Costa Luz Lawyers

‘’not by running away because ''that's the way that country works''’’

Quite right, but wasn’t it a case of running in ‘’not knowing or caring the way that country works’’.

Once you leave your home country that you do understand and enter another country that you do not understand, you are taking risks.

This is EOS and therefore up to the Spanish how they wish to govern their country and not expat visitors. Many expats were easy to fleece fools.

Our posts crossed Kavanagh so I will repeat my p.s.

P s. Kavanagh your divisive and somewhat inciteful rhetoric sadly plays little part in achieving solutions. Working together and developing mutual trust with common aims has far more potential to achieve positive outcomes. ;)

Most Appeal Courts are rejecting Banks arguments on bad faith- unfairly delayed claims. They are clearly stating that  the fact that the buyer ( due to the Bank´s lack of control on supervising the existence of Bank Guarantees) had to go through a cancellation procedure against developers first -- with a subsequent inclussion in a bankruptcy proceeding leading to liquitation and zero refund back-- and the fact that doctrine on Banks liabilities was not clear till 2015-2016 makes the claim completely right in terms of timing and good faith.

Again, all clients winning a case against a Bank are, of course receiving the refunds. Within the due timeframes.

All interests are being imposed against Banks from date amounts were deposited into developers account. 

Within the always remaining angles that every legal matter always offer for discussion, I honestly think that Spanish Courts are punishing the lack of diligence of Banks within the off plan industry very fairly.

I do not understand why you are criticising my posts using words like ‘’Divisive rhetoric inciteful provocative’’.

All I am saying is this is their country ‘’Spain’’ not ours. How they want to run it is up to them. I, you and many expats don’t agree how they run it, but we are only visitors and it’s none of our business. If you can’t accept it, pack up your bags and go back to Blighty.

Any solutions required in Spain are for the Spanish to decide and not foreigners.

Dear Maria,

Thank you for the clarification on unfair delayed claims. It’s much appreciated.

Several queries remain relating to award of backdated interest I'm afraid.

There are cases where "additional interest" are still having to be fought as first instance rulings have not recognised correct imposition of interest, are there not?

Are all appeal courts now imposing interest backdated to date of deposit?

Aren't banks continuing to challenge award of interest backdated to date of deposit for all those who took and achieved succesful action against developers but subsequently had to take action against the Bank, by suggesting they had no knowledge or implying that SC clarification does not apply to these instances ?  Aren't  some courts not recognising that in these instances they too are due interest backdated to date of deposit?

Is this challenge by the Banks discriminatory in nature, by treating those who took early action against developers differently (i.e. those who were successful and gained cancellation of contract, but were subsequently compromised in that process due to developer insolvency and had to take action against the Banks) and yet the same legal responsibilities from outset of deposit apply for these Banks?

Is there still an outstanding SC appeal awaiting final clarification with regard to backdated interest and in the interim does this mean that award of costs will be compromised for all those having to challenge ongoing inconsistent rulings of this nature?

It would really help to gain transparency for those still fighting for accountability in this regard.

Many thanks.

This message was last edited by ads on 04/03/2018.

This message was last edited by ads on 04/03/2018.

Dear Maria,

With regard to backdating of interest to date of deposit, can judges ignore SC clarification that has been achieved in the interim period between lawsuit submission against the Bank and the point at which they make their rulings?

For example, if SC clarification had not yet been achieved with regard to interest backdated to date of deposit (and therefore was not able to be cross referenced in the original lawsuit), but it did exist by the time the judge made their ruling, would the judge be expected to have knowledge of SC clarification achieved in the interim lengthy periods, or would they be dependent only upon cross reference in the lawsuit?

Do the CGJP provide guidance to the judiciary in this regard to ensure interim SC clarification is fully respected in these instances, especially where the delay to Supreme Court clarification was compounded bya proliferation of  Bank appeals?

If not, are "early" claimants at risk of continuing inconsistent rulings from a court that does not appear to recognise interim SC clarification with regards to interest backdated to date of deposit?

