El blog de Maria

Spanishpunter said:
Tuesday, July 19, 2016 @ 1:53 PM

and so it goes on-the Banks continue to lose sometimes the cost go in their favour, although one wonders why buyers have to go to Court to establish Spanish Law which has been on their Statute Book for years!
Must surely be at the point when the Banks just pay out on the production of evidence of a deposit being paid
I'm sure that an objective observer now sees that the Banks are moving into 'embarrassment' territory!

mariadecastro said:
Tuesday, July 19, 2016 @ 2:53 PM

Spanishpunter:

Different facts and law application to them are the reason these cases are still being played. Anyhow, I agree with you that Banks are moving into embarrassment territory!

ads said:
Tuesday, July 19, 2016 @ 11:34 PM

How many of these cases that no longer demonstrate "different facts" but where principles of law have already been clarified are still subjected to appeals, Maria?
Are the banks in this regard challenging the principle of legal certainty in Spain?

Keith110 said:
Wednesday, July 20, 2016 @ 10:27 AM

Ads......most cases have 'different facts' albeit very small differences. Sometimes buyers pay direct to the developers bank account as stated in the purchase contract. Sometimes buyers pay to an agent or other third party who then transfers on their behalf to the developers bank account. Sometimes buyers pay to a developers account at a different bank to the one listed in the purchase contract. Sometimes buyers pay via a money transfer company who does not include the plot reference etc in the transfer document. There are many different scenarios and banks will use any argument, however small, to try and avoid liability.

Although many cases are being won against banks in the First Instance Courts it is still very common for the Banks to appeal to the Provincial Appeal Courts.

The bank will appeal the whole sentence including the awarding of interest and the imposition of costs. Recently we have some cases that have been won in First Instance with full interest from the date of payment and costs imposed on the bank/insurer. The bank/insurer then appeals to the Provincial Appeal Court - the main appeal is lost but on the subject of costs, the Provincial Appeal Court reverses the part of the First Instance Sentence that imposed costs on the Bank/Insurer. So the First Instance Sentence against the Bank is confirmed but costs are no longer imposed on the bank. So each party will then have to pay its own costs of the First Instance. And....because this is then considered as the appeal being 'partially won' by the Bank/Insurer (due to the imposition of costs being removed from the First Instance Sentence) the costs relating to the Appeal are then not imposed on any party. So each party also pays its own costs for the appeal.

So the buyer ends up with Principal & interest from the date of payment as per the First Instance Sentence, but has to pay its own costs of the First Instance and of the Provincial Appeal.

You can see an example of this in María's Legal tip 1395.

The reason for this as the Provincial Appeal Court Magistrates explain is due to the fact that when the Lawsuit was filed and the bank/insurer filed its defence, there was legal uncertainty relating to LEY 57/1968 due to the fact that the various Supreme Court sentences clarifying aspects of LEY 57/1968 were only issued in late 2015 or 2016. This is how the Magistrates explained in the case I refer to:

"With regards to costs of the First Instance, the appellant (SGR) alleges infringement of article 394 of the LEC (Civil Code). The Lawsuit was admitted into procedure in 2012. The appellant (SGR) filed its defence in time on 14 February 2013. The Supreme Court Sentence which mainly supports the condemnation of SGR according to the General Guarantee it issued is dated 23 September 2015, so at the time that SGR filed its defence in February 2013 that Supreme Court Sentence had not been issued. Therefore, it is true that in February 2013 there existed legal doubts regarding the liability of the General Guarantor in these types of cases. Therefore, we must reverse the imposition of costs of the First Instance. Therefore in accordance with article 394 of the LEC, each party will pay its own costs of the First Instance procedure.

Regarding the costs of this Appeal, the truth is that the Appeal filed by SGR has been partially successful in the sense that the part of the First Instance Sentence relating to the imposition of costs has been reversed. So pursuant to Article 398.2 of the LEC costs of this Appeal are not imposed on any party. Therefore, each party will pay its own costs in respect of this Appeal”

ads said:
Monday, August 29, 2016 @ 2:26 AM

Thank you Keith.

Once again we appear to be witnessing the Banks exploiting every instance where SC rulings have not yet been achieved as a cynical purposeful ploy to avoid imposition of costs on the Banks, in full knowledge that their continual ongoing challenges directly exacerbate delays within the court and judicial system which in turn ironically delays the advancement of SC clarification upon which imposition of costs appears dependent.

Doesn't this apparent purposeful ongoing exploitation of the system by the Banks, to deny clients rightful return of costs during increasingly lengthy interim periods, now call for the judiciary to review the wider perspective and demonstrate moral authority by consistently increasing the interest payments by "sufficient" points, to act as adequate compensation for non impostion of costs?

This "default" position with failure to impose costs on the Banks in these lengthy interim periods appears increasingly morally indefensible and unfairly "weighted" to the benefit of Banks and sadly does little to act as disincentive for Banks to continue with their manipulative ploys to cause maximum disruption to the court and judicial system which in turn ironically delays essential SC clarification.