ABUSIVE CLAUSES: FLOOR CLAUSE AND EXPENSES
Is it possible to request the reimbursement of mortgage-related expenses and the annulment of a floor clause in mortgages that were canceled more than 5 years ago? If so, can the request include a demand for the bank to reissue the amortization schedule without the floor clause?
Answer: Regarding mortgage expense clauses, the limitation period for the restitution action begins when the consumer obtains a final judgment declaring the expense clause null and void for being abusive and has precise knowledge that the expense clause in their loan contract is null due to abusiveness, regardless of the date of the loan or its settlement, unless the bank can prove that the consumer previously knew of the abusive nature of the clause.
Regarding floor clauses, the fact that the mortgage has been canceled does not prevent the consumer from requesting annulment and claiming the corresponding reimbursement. As in the case of expense clauses, the principle of the consumer’s knowledge of the abusive nature of the clause determines the start of the five-year limitation period to exercise the restitution action.
In the claim, the consumer may submit an amortization schedule without the floor clause, prepared by themselves with the endorsement of a professional or via an expert report performing the same calculation. It is also valid not to submit an amortization schedule and instead request that the bank reissue the schedule without the floor clause.
