Law firm guidesBanking and finance

Your mortgage is tied to the IRPH: the claim to void the clause

Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826

The short answer

You claim that the clause setting the IRPH is void for lack of transparency, not because of the level of the index. The action to void a general contract term is not subject to a limitation period and, if the clause falls, the whole loan is recalculated. The burden of proving what you were told before signing lies with the bank.

In 2007 you signed a 180,000 euro mortgage over thirty years. The deed set the rate not by Euribor but by the IRPH for banks or the IRPH for savings banks, plus a margin of half a point. Neighbours on Euribor have been paying far lower instalments for years and you pay three hundred euros more each month for the same capital. Nobody showed you a chart of the index, explained that it already includes the fees and costs of the operations it averages, or offered you a Euribor alternative.

The case, in five lines

What is brought: Declaratory action to void the variable interest clause referenced to the IRPH for lack of transparency, with restitution of the amounts overcharged and recalculation of the amortisation schedule.
Before which court: The Civil section of the Tribunal de Instancia (the first instance court), with appeal to the Audiencia Provincial (the provincial appeal court) and, where available, cassation before the Tribunal Supremo (the Spanish Supreme Court).
Deadline: The declaration that an unfair term is void is not subject to a time limit: article 83 TRLGDCU calls it nullity of full right. What does run out is the recovery of the money overcharged, which is why the claim should be brought as soon as the problem is spotted.
Who can bring it: The consumer borrower and any co borrower. Also guarantors and third party mortgagors who are consumers, and the heirs who have stepped into the position of a deceased borrower.
Financial risk: If the claim is dismissed in full there may be an order to pay the other side's costs, although in this area courts often find serious doubts of law. The case requires a full recalculation of the loan with a comparative figure, which is its main expense.

The case is not about whether the IRPH rose, but about what you were told

The index is lawful and was published in the Spanish official gazette, so nobody disputes that it could be used. What is disputed is something else: whether the consumer was put in a position to understand how that particular index worked and what the economic consequences of choosing it instead of another one were. That is the difference between a case lost from the outset and a case that succeeds.

Article 82.1 TRLGDCU defines as unfair those terms not individually negotiated that, contrary to good faith, cause a significant imbalance in the parties' rights and obligations to the consumer's detriment. Applied here, the imbalance does not lie in the figure of the index, but in the fact that the bank knew how it was built and the customer did not, and that asymmetry is what goes into the claim.

A price term survives only if it is drafted in plain, intelligible language

Article 4.2 of Directive 93/13 states that the assessment of unfairness does not cover the definition of the main subject matter of the contract or the adequacy of price and remuneration, but it adds an express condition: provided that those terms are drafted in plain, intelligible language. The interest on a mortgage is price, so the bank escapes the review only if it meets that condition.

That condition is the way into the case, and the claim is built entirely on it. Drafting in plain, intelligible language is not exhausted by the sentence in the deed being grammatically understandable: the consumer must be able to foresee, on clear criteria, the financial burden the term entails. It is a test of the information given beforehand, not of notarial drafting style.

Hence the subject of the evidence is very specific: which document was handed over, when, with what content and how long before signing. A contract in which the index appears for the first time in the deed, on the day of signing and with no comparison against any alternative, is exactly the situation this review exists to correct.

The moment judged is the signing, and it is judged with the whole contract

Article 82.3 TRLGDCU requires unfairness to be assessed by reference to the nature of the goods or services, to all the circumstances attending the conclusion of the contract, and to the other terms of that contract or of another on which it depends. Article 4.1 of Directive 93/13 says the same in different words, and both fix the picture the court must look at.

That rule has two practical effects. First, it does not count against you that the IRPH later fell or that there is now abundant case law: what is judged is what you knew when you signed. Second, the whole package enters the analysis, including the margin agreed, the linked insurance policies and the offer that was made to you or never made at all.

Whoever claims the term was negotiated must prove it, and that is the bank

Article 82.2 TRLGDCU closes off a defence banks habitually raise. It says, first, that the fact that certain elements of a term, or one isolated term, were individually negotiated does not exclude the rules on unfair terms from applying to the rest of the contract. And it adds a rule of evidence: the trader who claims that a given term was individually negotiated bears the burden of proof.

This shifts the weight of the case. You do not have to prove a negative, that you were not informed. It is the bank that must produce the preliminary information sheet, the binding offer, the earlier drafts and any trace that the index was offered to you as one option among others. When the bank's file contains only the deed, that burden has not been discharged.

If the term falls, the contract survives and the whole loan is recalculated

Article 83 TRLGDCU provides that unfair terms are void of full right and are treated as not written, and that the court, after hearing the parties, shall declare void those included in the contract, which nevertheless remains binding on the parties on the same terms provided it can survive without those terms. Nobody loses their mortgage by winning this case.

The second paragraph of that same article 83 carries the most weight here: terms incorporated in a non transparent way in contracts to the detriment of consumers are void of full right. Lack of transparency thus becomes a self standing ground of nullity, with no need to prove any further imbalance in the substance of the term.

