We already know of a first sentence that applies the doctrine of the Supreme Court sitting in its recent plenary sentence 258/2023, of February 15, in which, in the absence of a legal criterion on the acceptable upper margin to avoid usury, before predictability requirements in a mass litigation context, establishes the following criteria:
“In credit card contracts in the revolving modality, in which up to now the average interest has been above 15%, the interest is notably higher if the difference between the average market rate and the agreed rate exceeds 6 percentage points".
The JPI nº 55 of Madrid in a judgment of February 27 applies the criteria established by the Plenary of the Supreme Court and, consequently, dismisses the nullity action for usury, upon hearing that the contract, of the year 2016, presented an APR of 26, 07% and the value published by the Bank of Spain for that period was 20,84%.
Loss of transparency
However, the first instance judge goes further and enters and enters to know the action planted in a subsidiary way that qu'unciaba the lack of transparency of the same regulatory clause of remunerative interest, because it is an essential element of the contract without which the cannot survive.
In this regard, the Court concludes that we have not been accredited by the entity requesting that the affiliate have a real opportunity to grant the general operating conditions of the revolving clause in relation to those interested in compensation at the time of the celebration. of the contract, thus not being able to get a full idea of the economic burden of the contract”. For this reason, it determines the nullity of the revolving card contract and instructs the financial entity to return to the consumer all the amounts that the provided capital may have subscribed in excess, with its interested legal persons from the date of each improper payment and the payment of the costs of the trial.
For Legalcasos, defenders of this claim, this resolution "emphasizes the importance of banking entities complying with the double control of incorporation of the general conditions in revolving contracts, so that it is not enough just to pass the formal ones requirements, but it is decisive to overcome the material control that allows the consumer to try the operation and consequences of the revolving system”.
