You have no contract for your revolving card: the bank bears the proof

The case, in five lines

What is brought

An action to void the revolving credit contract for usury and, in the alternative, to void the interest clause for lack of transparency, with a claim for repayment of the excess charged, resting on the rule that the burden of proving the contract terms and the pre contractual information falls on the lender.

Before which court

The Civil section of the Tribunal de Instancia (the first instance court) for the consumer's domicile, with appeal to the Audiencia Provincial (the provincial appeal court). The request for a copy goes first to the lender itself and to its data protection officer, and if there is no reply, to the Agencia Espanola de Proteccion de Datos (the Spanish data protection authority).

Deadline

Nullity neither lapses nor prescribes, so a 2009 contract is still open to attack. What does run is the money: recovery is a personal action with the five year period of article 1964.2 of the Civil Code and, in revolving credit, it arises in respect of each instalment, so only payments made in the five years before the claim can be recovered, plus the eighty two days when limitation periods were suspended in 2020. A reply to the access request is awaited for one month, no longer.

Who can bring it

The cardholder and any co holders who signed, whether or not they hold a copy of the contract. Also anyone who guaranteed the operation and the heirs of a deceased holder against whom the debt is claimed.

Financial risk

The real risk is not being without the contract, it is waiting for it. Every month of waiting wipes out one recoverable instalment at the far end of the count. And if the lender moves first with a juicio monitorio (the Spanish order for payment procedure), the time to oppose is twenty days from the demand: letting it pass turns the debt into enforcement.

Without the contract the case does not collapse, it changes hands

The question that decides this matter is not which document you hold, but who answers for the document not being there. You did not sign a contract in order to file it for seventeen years: you signed it and the lender took it, scanned it, kept it in its system and has gone on issuing monthly statements based on it. The party asserting that an annual rate of twenty four per cent was agreed is the finance company, every time it charges you.

In a consumer case this has a very concrete consequence. If at the end of the trial the court does not know what interest was agreed or what information was handed over, the party that had to clear up that doubt loses. And that party is not the consumer who mislaid a copy, it is the company that keeps the original and has been exploiting the contract for years.

That is why the strategy does not consist in hunting for the paper until it turns up. It consists in leaving a written record that it was requested, from whom it was requested and that it was not produced, because that trail is worth more in the claim than the contract itself.

Article 217.7 of the Civil Procedure Act puts the proof where the file is

Article 217 of the Ley de Enjuiciamiento Civil (the Civil Procedure Act) opens with the general rule that a claimant proves the facts of its claim, and closes with a correction that changes everything here. Its paragraph 7 orders the court to bear in mind the availability of evidence and the ease with which each party to the case can produce it. Between someone who kept a folder at home and a credit institution with the file scanned, ease of proof is not shared out: it sits wholly on one side.

On top of that sits a consumer rule that allocates the burden expressly. Article 82.2 TRLGDCU (the consolidated consumer protection statute) provides that a trader who claims a given term was individually negotiated bears the burden of proving it. The finance company arguing that you freely accepted that rate has to show it, and it cannot show it with a contract it says it no longer keeps.

And there is a third support that is often forgotten because it does not sit in consumer law. Article 30 of the Codigo de Comercio (the Commercial Code) requires traders to keep the books, correspondence, records and vouchers concerning their business, properly ordered, for six years from the last entry. On a live revolving account, with charges and payments every month, the last entry is recent, so the retention period has not even started to run.

The right of access under article 15 GDPR is the quick route and costs nothing

Before any court document there is a door that almost nobody uses. Article 15 of the General Data Protection Regulation gives you the right to obtain from the controller confirmation of whether your personal data are being processed and access to those data, together with the purposes, the categories, the recipients to whom they were disclosed and the retention period. Its paragraph 3 is the one that matters: the controller shall provide a copy of the personal data undergoing processing.

The first copy is free and, where the request is made electronically, the information is provided in a commonly used electronic format. The letter goes to the lender and, at the same time, to its data protection officer, whose address is published. You ask for the contract data, the history of drawdowns and statements, the rates applied over time, the recipients to whom the information was disclosed and the origin of the data if they did not come from you.

