New Case Law November 2010 on Banks risponsabilities

Legal tip 420. NEW! Bank risponsabilities ex 1.2 Law 57/68: new case law 
31 December 2010 @ 12:03 

 Catedral de Ronda by Merlin_1 at Flickr.com 

Thank you Maria.

I note in the wording "In THIRD paragraph: Law 57/68 aims for the protection of the buyer when he advances good amounts of  money before the house is built, covering breaches of the developer and unsolvency ( more or less fortuitous) as it has been frequent in recent times. " that it makes reference to unsolvency.

Does this mean that if the developer becomes insolvent or goes into administration during the litigation process, once breach of contract has been proven, that the Bank who have not provided a BG as per Law 57/68 are ultimately  responsible for return of monies as per the successful first instance judgement?

 p.s. Happy New Year!

This is excellent news María.

Since paying my off-plan deposit to CAM Bank in November 2006 I have believed that in certain circumstances the Banks are liable for the protection of those funds according to LEY 57/68.  Following extensive research over the past 2 years my opinion has strengthened.  However at times my patience has been severely tested and it has been a very difficult struggle to get others, especially in the legal profession, to agree with my opinion.

Over the past 2 or 3 years many Lawyers and other commentators have told me that the Banks have no liability under LEY 57/68 and that the only action possible to recover off-plan deposits was against the developer/promotor.  I have never believed that this was the 'only' course of action possible.

María - I am pleased to say that very early on in my fight against the Banks you were open to my opinion and following your own extensive research into LEY 57/68 you became as passionate as me regarding the liability of the Banks.

The last 2 years have been difficult - our views have been described as 'false and embarassing' in other 'legal' forums.  My petition website - www.bankguaranteesinspain.com - has been discredited and described as a 'commercial venture' by some in the legal profession.  Also it has been alleged in a certain legal forum that the Finca Parcs Action Group, which I am leading, is just an 'agressive and unethical group which is preying on despair'.  I absolutely refute those allegations from Mr Flores.

But, although it has been a very slow process and the success stories very few and far between we have kept fighting and believing.  However, in the last 6 months we have seen a small number of first instances court cases in which the Judge has made the Bank which accepted the off-plan deposit liable for the repayment of the purchasers deposit - even in a couple of cases where a Bank Guarantee was not issued.

Now we have this latest Case Law from the Cantabria Appeal Court, section 4 which provides the strongest and most significant Judges comments on Banks liabilites according to LEY 57/68.

The tide is gradually turning and although future progress may still be very slow we are moving forward and the voice of the consumer is being heard by the Judges.

We must all keep the faith, be patient and keep on believing.  I am sure that 2011 will bring more success stories in which the courts make the Banks liable for purchasers off-plan deposits even where Bank Guarantees do not exist.

This greater Judicial understanding of LEY 57/68 will also assist those purchasers in posession of Bank Guarantees where the Banks are attempting to block the executions for no valid reason.

I am sure during 2011 the Banco de España and the Spanish Government will be forced to accept that the liability for all the 'lost' off-plan deposits is gradually becoming the direct responsibility of the Banks & Savings Banks.

Happy New Year Mr Zapatero!!

Kind regards

Keith




 

Hello Keith,

you post.............

"I absolutely refute those allegations from Mr Flores."

this sounds like someone who worked for European Legal Solutions and signed my money away.

Do we have any contact details?

Thank you

Norman

maria

'Happy New Year'

I would also like to see the answer to ads question about developers becoming insolvent during litigation?.

The issue now seems to be about how much success a lawyer will have claiming on LEY57/58 detail?

As Keith has clearly found, there is resistance amongst lawyers to accept that litigation based on this would be justified or worthwhile in the current climate?.  It certainly should be, and anything to the contrary is just another form of injustice in my opinion. However much that is the case though, (and I congratulate you and any other lawyers trying to do the 'right' thing) if the system is still so corrupt that for instance, judges causing delays are not seen as responsible for losses due to their delays, then where does that leave the victim at the moment?.  I feel that until there is a change in attitude from the very judges who have the last say in this and other matters of crucial importance, (either by force or reason?) then how can the victims feel confident of successful litigation?.

I think the lawyers that criticise Keith know full well he is very much in the right, but also know that in the current situation regarding judges and sentence, being 'in the right' still often means very little.  We must support you, Keith and any of those doing what they can, but also must be very aware of change needed at the so called top?

Hello Norman

I do not know if Mr Flores has anything to do with European Legal Solutions.

You can read what he says here:

http://belegal.com/blog-by-antonio-flores/how-to-prey-on-despair/

You can probably find his contact details on his website.

I am not sure why he is attacking me, my Bank Guarantees petition and our Finca Parcs Action Group as I have never had any dealings with him in the past.

