The revolving credit contract has been declared null and void due to usury by Cetelem to a customer who signed a credit in 2012. The company has been ordered to repay the overpaid amounts and ordered to pay costs.
The complaint requested the "radical, absolute and original nullity of the contract signed between the parties on 19 July 2012 as a usurious contract with the inherent effects of such a declaration in accordance with article 3 of the Law for the Repression of Usury".
By Decree of 16 February 2022, the claim was admitted for processing and the defendant was served with notice, which appeared in the proceedings and accepted the user's claims, requesting that each party bear their respective procedural costs in accordance with article 395 of the Spanish Civil Procedure Act (LEC). In this case, the credit institution relied on the fact that the acquiescence took place before answering the claim, thus proving its good faith.
The judge, on the other hand, considered Cetelem's bad faith, assessing the sending of a burofax in 2021 to the plaintiff claiming the amounts owed as bankruptcy.
Article 395 of the LEC considers that, "It will be understood that, in any case, bad faith exists if, before the claim was filed, a reliable and justified request for payment had been made to the defendant, or if mediation proceedings had been initiated or a request for conciliation had been addressed against him".
This shows the bad faith of the company, which is willing to settle knowing that it can save part of the costs, despite the fact that it did not fail to contact the user to claim the debt.
There is legal uncertainty regarding revolving cases.
In an analysis, carried out by an expert, "it is shown that the legal defence based only on the usurious and disproportionate interest rate does not guarantee a positive verdict for the consumer, so it is necessary to add the lack of transparency".
21% of the judgements analysed with interest rates of between 24% and 25.99% are favourable to the banks. Therefore, there is no legal certainty in this type of cases, not even taking into account that the higher the APR, the higher the probability of success, as reality shows the opposite.
In 2020 the Supreme Court already ruled usury for revolving contracts above 20%, thus establishing the "normal interest rate of money" as the starting point for the comparison.
Source: confilegal.com
