NEW!!! - GREAT NEWS!!!! - SUPREME COURT CONFIRMS BANK LIABILITY FOR DEPOSITS UNDER LAW 57/1968

In the interim.....come on ALL good lawyers and Barristers.....PLEASE fight and call upon judges to demonstrate judicial moral authority to award full interest and costs until such time as SC ruling/doctrine is established, as this is the only way to adequately disincentivise Banks who refuse to recognise their legal liabilities according to law.

Given the growing instance of case law and SC rulings (as opposed to SC Doctrine which requires 2 SC rulings on identical points of law) its becoming obvious that the Banks are increasingly using obstructive tactical ploys via lengthy appeals in the hope that claimants will abandon their fight given the excessive time constraints and continuing costs associated with gaining justice.

To continue to argue that the Banks have honourable intent in their STANDARDISED approach to ongoing appeals in the face of such growing case law and SC rulings, no longer holds strong I'm afraid.

Good luck to all the people who have been ripped off due to trusting builders who have been promising the earth and giving nothing in return and getting aff with it.

Good luck, and good legal advice...

Happy New Year to all of you ;)

It is clear in Law that interests are from moment payment were made. Appeals are of course necessary if judges rule otherwise.

A Supreme Cout decision dated September 2013 is helpful in this aspect.

The additional awarding of costs is just as important in this moral argument as is the awarding of interest backdated to payment dates in this scenario, if the Banks are ever to be made fully accountable for their legal liabilities and gross negilgences that have compromised so many innocent offplan purchasers during this last decade.

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Maria

Maria some important questions arise from your observation

"It is clear in Law that interests are from moment payment were made. Appeals are of course necessary if judges rule otherwise.

A Supreme Court decision dated September 2013 is helpful in this aspect."

May I ask, if this aspect of backdated interest is clear in law, then are rulings that do not recognise this principal in effect acting against the rule of law as they infringe the principal of legal certainty?

Likewise if moral authority is not being demonstrated by the judiciary in terms of not awarding costs when a claimant has gained a successful ruling for return of deposited monies, then is this not a clear indication that the judiciary may be demonstrating undue favour on the Banks and could this be deemed discriminatory in any way (see below)?

Having to meet costs has a disproportionate impact on individuals as opposed to large corporations such as Banks and Insurance Companies, and having to appeal to gain backdated interest impacts their capacity to continue to enforce their inalienable rights as defined in Ley 57/68, since to appeal requires yet further costs.

Knowing the ongoing risks associated with not being awarded costs in this scenario then places individuals at immediate disadvantage, resulting in a deterrent effect upon individuals who will be subsequently discouraged from filing appeals against banks or insurance companies. (Note this is already being demonstrated within EOS community threads by many individuals who fear not being able to subsequently reclaim their ongoing costs.)

Is this disproportionate impact and subsequent deterrent effect on individuals therefore considered to be discriminatory (and therefore against the rule of law)? If so, at what point could this legal argument be brought to the attention of the judiciary?

It has always been clear that legal interests ( initially 6%) were attached to law 57/68 refunds. What Supreme Court has expressed in the September 2013 Decission is that interetss accrue from moment the amounts were paid into developers account and not from a later moment such as lawsuit registration.

Many Judges and Appeal Courts are of course applying this rule correctly. In those cases were they are not, lawyer needs to advise client on the appeal possibilities.

And in those appeal cases Maria are clients still at risk of not being awarded costs when the appeal has proved necessary through no fault of their own?

Who is monitoring these judicial rulings that do not pay heed to SC rulings and/or deny claimants the correct amount of interest and return of their costs according to law, thus further financially burdening innocent claimants with disproportionate impact and subsequent deterrent effects in favour of Banks/Insurance Companies?

Are good law firms reporting these growing instances back to any monitoring body with the intention of ensuring the law is correctly adhered to and that Banks are CONSISTENTLY made fully accountable for their legal liabilities and gross negligences? How else can any compromising pattern of events of this nature ever be identified?

Hi,

Can I just say that if the shoe was on the other foot would the Banks accept this set up ??  I don't think so.

The point is that in our legal system, court precedents are not compulsory. Any judge or court is able, giving his/her/their reasons, to make a different judgment considering the particular circumstances of the case they are knowing.

Regardless that, a precedent from the SC is always important, as it is not observed, you can appeal until you get to the SC and know what they will say. So, that's the reason why many "minor" Courts (1st instance and appeal Courts) follow the criteria of SC.

About interests, most Courts, as Maria says, are applying the correct rule: interests paid since each payment was made. If they don't, this is not interpreting, as Law 57/1968 and Law 38/1999 are absolutely clear. Anyway, you must always evaluate the costs of the appeal and all possible scenarios.

