RETURN OF MORTGAGE EXPENSES
RETURN OF MORTGAGE EXPENSES

Recover the mortgage arrangement expenses

A recent ruling by the Supreme Court has declared abusive the clause included in most mortgages that imposes on the borrower the payment of all expenses, taxes, and commissions derived from the mortgage loan.

The content of the clause was as follows: “All taxes, commissions, and expenses incurred for the preparation, formalization, rectification, processing of deeds, modification -including division, segregation, or any change that implies alteration of the guarantee- and execution of this contract, and for payments and reimbursements derived from it, as well as for the constitution, conservation, and cancellation of its guarantee, shall be the exclusive responsibility of the borrowing party, who is also responsible for the premiums and other expenses corresponding to the damage insurance, which the borrowing party is obliged to keep in force.”

BBVA was then authorized to charge the borrower's account the necessary amounts until the full registration of the mortgage in the Property Registry, adding the expenses, also at the borrower's expense, and in case of non-payment, for the judicial or extrajudicial claim of the debt, including Attorney and Solicitor fees, even if their intervention is not mandatory. These amounts were even guaranteed with the mortgage or real guarantee itself, which is none other than the property.

These clauses assigning all expenses derived from the execution and development of the contract to the consumer will be null; however, it will be necessary for the borrower or debtor to make the appropriate claim to the Bank's Customer Service and, if necessary, proceed to file a lawsuit in court.

What expenses, taxes, and commissions can we claim?

Based on the premise that only the restitution of expenses corresponding to the formalization of the mortgage, and not the purchase, can be requested, the following will be subject to claim:

1. Notary and Property Registry invoices necessary for the constitution of the real guarantee –that is, the mortgage-),

2. Tax on Documented Legal Acts. The party obliged to pay this tax, both in terms of its fixed rate –notarial paper stamp-, and its gradual rate, is precisely the Bank and not the borrower or mortgage debtor; therefore, it is a tax to be included in the claim.

NECESSARY DOCUMENTATION FOR THE CLAIM

  • MORTGAGE DEED

  • SUBSEQUENT EXTENSIONS OR NOVATIONS

  • MORTGAGE PAYMENT RECEIPT (ONLY IF STILL VALID)

  • PROCESSING AGENCY INVOICE

  • NOTARY INVOICE

  • REGISTRY INVOICE

  • PAYMENT LETTER FOR DOCUMENTED LEGAL ACTS TAX

  • REGISTRATION CERTIFICATE (only if it is the primary residence)

  • MORTGAGE CANCELLATION DEED (if it is canceled and the document is available)



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