The Supreme Court reinforces the bank's duty to provide information in subrogations.

The Supreme Court reinforces the bank's duty to provide information in subrogations.

El Tribunal Supremo ha dictado recientemente la Sentencia núm. 161/2026, de 4 de febrero, que afecta a miles de compradores de vivienda (incluso locales) que, al adquirir el inmueble a un promotor, se subrogaron en el préstamo hipotecario ya existente.

La Sala Primera recuerda que el banco debe garantizar que el comprador tenga conocimiento real de las condiciones esenciales del préstamo (especialmente, cómo se calcula el interés). Si no se cumple ese deber, la cláusula de interés puede considerarse no incorporada y el préstamo puede quedar sin interés remuneratorio, con derecho a la devolución de los intereses ya pagados más los intereses legales que correspondan.

En el caso resuelto, los compradores se subrogaron en un préstamo del promotor que les vendió la vivienda, pero en la escritura de compraventa no constaba el tipo de interés ni cómo se determinaba y no se acreditó que se les hubiera entregado copia de la escritura del préstamo del promotor con las condiciones completas.

Por ello, el Tribunal Supremo concluye que, en estas operaciones, la entidad bancaria no puede desentenderse, aunque el préstamo se suscribiera con el promotor. Cuando el comprador se subroga con el consentimiento del banco, existe obligación de información suficiente para que el consumidor comprenda la carga económica y jurídica de lo que asume.

En consecuencia, la Sentencia declara no incorporada la cláusula que fijaba el interés remuneratorio y condena a devolver todas las cantidades cobradas por este concepto, junto a los intereses legales desde cada cobro, y a mantener el contrato vigente con el resto de condiciones, pero sin aplicar el interés remuneratorio.

Esta postura jurisprudencial puede beneficiar especialmente a quienes compraron una vivienda (o local) a un promotor (o a un vendedor) y se subrogaron en la hipoteca ya existente.

Si te encuentras en esta situación, desde Montelirio Abogados y Asesores Tributarios analizamos tu caso y te indicamos si resulta viable iniciar el procedimiento contra la entidad bancaria para recuperar todos los intereses remuneratorios abonados y seguir pagando las cuotas del préstamo sin intereses.

We wrote off more than €31,000 in debt for a client thanks to the Second Chance Law.

We wrote off more than €31,000 in debt for a client thanks to the Second Chance Law.

At Montelirio Lawyers and Tax Advisors, we continue to demonstrate that the Second Chance Law works when applied with the right strategy and legal rigor.

Recently, our firm has managed to get a client released from more than €31,000 in debt, achieving exoneration of unsatisfied liabilities.

Our client was in a situation of unsustainable over-indebtedness and did not have sufficient assets to meet his obligations. After analyzing his case, we initiated bankruptcy proceedings and requested the discharge of his debts.

The Commercial Court No. 4 of Seville has issued a ruling granting the exoneration of all exonerable debts, definitively ending his insolvency and allowing him to start afresh.

From now on, creditors cannot claim any amount from you for the debts that have been discharged, and you will regain your personal and financial peace of mind.

Each case is different, but proper legal planning makes all the difference. At Montelirio Abogados y Asesores Tributarios, we have a department specializing in commercial law that is prepared to analyze each situation individually and determine whether it is possible to take advantage of the Second Chance Law mechanism.

If you find yourself overwhelmed by debt that is preventing you from moving forward, we encourage you to contact us so we can review your case, assess the feasibility of this type of procedure, and help you start afresh.

The CJEU opens the door to new claims for loans referenced to IRPH

The CJEU opens the door to new claims for loans referenced to IRPH

On December 12, 2024, the Court of Justice of the European Union (CJEU) issued a key ruling in case C-300/23, resolving the preliminary question raised by the Court of First Instance No. 8 of San Sebastian. This decision introduces nuances that may radically change the outlook for those affected by the Mortgage Loan Reference Index (IRPH) in their mortgage contracts.

Increased transparency control requirements

The CJEU reiterates what was stated in its July 2023 Judgment, establishing that it is up to the national judge to analyze whether the contract complies with the transparency control. This implies verifying whether the consumer received all the necessary information on the IRPH, including its calculation method and the economic consequences derived from its application.

In addition, the Ruling introduces a novel element: the information to the borrower may come from publicly accessible sources, but the lender must provide clear and precise indications so that the average consumer can understand them without the need to carry out complex legal research. In this sense, informing of the publication of the IRPH in the BOE could be sufficient to overcome the transparency control; not doing so, on the other hand, could imply a breach.

The key: negative spread

One of the most important points of the Judgment is the reference to the application of a negative spread to the IRPH. According to the CJEU, due to its calculation method, the IRPH should be adjusted to the market APR by applying a negative spread. If this adjustment was not made and the consumer was not duly informed, it could be considered an abusive clause and, therefore, null and void.

