‘Fast’ loan in Spain illegal, says Court

‘Fast Loan in Spain’ with interest rates up to 24.6% APR (Annual Percentage Rate) considered usurious and illegal by Spanish Supreme Court.

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Supreme Court

A judgment by the Spanish Supreme Court, of the 25th of November, 2015, has invalidated as ‘usurious’ a contract for ‘revolving credit’ offered by a finance company that provided access to a ‘fast loan’ in Spain with interest rates up to 24.6% APR (Annual Percentage Rate).

The appellant before the Supreme Court pleaded that their rights under the first paragraph of art. 1 of the Repression of Usury  Act 1908 ( still in force)  had been violated, The law states: “Any loan agreement that stipulates a significantly higher interest rate than normal and manifestly disproportionate to the specific  circumstances or with conditions that render the contract unfair, where there is reason to believe that such an agreement has been accepted by the borrower as a result of being in a desperate situation,through  their inexperience or their limited mental faculties.

Background

Although the particular case under appeal was not truly a case involving a loan , but rather an example of a consumer credit that could have been arranged over the phone, such that loans are transferred to the borrower’s bank account or by using a card issued by the financial institution, the law was held to apply and, in particular, Article 1 since Article 9 states : ” the provisions of this Act shall apply to an operation substantially equivalent to a loan of money , whatever form the contract may take, and the guarantee of compliance upon which basis the loan has been offered.

The flexibility of the rules contained in the Repression of Usury  Act 1908 has allowed the jurisprudence in this area to adapt the application of that law to new and diverse social and economic circumstances. In the case under appeal , those rules had to be applied to a credit transaction which , by by it’s nature , can be considered to lie within the ambit of ​​consumer credit.

The Civil Chamber of the Supreme Court in its judgment of 25th November 2015 considered that the judgment appealed from the  lower court infringed Article 1 of the Law of Repression of Usury in that the credit agreement must  be considered usurious, as were present the two mentioned legal requirements:

The interest rate agreed was above the normal price of money for a loan in Spain.

The interest rate stipulated in the agreement was in the order of 24.6% APR. Since pursuant to Article  315, second paragraph,  of the Commercial Code  “any payments to be made by the borrower shall be considered when calculating the interest rate, the percentage to be taken into consideration in determining whether the interest rate is significantly higher than the normal cost of money is not the nominal rate , but rather the annual percentage rate (APR) , which is calculated taking into account any payments that the borrower has to make to the lender in respect of the loan, according to legally predetermined standards .

This extreme interpretation is essential (but not sufficient by itself) for the clause which  establishes the rate of interest to be considered transparent, because not only does it permit a more clear understanding of the burden that the credit loan supposes to the borrower or creditor , but it also enables a more reliable comparison with loans offered by the competition.

The interest rate with which the comparison is to be made is that  “normal  for money ” . It is not , therefore, compared with the ‘legal’ interest rate , but with that interest rate that is “normal or usual, taking into account the circumstances of the case and the freedom existing in such matters ‘ interest (Case no. 869/2001 of 2nd October) . To establish what is considered “normal interest rates” for a loan in Spain, reference may be made to statistics published by the Bank of Spain , and taking as a basis point  the monthly information provided by credit institutions on the interest rates that are applied to various forms of lending (loans and personal loans up to one year and up to three years, mortgages with a term more than three years, current accounts, savings accounts, hire-purchase agreements, etc. ) .

That obligation held by the financial entities to provide  information on the interest rates they charge has its origins in Article 5.1 of the Statute of the European System of Central Banks and of the European Central Bank ( ECB), which details the obligation of the latter, assisted by the national central banks , to collect information through statistical operators. To this end , the ECB adopted Regulation (EC ) No 63/2002 of 20 December 2001 on statistics relating to interest rates applied by monetary financial institutions to deposits and loans vis households and non-financial companies; and thereafter, the Bank of Spain , through its Circular 4/2002 of 25 June, provided the mandatory content of the Regulation, in order to obtain the information required from the credit institutions. 