Kind regards

Keith

Hello Keith,

my contract was signed by Dona Regina Flores Yurasek. I don't know if there is any connection.

I visited the site and left a less than complimentary comment............

regarding the general view that "we" have now of the thousands of Spanish lawyers who signed/agreed the off-plan contracts whilst in reality sponsored by and working for the developers.

I also queried why Goodstitch's case took longer than ten seconds consideration in the Spanish system?

Why they insist on such high fees for simple repetitive production line jobs?

I confirmed too that I had not been "ambulanced chased" by any organisation since signing.

Needless to say my comment was not accepted - I failed the challenge.

Regards

Norman

 Ads: There is no need of unsolvency for the action against the Bank to be used. Just the delay and the lack of Bank Guarantee is needed.

As an addition, I would like to point out that as even this Court decission is the most courageous of all, the essential statements on Bank liabilities were already made by the Navarre Court back in 2008 so....Case Law is not beginning but increasing. That Court in Navarre, in a Decission with same value as Supreme Court ones established that it is the Bank that receives deposits that is obligued to request the developer, under the Bank´s liability, to obtain the Guarantees for the buyers/depositers.

This was also included in a couple of more Court decissions after the Navarre one and before the Cantabria one.

It is also very important to note the big difference on the importance of Case Law between your system ( Commun Law or Case Law based) and our system ( Civil Law or Code based), where Court Decsissions are not even a source of Law but, according to provision 1.6 of our Civil code , «complementará el ordenamiento jurídico con la doctrina que, de modo reiterado, establezca el Tribunal Supremo al interpretar y aplicar la ley, la costumbre y los principios generales del derecho», a complement of the Legal order made out of the reiterated doctrine of the Supreme Court when interpreting and applying Law, uses and General Principles of Law. 

In our case, the rights are clear since 1968 when this " Public Order protection" Law was passed and which has been expressly made enforceable in 1999 by the Building Act. 

The above couple of paragraphs are to say that the fight does not need express Court decissions in place if it is correctly and well fundamented in Law and General Principles of Law. If some lawyers have attacked us because of lack fo express case Law I need to say that those statements have not same relevance in our legal order as they have in the Commun Law one. Of course, it is very important, for easying a decission by the Judge, to furnish your lawsuits with relevant precedents and Jurisprudencia, but, in pure terms, they are not necessary for a case to be brought to Courts and be won.  

Yes, Keith, the tide is changing ang again I want to express my most sincere acknowledgement and respect to your sense of Justice and your fight for the rights of all in your group. This, together with the clear sense of abuses by financial bodies of the last decade was the main engine of my paassion for this topic.

Yes, Keith, let´s keep fighting an working as there is much to do and say.

Best regards,

Maria

Dear Maria,

you make it all seem rather straightforward for which we must all thank you.

it seems to me that Goodstitch is not getting very far with his questioning of Mr Flores.

so I have taken the liberty of posting your info on his site for him to comment on, I trust that is OK.

it is currently awaiting "moderation".

is it the practice in Spain for surnames to be combined on marriage?

Regards

Norman

Thanks Norman... you know... having thought and rethought and study and re-study and consult and consult on this matter during the last 3 years gives to us a good grade of familiarity with the topic which gives to us the simplicity for the exposition.

Best wishes to you and all yours in 2011.

Maria

Dear All

I have now posted the following on Mr Flores site and await response..............

"Thank you,

I have no fanatical support of any lawyer myself, in fact I regard them as largely unnecessary to a proper and efficient legal system in the main. If laws cannot be made readily understandable and usable for the ordinary citizen then they should not be made at all.

Unfortunately we only have an inefficient, cumbersome and ridiculously expensive system in both countries but Spain seems to be worse at the moment.

Thousands of Spanish lawyers signed or agreed these off-plan contracts without sensible checks and then advised disatisfied clients that they should complete or lose their deposits. This has led to the common perception that they were in fact corrupt with the developers throughout.

All are then faced with extraordinary difficulties and costs to seek satisfaction, only to be advised by "their" lawyer that they have no case under the contract and Spanish law.

In these circumstances it is only natural that they should attempt to band together to reduce costs in employing the most expensive "professional" they are ever likely to use. Even better if they can put together a petition that will assist or achieve their just recompense without involving the courts.

I know nothing of "union" infractions and have little interest in such protectionism. It is an offence to free trade and should be disallowed.

I have sought Maria's advice on my own case which is not directly connected to Keiths and concluded that action would be too expensive and because of cases like Goodstitch's unlikely to succed in a worthwhile settlement.

Spain needs "no win no fee" lawyers.

Norman"

Regards

Norman

 

Dear All,

the reply and my response..................