Last, but not least, it's absolutely unfair that some Courts don't award legal costs, because, of course, the banks' attitude has forced buyers to litigate. But it's also true that our system states the possibility of not awarding legal costs if the Judge or Court considers that the question was not clear enough and here was no "bad faith" in the defeated litigant. I don't agree with these Judges and Courts not awarding legal costs as I strongly believe that the banks are really conscient of their position and that there wasn't a "probable reason" to reject claims (and less now, they know SC opinion). But Courts are independent and no law or person can tell them how they must judge a case. They only have to respect Law.

Anyway, we are happy to say that, in nearly all cases we have handled, interests are awarded according to Law (sometimes legal, according to 38/1999 and sometimes 6%, according to 57/1968) and also legal costs are being awarded to pur clients. These cases of interests wrongly calculated or legal costs not awarded are the least in the lot.  

And in those appeal cases Maria are clients still at risk of not being awarded costs when the appeal has proved necessary through no fault of their own?

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Who is monitoring these judicial rulings that do not pay heed to SC rulings and/or deny claimants the correct amount of interest and return of their costs according to law, thus further financially burdening innocent claimants with disproportionate impact and subsequent deterrent effects in favour of Banks/Insurance Companies? It is a matter that needs to be treated through judicial procedures. Appeals by interested parties. That is the way to control it.

Are good law firms reporting these growing instances back to any monitoring body with the intention of ensuring the law is correctly adhered to and that Banks are CONSISTENTLY made fully accountable for their legal liabilities and gross negligences? I am sure they are issuing the pertinent appeals in every individual case. How else can any compromising pattern of events of this nature ever be identified?

As said, just in some cases Judges are limiting interests rights, so the battle needs to be through specific appeals at specific cases

Firstly sincere thanks to Maria (Costaluz ) and Emilio (Lucas Asociados) for your educative replies, which are much appreciated.

A couple of observations and ongoing queries remain however.

1). Have individual’s ability to “get to the Supreme Court” (i.e. have their appeals admitted, as opposed to submitted) been negatively impacted since 2011 by new financial constraints (the amount involved in the dispute in order to be able to appeal to the higher regional court has been generally increased from 150,000 Euro to 600,000 Euro (Article 477.2 No. 2 LEC).)?

Note: this procedural reform was initiated in response to the “exponential rise in litigation in recent years” given the subsequent impact on court and judicial systems. Are you aware of individual claimants being compromised by this amended financial constraint by having their appeals relating to contra legem rulings rejected for admission?

2). Are you aware that Rights International Spain have written to the European Commission expressing their grave concerns relating to the independence of the judiciary and the requirement for them to remain free from political and executive political interference, (under 2013 reform, members of the Judicial Council have been elected based on arrangement among the main political parties. The Judicial Council is the body that should ensure the independence of the judiciary and manages sensitive issues such as disciplinary regime of judges as well as career promotions…this close link poses a risk to, and compromises judicial independence). Rights International Spain have also highlighted the need for the judiciary to be organised and adequately resourced (with emphasis on the compromising effects from major delays within the existing system) in order to secure independence and ensure that the judiciary can secure the rule of law. They have also called for repeal of the Court Fees Act as it is discriminatory.

With all this in mind and given ongoing concerns relating to inconsistent judicial rulings and inconsistent awarding of costs and full interest where claimants have achieved successful rulings according to Ley 57/68 against Banks/Insurance Companies, do you not consider that there should be far greater transparency and effective monitoring (by region/court/judge) of those cases where good lawyers remain concerned that “respect for law” and/or “judicial independence” might have been compromised by a pattern of rulings handed down, or feel sufficiently concerned as to the unfair nature re inconsistent awarding of costs and interest?

Are regional variances/inconsistencies in legal interpretations and non compliance with SC rulings (that are now more readily available and should be recognised by the Banks/Insurance Companies), not cause for ongoing concern for those who sadly continue to be compromised by these ongoing rulings and the Banks' standardised approach to appeals in full knowledge of SC rulings clarifying Ley 57/68 ("conscient of their position") ?

How can this possibly be deemed by the judiciary to be "in good faith" and with "respect to law"?

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A couple of observations and ongoing queries remain however.

1). Have individual’s ability to “get to the Supreme Court” (i.e. have their appeals admitted, as opposed to submitted) been negatively impacted since 2011 by new financial constraints (the amount involved in the dispute in order to be able to appeal to the higher regional court has been generally increased from 150,000 Euro to 600,000 Euro (Article 477.2 No. 2 LEC).)?

Note: this procedural reform was initiated in response to the “exponential rise in litigation in recent years” given the subsequent impact on court and judicial systems. Are you aware of individual claimants being compromised by this amended financial constraint by having their appeals relating to contra legem rulings rejected for admission?

