Comfort in numbers.

Anyone else win their first instance procedure, then the  provincial appeal procedure, then receive the lost deposit for an off plan property paid back in 2006, but unable to use your money, due to having to wait possibly 4 years in total for the Supreme Court decision following another appeal submitted by the bank?

How many bites of the cherry do they get?

This is causing massive stress, I just wonder how many more are feeling the same.

The solicitors are pretty matter of fact, giving costings for each procedure, and how much more it will cost if I lose the Supreme Court appeal, which will be much more that the deposit I was given back. There does not appear to be much encouragement from the solicitor, no real positive feedback, telling me not to worry.

The length of time this is taking, the amount of money this is costing, and the uncertainty of it all can't be good for anyone's mental and physical health. 

Anyway, anyone else relate to the above, or am I a lone sufferer?

It's not unique, but perhaps you are unlucky.  I know a chap who had something similar.  To a small extent it may have been self inflicted in that he was very impatient and kept on changing solicitors, which didn't help. 

I reckon you're better off taking time to select the right one at the outset - better by recommendation and proven experience, then living with the fact that in Spain it takes longer than it should.  But it's not good to chop and change - if, you do take your time, perhaps have a quiet word with Maria?

I don't know enough to say any more, but I wish you well.

Thanks for your reply Acer, I have used just the one Solicitor since the beginning who originally appeared very confident that we would win the case, which we have done, but in my view, it's not won until after the Supreme Court verdict.

I have now thrown more money into opposing the Supreme Court appeal, but the Solicitor is bracing me for a loss, although it could go either way, which is why I'm feeling anxious.

I am feeling a little isolated at the moment, but I'm sure there must be others awaiting a Supreme Court outcome.

So having won the first instance and the provincial appeal that made it 2-0 to me.

Then the Bank won the Supreme Court appeal, making it 2-1.

what happens if I don't pay back my money, and pay the legal fees the bank originally paid, that I now have to cover?

There is something very wrong here, that will leave me in debt, and the bank wondering where all their extra funds have come from.

I appreciate it's worth sweet Fanny Adams but you certainly have my sympathy. 

It's outrageous that a commercial bank, with all it's in-house resources, is allowed so many chances against a private individual.  The bank should get their case right first time and not be allowed to appeal - given their experience and the unfair contest.  The law is an ass, sometimes.

Jerry have you been fully paid out?

Whatever judgement a Spanish court decides is only applicable in Spain. Do you have any assets in Spain? If not however that does not stop anyone in Spain taking legal proceedings in another county, but they would need a new court judgement from that countries justice system. They cannot simply transfer a Civil Spanish court judgement from Spain to the UK or anywhere else. The laws are different in each county but they would likely try to use the Spanish judgement as a persuader in front of a British judge.

They cannot just turn up in the UK with the ‘’Can’t pay, we’ll take it away brigade’’ and take your garden gnomes away.

As Del Boy would say ‘’go swivel on that’’. But that’s only if you are in the UK with sod all in Spain.  

Our posts crossed acer, but the banks and the Spanish justice system is regulated by Don Godfather.

What exact legal points were contested (and won) by the Bank at the Supreme Court?

What reasons have been given in the Supreme Court ruling to justify them overruling a previous appeal court ruling in favour of the claimant?

The detail needs to be fully understood and made more transparent.

Thank you for your comments, interest and sympathy, it really is appreciated at this depressing time.

I shall read all comments and suggestions intently.

The First Instance and Provincial appeal was dismissed in its entirety by the Supreme Court.

Costs of the First Instance procedure were imposed on me.

In the proceedings, there was only proof that the cheque was entered into the account the developer had at the bank, by a third party (which was named) but without indicating the concept or identity of the buyer (me) or any data that would allow associating said income with the buying or selling of housing subject to the regime of LEY 57/1968, so there is no reason why the bank should know that the income corresponded to an amount protected by that law.

You can probably see that the above paragraph are not my words, but I have been careful not to add names.

My thought was that the amount of time this has taken, 7 years since taking action over the bank, after the developer went into liquidation, the banks and all their weight, have found a way to line some pockets, other than mine.

I understand there have been other recent losses in the Supreme Court.

Given the serious implications relating to this scenario I wonder if Maria could advise, if as part of due diligence is there a legal requirement by a conveyancing lawyer to annexe some form of proof of deposit payment made to the named developer ( in this case in the form of a cheque by a third party) to the original purchase contract? 