In the case under appeal , the judgment being reviewed had found as proven fact that the interest rate of 24.6 % APR – barely over double the normal average interest rate on consumer credit operations at the time when the contract was concluded – could not be criticized as excessive. However, the question is not whether or not it is excessive, but rather if it is ” significantly higher than the normal cost of money (for a loan in Spain) and manifestly disproportionate to the circumstances of the case ” and the 1st Chamber of the Supreme Court considered that a difference of this magnitude between the APR applied to this particular loan and the average interest rate on consumer loans on the date on which it was created, made it  possible to consider that the interest should be stipulated as ” significantly higher than the normal cost of money.”

“Higher than the normal cost of money…”

So that the loan could be considered usury it is necessary that, besides being significantly higher than the normal cost of money, the stipulated interest must be “grossly disproportionate when the circumstances of the case are taken into consideration .”    

As a matter of logic, since no test exists to determine that which is considered ‘normal’ it falls to be alleged and proven that there were exceptional circumstances that justified the ‘grossly disproportionate rate of interest’.  The financial institution that granted the “revolving”  loan did not justify the exceptional circumstances that explain the provision of a significantly higher interest than a standard loan in consumer credit.      

Generally, the exceptional circumstances which may justify an abnormally high interest rate are related to the risk of the operation. When the borrower plans to use the loan for a particularly lucrative, but high risk, operation, it is justified that the person who  finances it will , as well as having to run the risk, also benefit from the high profits expected by fixing the interest rate significantly higher than normal.

  

Consequences Of A Finding That Consumer Credit Has Is Usurious

The consequences of a finding that an offer of credit is usurious are as follows according to the judgment of the Plenary Session of the Supreme Court:  

    1. The usurious “revolving” credit arrangement granted by the Bank entails that the contract is invalid and has been described by the 1st Chamber of TS as “total, absolute and complete”, and permits of no acceptance whatsoever because it is fatally irreparable , nor may the contract be susceptible to  prescription, as a result of expiry of a long period of time, for example.  “( STS no. 539/2009 , of July 14, 2009).
    1. The consequences of such invalidity are those laid down in Article 3 of the Law of Repression of Usury , that is, the borrower is obliged to return only the amount received. In the case under appeal , the defendant (lender) had actually paid the applicant (the borrower) a higher amount than he had received , so the complaint was completely dismissed. The lack of a prepared counterclaim prevented the application of the second part of the provision, according to which , if the borrower had only paid back part of the loan received including principal and interest due , the lender would have to return to the borrower any amount which  exceeds the borrowed capital.
  1. As the defendant had paid an amount greater than that loaned to the applicant, it was not necessary to proceed to the return of interest on arrears, which meant it was unnecessary for the court to have to rule on the second ground of appeal , which raised a question that has already been settled by the jurisprudence of the Supreme Court ( SSTS no. 265/2015 , of April 22 , and 469/2015 , of September 8 ). Moreover, the high court understood that such irresponsible lending practices, providing easy access to consumer loans, without properly studying guarantees provided by the borrower, but at much higher interest rates than normal in order to compensate for late payments, results in those who regularly meet their repayment obligations have to carry the burden for those who are unable to, and this cannot be protected by law”.

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    Mar 23, 2020
  • Mike and Olivia Ashmore
    Mike and Olivia Ashmore

    Rafael was extremely professional when we approached him in a complete panic over a burofax we received in Spanish from a neighbour. He knew exactly what we should do.


    He diffused the situation with his knowledge of the law in Spain. The information has been left on file with him should we ever need to refer back in the future.


    Kindest regards

    Michael and Olivia Ashmore

    Mar 20, 2020
  • Jonathan Mackay
    Jonathan Mackay, Jaca

    Francisco was extremely professional and answered our many questions promptly and clearly, both by phone and email. We feel very lucky to have had Francisco handle our Spanish Fiscal declaration.


