Finanzas

Condenan Wizink por falta transparencia tarjetas revolving

27 de January de 2021
Equipo de Redacción
276 Comments

El Juzgado de Primera Instancia número 54 de Madrid ha dictado sentencia y condenado a Wizink en una sentencia pionera analizando la nulidad por falta de transparencia en lo que a la cláusula de intereses se refiere.

El equipo legal de Don Recuperador, con Antonio Castro y Raúl Rubio a la cabeza, han conseguido una sentencia favorable que abre un nuevo frente en las reclamaciones contra Wizink por falta de información en la comercialización de sus tarjetas revolving. Así, a la vía de la nulidad del contrato por usura, tomando en cuenta la presente sentencia, se podría reclamar también por falta de transparencia.

“El concepto de transparencia se encuentra vinculado al de información y, más en concreto, a información previa que los Bancos tiene obligación dar a los clientes y que debe ser completa, adecuada, y previa a la firma del contrato. Debe entenderse como plena comprensibilidad, conocimiento cabal de las condiciones del contrato y su trascendencia jurídica y económica. Es la posibilidad de conocer fácilmente el contenido contractual de la parte más débil del contrato, el consumidor, el cliente bancario” explican desde Don Recuperador.

El Juzgado de Madrid concluye en la sentencia condenatoria que la tarjeta wizink contratada adolece de falta de transparencia por cuanto su clausulado no advierte en ningún momento de las consecuencias derivadas de la fijación de una cuota mínima de amortización en aquellos casos en los que la referida cuota no alcanza para cubrir el importe del capital dispuesto y los intereses que se liquidan y capitalizan cada mes.

En este caso, el cliente, durante la vigencia del contrato, dispuso de 43.158,96 € y abonó un total de 62.764,78 euros. Con la sentencia del juzgado madrileño va a recuperar 19.605,82€ de intereses abusivos con los que podrá cancelar los 12.096 € de deuda que aún constaba pendiente.

Explicación y base jurídica de la sentencia explicada por Antonio Castro

La carga económica del contrato, elemento del que tiene que informar adecuadamente el Banco, viene determinada por tres elementos: la capitalización de los intereses que aparece en la operación, la variabilidad del límite del crédito que permite el incremento de la deuda, y la mínima cuota de amortización de que prolonga el crédito de forma casi indefinida.

Las consecuencias económicas no son como parece a simple vista las derivadas del pago de la cantidad dispuesta más los intereses de aquella suma – es lo que acontece de ordinario en todo crédito o préstamo- sino las correspondientes al precio del servicio o prestación, sus intereses y los intereses de los intereses-

Por otro lado el anatocismo se prevé no como regla general, cuando lo es, sino como una “posibilidad”, referida además respecto de lo intereses devengados no satisfechos lo que podría ocurrir en función de la cuota de amortización aun cuando se abonaran todas las cuotas puntualmente, lo que no se advierte al consumidor que no tiene forma alguna de determinar el verdadero alcance de la aplicación práctica de la cláusula aparentemente sencilla, pero de compleja ejecución que al final se traduce en unos extractos cuyo seguimiento no es sencillo ni fácil.

A la anterior circunstancia se une el efecto perjudicial de la cuota que se comercializa como cómodo plazo y que, en realidad, esconde un sistema de financiación sumamente gravoso puesto que la cuota abonada apenas supone amortización del capital prolongando el plazo del préstamo.

En el caso de autos la cuota fijada fue la mínima, que según el propio contrato equivale al 5%, (o 18 euros) del capital dispuesto más los intereses incluyendo los capitalizados, lo que no se explica, como tampoco ninguna de las informaciones que según el Banco de España podría orientar sobre la carga financiera del contrato tales como el plazo e amortización previsto, teniendo en cuenta la deuda pendiente y la cuota elegida por el cliente (cuando terminaría el cliente de pagar la deuda si no se realizasen más disposiciones ni se modificase la cuota); escenarios ejemplificativos sobre el posible ahorro que representaría aumentar el importe de la cuota sobre el mínimo elegido, o el importe de la cuota mensual que permitiría liquidar toda la deuda en el plazo de un año.

A todo lo anterior se añade la inexistencia de un tope claro al endeudamiento, de modo que se autoriza a discreción del Banco permitiendo el sobreendeudamiento del consumidor.

Wizink debería haber advertido al cliente de forma clara que las cuotas mínimas podrían alargar el préstamo de forma indefinida e incrementan la carga financiera, en lugar de ofrecerlo como si se tratase de “cómodos plazos”

Wizink no ha advertido que la complejidad de la tarjeta no está en la fijación de un interés remuneratorio fijo, sino en el propio sistema revolvente en cuanto a la disposición del crédito y la constante fluctuación de la base del cálculo. Sólo un escrupuloso y constante seguimiento de los extractos permite tener un cierto control sobre la carga económica que se está padeciendo quedando patente y a la vista de la dificultad intrínseca de conocer los referidos extractos hasta el punto de que el impacto del contrato no se conoce con uno solo, sino que es necesaria una serie temporal suficiente para hacer las oportunas operaciones matemáticas que expliquen lo que se cobre y por qué.

En definitiva, la ausencia de información precontractual, el texto del reglamento que rige la concesión del crédito, no supera el control de transparencia por razones de control interno, pues es imposible para aquel que haya conseguido la lectura de las condiciones, en letra abigarrada, confusa y llena de tecnicismos, hacerse cabal idea de cuáles son las verdaderas condiciones en las que ha pactado el préstamo.

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