The lender pleads limitation and cuts your repayment down

The case, in five lines

What is brought

Resisting the limitation defence in a claim to recover what was paid on a revolving credit, keeping apart the declaratory action for nullity, which is subject to no time limit, and the restitution action, which is.

Before which court

The Civil section of the Tribunal de Instancia (the first instance court) for the consumer's domicile, and on appeal the Audiencia Provincial (the provincial appeal court), where the criterion on the starting date is settling.

Deadline

The declaration of nullity neither lapses nor prescribes, whether the ground is usury or lack of transparency. Recovery of the money prescribes after the five years of article 1964.2 of the Civil Code and the period arises in respect of each monthly payment, so it shifts every month. If the count crosses the 2020 suspension of time limits, eighty two days are added to it.

Who can bring it

The holder of the credit and any co holders who signed, each for what they bore. Also anyone who guaranteed the operation and the heirs of a deceased holder, who continue their position and can contest limitation on the same terms.

Financial risk

If the court upholds the limitation defence unopposed, you win on nullity and lose the money: the judgment declares the contract void and the lender keeps everything charged outside the five year window. The risk grows with the calendar alone, because every month of delay leaves one more instalment beyond the reach of the claim.

These are two different actions and only one carries a clock

The first is declaratory: asking the court to declare the contract void. On the usury route, article 1 of the Usury Repression Act says the contract shall be void, without attaching any time limit to it. On the transparency route, article 83 of the TRLGDCU (the Spanish consumer protection code) declares void of full right any terms incorporated in a non transparent way to the detriment of consumers. Neither one lapses.

The second is the one that brings the money: claiming back what was overcharged. That is an ordinary personal action and falls under article 1964.2 of the Civil Code, five years from the moment performance of the obligation can be demanded. The lender does not argue nullity because arguing it gains nothing: it attacks restitution, which is where a time limit exists.

The usual defence leans on article 1930 of the Civil Code, which says that prescription extinguishes rights and actions of every kind, and then jumps from there to the claim that nullity prescribes too. The jump does not hold: what prescription extinguishes is the claim to a particular sum, and a contract that was void of full right from the start is not cured by the passage of time. The pleadings must draw that line in their very first ground, because once it blurs the court ends up applying a single period to both.

The count is made instalment by instalment, so the clock runs monthly

In a single drawdown loan the money went out once and the period is argued once. Revolving credit does not work that way: you paid ninety six instalments, one a month, and each of them carried interest, fees and an insurance premium. The obligation to repay arises in respect of each payment, so there are ninety six periods running in parallel, each a month behind the last.

The practical effect is brutal and a calculator shows it. Against fourteen thousand four hundred euros paid and six thousand drawn there is an excess of eight thousand four hundred, but if the claim is filed today the lender only puts on the table what was paid in the last sixty instalments. The thirty six before that, five thousand four hundred euros of payments, fall outside the reach of the restitution action. Someone who paid for eight years recovers five.

And it keeps moving. Every month that passes without a claim, the oldest instalment in the window slips out of the back door. This is not a figure of speech: it is one hundred and fifty euros that stop being recoverable between one appointment and the next. That is why the order in which things are done matters more here than in any other banking matter.

Claim before asking for the contract: article 1973 of the Civil Code stops the clock

Article 1973 of the Civil Code says that prescription of actions is interrupted by their exercise before the courts, by an out of court claim from the creditor, and by any act of acknowledgement of the debt by the debtor. For these purposes an out of court claim counts as much as a lawsuit and requires neither proceedings nor a closed figure. A written, dated and provable claim is enough.

From that comes the working rule that orders everything else: claim first, investigate afterwards. Gathering the contract, requesting the run of statements and calculating the excess takes weeks or months, and through those months the period keeps eating instalments from behind. We send the claim the same day the matter comes in, identifying the contract and asking for the return of everything charged above the capital, and from then on we work with the clock stopped.

The natural recipient is the customer service department that article 29 of Law 44/2002 requires credit institutions and finance houses to maintain, with a duty to deal with and resolve users' complaints and claims. It is sent by a means that records the date and the content, because what has to be proved later is not that you claimed, but the exact day on which you did.

The eighty two days of 2020 are worth almost three instalments

Between 14 March and 3 June 2020 prescription and lapse periods were suspended across the country under the state of alarm. That is eighty two days which do not count. When the five year window crosses that period, the starting date moves back by that number of days and recovers payments which, without the adjustment, would fall outside.

It looks like a trifle and it is not. On an instalment of one hundred and fifty euros, eighty two days are almost three payments, and on accounts with higher instalments the correction runs past a thousand euros. The adjustment has to be asked for expressly, with the arithmetic worked out in the pleadings, because the court will not apply it of its own motion if nobody raises it and the lender is certainly not going to offer it.

The starting date is arguable, and on transparency EU law helps

Article 1964.2 of the Civil Code does not say from the payment: it says from the moment performance of the obligation can be demanded. Demanding presupposes knowing there is something to demand. A consumer who did not know that the interest clause was opaque was in no position to claim anything, and counting the period against them from a date they knew nothing of turns the limitation period into a trap.

On unfair terms that reasoning has backing which is not in the Civil Code. Article 6 of Directive 93/13 requires that unfair terms shall not bind the consumer, and article 7 that adequate and effective means exist to stop their use. From there comes the principle of effectiveness underpinning the case law of the Court of Justice of the European Union: a national period that starts running when the consumer could not know a term was unfair makes the exercise of their rights excessively difficult.