    The service was perfect, and we are very happy with the whole process.


    Mar 12, 2020
  • Brian Berman
    Brian Berman, Oviedo

    We were very have happy with the level of service provided by Miguel, he went above and beyond to make sure that everything was understood by us and clear.


    Using him made us realise that buying aboard was not straight forward and with his help opened doors which we would have struggled with. He was always available to us day and night ( even at weekends) and would respond to any question with either the answer or information of how to get it. He kept us informed at each and ever stage of our purchase. He was a real gentleman and we were very proud and honoured to have met such a lovely man.


    He is a great example of how a person in his position should operate with his clients and we can not thank him enough.


    Mar 11, 2020
  • Pavel Zaytsev
    Pavel Zaytsev, Oviedo

    Miguel helped our company a lot.


    He deeply investigated the contract then provided us a reasonable set of recommendations how to proceed with the counterparty.


    The case is going to the end in a couple of weeks, finally he could able to defend our position as much as possible. We will definitely use Miguel for creating future contracts.


    Mar 11, 2020
  • Tim Rowland
    Tim Rowland, Estepona

    Alvaro was friendly, professional and had great subject knowledge.


    Unlike other lawyers that we approached he was more than happy to share his knowledge over the phone or via email. Many wanted to be paid for every second you spoke to them.


    This personal and friendly service definitely creates a strong degree of trust.


    Mar 11, 2020
  • James Griffiths
    James Griffiths, Mallorca

    Knowledgeable and efficient service, very helpful.


    Mar 11, 2020
  • Moshe Stovall
    Moshe Stovall, Torrevieja

    Inma was very professional and guided me every step of the way. i will use her again and also my brother would like to use her services. she is the best!


    Mar 02, 2020
  • Wim Laleman
    Wim Laleman, Barcelona

    Very Satisfied with the service.


    Feb 28, 2020
  • Elin Dahms Konig
    Elin Dahms Konig, Seville

    I recommend Rafa who helped me through a tough situation where I was wrongly accused in a case of fraud. His advice, support and professionalism were outstanding!


    Feb 28, 2020
  • Stephanie
    Stephanie , Spain

    Fast and clear - warm thanks to Miguel!


    Feb 27, 2020
  • Neil Halton-Smith
    Neil Halton-Smith, Las Palmas

    He was the utmost Professional. And I would recommend him to anyone.


    Feb 26, 2020
  • Chris Horne
    Chris Horne, Valencia

    Francisca is a highly professional and friendly lawyer based just outside of Valencia city that helped my wife and I purchase our property.


    Her English is excellent and her ability to communicate the Spanish legal requirements for a foreigner to purchase property in a clear and concise way is exceptional.


    I would have no hesitation in approaching her for other legal services myself and would recommend her to anyone.


    Feb 16, 2020
  • Lucio Mesquita
    Lucio Mesquita, Malaga

    Mr Miguel Prieto from advocate abroad was very prompt and helpful during my interactions with him.


    Feb 14, 2020
  • Gary Hamilton
    Gary Hamilton , Murcia

    Inma was extremely helpful in explaining the immigration process and guiding us throughout, including accompanying us to our appointment with the 'Police' for our residency cards. Everything worked out well, all thanks to Inma.


    She knows the local requirements very well and made sure we had everything prepared to ensure a successful application. Muchos Gracias Inma!


    Feb 07, 2020
  • Karen Shillingford
    Karen Shillingford, Palma de Mallorca

    Rosa always responded to my emails without delay and was very generous with her advice. I would definitely recommend her to others.


    We were struggling to get an appointment for residency and Rosa managed to get us one the week before Brexit. To say we were relieved is an understatement! She supported us through the whole appointment and put my mind at rest on several occasions via email prior to the meeting.


    Feb 04, 2020
  • Maurice Robinson
    Maurice Robinson, Fuengirola

    Alvaro took immediate action on our first visit, getting straight on the phone to Trafico in Malaga in order to register us to change our driving licences before the deadline date of 31st January.


