Real estate financing

The case deals with a mortgage loan in which a floor clause (a minimum interest rate of 3%) and a "ceiling" (15%) were applied. Two clients sued the bank requesting, among other things, the nullity of that clause, its removal from the contract, and the refund of all overpaid amounts due to its application from the first installment until its removal, as well as to redraw the amortization schedule and add interest.

In the first instance , the court understood that, even before the lawsuit was filed, the parties had signed a novation in which the floor clause was removed. Therefore, it considered that it was no longer necessary to "sentence" it made no sense to "condemn" to the bank to remove a clause that, in practice, was no longer in the contract. However, the court did condemn the bank to return the amounts overcharged since the signing of the loan until the date the floor clause was eliminated by that novation, with the corresponding legal interest (and, from the judgment, procedural interests).

The bank appealed, but the Provincial Court confirmed the judgment . Later, the banking institution went to the Supreme Court (SC) arguing basically that it could not be compelled to return money if the floor clause had not been expressly declared null in the judgment, and also that the transparency analysis had not been carried out correctly.

The SC dismisses the appeal. It explains that, even if the ruling did not formally declare nullity formal declaration of nullity clause was abusive due to lack of transparency , and therefore the refund was logical and evident. Furthermore, it is recalled that the bank also did not explain what specific information specific information gave to customers so they truly understood the economic and legal impact of the ground. Consequently, it sentence is upheld to return the overcharged amounts and the bank is ordered to pay the costs of the appeal in cassation.