And is this the only way that in this specific circumstance where deposited money is paid to the developer via a third party, it can be linked back to the purchaser?

Or is this particular aspect in question irrelevant to the legal claim against the Bank, in so much as previous SC DOCTRINE already clarified that under articles of Ley 57/68 any Bank that has developer account(s) remains responsible for ensuring that these developer accounts are separately identified as special accounts  (I.e they remain ring fenced) into which all relevant deposited monies should be placed and protected via the issuance of a legal bank guaranteeintended for the purchaser, to act as security of their stated inalienable rights for these deposited monies to be returned in the event of proven developer breach? 

Surely if this procedure relating to the issuance of BGs and safeguarding and account identification has not been adhered to by the Bank in question, then the Bank becomes ultimately liable doesn’t it?

So the question then remains how can this latest SC ruling possibly be justifiable if a developer bank has failed to follow set procedures intended to protect?

Has this latest SC ruling in effect undermined supportive SC doctrine that has taken years to establish? 

Is this correct Maria?

As for Jerryb, the question then remains....

What are the realistic legal options left going forward?

Given this now appears to be a last resort mechanism, does failure of legal due diligence play any realistic part in claiming compensation for all monies lost in this nightmare scenario( via lawyers legal liability insurance )? Or is this in itself a highly risky route to justice if there is little supportive legal precedence to assist in this regard?

Thank you ads for posing the questions that I would have had no idea how to put into such an articulate manner. It comforting to know that someone out there is trying to help. It would be interesting to see a professional response.

As far as my realistic legal options are concerned, my Lawyer, I understand, has stated that they feel I have been a victim of an unjust decision by the Supreme Court, and looking into the possibility of taking the case to Europe. There will undoubtedly be further costs, but after taking legal action since 2009, there are no funds left in the jerryb account.

My view is that once I had won the First Instance and the Provincial appeal, any other appeal should go to a neutral court, if anything. I may have even been happy with a compromise.

Who has the money at the moment?

‘’what happens if I don't pay back my money, and pay the legal fees the bank originally paid, that I now have to cover?’’

How can this case be taken to Europe if you are not in Europe?

The last I heard Spain was still in Europe 😏..... these cases are being heard within the Spanish justice system and it appears to be the Supreme Court ruling in Spain that is being brought into question here from the last posting, where the lawyer considered an “unjust decision” has been made.

Presumably the money was proven to have been originally transferred to the developer Bank account  ( hence the two previous supportive judicial rulings), but whether these monies have been illegally accessed in the interim by the developer or whoever, or even if it still remains in the bank appears irrelevant to the legal claim against the Bank for return of monies in the event of proven developer breach, since the Bank would have been obligated under the law to ring fence and safeguard these deposited monies ( and issue the purchaser with a bank guarantee) until such time as the property was LEGALLY delivered, according to the conditions of contract. 

This is the whole point of why adherence to the Bank Guarantee law is being so hotly contested...

After winning the First Instance and Provincial appeal, my lost deposit plus interest was returned to me, and currently sits in my account, but was advised not to touch it as the bank had appealed to the SC.

The SC reversed the original findings, which means they will demand the lost deposit and interest back, and cover the banks legal costs for the First Instance procedure just to really turn the screw.

Yes all absolutely correct. Best of luck.

Just a few thoughts to consider with regard to judicial independence and impartiality with regard to recent “ unjust decisions” at the SC level.

Why should innocent indivuals be scapegoated in this apparent inconsistency and imbalance between supportive appeal judges rulings and SC rulings? Why should the Banks be able to claim “ impossibility of control” when they have never adhered to law and procedures intended to protect? 

————————

http://hrlibrary.umn.edu/fairtrial/wrft-rae.htm

“The notions of independence and impartiality tend to have different meanings in different contexts. Generally speaking, both impartiality and independence are understood to safeguard the objectivity and fairness of judicial proceedings. As to impartiality, the UN Human Rights Committee stated that it "implies that judges must not harbour any preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties." 

In contrast, judicial independence safeguards the judiciary against any interference by state organs or private persons with the performance of judicial duties. Thus, while impartiality reflects an open-mindedness on the part of the judges, independence describes functional and structural safeguards against extraneous intrusion into the administration of justice.

In addition to impartiality and independence in their strict sense, it is essential that the judiciary inspires confidence in the public that judicial proceedings are actually carried out in conformity with these principles. 

The European Court of Human Rights has frequently emphasised the English maxim that "justice must not only be done, it must also be seen to be done."