In practice the consequence is a settlement of accounts. The amortisation schedule is rebuilt from the first review and what was paid is compared with what would have been paid without the term, and the difference is claimed with interest. That is why the relief sought is not only declaratory: it always includes an order to pay a sum and the recalculation of future instalments.

How we run the case, step by step

1
We rebuild the file from the time of contracting
We ask the bank for the complete file: binding offer, preliminary information sheet, drafts, valuation and the notices of each rate review. Whatever the bank fails to produce when we ask for it is what it will be unable to produce later in court.
2
We calculate what the clause has cost you
We rebuild the amortisation schedule from the first review and quantify the difference between what was paid and what would result without the clause. That figure decides whether the case is worth litigating and sets the amount claimed and the costs exposure.
3
We put a written claim to the bank
We send a reasoned claim to the bank's customer service department with the figures already worked out. It serves two purposes: it opens the door to a settlement and it records the date from which the bank knew of the problem and refused to solve it.
4
We bring the claim to void the clause
The claim seeks a declaration that the clause is void for lack of transparency, an order to repay the amounts overcharged with interest, and the recalculation of future instalments. The documentary evidence is completed by requiring the bank to disclose what it withheld.
5
We enforce the judgment and check the new instalment
Once the judgment is final, we check that the bank applies the recalculation correctly at the next review and pays the sum and the interest. If it settles wrongly, the route is enforcement of that same judgment, not a fresh claim.

The evidence that decides the case

The complete mortgage deed, with the variable interest clause and the margin agreed.
The binding offer and the preliminary information sheet, with their dates, to see how long before signing you received the information.
The amortisation schedule and the history of instalments paid, which allow the overcharge to be calculated to the euro.
The notices of each rate review, which show whether the bank ever explained how the index was built.
The comparative calculation between the IRPH applied and the scenario without the clause, which is the basis of the money award.
The evidence of the employee who sold the loan, which in practice confirms that a single product was offered with no alternative.

What closes the door

Framing the case as if the index were unlawful or manipulated. That approach fails, because the index was official: the case is won on what was not disclosed, not on the index itself.
Signing a variation or a switch to Euribor that contains a waiver of claims. That waiver is the first defence the bank will raise and it complicates a case that was already sound.
Waiting years after learning of the problem. The nullity does not lapse, but the recovery of money does have a time limit, and every month of delay reduces the recoverable amount.
Paying the mortgage off and treating the matter as lost. The loan being repaid does not prevent a claim for what was overpaid while it was running.

The law that applies

Art. 82 TRLGDCU. Defines as unfair those terms not individually negotiated that, contrary to good faith, cause a significant imbalance to the consumer's detriment; places on the trader the burden of proving that a term was individually negotiated; and requires unfairness to be assessed by reference to the nature of the service, all the circumstances at the time of conclusion and the other terms of the contract. BOE-A-2007-20555
Art. 83 TRLGDCU. Unfair terms are void of full right and treated as not written, and the court, after hearing the parties, declares that nullity, with the contract surviving on the same terms if it can stand without them. Its second paragraph adds that terms incorporated in a non transparent way to the detriment of consumers are void of full right. BOE-A-2007-20555
Art. 4 de la Directiva 93/13/CEE. Requires unfairness to be assessed taking account of the nature of the goods or services and all the circumstances attending the conclusion of the contract, and excludes from review the definition of the main subject matter and the adequacy of price and remuneration, but only if those terms are drafted in plain, intelligible language. 31993L0013

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions

Can I claim if the IRPH was lawful and published in the official gazette?

Yes, because the lawfulness of the index is not in dispute. What is examined is whether the clause that put it into your deed was plain and intelligible, which is the condition article 4.2 of Directive 93/13 requires for a price term to fall outside the unfairness review. An official index inserted without prior explanation is still an opaque term.

Is it too late to claim if I signed more than fifteen years ago?

The declaration of nullity does not lapse: article 83 TRLGDCU makes it nullity of full right, and a void term is void from the first day. The period to recover the money overcharged is a different matter, it does run, and that is the reason not to leave the case idle. The age of the loan, on its own, does not close the door.

If I win, what happens to my mortgage?

It stays in force. Article 83 TRLGDCU expressly says that the contract remains binding on the parties on the same terms provided it can survive without the term struck down. What changes is the applicable rate, the amortisation schedule is rebuilt, and the bank must return the difference it overcharged, with interest.

The bank says I negotiated the clause. How is that answered?

It does not need rebutting, it needs proving. Article 82.2 TRLGDCU says the trader who claims a term was individually negotiated bears the burden of proof. It adds that negotiating some isolated element does not exclude review of the rest of the contract. Without drafts, emails or alternative offers, that assertion is left unsupported.

I already switched to Euribor in a variation. Can I still claim the IRPH years?

It depends on what you signed. If the variation merely changed the index, the years paid under the IRPH remain claimable. If the document contained an express waiver of claims, we must examine whether that waiver was transparent and whether you were told which specific right you were giving up, because an opaque waiver can also be challenged.

This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.