This route has two virtues here. If they reply, the full history arrives and the claim is quantified with it. If they do not reply, or reply only in part, it is on record that the lender cannot produce what is its own, and that silence is taken into the claim as a fact. Either outcome improves the client's position.

The ladder: access request, formal demand and disclosure before the court

The second rung is a formal demand, with proof of delivery, to the lender's customer service department. It asks for the signed contract, the pre contractual information, the schedule of conditions and every statement from day one, and warns that any failure to produce them will be relied on in court. That demand also does quiet work: article 1973 of the Civil Code interrupts prescription by an out of court claim, so the date of delivery freezes the running of the five years.

The third rung is already in court. If litigation is needed, the court is asked to order the lender to disclose the documents in its possession and, where the case has to be prepared before suing, preliminary disclosure proceedings are used to obtain the contract and the history. What matters is not only the document that may arrive, but the procedural attitude that is on show if it does not.

Each rung is climbed leaving a date and a receipt. At the end of the route the judge is not looking at a consumer who mislaid a paper, but at a lender that has been called on three times and has not produced the contract on which its own claim lives.

With no contract, the lender cannot sustain its own collection either

Here is the argument that closes the case, and it is best understood back to front. The lender needs the contract far more than you do. Without it, it cannot show what annual rate was agreed, nor what fee applies, nor that any pre contractual information about how the revolving mechanism works was ever handed over. In other words, it cannot justify the figure it claims every month.

That matters when the finance company attacks first. If it goes to the juicio monitorio (the Spanish order for payment procedure), article 815 of the Ley de Enjuiciamiento Civil (the Civil Procedure Act) requires the petition to come with documents amounting to a prima facie case, and its paragraph 3 allows the judge, before the payment demand is served, to propose by order a reduced demand where a term determining the sum claimed may be unfair. That screening is discretionary and looks only at what the lender has filed, so the real defence is the twenty day window to oppose. If that window is missed, article 816 closes the order for payment case and the enforcement runs as it does for judgments: opposition is cut down to the grounds in article 556, documented payment, lapse of the enforcement action or settlements recorded in a public deed, and it does not suspend the enforcement. Opposition for unfair terms under article 557 only opens where a non judicial instrument is being enforced, which on a revolving card hardly ever exists.

The practical consequence is that the missing contract is not neutral. It tilts the case against the party under a commercial duty to keep it, and makes the lender's claim fragile at the very moment it strengthens yours.

Usury and transparency: two actions, with the money clock running

The claim always carries both, because the effects differ. Usury brings down the whole contract: once nullity is declared, article 3 of the Usury Repression Act binds the borrower to hand over only the sum received and the lender to return whatever, counting everything received, exceeds the capital lent. Lack of transparency, under article 83 TRLGDCU, brings down the interest clause and the credit survives at no cost. Tribunal Supremo (the Spanish Supreme Court) case law opened this second route as a free standing one, and it is the route that works precisely when the margin falls short.

The usury threshold is measured against the average rate the Banco de Espana (the Spanish central bank) published for cards and revolving credit on the date of the contract, and a rate exceeding it by more than six points is usurious. There is no fixed percentage. Measuring a 2009 card against today's average is the mistake that turns a winning case into a lost one, because that average has been falling for years. With no contract, the rate has to be rebuilt from the statements, and that calculation is part of the work.

While the paper is awaited, the money clock does not stop. Nullity does not lapse, but recovery is governed by article 1964.2 of the Civil Code and, in revolving credit, arises in respect of each monthly payment: every month that passes without a claim drops the oldest instalment out of the count. That is why the out of court claim goes off now, with whatever is to hand, while the contract is pursued in parallel.

How we run the case, step by step

1. 1

   We rebuild the trail from what you do still hold

   Odd statements, the monthly direct debits on your current account, emails from the finance company, collection messages and the mobile app. With the bank account history we rebuild what was paid even without a single card statement, and that total is already enough to quantify a claim.