This interpretation puts in check the criterion of our Supreme Court, which had validated the IRPH arguing that it was an official index used by the public administrations in the financing of subsidized housing. The CJEU undermines this argument by stating that the good faith of the lender cannot be presumed solely on the grounds that the IRPH is a government-regulated index.

Nullity and effects in mortgage contracts

Another fundamental aspect addressed in the Judgment is the impact of a possible declaration of nullity of the IRPH. The CJEU establishes that, if the elimination of the clause makes the contract unfeasible, the judge could replace it with a supplementary provision of national law. However, as of today, there is no such provision in Spain, which generates a situation of legal uncertainty that will have to be resolved by the Supreme Court or the legislator.

How does this ruling affect consumers?

This CJEU decision strengthens the position of consumers affected by the IRPH, opening the possibility of claiming the nullity of the clause in certain cases. In particular:

  • If they were not correctly informed about the IRPH calculation method.
  • If the bank did not explain the need for a negative spread to bring the APR in line with the market.
  • If the information provided was not sufficiently clear and accessible.

At Montelirio Abogados y Asesores Tributarios, we have a Commercial and Banking Law department that is prepared to analyze each case individually and evaluate the claim options. If you have a loan referenced to IRPH, we encourage you to contact us to review your situation and assess the possibility of recovering what you are entitled to.

Golden Visa in Spain: the residency opportunity for international investors

Golden Visa in Spain: the residency opportunity for international investors

For years, the Golden Visa has been one of the most attractive ways for non-EU citizens to obtain residency in Spain through significant investments. However, the imminent elimination of this visa regime, currently in the legislative process, puts investors interested in benefiting from its many advantages against the clock. If you are considering obtaining residency in Spain through this procedure, now is the time to act.

Although the approval of the Bill in the Senate and its publication in the Official State Gazette (BOE) is still pending, experts estimate that the current regime could only be in force for the next 3 to 5 months. This short period of time is the last opportunity for interested investors to secure their residence in Spain by availing themselves of this procedure.

  • Investment options

First, investment in financial securities equal to or greater than:

  • 2 million euros 2 million in Spanish public debt.
  • 1 million euros in shares or equity investments in Spanish companies with real business activity.
  • 1 million euros 1 million in investment funds, venture capital funds or bank deposits in Spanish financial institutions.

Secondly, and more usual, the real estate investment with a minimum value of 500,000 euros in real estate in Spain. This amount must be free of liens or encumbrances.

And finally, investment in business projects of general interest. These refer to initiatives that demonstrate a positive impact on job creation, the socioeconomic development of the region or progress in scientific and technological innovation.

  • Duration

Once approved, the Golden Visa has an initial duration of 3 years, and can be renewed in periods of 5 years as long as the investment conditions that allowed it to be granted are maintained.

  • Advantages

Golden Visa holders can also benefit from:

  • Residence and work in SpainIt allows to reside and work without the obligation of continuous stay, with only one day of annual residence as minimum to maintain the permit.
  • Free movement in the Schengen AreaFacilitates mobility within the Schengen countries, similar to European citizens.
  • Family reunificationThe holder can regroup his/her spouse, minor children, economically dependent children and dependent ascendants. The application for reunification can be made together with the holder's application or later, depending on the investor's needs.
  • Access to Spanish nationalityFor certain individuals, Spanish nationality can be requested after 2 years of legal and continuous residence in the country, by virtue of dual nationality agreements.

 

  • Application process steps

Despite the attractive advantages of the Golden Visa, the application is often complex. Investment requirements, documentation and administrative procedures can be overwhelming for foreign investors, particularly those from countries with different legal and financial requirements. Among the main challenges are:

  1. Strict compliance with legal requirementsIt is essential to comply with all specific criteria for each type of investment. Any non-compliance may cause problems in the application.
  2. Complex and voluminous documentationThe submission of documents from other countries involves their legalization and sworn translation. An error at this stage may result in delays or even in a refusal.
  3. Interaction with authorities and administrative proceduresThe interpretation of legal requirements and the correct handling of administrative procedures are crucial to avoid common mistakes.

 

  • The advantage of working with a firm specializing in Golden Visa

At Montelirio Abogados y Asesores Tributarios we have extensive experience in the processing of Golden Visa procedures in Spain. Our team of lawyers facilitates every step of the process, from investment analysis to obtaining residency. We offer a service with a deep knowledge of the legislation. That is why we anticipate and resolve any obstacle that arises in the application. Likewise, applicants receive personalized attention, which means that we adapt to the needs and circumstances of each client, guaranteeing a smooth and uncomplicated process. In addition, we have a wide network of collaborators, such as sworn translators, notaries and other professionals to manage all the necessary aspects of the application.

Contact us at and let us accompany you in this important step to make your residency in Spain a reality.

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