The Provincial Court of Madrid has applied the new criteria of the Supreme Court on revolving cards, established on February 15, and has considered usurious an APR of 26.82% for exceeding six percentage points of the average market rate for this product, according to the ruling provided by Legalsha and dated May 29.
This ruling is motivated by an appeal filed by Banco Santander against a judgment of the Court of First Instance and Instruction number 2 of Alcorcón in which the nullity of a contract for a revolving card signed in 2019 was declared for containing usurious interest. . In the same, the defendant was ordered to repay the amounts paid in excess of the loaned capital, together with the legal interest from the moment the amounts were unduly paid.
Subsequently, the bank filed an appeal for “error in the evaluation of the evidence”, since the plaintiff did not present the card contract and, therefore, “the date of subscription of the card is not known”. “If the date is not known, the applicable TAE is not known either and it will not be possible to carry out the usury declaration,” Santander defended in his letter. Likewise, the entity affirmed that the interest rate “is not usurious”, bringing up the judgment of the Supreme Court of May 4, 2022 and October 4 of the same year.
On the one hand, the court declares that the relationship between both parties is accredited thanks to an extract provided in the case of the card corresponding to April 2019. In addition, it indicates that according to the current law for the prevention of money laundering and terrorism, the The entity must keep the documentation of clients and contracts for at least ten years from the end of the relationship or the execution of the operation. “If this is so, and although we ignore the original date of the card contract that binds the parties, what we cannot ignore is that an APR of 26.82% is applied to the April 2019 statement,” says the Provincial Court .
On the issue of usury or not of the interest rate, recall that the Supreme Court found in 2015 that it is the APR, and not the nominal interest rate, which must be used to determine if the interest on a revolving is “significantly higher “at normal money, and that the comparison should not be made with the legal interest on money, but with the usual rate that is included in the Bank of Spain statistics, which takes as a reference the information that credit institutions send monthly . The Provincial Court also recalls that the Bank of Spain did not publish a section for revolving until 2017, when it incorporated the breakdown of this modality with data from June 2010.
In relation to the two 2022 judgments to which Santander is subject, the Provincial Court of Madrid indicates that in the autumn of March 2022 it established that the interest to be taken into account was that of consumer credit operations in general, or the most specific to revolving credits, while the October one resolved, on the other hand, a case in which the contract had a date prior to June 2010. In this ruling, the Supreme Court ruled that the interests of the most similar to swivels.
A difference of six percentage points
Finally, the Provincial Court includes the criteria of the Plenary of the Supreme Court, of February 15, 2023, where it establishes a difference of six percentage points between the average market rate and the one agreed in the revolving contract so that the latter is considered usurious.
In this way, the Madrid court uses the statistics of the Bank of Spain on the rate applied by credit institutions and which indicates that the average market rate TEDR (that is, without taking commissions into account) of the revolving in April 2019 it was 19.89%.
If 20 or 30 tenths are added to the TEDR to equalize it with the APR (which includes commissions) an interest of 20.09% (with an increase of 20 tenths) or 20.19% (if 30 are added) would be obtained. Therefore, the APR applied in this contract of 26.82% is 6.63 or 6.73 above the average and, therefore, the court concludes that it is usurious. Thus, the judgment, against which an appeal is possible, rules in favor of the user and dismisses Santander’s appeal.