In 1995, for the purchase of my first home, I entered into a mortgage loan with my thirty-year-old credit institute, prior to the entry into force of Law 108/1996, which deals with supervening usury.
The mortgage agreement, while before the law presented legitimate interest rates, subsequently he tried them out.
Therefore, I would like to ask the bank for the repayment of interests illegitimately paid in as many as 22 years: a non-negligible sum.
Can this request be considered admissible and therefore the recognition of the usury occurring?
Unfortunately, he chose the least suitable moment for filing a proceeding to a credit institution regarding loans and supervening wear.
In fact, the Court of Cassation with united sections, with the ruling 24675/2017, overturning the jurisprudential orientations of the last years, has denied the configurability of the use occurred since the thesis of the unlawfulness of the claim for the payment of interest has no basis whatsoever at a rate that, although not higher, on the date of the agreement (with the contract or subsequent agreements), at the threshold of the use defined by the procedure established by law 108/1996, however, exceeds this threshold at the time of accrual or payment of the interests themselves.
In the opinion of the Ermellini, if the interest rate agreed between lender and borrower exceeds, during the course of the relationship, the usury threshold as determined according to the provisions of the law 108/1996, the nullity or ineffectiveness does not occur of the contractual clause for determining the interest rate stipulated prior to the entry into force of the aforementioned law, or the clause stipulated subsequently for a rate not exceeding this threshold as determined at the time of stipulation; nor can the lender’s claim to collect interest according to the validly agreed rate can be qualified, by the mere fact of the exceeding of this threshold, contrary to the duty of good faith in the performance of the contract.
In short, the supervening usury does not exist, and the repayment of interest is not due to it. To her and nobody else.