The court of first instance no. 6 in OVIEDO, in its Ruling 369/2017, of 4 October, has dismissed as unfair the clause in a mortgage loan agreement that requires the borrower to pay an arrangement fee, thereby declaring it inapplicable.

The contested clause establishes the payment of a fixed fee for the arrangement of the loan to be paid by the borrower. However, that fee does not correspond to the effective provision of any service, nor to a cost incurred by the bank.

The Court finds that if this arrangement fee is understood to constitute payment for a service that involves providing the bank customer with the nominal amount of the loan, there is no indication of the type of service the customer is receiving when it is considered that the loan agreement is secured through the delivery of the money. And if it is to be considered an expense, it is difficult to understand why what prompts the borrower to enter into this agreement needs to be paid for besides and in addition to the ordinary and default interest.

The bank has not justified that the fee charged to the consumer corresponds to the costs the bank incurred for the provision of an effective service.

It is true that consumer and user protection legislation accepts the legitimacy of a company invoicing for any costs that have not been included in the price, but it does require this cost to be charged in an appropriate manner that is proportional to the expense of the service effectively incurred or provided.

In the case in question, the lender does not justify that the fee charged to the consumer-borrower corresponds to the costs it had to incur in order to provide an effective service. It does not prove that the issue of a risks report involved an additional and effective cost, as it is a document drawn up by people associated with the bank itself due to the study of the operation. Furthermore, part of it is subsequent to the award of the deeds, and the part prior to this simply involves reproducing the loan’s main terms and conditions and appraising the borrowers’ ability to meet the repayments, but as they were its customers it was fully aware of their solvency.

No justification is provided either for any additional costs that may have been incurred for gathering data on external risk, nor is there any evidence of a request for information made to third parties or entities, or of any other task being undertaken.