Banks liability and precedents for case law. A question for lawyers.

I would be really grateful if Lucas Asociados could clarify the situation re case law following their posting of 3rd Sept relating to BBVA failing to appear at the Supreme Court in relation to Residencial Santa Ana Del Monte in Jumilla, and BBVA being made liable for return of monies plus interest plus costs, with the judgement becoming "Res Iudicata".

Could you please explain what is "Res Iudicata"?

I noted your recent honest observation re consistency of judicial rulings with regard to Bank claims on another posting, that you quoted "each case is heard individually and precedents just are considered if there's a minimum of 2 precedents issued by the Supreme Court. And even that, still not compulsory for other courts which can go against precedents attending to particular circumstances of the case heard by them"..... "my thoughts and desire is that precedents should be considered as in the anglosaxon systems."...."but my eyes wont see that in Spanish legal system "

May I therefore query the following:

Does BBVA failing to appear at the Supreme Court suggest that this was an attempt by the Bank

1). To prevent future case law and precedents being achieved?

2) Manipulative attempt to delay case law being achieved for those Bank claim cases still outstanding within the Justice system?

3) A minipulative attempt to act as disincentive due to clients having to pay additional costs in the interim period to cover not only appeals but Supreme Court admissions (the inference being that many clients may not have additional monies to continue the fight in these lengthy interim periods) ?

May I ask how exactly does this particular SC ruling now benefit those still fighting for recognition ofall articles appertaining to Ley 57/68 and offplan purchasers' inalienable rights? Is this in effect a 2nd SC ruling now acting as precedent or not?

If not, what options are available for clients fighting for their rights against Banks in Spain to highlight these compromising and ongoing manipulative attempts by Banks in Spain to "play" the existing system of delays and precedents (or lack of) to their unfair advantage?

Are good law firms such as yourself prepared to come together and present evidence of this ongoing manipulative behaviour / abuse and obvious lack of moral authority by the Banks to the authorities (CGJP, Bank of Spain?) to highlight and place on official record the ongoing unethical and manipulative practices by Banks to prolong the enforcement of justice according to existing law in Spain, with a view to

1) Improve the Justice system in Spain with regard to "adhesion of existing rulings".

2) Ensure that the Bank of Spain better regulates their Banks with emphasis on ensuring that they consistently adhere to existing law in Spain and behave in an ethical and fair manner that respects the due process and rule of law.

.

In additition to my last posting I noted the following interesting statements from the Provincial Appeal Court within Maria's legal tip 1313  (Banco Mare Nostrum, Caja Granada - Andarax in Terque, Almeria)

"
“The recent Supreme Court Sentence dated 20 January 2014 has unified the profuse jurisprudence on this subject and understood it as a pioneering standard for the protection of consumers and users.

In addition it states that the failure by the seller to complete the property by the deadline agreed in the purchase contract, according to Article 3 of LEY 57/1968, empowers the buyer to seek the termination of the contract.... "

"The ultimate accolade of this Law has been confirmed by the recent Supreme Court Sentence of 13 January 2015 which confirms the criteria of the Provincial Appeal Courts.  According to this Sentence if the buyers funds are held in a different account to that specified in the Insurance Policy, this is a matter purely between the insurer and the selling entity.  The fact that the buyers funds are not paid to the Special Account does not preclude insurance coverage, since it is an obligation legally imposed on the seller to ensure the funds are paid in the Special Account.  It is an inalienable and indispensible right of the buyer that the amounts are paid in the Special Account and remain secured.  So an obligation that corresponds only to the seller in accordance with LEY 57/1968 cannot be shifted onto the buyer.  

Therefore the allegations of this Appeal by Banco Mare Nostrum are inconsequential.  The alleged breaches of the developer, such as not stating the nature of the Special Account, are also irrelevant.

And contrary to what is said in the Appeal, it is also immaterial whether the appellant, despite all the above facts, has not itself given this account the official status of a Special Account.  Actually in reality it has that status due to the extent that a security is signed against the account and a Guarantee Line (Linea de Avales) is explicitly linked to that account.

The last plea of the Appeal is the rejection of the order to pay 6% interest.  This plea is also rejected.

For all these reasons, the Appeal is dismissed, with confirmation of the First Instance Sentence and imposing the costs against the Appellant Bank” "

So may I ask, if these judicial rulings are understood to be pioneering standards for the protection of consumers, why is it that these "standards" are not being consistently recognised by the judiciary in Spain in the form of "adhesion of existing rulings"?

Hi, ads,

Res iudicata means the ruling of the Appeal Court comes firm and unassailable. No further appeals against it.

About BBVA failing to appear at the Supreme Court, it's impossible to know, but our opinion is that, given the case we have executed provisionally the appeal ruling, they see no much advantage to follow on with the cassation, as if they win finally, they will have to claim the money back in UK and this would be expensive and long.

It could also be that they try to delay the payment of legal costs (provisional execution goes for deposit and interests, not legal costs); and that they also try to earn time until they see what the Supreme Court says in the case heard at the end of july (we all are expecting that ruling),and then try to negotiate.

Last, but not least, they could try to avoid having more than one unfavourable ruling from the Supreme Court (in Spain, 2 rulings from the SC are needed to create a binding precedent). 

On the other hand, and answering your questions, this particular SC ruling does not benefit directly those still fighting, but gives more strength to the Alicante Appeal Court rulings. Of course, they are not binding precedents, but related to the same facts and the banks, they state come consequences that have been recognized by the Appeal Court and have not been fought by the bank. So, they will make a bigger weight in favour of buyers in the Justice's scale. 

