The Reclama Revolving platform has asked the Supreme Court (SC) to rule on the lack of transparency of Wizink Bank S.A.’s revolving cards.
Reclama Revolving is the platform that has been in charge of the case that has ended with Wizink’s acquittal before the Supreme Court and its director, Ricardo Cortines Bárcena, analyses the case in Confilegal.
“We continue with this issue, we do not consider it closed. Last Monday we filed a motion to correct the ruling, based on article 215.2 of the Civil Procedure Act, for lack of a ruling, so that the Supreme Court can finally say whether there is a lack of transparency or not. And we are awaiting its resolution”, Ricardo Cortines Bárcena, director of Reclama Revolving, the platform that has brought the case in which Wizink has agreed to avoid a pronouncement by the Plenary of the Civil Chamber regarding the lack of transparency of revolving credits, told Confilegal.
Faced with Wizink’s acquiescence, the Supreme Court upheld Reclama Revolving’s appeal and in a recent ruling handed down on 29 March (439/2023), declared the credit card contract signed between the parties to be null and void as usurious, so that “the plaintiff’s obligation will be limited to repaying only the sum received, from which the amounts paid in interest, late payment interest and commissions must be deducted”.
The judgment was signed by the judges Francisco Marín Castán (president), Ignacio Sancho Gargallo, Rafael Sarazá Jimena (rapporteur), Pedro José Vela Torres, María de los Ángeles Parra Lucán, José Luis Seoane Spiegelberg, Juan María Díaz Fraile and Antonio García Martínez.
The director of Reclama Revolving stresses that Wizink “made a selective raid, with nuances, to take it towards usury”.
“The acquiescence on appeal is an act of the respondent by which he expresses his will that the appeal be upheld in the terms in which it was formulated and is conditioned by the object of the appeal itself, which does not have to coincide with the object of the proceedings as they were initially formulated”, emphasises Ricardo Cortines.
He adds that “in an appeal, there is no longer a plaintiff or a defendant, but rather an appellant and an appellee” and that “in fact, whoever intervenes as a plaintiff in the claim can become a party appealed against in cassation – and vice versa”.
“Likewise, what the respondent agrees to may be different from what constituted the initial claim”.
Reclama Revolving stresses that the acquiescence has to be made to the appeal, not to the claim, which is already behind, so they understand that the Supreme Court should rule on transparency.
In the lawsuit filed at the time in the Court of First Instance, it was initially intended to declare the contract null and void for usury, invoking a violation of article 1 of the law of 23 July 1908. However, in the court of appeal, the approach of the process was altered by the previous court rulings and, with regard to usury, the violation of article 1 of the Usury Law was no longer invoked, but rather a violation of article 24 of the Constitution.
If the Supreme Court does not correct the ruling, Reclama Revolving intends to seek protection from the Constitutional Court (TC), because it understands that there would be a violation of the right to effective judicial protection and because the matter has constitutional relevance.
Reclama Revolving was created in July 2021 by Ricardo Cortines and is made up of a group of lawyers, solicitors, economists and consultants. It is dedicated to defending consumers against financial institutions, especially revolving credit issues. It only charges the client if it wins, which is called working for success.
Cortines, who is a consultant and law professor, considers that the material transparency of a contract is “a more powerful, more solid and more invocable argument than usury”. “Material transparency is as simple to understand as the consumer who contracts a Wizink card, as in this case, or a revolving credit, being aware of what it is going to cost him”, says Cortines, and emphasises that “the consumer never knows the cost”.
“For two reasons: because the contract is not transparent in that sense because the entities do not inform about what they have to inform about the cost and, above all, because in revolving credits themselves, due to their nature, their operation and their repayment system, it is impossible to know the cost”, he points out.
He recalls that in 2020, Order ETD/699/2020, of 24 July, regulating revolving credit, was enacted “to alleviate the serious deficiencies that existed in the contracting of revolving credit on this point of transparency”.
“Since this 2020 order, theoretically there is supposed to be transparency or at least the contracts are more transparent, they provide more information, but the transparency of all previous revolving contracts, of any entity, regardless of their interest rate, is in question”, he says.
In his opinion, “the contracts prior to this order raise serious doubts as to compliance with the parameters of transparency established by the Supreme Court itself in various rulings, which we include in our own cassation appeal in this Wizink case”.