That argument has a precise reach, and confusing it is what separates a solid pleading from one that collapses at the hearing. It travels with the lack of transparency action, which is consumer law. It does not travel with usury, which is price control under a Spanish statute of 1908 and sits outside the Directive. That is why the claim runs both routes and the ground on the starting date is anchored in the transparency one, without stretching it to cover what it does not.

What limitation cannot take away from you

Even if the court takes limitation in its harshest form and confines repayment to the last five years, part of the outcome does not depend on the restitution action at all. The balance you still owe today disappears, because the instrument it arises from disappears. If nullity is for usury, article 3 of the Usury Repression Act obliges the borrower to hand over only the sum received. If it is for transparency, the interest clause falls and the credit survives at no cost.

In practice that means someone who has paid for years and still owes two or three thousand euros secures that figure whatever happens on limitation, and argues over the return of the overcharge on top of it. Having this clear from the start changes the conversation: the lender's defence trims the prize, it does not wipe out the case, and it is never a reason not to claim.

How we run the case, step by step

1. 1

   We claim in writing the same day

   Before asking for the contract and before calculating anything, a dated claim goes to the customer service department seeking the return of everything charged above the capital drawn. This is what interrupts the period under article 1973 of the Civil Code and freezes the count where it stands today.

2. 2

   We demand the full history, not the last five years

   Lenders tend to hand over only the period that suits them. We ask for every statement from the first drawdown, with the date and amount of each instalment and a breakdown of interest, fees and insurance premium. Without that history neither the total excess nor which payments fall inside the window can be sustained.

3. 3

   We build the account payment by payment with dates

   We build a table with each instalment, its date and its composition, and mark the cut off line of five years counted back from the claim. The result says, in euros, what is claimed safely, what is claimed by arguing the starting date, and what outstanding balance is extinguished by nullity.

4. 4

   We fix the starting date we are going to defend

   We look for forgotten earlier claims that bring the interruption forward by whole years, add the eighty two days of the 2020 suspension when the count crosses it, and prepare the ground on consumer knowledge for the transparency route.

5. 5

   We comply with the mandatory prior negotiation

   Article 5 of Organic Law 1/2025 requires resort to an appropriate dispute resolution method before a claim is admissible in civil declaratory proceedings. We put forward a reasoned offer with the account already worked out, which also leaves another documented date of interruption.

6. 6

   We sue with the limitation defence already answered

   The pleading separates the declaratory claim for nullity, subject to no time limit, from the claim for repayment, and devotes a dedicated ground to limitation before the lender raises it. Arriving at the hearing without having done so forces improvisation on the single point that decides how much money comes back.

The law that applies

• Art. 1964.2 CC. Personal actions with no special period prescribe after five years from the moment performance of the obligation can be demanded. This is the period for recovering the money, and the words from when it can be demanded are what opens the argument on the starting date. BOE-A-1889-4763
• Art. 1973 CC. Prescription of actions is interrupted by their exercise before the courts, by an out of court claim from the creditor, and by any act of acknowledgement of the debt by the debtor. A written claim is enough to stop the period the same day. BOE-A-1889-4763
• Art. 1930 CC. Prescription extinguishes rights and actions of every kind. This is the provision the lender relies on to stretch the period to nullity, and the one that makes it necessary to distinguish the restitution action from the declaratory one. BOE-A-1889-4763
• Art. 83 TRLGDCU. Unfair terms are void of full right and treated as not written, the contract surviving if it can stand without them, and the second paragraph declares void of full right any terms incorporated in a non transparent way to the detriment of consumers. BOE-A-2007-20555
• Art. 82.2 TRLGDCU. The trader who claims that a given term was individually negotiated bears the burden of proof. The same logic carries over to the starting date: whoever invokes a date of knowledge has to evidence it with documents from the file. BOE-A-2007-20555
• Art. 1 de la Ley de Represión de la Usura. Any loan contract stipulating interest notably higher than the normal price of money and manifestly disproportionate to the circumstances of the case shall be void. The statute declares nullity without subjecting it to any period for its exercise. BOE-A-1908-5579
• Art. 3 de la Ley de Represión de la Usura. Once nullity is declared, the borrower is bound to hand over only the sum received, and if part of it and the accrued interest have been paid, the lender must return whatever, counting the total received, exceeds the capital lent. BOE-A-1908-5579
• Art. 6 de la Directiva 93/13/CEE. Member States shall provide that unfair terms do not bind the consumer and that the contract remains binding on the same terms if it can survive without them. This is the starting point of the principle of effectiveness as applied to the running of the period. 31993L0013
• Art. 7 de la Directiva 93/13/CEE. Member States shall ensure that adequate and effective means exist to stop the use of unfair terms in consumer contracts. From that requirement of effectiveness it follows that a period cannot run while the consumer could not know of the unfairness. 31993L0013
• Art. 29 de la Ley 44/2002. Credit institutions and finance houses must maintain a customer service department and must deal with and resolve users' complaints and claims. It is the recipient of the claim that interrupts the period. BOE-A-2002-22807
• Art. 5 de la Ley Orgánica 1/2025. In civil matters, resorting beforehand to an appropriate dispute resolution method is a condition of admissibility of the claim, and it is treated as met when the negotiation is conducted by the parties or by their lawyers. BOE-A-2025-76

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

Frequently asked questions