Sorry for the delay!

Very few Courts are now cutting interests period down as Supreme Court Case has already stated that period starts at the date of payment to the developer account. Some banks are using the argument of delayed claims for cutting down the interest period, with no success.

Appeal Courts are defending that precisely because of lack of clear doctrine by Supreme Court on banks liabilities under law 57/68 till 2015/2106, clients had to suffer long processes of cancellation against developers, participation on creditors meetings and therefore,  and therefore, this cannot be against them nor imply a reduction of rights. Interests along the whole period are being imposed against Banks.

Despite there has still not been a formal declaration of doctrine by the Supreme Court on interest period, most Appeal Courts are granting them from date of payment.

At every moment, Judges need to pass decisions according to claims of parties and existing Law and Case Law.

If the claim was for interest backdating and the fight has persisted till there has been Case Law on this, of course, Supreme Court Case Law needs to be applied. But even before Supreme Court issues the interpretation about interests,  many Appeal Courts have already specified them to be from deposits on account.

Dear Maria,

In the interim, here's a sincere plea for consideration by any judge or court who are currently awaiting SC clarification with regard to award of backdated interest for those who through no fault of their own have already been subjected to lengthy litigation to gain return of their principal monies, having in all  good faith ALREADY proved breach of contract and attained cancellation of contract.

These were monies that from the outset of deposit according to existing law were intended to be safeguarded via legal guarantees, by virtue of inalienable rights according to law, with all due protection according to the principles of legal certainty. Where legal certainty is an internationally recognised principle...a central requirement for the rule of law, which holds that the law MUST  provide those subject to it with the ability to regulate their conduct.

Conduct and malpractice on the part of Banks that has placed all too many claimants at undue risk during this last decade and beyond.

Let's hope that ALL judges recognise this principle, but for those who are currently not receiving these rightful judgements relating to backdating of interest to date of deposit, it is surely essential that these instances be reported through official channels, as they appear contrary to the rule of law as described above, and fail to take account of increasing case law where the majority of judges have ruled to make Banks fully accountable for interest backdated to date of deposit. Such a legal lottery sadly appears to fly in the face of legal certainty.

It should never be forgotten that these same clients were ironically the pioneers to highlight Banks failings to adequately administer, honour, and make timely provision of individual guarantees according to law, and in that process adequately safeguard monies from the outset of deposit, for return in the event of provable breach.

To scapegoat and discriminate such pioneers who have paved the way for Banks to be made fully accountable during this past decade goes against all principles of good faith, upon which we all assumed that the judiciary placed great emphasis.

The question then remains how can any judge in the interim not recognise growing case law that concludes that Banks as guarantors are ultimately culpable and fully accountable from date of deposit for their failures that have placed innocent claimants at risk in this way?

Please can you advise therefore, in the lengthy interim periods prior to SC doctrine, how best to protect clients subjected to discriminatory rulings of this nature, by a particular judge or court that is in contradiction of the “many” who are recognising case law that rightfully make Banks fully accountable.

Is this only one court that is not taking growing case law into account, or are their several? Should there not be greater transparency in this regard?

Many thanks.
 

Good morning Ads/Maria

Maria wrote .....''Despite there has still not been a formal declaration of doctrine by the Supreme Court on interest period, most Appeal Courts are granting them from date of payment.

Why has there not been a formal declaration of doctrine?, is it expected soon?  It's seems obvious that until so, the banks can take advantage of that fact at every oppotunity. It still sounds like justice could still be a lottery depending on some court's view, which I fear could be open to abuse with the amount of money involved?

Every case is different and some discussable angles like delayed claim, investors character.. are at present the weapon that Banks are using to keep fighting cases so Case Law still needs to be specified.

Appeal Courts can rule against Supreme Court doctrine to its discredit and Banks can fight against Supreme Court Case to their condemnation of interests and costs.