Norman Sands

normansands

this is indeed what we are up against. Most lawyers in Spain seem content to work within a system that they know full well is very wrong because of their 'I'll scratch your back'  mentality with the judges, banks, and anyone else who they feel will make their life tricky if they don't go along with the farce that is the Spanish justice system. Clearly Keith and his supporters have been criticised because they rock the boat, and that's what everyone who is content with the current system doesn't want, and sadly I think that goes to the very top in Spain.

How long can lawyers carry on defending the farce by not challenging those things they know are wrong I don't know?, but I would like to think that as soon as a few of the biggest one's have the balls to jointly support the action that maria, Keith, ads etc are calling for, and call for a  justice system based on truth and fact rather than arse licking, then fairly soon they will all have to get on board?. 

What I think will hugely speed up the proccess though, is if judges could be encouraged/forced by what ever means to accept that the current system itself is failing many victims of corruption and deception in the property indusry because little changes on that score when it comes to getting justice from those we have to trust are making the right decisions!!. Until we can rely on issues like court delays, lack of BG's, planning issues etc, being dealt with by lawyers and judges with common sense, a larger degree of honestly and in a time frame that makes litigation worthwhile, then the justice system will remain a farce. 

I think though that the cat's well and truly out the bag, and it's only a matter of time before the current system gives way to one of real justice?, the problem is though, many are doing 'very nicely thankyou' out of the whole corrupt situation and many of those are in positions hard to get at and very reluctant to change.

Maria,

May I ask, are you and your legal professionals willing to submit your own complaints with accompanying evidence  to the Spanish Government relating to these abusive delays and the impact on the application of justice for your clients?

Dear Anne:

I just can talk on my own name and the answer is YES, OF COURSE. We are actually continuedly doing so by claims to the General Council of Judicial Power, which is the due body with competence on this.

Of course we can also direct a claim to the Ministry of Justice. Maybe a facebook group is a good tool. Let me thionk about this.

Ads, you are completely right on insisting on this. Even when it is true new online systems are being implemented for the modernization of Justice, a call by us, legal proffessionals, who are also damaged due to this may have an addittional impact.

Thanks, deeply

Maria

maria

so in a case like mine where there was clearly unreasonable delay by the courts, you would complain to the GCPP, without fear of upsetting the judge in question and therefore risking your future standing with the judges/courts?

The reason I ask is because that's basically the reason i've been given by my lawyer for a complaint about the delay not being made on my behalf. My lawyer also considers the delay would be be considered 'normal' due to the workload of the courts, so another reason for not lodging a complaint.

I consider this as very wrong, but is that how the system works?, is this just a matter of  some lawyers,banks, developers and judges etc,  looking after each other while pretending to serve real justice, as I sadly suspect?

Dear Goodstitch,

hopefully change will come, but don't hold your breath, the boat may have been rocked and perhaps even the cat has peeped out.

But the bare facts remain....

Mr Flores is not content with what you have paid him, which is what by the way? and how does that compare with what you actually lost?

Sorry if this embarasses you but for those not yet committed the figures are important.

It seems that you have given up that particular fight and are hoping for political change.

He is really attacking Maria and not Keith, for her success on EOS, he is jealous and wants to be a champion himself.

But has far as I can glean neither of them want to give up their union's fee structure and offer fees based on the simple production line process of identical claims, hundreds or thousands of them.

Your and Ads and everyone's court delays are indeed farcical, you could not dream them up let alone defend them, they are almost beyond insanity until you factor in the big C. Then everything becomes clear.

We all hope for change but I will not see it and I doubt you will either.

We need a genuine citizens court and an end to the lawyers union.

Regards

Norman

Dear Goodstitch: We do claims before the General Council of Judicial Power in an ordinary, continued basis. Every time w observe an unjustified delay for any of our clients. It is a matter of obligation as proffessionals and citizens. The Council is always happy and thankful of receiving them.

Norman: As a lawfirm we have staff to pay and regular costs we need to cover. Our economic situation right now is that of not obtaining benefits just covering expenses for the running of the office, in a very tight way.... we cannot do anything else, honestly. The delay of cases to be solved also affects our balances and accounts and I am sure you understand we need to charge our minimum fees in order to survive.

normansands

my fees will remain my business, but I will say that the fees were up front and were not unreasonable in comparison to other numbers banded around on here. Having said that, obviously any fees are unreasonable if litigation is a waste of time due to a corrupt system?

I also wonder if we can safely say that any lawyers are doing what they should be doing?   The very fact that they have all known how bad the system is, but continue not to really challenge it (with the exception of complaints to the GCPP from some?) but still expect the victims to work with them knowing full well the poor ods of  'real' justice for many of us.

Is the GCPP any better than the lawyers equivalent, which we know is farcical?   Are all lawyers at the mercy of judges, bankers etc, who pull their strings/pay them?.  The longer this goes on without full support from all lawyers and judges who I believe could force change if they really wanted too, then you really have to wonder if anyone in the system is really on the side of those in the right?