of the bond or the concrete time period if applicable.
3.- Previous payment request from whoever the fulfilment of the obligation corresponds to.