In this way impartiality and independence are both extended to safeguard against situations where there is legitimate doubt that the court acts in an independent and impartial manner. “.....

“Within the scope of international standards on fair trial, the states are to determine for themselves what they regard as an infringement of objective impartiality. 

International human rights organs, however, are perfectly justified to consider those states as being bound by their own national legislation.”

——————

https://www.irishtimes.com/news/world/europe/spain-s-judges-back-in-spotlight-after-lack-of-impartiality-verdict-1.3695493

“Yet a 2018 European Commission Scorecard, which ranked public confidence in the independence of countries’ courts and judges, placed Spain a lowly 23rd, behind Romania and Latvia (Ireland was sixth).”

————————

https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2019_en.pdf

Now, more than ever, we need joint efforts to strengthen the rule of law and to improve the effectiveness of our justice systems in the EU. We owe this to our citizens!

Věra Jourová

European Commissioner for Justice, Consumers and Gender Equality

———————

https://www.irishtimes.com/news/world/europe/spain-s-judges-back-in-spotlight-after-lack-of-impartiality-verdict-1.3695493

In Spain, political parties have always tried to exert substantial control on the justice system,” the magistrate Joaquim Bosch, co-author of a recent book about failings in the country’s judiciary, told The Irish Times.

Bosch points to the General Council for the Judiciary (CGPJ) as a root of the problem. Its members are appointed by politicians and it in turns selects top-ranking judges, embedding political preferences into the system’s upper echelons. “If you don’t appoint the very best people then there will always be a suspicion that those who have links to political power are the ones being promoted,” he said.

———————-

Quite right ads.

Because the whole banking and justice system is Mafia controlled. This is where the money and power exists.

Returning to the aspect of “ impossibility of control”, I suspect it all comes down to why should the Banks be able to make this claim, when they never adhered to law and procedures in place intended to protect, which in itself ironically appears to have compromised their own position and left them lacking control and failing miserably in their legal responsibility to adequately administer and safeguard all deposited monies and make adequate provision of legal Bank Guarantees.

Perhaps the question to ask is....is the impossibility of control therefore completely of the Banks’ own making?

My experience of Spanish lawyers to date is not positive to say the least !

My naievity in attempting to buy a place in the sun is beyond doubt let's be clear on this !

Original "lawyer" took their fee to represent me in my off-plan purchase :-

Simply sent me a worded email receipt for my 40000€ deposit !

Despite asking my lawyer for a bank guarantee it never came !

Failed to explain what "touristica manzana" meant in my contract !

Recently ignoring my request for the actual receipt of my money transfer receipt !

Then....

2nd law firm ran conference calls and were full of confidence in their abilities but sat on my case from June 2012 with very poor communication unless I messaged them first !

Talked about the possibility of an insurance claim against previous lawyers insurance but were hesitant and unconfident about success and never went ahead !

When I informed them I no longer had confidence in them due to 8 years of lack of communication and action and asked for a refund I was offered half my fees back due to "work they had done on my case" money grabbing is what I call this !

I recently asked for clarification on a matter they said they had dealt with on my behalf, I was simply reminded I was no longer a client of theirs ! And no help whatsoever !

Now I wait in limbo...so I  very recently approached a new lawyer...

"Yes you have a good case with good prospects of success "  and immediately wanted to send me their fee scale after the lawyer had assessed my case files ! 

How can this be when my case is exactly the same as jerryb's, I honestly have no trust in any of this country's legal representatives at this point !

SC rulings within the same country is definitely not what I call neutrality 

Best regards all

Marky

Kavanagh, for once, I actually agree with you!!:-

Jerry have you been fully paid out?

Whatever judgement a Spanish court decides is only applicable in Spain. Do you have any assets in Spain? If not however that does not stop anyone in Spain taking legal proceedings in another county, but they would need a new court judgement from that countries justice system. They cannot simply transfer a Civil Spanish court judgement from Spain to the UK or anywhere else. The laws are different in each county but they would likely try to use the Spanish judgement as a persuader in front of a British judge.

They cannot just turn up in the UK with the ‘’Can’t pay, we’ll take it away brigade’’ and take your garden gnomes away.

As Del Boy would say ‘’go swivel on that’’. But that’s only if you are in the UK with sod all in Spain.  

Our posts crossed acer, but the banks and the Spanish justice system is regulated by Don Godfather.

This message was last edited by Kavanagh on 05/12/2019.

JerryB, I'd advise you to take you money and run - let them chase you for 9 years! 

Hi Ads, I have posted you a pm