The Supreme Court and the surveillance responsibility of the Bank in off plan developments: burden of proof
Although the Supreme Court has affirmed that the burden of proof of active surveillance is that of the bank as it is he who must prove the measures taken in order to protect the amounts deposited into the developers´ accounts in his branches, the Hight Court is contradictorily admitting the passivity of the bank, or the "alienation" of the same, if the payments (1) were not made under a specific concept- that was never known by or required of the consumer- or (2) if the real estate agency or intermediary/ Lawyer made the deposit on behalf of the buyer.
These requirements have been included in the latest Judgment of November 20, 2019 in which the Supreme exempts the depositary bank from liability, due to the "impossibility of knowing" since (1) they were made by a company that (2) did not indicate any data that would allow the identification of a buyer or a specific dwelling.
This Decission follows a couple of other which deffend the same approach.
This despite being the account of a prominent real estate developer in the area.
To submit the protection of the bank that receives off plan amounts and which, by Public Order Law, must verify the existence of the legally required guarantees "under its responsibility" (art 1.2 of law 57/68), to requirements which were never known by buyers, because they were not included neither in the contract nor in Law 57/68 itself, it is clearly an attempt against the Protective Law itself and its spirit of public order, but it is also an aberration if we see it from the perspective of Contract Law and Consumer Law
It also ignores the duties of the entities against money laundering contained in Law 19/93 of December 28, which establishes that financial entities are obliged to control the amounts they received from both property developers and agencies of intermediation, as well as amounts from abroad, in order to know which subjects were behind each operation.
Where then is that duty of "active surveillance" of the Bank? Is it not enough --- simply --- the opening of an account by a developer in which third-party amounts are received so that the bank had begun to monitor?
The fundamental concept that the Supreme has been repeating in innumerable occasions about the moment in which both the guarantor and the depositary entities begin to be responsible is that of "having the possibility of knowing":
"As you remember, among others, judgment 675/2016, of November 16, excludes the responsibility of both the bank receiving the advanced amounts and the guarantor when the payments from the buyer to the seller are made not following the contract clauses and without any possibility of control by the banking entity or the guaranteeing entity, but not of those anticipated amounts that it did have the possibility of knowing (sentences 420/2016, of June 24, and 436/2016, June 29). "
Specifically, in relation to the depositaries, the Supreme Court has specified on two occasions (STS 07/18/2017 and 11/23/2017) that this duty of active surveillance and the consequent responsibilities of Article 1.2 of Law 57/68 begin , at the moment in which these "warn the possibility that they are receiving amounts on account for the purchase of houses". Very consistent with the tutive nature of law 57/68.
Is it not clear then that once a developer account is opened, it is responsible for fulfilling its obligation to monitor everything that is entered and how it is entered? Wouldn't it be shielding in the presence of intermediaries or in the lack of specification in the concept a mockery of the whole spirit and interpretation of law 57/68?
It is the Bank who must investigate and find out, and must prove it and if it does not prove it sufficiently, the responsibility is clear.
Recently article pubilshed at http://www.legaltoday.com/practica-juridica/civil/civil/el-supremo-y-la-responsabilidad-in-vigilando-del-banco-en-promociones-sobre-plano-carga-de-la-prueba