But, as far as we can't proof bad faith in the banks behaviour, we can do nothing to avoid it. I aree is an unfair game, but any citizen, including banks, may use all legal instances. And many citizens (not just banks) do.

So, I'd never go denouncing for these matters. It's something quite often seen in our Courts and it would be like opening Pandora's box.

Anyway, we can transmit these concerns to the relevant organs in order to Improve our Justice and bank system in Spain. I sometimes have meetings with polititians and highlight the needs of an improvement of our system.

Regarding to "adhesion to existing rulings", I'm sure my eyes won't see it. It would such be a deep change of mind.

Thank you so much Lucas Asociados.

Any opportunity for good law firms to "transmit concerns to the relevant organs" in order to improve the Justice system and Banking system would be greatly appreciated, but also if these transmissions could be more transparent via forums such as EOS, then this would act as reassurance to those currently striving for greater reform, to the benefit of all.

At present clients sadly appear to be denied any "behind the scenes" communications from law firms to for instance the Bar Associations, Bank of Spain, CGPJ (General Council of the Judiciary) etc, so clients have little or no knowledge of what good law firms are doing to feedback concerns in order to address important issues relating to reform.

Maria de Castro is doing a great deal to keep us all informed via her legal tips (for which we remain extremely grateful) but there does appear to be a gap with regard to open communications between law firm and "relevant organs" as a productive way forward to improve the Justice System and Banking system and initiate better reporting and monitoring mechanisms in that process.

Transparent communication and education is all in this scenario, hence I am very grateful for your responses.

Kind regards.

May I ask, did your legal firm Martinez Echevarria ensure that Bank Guarantees were made available to clients from the outset and was your law firm working as non independent lawyers with agents MRI?

On the 9th September 2012 this forum ran a post / thread about "Avoid these people like the plague" 

Is this now the time for the Spanish Bar Associations to effectively  regulate their members?

Is this now the time to ensure that the Bar Association take firm action against those law firms (non independent lawyers in league with agents and developers) who compromised clients so badly during this last decade and now try to make further monies off the back of their negligence/ lack of due diligence not to mention continuing efforts to thwart by delaying the forwarding of client data to those good law firms now requested to act on their behalf?

May I ask are good law firms now reporting instances of obstructive behaviour that continue to compromise clients in this manner to the Bar Associations? And can we please be informed of the response by the Bar Associations so as to provide greater transparency and reassurance.

Many thanks.

Ads, unfortunately, my experience with Bar Associations have not been satisfactory to the needs of the clients so far.

It is difficult to say, but I need to admitt: a stronger control on ethics and deonthology is necessary.

Thank you for your honest response Maria.

Is this another aspect that needs to be reported back by good law firms, to the "relevant organs" for monitoring and placing on formal record, with a view to gaining greater transparency which in turn would require a formal response, and hopefully a more productive way forward?

We have in the past communicate these matters to Bar associations and the General Council of Lawyers in Madrid.

Some time ago I identified that for those who instigated claims in the early days, i.e. those subjected to two claims, the first being against the developer and the second against the Bank, (this being before developers became insolvent i.e. prior to cases being brought jointly and severally against developer and Bank), that there is no cross reference mechanism to link the two cases together. This results in false recording of timeframes associated with gaining justice and return of monies according to existing law LEY 57/68, even though the two are inextricably linked. This is due to the following sequence of events:

The first claim against the developer is won. Developer appeals. Provincial court rules against the appeal but provisional execution fails due to abusive delays within the system, during which time developer asset strips and/or goes into administration. At this point the system records that all has been completed with this case (i.e. the system does not record that a subsequent Bank claim, inextricably linked to this course of justice according to Ley 57/68 is required.) The Bank claim commences under a completely new reference and so the process is repeated ad infinitum. The ability to review overall timeframes to gain justice and return of monies from the onset of developer/Banking abuse is lost.

This failure needs to be reported so as to gain full transparency to identify how early claimants subjected to developer/Bank abuse (and lack of due diligence by conveyancing lawyers) have been significantly compromised by major delays within the Justice system.

Likewise abusive delays now common place within the Justice system appear to be increasingly impacting the speed at which new case law can be established, which is vital to counter increasing appeals as a consequence of some judges being ambiguous with their interpretation of law 57/68 (although I take your point Maria that some appeals have arisen as a consequence that not all claims against Banks have been technically correct when brought to Courts).

These compromising delays work to the unfair advantage of Banks and “allows them” the ability to prolong the judicial process by submitting ever increasing appeals, in full knowledge that the Supreme Court has either yet to rule on these issues, or that no two identical claims covering all articles of Ley 57/68 have yet been ruled upon.

Doesn’t this fully vindicate Keith Rule’s demand, all those years ago, for a more SPECIALISED and consistent FAST TRACK approach to ensure that Banks would be made fully accountable in a timely manner for their non adherence to existing law?

Please therefore can I request that all good law firms bring these matters to the attention of the General Council of Lawyers and the General Council of Judiciary where applicable, so as to place on record the impact that failure to provide time constraints on ALL the due processes of law linked to enforcement of Ley 57/68, together with failures by lawyers who failed in their due diligence, and failures by the Banks to adhere to all articles of Ley 57/68, have had on innocent offplan purchasers, so as to give credence to the urgent requirement for adequate time constraints to be administered so that case law can be more speedily applied, with the overall objective of timely enforcement for return of monies with more consistent awards for interest and costs, thereby demonstrating their commitment to develop "a stronger control on ethics and deonthology ".