2. 2

   We exercise the right of access under article 15 GDPR

   A letter to the lender and to its data protection officer asking for a copy of the data processed: contract, pre contractual information, drawdowns, statements, rates applied and disclosures to third parties. The first copy is free and a reply is expected within a month. If none arrives, the failure to reply is on record.

3. 3

   We serve a formal demand with proof of delivery

   A claim to the customer service department demanding the contract and the full history, warning that any failure will be relied on in court. The receipt does double duty: it evidences the refusal and interrupts prescription of the repayment claim under article 1973 of the Civil Code.

4. 4

   We send the quantified claim now, without waiting for the contract

   With the rebuilt figures a money claim is put to the lender setting out what was paid against what was drawn. Waiting for the contract only removes recoverable instalments from the far end of the five year period, so the claim goes out first and the document is chased afterwards.

5. 5

   We ask the court to order disclosure of what the lender holds

   If litigation is needed, we apply for an order requiring the finance company to disclose the contract, the pre contractual information and the complete history, or we prepare preliminary disclosure proceedings before suing. Refusal or silence is then relied on under article 217.7 of the Civil Procedure Act as a failure of proof attributable to the party holding the file.

6. 6

   We sue on usury and transparency together

   The claim seeks nullity for usury, with the rebuilt annual rate set against the average published in the year of signature, and in the alternative nullity of the interest clause for lack of transparency, plus repayment of the excess and removal of any default entry.

The law that applies

• Art. 217.7 LEC. In applying the rules on the burden of proof the court must bear in mind the availability of evidence and the ease with which each party to the case can produce it, which shifts onto the lender the proof of the contract terms it keeps. BOE-A-2000-323
• Art. 82.2 TRLGDCU. A trader who claims that a given term was individually negotiated bears the burden of proving it, so it is the finance company that must show the rate and the repayment mechanism were negotiated rather than imposed. BOE-A-2007-20555
• Art. 83 TRLGDCU. Unfair terms are void of full right and treated as not written, with the contract surviving if it can stand without them, and terms incorporated in a non transparent way to the detriment of consumers are likewise void of full right. BOE-A-2007-20555
• Art. 30 del Codigo de Comercio. Traders must keep the books, correspondence, records and vouchers concerning their business, properly ordered, for six years from the last entry, and ceasing to trade does not release them from that duty. BOE-A-1885-6627
• Art. 15 RGPD. The data subject has the right to obtain confirmation of whether their data are processed, access to them and to the recipients and retention periods, and the controller shall provide a copy of the data undergoing processing, in a commonly used electronic format where the request was made electronically. 32016R0679
• Art. 1964.2 CC. Personal actions with no special period prescribe after five years from the moment performance can be demanded, which is the period limiting how much money is recovered even though nullity of the contract does not lapse. BOE-A-1889-4763
• Art. 1973 CC. Prescription is interrupted by bringing the action before the courts, by an out of court claim from the creditor and by any acknowledgement of the debt, which is why a demand with proof of delivery freezes the running of the five years. BOE-A-1889-4763
• Art. 3 de la Ley de Represion de la Usura. Once nullity is declared, the borrower is bound to hand over only the sum received and the lender must return whatever, counting the total received, exceeds the capital lent. BOE-A-1908-5579
• Art. 815 LEC. An order for payment petition requires documents amounting to a prima facie case, and its paragraph 3 allows the judge, in consumer contracts, to propose by order a reduced payment demand where a term determining the sum claimed may be unfair. BOE-A-2000-323
• Art. 816 LEC. If the debtor neither pays nor appears, the court clerk closes the order for payment case and, on the creditor's mere application, enforcement is ordered and then runs as it does for the enforcement of judgments. BOE-A-2000-323
• Art. 556 LEC. Against enforcement of procedural decisions the debtor may only object on the grounds of payment or performance evidenced by documents, lapse of the enforcement action and settlements recorded in a public deed, and that objection does not suspend the enforcement. BOE-A-2000-323
• Art. 557 LEC. Where enforcement is ordered on non judicial and non arbitral instruments, the debtor may object on grounds including that the instrument contains unfair terms, and once that objection is made the enforcement is suspended under its paragraph 2. BOE-A-2000-323

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

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