Condena por primera vez a una entidad crediticia a devolver las cantidades «indebidamente» percibidas y le impone las costasLa Audiencia Provincial de Ciudad Real se ha propuesto cerrar este mes de junio dejando sentadas todas las bases de los asuntos más fuertes y peliagudos que se ventilan actualmente en los juzgados: las cláusulas abusivas, los acuerdos de transacción y los gastos hipotecarios y comisiones de apertura.
En octubre de 2014 la Audiencia de Ciudad Real acordó por unanimidad el «efecto devolutivo» de las cláusulas suelo hipotecarias. Fijó una doctrina para dar seguridad jurídica y reforzar la protección de los consumidores afectados por prácticas bancarias abusivas plenamente consciente de que su resolución generaría controversia al haberse pronunciado el Tribunal Supremo en un sentido que no era coincidente. Luego el Alto Tribunal vino a darle la razón a los magistrados de la Audiencia de Ciudad Real.
Ahora ha dictado la primera sentencia que anula los acuerdos de transacción de las entidades bancarias dando un paso más y abriendo un camino a un gran número de personas que se encuentran en la misma situación que el cliente del abogado Antonio Muñoz, al que la Audiencia Provincial de Ciudad Real le ha dado la razón en un pleito en Ciudad Real.
La Audiencia Provincial ha estimado el recurso interpuesto por el letrado Antonio Muñoz y declara la nulidad de la cláusula limitativa a las variaciones del tipo de interés de la denominada cláusula suelo incluida en la escritura de préstamo con garantía hipotecaria formalizada por un cliente en junio de 2001 y condena a Globalcaja a la devolución de las cantidades «indebidamente» percibidas conforme a la cláusula anterior desde la suscripción del contrato de préstamo.
También condena en costas a la caja de ahorros, según la sentencia a la que ha tenido acceso La Tribuna. Se trata de la primera sentencia que dicta la Audiencia Provincial en esta materia, y resuelve que ese acuerdo es «nulo de pleno derecho», igual que la cláusula suelo porque no cumple los requisitos de transparencia ya que las entidades financieras a la hora de proponerles la rebaja del recibo a los prestatarios no les explicó otra vez la cláusula suelo y las condiciones ni las consecuencias de la firma de dicho acuerdo
La entidad crediticia «sabiendo que es nula la cláusula suelo, le propone la transacción como medio de engaño al cliente», indica a La Tribuna el abogado Antonio Muñoz que recurrió en apelación.
La Audiencia Provincial se pronuncia respecto a los acuerdos de transacción de las entidades bancarias «por primera vez» tras la resolución del Tribunal Supremo sobre la validez de una transacción posterior banco-cliente para evitar la controversia judicial.
El letrado recuerda que tras la sentencia 241/13, de 9 de mayo, de esta sala del Supremo, se declaró la nulidad de la cláusula abusiva. Fue entonces cuando los bancos emprendieron una carrera «buscando fórmulas» para intentar «eludir» los efectos de la sentencia. De este modo, llamaban a todos los clientes que tenían cláusula suelo para «formalizarles el acuerdo con el engaño de proponerles una rebaja en el recibo de la hipoteca».
Este ‘protocolo’ o práctica se recoge en la primera sentencia de la Audiencia de Ciudad Real dictada por los magistrados Luis Casero y Mónica Céspedes.
La trampa. En el tercer fundamento jurídico se recoge que le llamaron de la entidad para comunicarle que «estaba pagando mucho y que le iban a bajar entre 20 y 25 euros. Firma aquí y se te baja. Te fías de gente conocida», lo que lleva a concluir que ninguna influencia ha tenido en la redacción del acuerdo el prestatario, es decir, que «no estamos ante un documento realmente negociado por las partes, siendo presentado por la entidad financiera quien no ha acreditado, como a esa parte corresponde, que ha cumplido con los estándares de transparencia e información cumplida respecto a las consecuencias económicas y jurídicas del suscrito el 2 de octubre de 2015». Por tanto, «la oposición fundada en tal documento carece de eficacia», indican los magistrados en la sentencia.
En los fundamentos jurídicos también subrayan que «es preciso comprobar, también de oficio, que se hayan cumplido las exigencias de trasparencia en la transacción». Esto es, que los clientes consumidores, «tal y como les fue presentada la transacción, estaban en condiciones de conocer las consecuencias económicas y jurídicas de su aceptación».
Al final del fundamento se indica que se puede abundar en la misma solución el hecho de que es la propia entidad la que mediante el acuerdo alcanzado el 2 de octubre de 2015 asume tal condición, cuando decide eliminar el límite a la variación del tipo de interés convenido, por lo que «es procedente declarar la nulidad de la cláusula suelo con efectos desde la suscripción del préstamo de conformidad con la doctrina nacional y europea».
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