The court of San Bartolomé de Tirajan ruled last October that a bank can claim and collect for the debts it owes to a client, but without falling into usury. A judicial procedure led by Adarve on behalf of the bank has destroyed the client's defense, which he considered to defend himself that the interests were excessive. But there is a nuance: the bad faith used by the client. The loan was to buy a car.
The court of San Bartolomé de Tirajana strongly indicates the rejection of the client's claim, both the main claim (usury) and the subsidiary claims (nullity of several clauses due to abusiveness). The judge expands on the bank's allegation of bad faith and unfair delay in the presentation of the claim, also accepting that allegation and declaring that, if the claim had not been dismissed for the underlying reasons, it would also have been dismissed for the unfair delay of the plaintiff.
On the other hand, in 2022 the Supreme Court has supported applying the effects of usurious interest, contemplated in article 3 of the Usury Law, although only the monetary interest clause has been declared null and not the entire credit, as stated in the ruling 662/2022, of October 13. Specifically, the case goes back to 2006, when a consumer contracted a Visa Classic Crédito credit card with Cajamar with a remunerative interest of 16,08% APR.
Subsequently, the user filed a lawsuit against the entity in which she requested that the general condition that establishes the remunerative interest for "usury" be declared void and that the bank be ordered, in application of article 3 of the Usury Law, to pay the amount that exceeds the total capital that has been lent, taking into account the total of what has already been received for all concepts charged and received outside of said capital.
Consequently, Cajamar was ordered to pay the user the amount that exceeded the total capital that had been lent to her, "taking into account the total of what was already received for all concepts charged and received outside of said capital and that have already been paid by the plaintiff", especially the amounts that would have been charged for "fee for cash withdrawals, interest, fee for claiming unpaid fees, payment protection insurance and annual card fee, as determined in execution sentence, plus legal interest".
This sentence was appealed by Cajamar before the Provincial Court of Cantabria, whose fourth section was upheld in part. This court ratified the usurious nature of the interest, but revoked the ruling in relation to the effects. The court understood that the "consequence" of considering the loan as usurious, in application of the Usury Repression Law, is the nullity of the contract, but that, in this case, "the nullity of the contract was not requested, but of the general condition that establishes the monetary interest".