    He also accompanied us to Fuengirola National Police to apply for our Residencia Green Card on the 30th of January. The lady processing us was unsure of a particular point and was unsure about one small point. Alvaro solved this by insisting that she accompanied him to her Bosses office and immediately solved the problem. Had Alvaro not been with us and the fact that our Spanish is not very good there would have had our application rejected.


    His proactive role cannot be faulted and in fact we have already recommended him to our Insurance broker who intends to use him.

    Maurice and Jill Robinson.


    Feb 03, 2020
  • Gemma Pitt
    Gemma Pitt, Mallorca

    Our experience in using Rosa has been flawless. She has been incredibly responsive and helpful from day one.


    We couldn't be more happy with her service and we look forward to many more years of help and support!


    Feb 03, 2020
  • Craig Norris
    Craig Norris, Fuengirola

    His attention to detail was excellent.


    Jan 19, 2020
  • Havin Omed
    Havin Omed, Madrid

    I was satisfied with all of services above. Especially his responses so good.


    Jan 17, 2020
  • Simon Birch
    Simon Birch, Spain, Barcelona

    Having been in Barcelona for only six months, we ran into a problem with a local landlord and needed swift legal advice. I duly searched the internet and decided to plump for Advocate Abroad where upon I spoke to Oscar. Look no further. He was immediately courteous, polite, very understanding, and extremely professional. Above all, he was patient, listened precisely to what I had to say before he gave me his professional opinion of where I stood from a legal point of view. His command of the English language was faultless to the point where I felt that I could have been speaking to a native English speaker.


    As to the subject matter, within a 30 minute phone call I understood exactly where I stood from a Spanish legal point of view, acted accordingly, and the problem was successfully dealt with. And probably the nicest touch of all, once once the matter was resolved having followed his advice, and with no further advantage to either himself or Advocate Abroad, he had the courtesy and kindness to ring me personally to see how I had gone on.


    Thank you Oscar. Outstanding (not a word I use often) !!!


     


    Jan 17, 2020
  • Maria Castellon Perez
    Maria Castellon Perez , Vera

    Juan was very professional at all times and he help us with everything. He even went to pick me up from the airport do we didn't missed our appointment with the notaire.


    Juan was in contact with us constantly through face to face and wsup. I have no doubt we will use him again.


    Jan 15, 2020
  • Hubert Hume
    Hubert Hume, Fuengirola

    Alvaro kept in contact with me right from the date that I first communicated with him regarding my Intention to seek Residence Permit to reside in Spain.


    I regard his fee structure very competitive and reasonable and he made appointments for me with Insurance Agencies in order to fulfil the health insurance requirements for Spain--when we have committed to pursue our legal status here in Spain we will instruct his Service to act on our behalf.


    Jan 13, 2020
  • Lesley King
    lesley king, Torrevieja

    Inma was very professional, very helpful and guided me through the Spanish legal process simply and clearly. She fought my corner with a satisfactory outcome.


    Constant contact throughout the case on both a professional and personal level, asking about my mother who is unwell, showed compassion.


    I would recommend Inma to anyone, English or Spanish who needs help with legal advice.


    Nothing could have been done better. Excellent.


    Jan 11, 2020
  • Gail Maher
    Gail Maher, Torrenueva

    Alvaro is brilliant.


    He comes across very professional and friendly,nothing too much trouble.


    As I was unable to go to Spain initially all communication was via phone and was put at ease straight away as he understood exactly what was required to deal with my case, and all went exceptionally well. I was able to meet Alvaro in August to pass over documents required and made me very welcome.


    I have been so pleased with everything I have now engaged him on a further instruction on our property in Torrenueva..


    Dec 11, 2019
  • Robert Melvin
    Robert Melvin, Seville

    I was extremely happy with Rafael during my case. He always responded promptly to any questions I had. I found both his spoken and written English to be excellent, even with complex legal matters.