Not really as for most of Law 57/68 cases the criteria is Cassation Interest, regardless of the amount being in dispute.

2). Are you aware that Rights International Spain have written to the European Commission expressing their grave concerns relating to the independence of the judiciary and the requirement for them to remain free from political and executive political interference, (under 2013 reform, members of the Judicial Council have been elected based on arrangement among the main political parties. The Judicial Council is the body that should ensure the independence of the judiciary and manages sensitive issues such as disciplinary regime of judges as well as career promotions…this close link poses a risk to, and compromises judicial independence). Rights International Spain have also highlighted the need for thejudiciary to be organised and adequately resourced (with emphasis on the compromising effects from major delays within the existing system) in order to secure independence and ensure that the judiciary can secure the rule of law. They have also called for repeal of the Court Fees Act as it is discriminatory.

Every attempt to improve independence and quality of Justice ( in any country of the world is well welcomed and encouraged)

With all this in mind and given ongoing concerns relating to inconsistent judicial rulings and inconsistent awarding of costs and full interest where claimants have achieved successful rulings according to Ley 57/68 against Banks/Insurance Companies, do you not consider that there should be far greater transparency and effective monitoring (by region/court/judge) of those cases where good lawyers remain concerned that “respect for law” and/or “judicial independence” might have been compromised by a pattern of rulings handed down, or feel sufficiently concerned as to the unfair nature re inconsistent awarding of costs and interest?

I cannot see serious deficiencies on the way Justice is being provided in general in regards to Law 57/68 cases. Specific problems of specific cases need to be addressed and dealt by corresponding lawyers.

Are regional variances/inconsistencies in legal interpretations and non compliance with SC rulings (that are now more readily available and should be recognised by the Banks/Insurance Companies), not cause for ongoing concern for those who sadly continue to be compromised by these ongoing rulings and the Banks' standardised approach to appeals in full knowledge of SC rulings clarifying Ley 57/68 ("conscient of their position") ?

These regional variances/ inconsistencies are part of the freedom that every judge has when interpreting Law till there is clear Case Law by the Supreme Court in Spain. Our systems--- Spain and UK-- varies, in regards to the inmpact of Case Law on specific cases as, LucasAsociados as very well also pointed out already.

How can this possibly be deemed by the judiciary to be "in good faith" and with "respect to law"?

Thank you Maria for your replies.

The sad and concerning aspect to this ongoing scenario is that until such time as SC case law becomes "sufficiently clear" and so long as the Judiciary do not stamp their moral authority on Banks/Insurance Companies to adhere to all articles of Ley57/68 and make them fully accountable in the interim period (for those who receive successful rulings prior to Bank appeals), all claimants remain at risk and will incur further costs, not to mention further overloading of the Spanish court and judicial system.

Has anything transpired from Lucas Asociados' suggestion for an adhesion to an existing ruling?Did anything positive come from their meeting in November 2015?

Please know that we are extremely grateful for your transparent legal tips that quote from judicial rulings and we trust and hope that this will continue to provide a true and realistic educational tool for all concerned.

All lawyers need to be strong at requesting full interests and costs from Banks. Courts, in most cases are granting them, and if they are not, appeals are needed which will bear fruits. 

Thanks for compliments on our blogs!

That's great news, thanks Lucas and Costa Luz.

Finally, we seem to be getting a fair(ish) outcome. I still feel I should be getting a huge compensation payout as well though, for all the incompetence shown by nearly everyone involved - lawyers, builders, banks, estate agents, legal offices etc.

Fazarelli:

Those compensations actions are always possible once the case is finished

Cheers

María

Right, OK, I hadn't heard of this in Spain.

What are we talking about exactly? Compensation from the banks? Solicitors?

If I got my £45k back for my property I'd throw a few grand at getting compensation, where do I sign up?

Fazarelli:

Every case is different and needs analysis but, of course, if once the refund connected to the breach is obtained, you can prove that there were significant negligencies by other parties with special duty of care which allowed first hand for the damage to be produced, a liability action is possible. Of course, it is possible.

Law 57/68 is just  for bringing money--- and its interests--- back to origin due to delay in the contract. Other possible actions or omissions about which you can prove clear cause-effect relationship with an specific  damage which has not been covered by Law 57/68 to happen, can be claimed in a liability action out of provision 1902 of Civil Code.

There is one year deadline timeframe for this actions. It can be defended that time has been stopped while the contract  was judicially cancelled and refund obtained. So I think deadline starts once the whole refund is achieved.

If  persons/ societies who caused the damage were registered professionals, action can be brought against their Professional Indemnity Insurances too.