ES|EN
The recent judgement of the Supreme Court Civil Chamber 2389/2025 of the 26th of May 2025 once again ruled on the period for the consumer to claim the costs of unduly paid costs as a result of a clause in a contract between a financial institution and said consumer for the constitution of a mortgage loan that was declared null and void due to its abusive nature.
This judgement rules on a mortgage loan granted by Caixa D’Estalvis de Tarragona (currently the Spanish Bank Banco de Bilbao Vizcaya Argentaria S.A. o BBVA) in favour of a couple (hereby ‘the consumers’ or ‘the borrowers’) on the 7th of June 2001 with a clause that attributed to the borrowers the payment of all the expenses generated in the contract.
In 2017, the borrowers filed a claim against BBVA in its role as lender in which they requested the nullity of the clause and the return of all the amounts paid in application of the clause.
Whilst in this case and in previous similar cases the question of whether of not to consider the clause abusive was resolved in the court of first instance, the stumbling block came with the refund of the amounts unduly paid, and so we come to the crux of this case.
According to the defendant, and as the Audiencia Nacional (National Court) put it when reconsidering their appeal, it is necessary to differentiate between the action for the nullity of the cost allocation clause, which is not subject to limitation, and the action for claiming the payments made by application of the aforementioned clause which on the contrary, is governed by the limitation period set forth for personal actions that do not have any specific period legislated for, which is 10 years according the Civil Code of Catalonia (article 121.20).
The key point in this matter that has been the subject of much doctrinal discussion lies here in the question: what is the dies a quo(i.e. the date on which the limitation period begins)?
Article 1969 of the Civil Code says the following in this respect: “The time for the prescription of all kinds of actions, when there is no special provision that determines otherwise, will be counted from the day on which they could have been exercised”. In this case, “from the day on which they could been exercised” has been interpreted in two very different ways. Firstly, the interpretation of the defendant and the Audiencia Nacional which upheld its appeal, says that this day is when the last payment of the amounts unduly paid for expenses was made. If this were the case, it would render ineffective the defendant’s obligation to reimburse the costs because the entire limitation period would have elapsed given we are dealing with a loan from 2001.
Secondly, the interpretation now upheld by the case law both of the Supreme court (STS 3076/2024, of the 14th of June 2024) and the European Court of Justice in its judgement from the 25th of April 2024, Case C-561/21, is that the dies a quo of the limitation period for the action for recovery of mortgage expense unduly paid by a customer will be the date on which the judgement declaring the nullity of the clause that required such payments is finalized “as this is when the consumer has certain knowledge of the irregularity of the clause”[1]. All this without prejudice of those cases in which the defendant has “the power to prove, in each case, that the consumer was or could reasonable have been aware of the unfairness of the clause before a judgement declaring it null and void.”[2]
This case, on the other hand, is surprising in that after the borrowers lodged an appeal against the aforementioned judgement of the Audiencia, BBVA agreed to their claims. This is undoubtably due to the dates in which this trial took place in relation to the previous year’s trial mentioned above. In other words, on seeing the ruling of 2024 establishing the jurisprudential doctrine in this area, BBVA decided to take heed and accept the claims, without pursuing the defence of the allegation of prescription of the action for repayment of mortgage expenses.
In short, this new ruling continues to demonstrate the support given by the Supreme Court to consumers in Spain with regard to mortgage expenses and resolves, at least in this area, a very interesting doubt that seems to arise very often across all practices of law as to when a limitation period is counted from.
Oliver Hobson
Vilá Abogados
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4th July 2025
[1] Supreme Court Ruling 3076/ 2024, 14th of June 2024
[2] Supreme Court Ruling 3076/ 2024, 14th of June 2024