    He explained any query I had very well and if there was anything I was unsure of he explained thoroughly. I was extremely impressed with the level of professionalism throughout the process together. I would highly recommend Rafael to anyone needing a lawyer in Spain. It was a pleasure to work with him.


    Dec 08, 2019
  • Daniela Majstorovic
    Daniela Majstorovic, Valencia

    Inmaculada was very professional, very helpful and approachable , easy to communicate , pleasant,and her English is fluent.


    Dec 05, 2019
  • edward fila
    Edward Fila, Palma de Mallorca

    Rosa was very helpful. I will happily recommend her to friends.


    Dec 05, 2019
  • John Hipper
    John Hipper, Zaragoza

    Francisco was recommended to me by friends in Spain after they had a very positive experience with him. He was an excellent contact for me while I was in the process of buying a house in Spain.


    It was an overwhelming experience buying from Canada, particularly because of the language barrier and the time difference, but Francisco did a fantastic job of explaining to me everything about the forms, taxes and the local processes.


    He was helpful, friendly and informative. When I arrived in Spain to complete the purchase, I felt much more confident knowing that I had his advice and assistance, he even offered to help me fix a problem with my bank accounts when I didn't understand what was happening (language).


    I would have no hesitation using his services again and highly recommend him to anyone in need of his assistance. I was 100% happy.


    Dec 03, 2019
  • Joseph Pitaru
    Joseph Pitaru, Granada

    Alvaro is an excellent communicator, he provided prompt and courteous service.


    Dec 01, 2019
  • Chris Ealand
    Chris Ealand, Oviedo

    I am so satisfied and impressed by the the blend of professionalism and humanity Miguel has shown me. He has earned my complete trust in all matters.


    He keeps in contact and replies quickly and even on weekends. Plus has a wonderful feel for his clients as to their needs. I cannot thank him enough for all his help.


    Nov 27, 2019
  • Natalie
    Natalie , Valencia

    Inma was extremely good at reassuring me with my anxieties regarding buying a property abroad. From the first point of contact I felt she was very trustworthy and this continued all the way to point of signing and beyond.


    I sent her so many emails with all my questions and she answered each one in good time and professionally. She was always on the end of the phone if I needed her and her English and patience was excellent! I would highly recommend this lawyer. We found her independently through Advocate Abroad and will absolutely use her services again!


    Nov 26, 2019
  • Andrew Lawrence
    Andrew Lawrence, Estepona

    Alvaro was incredibly helpful and was able to take care of my issues very quickly and efficiently.


    Nov 21, 2019
  • Joseph Pitaru
    Joseph Pitaru, USA

    Alvaro is very professional, has a solid command of English, and has done a great job in helping us to receive our NIE numbers.


    He made the whole process very easy and simple. The communication between us was impeccable. We will continue to work with Alvaro to obtain our residency permits, following our relocation to Spain.


    We would like to retain his services for other matters as well. In conclusion, a job well done!


    Nov 19, 2019
  • Kevin Galazka
    Kevin Galazka, Valencia

    Inma is very professional, She responds very quickly and is fully bilingual.


    Nov 13, 2019
  • Stephen Brown
    Stephen Brown, Palma de Mallorca

    Great communication with Rosa and good advice around what can be a potentially complicated property market on Mallorca.


    I had no idea about the importance of a cedula de habitabilidad and how difficult it can be getting water and electricity connected with out one.

    Our experience of estate agents on the island is not great but thankfully Rosa has kept us right through out our property search and in obtaining our NIE numbers. We are very grateful for her help.


    Nov 13, 2019
  • Sjors de Wildt
    Sjors de Wildt, Barcelona

    Oscar helped us through the process of buying our family home in Alella Barcelona. He advised and informed as well as reviewing the contracts and doing checks on liabilities, registrations etc.


    We are very happy with Oscars work. Easy to communicate with, available for questions and not shy to give you his opinion. Was a pleasure to work with you and we will make sure to stay in touch for any future legal advice we may need.


    Oct 30, 2019