Solicitor in la Axarquía
The main business of banks consists of lending money for a price (interest rate), as well as the profits they can earn from managing their customers’ deposits. Both sources of income have plummeted in recent years, as is well known, as a result of the crisis.
This new situation has awakened a practice that has always existed, but which had fallen into disuse: the charging of fees as a source of income for financial institutions.
The best known, as they affect the majority of the population, are overdraft fees and debit position fees, although their name may vary depending on the financial institution.
The mechanism is simple. Suppose you have €20 in a current account and you receive a bill for €30, so that for at least a few hours, or days, the account has a balance of -€10, or an overdraft, in banking terms. This situation, even if it does not last long and the account status is regularised within a few days, often leads the bank to apply up to three different charges to the customer.
On the one hand, we have the overdraft fee. This will be generated by the simple fact that the overdraft exists since, in theory, the bank would be lending us the money from this overdraft. In most cases, this fee is usually a percentage of the overdrawn amount.
In addition, we may also be charged interest for late payment. These are a percentage (which may not exceed 2.5 times the legal interest rate) of the amount you owe the bank, €10 in the case of the example.
Lastly, the most glaring of these fees is usually the debit position claim fee. This is a fixed amount which, depending on the bank, can be more than €40, regardless of the amount of the overdraft, and which is supposed to compensate the bank for the costs it incurs in having to reclaim the debt from you. In most cases, these costs have not even been incurred.
The question, therefore, is: Is it legal to charge these fees? The answer, of course, is: it depends. Each case is different, as it will depend on each bank, each client, the contracts they have signed and the content of their clauses.
It should be clear that if these fees and their amount are not specified in our current account contract, it is not appropriate to charge them. Nor would it be the case if, for example, the contract sets the overdraft fee at 4 % and your bank charges you 15 %, or the debit claim fee at €18 and your bank charges you €40 for the same item. In addition, with regard to the latter, the institution must prove that the claim has actually caused it some kind of expense, proportional to the amount charged. Thus, if you have been sent a burofax at a high price, it may seem reasonable to charge you, but not if you have simply phoned us, sent us an email, or not at all.
In short, each case is different and it is wise to seek the advice of a professional who has studied our particular case before considering claiming from the bank what is ours. Consult your lawyer.