Despite pronouncements on the date for condemnation to interests since the date of payment has been made by  Supreme Court on several occasions,

STS 13/09/2013

STS 17/03/2016

STS 23/11/2017:  

there is still no formal declaration of this as doctrine / case law by them.

Dear Maria,

With regard to the "weapons" that you rightfully and astutely recognise that Banks are using.....

It needs to be urgently stressed to the CGJP and Supreme Court alike that this ongoing proliferation of appeals/challenges/disrespect of case law/SC case law with regard to the backdating of interest, is a REPEAT of Banks ploys and conduct that they used to significantly delay SC doctrine during this last decade (which ironically and thankfully finally resulted in doctrine that supported claimants rights with regard to return of principal monies)….and this in turn led to interim rulings that denied claimants award of costs until such time as SC doctrine was achieved.

This conduct on the part of the Banks is being used as a purposeful manipulative and abusive means to delay claimants from their rights to timely return of their correctly backdated interest payments and denies them retrieval of costs until such time as doctrine is once again achieved with regard to the backdating of interest. This pattern of behaviour is completely undermining the system of justice in Spain.

It should be strongly argued therefore that this conduct by the Banks needs to be reviewed from a far wider perspective by the judiciary and Supreme Court, in full light of the fact that a central requirement for the rule of law, holds that the law MUST  provide those subject to it with the ability to regulate their conduct,

Banks malpractice and non adherence to correctly administer and safeguard monies from the outset of deposit according to existing law governing guarantees, has already been recognised according to established doctrine has it not? So why is this repetitive abusive behaviour being allowed to continue unregulated? Why is the CGJP not directing the judiciary in the interim to remain mindful of these uncomfortable realities when making their rulings? Why is the SC not acting swiftly to curtail such ongoing abuse?

Ads:

You make yourself the questions that a good greek philosopher would formulate. Question-makers like you are necessary for the health of society.

Judges are independent and right of appeals exist, so Banks have the freedom to figure out new angles and try them... and... battle, and lose money on this. It is at their election and risk.

Spain Courts are well determined to protect buyers rights against Banks in off plan businesses. There are always the few natural exceptions to every common reality.

Many messages have included this phrase which has become a stumbling block for obtaining the interest from the time of the deposits.

 "there has still not been a formal declaration of doctrine by theSupreme Court"  

Excuse my ignorance of Spanish Law but how do we get the ball rolling for the S.C. to make a decision ? 

Can anyone explain how, in practice, this problem can be resolved ?

Indeed. It looks like lawyers have to fight every individual case on its own merits with regards to interest and then also have to depend on a judge making the right decision so that interest is paid from the date of the deposit. Until that doctrine is declared then those with deposits put down 10 -12, 15 years ago or more will present their lawyers with quite a battle for interest i would think and still have to depend on a fair judge. I hope lawyers can put pressure on the s.c to make the law clearer on this matter and speed up justice.

Case Law, Doctrine is constituted from two Sentences that interpret a norm in the same sense, emanated of the Supreme Court (the superior jurisdictional organ in all the orders, except in a matter of constitutional guarantees)

In the event that a Judge or Court departs from the doctrine established by the Supreme Court, the sentence is not automatically invalidated but serves as grounds for cassation.

However, the Supreme Court can depart at any time from its consolidated jurisprudence, so that this normative production is essentially changeable, adapting to the times with each decision.

How much simpler would it be if interest was just added from when the deposit was first placed in to the bank account with no bank appeals allowed?

Right to Appeal is part of the fundamental right to effective judicial protection

Yes, of course. When its clearly used to avoid payment due though, I feel it makes a bit of a mockery of the law.

Does interest cease being accrued at point of principal payment into the courts  following a preliminary enforcement Maria?

If so, does this mean that no further interest can be accrued beyond that point going forward? In other words no extra interest can be accrued during the outstanding lengthy appeal processes? 

Ads, my solicitor told me that from the date of judgement, when i won, would be subject to an additional 2% interest on top of legal interest, totalling 5%