The First Chamber of the Supreme Court has tipped the scales in favor of the banks in the struggle over who should assume pay the tax on the process of creating mortgage documents. According to the Supreme Court, the Stamp Duty Tax to be paid for creating mortgage documents must be paid by the client. The bank will also pay comparatively less than the consumer with regard to Stamp Duty: the expense of the notarial documents will be shared equally by both bank and consumer, and the copies of the mortgage documents by the party that requests them.
This is the ruling on the two appeals filed by consumers, who complained about the clauses in the mortgage deeds, which forced the consumers to pay all the expenses and taxes generated by the creation of mortgage documents. The Supreme Court only discussed matters related to the payment of the Transfer Tax and Stamp Duty. The Supreme Court has ruled in the following way:
- The payment of the creation of mortgage documents rests with the borrower, according to the jurisprudence of the Third Chamber of the Supreme Court. In this case, as indicated in the communiqué published by the General Council of the Judiciary, the Supreme Court refers to the jurisprudence of the Third Chamber of the Contentious-Administrative Court of the Court, which has established that the consumer is the borrower.
- For the expenses of the notarial documents, the corresponding tax shall be paid in equal parts between the lender (the bank) and the borrower (the consumer), while the payment of the copies of mortgage documents will be paid by whoever requests them, be it the bank or the consumer. The main argument in the appeals filed by the consumers was that the beneficiary of the mortgage was the bank, so it should be the bank who paid for the creation of the mortgage documents.
The main stakeholder in the documentation and registration of the loan deed with mortgage guarantee is, without a doubt, the bank, because thanks to this it not only obtains an executive title, but also constitutes the real guarantee and acquires the possibility of special execution. An argument, however, that has not been persuasive enough to convince the Supreme Court. The same Court now has to draft an explanation of its ruling in favour of the banks. Consumers now have one last chance to win their case. It is based
