A Court of Murcia follows the Supreme Court and declares that a revolving with an interest of 24.7% is not usurious

MADRID, 2 Jun. (EUROPA PRESS) -

The Court of First Instance number 8 of Murcia has declared that a revolving card that was contracted with an interest of 24.71% was not usurious, although it has annulled the commissions charged for unpaid installments, excess of the limit and withdrawal of cash and use of ATMs.

In making his decision, the judge relied on the recent ruling of the Supreme Court, which clarified that in order to determine whether the interest on a revolving card was usurious, the average APR applied by the main banking entities in the revolving credit contracts (and not in consumer credit in general) on dates close to the signing of the contract.

On August 25, 2004, a user contracted a revolving card with the entity Citibank (now Wizink), which had a nominal interest rate (TIN) of 22.29% and an APR of 24.71%, which later rose to 26 .82%. The client sued Wizink and demanded that the interest rate applied be considered usurious.

As the judge recalls, the Supreme Court decreed in its ruling of March 4, 2020 that a loan should be considered usurious if its interest was "notably higher than normal money" and "manifestly disproportionate to the circumstances of the case".

In its ruling of May 4, 2022, the Supreme Court analyzed a contract from the same time and clarified that the index that should be taken as a reference was the average rate applied to credit operations through credit cards and revolving with which more Specifically, it shares characteristics with the credit operation that is the subject of the lawsuit, thus rejecting the appellant's thesis in that case that the reference interest that should be used to decide if the interest of the disputed contract was the general interest of consumer loans and not the more specific to credit cards and revolving.

In the current case, the fixed APR is 24.71% and, on the date of the contract, the interest rate for the use of deferred payment cards "usually exceeded 20%, often exceeding 23-25% and reaching 26%", says the judge, who considers that, applying the previous doctrine, "the stipulated interest cannot be considered usurious in accordance with the regulations and alleged jurisprudence".

The procedure also analyzes whether or not the clauses related to the price in the contract exceed the control of incorporation in the contract of the contracting conditions, which requires that they be clauses with a clear, concrete and simple wording that allows grammatical understanding. normal and that the adherent has had a real opportunity to know at the time of the execution of the contract.

According to the judge in his ruling, to which Europa Press has had access, the card regulations contained in the contract "although with small print", was "perfectly legible". "There are no differences in color or printing that prevent its reading and as regards the clear and specific wording, this is in the specific case, since it appears in the annex, specifying the interests clearly, according to the type of product," says the judge.

For this reason, the magistrate understands that they do pass the incorporation control and the clauses referring to the remunerative interest must be taken for granted.

Thus, the Court of Murcia has dismissed the plaintiff's claims relating to a declaration that the interest rate applied to the revolving card as a user and that the clauses by which the interest rate is imposed should not be understood as incorporated into the contracts .

On the other hand, the card contract included three commissions: for unpaid installments, excess of the limit and for cash withdrawal and use of ATMs. The judge has declared all of them null, which implies that the bank must return to the plaintiff the 2,530.43 euros that he paid for these concepts.

Using the ruling of the Supreme Court of October 25, 2019, the Court of Murcia points out that, in order for entities to be able to charge commissions to their clients, two requirements must be met: that they remunerate a real service provided to the client and that the expenses of the service have actually been performed.

In the case of the commission for claiming unpaid installments, the judge considers that amounts for this concept were charged to the client without any service performed by the bank, for which he has declared the commission "null".

It has also declared the commission for exceeding the limit null and void, given that it is presented as an automatic claim and does not discriminate between periods of arrears. Regarding the commission for withdrawing cash at ATMs, the judge applies by analogy the reasoning that the Supreme Court did with the commission for income at the window and understands that the commission is null because it is a service already covered by the maintenance commission.