San Jose into liquidation.

Great news Briando but presumably in your case the judge at first interest stage recognised a claim for interest to be backdated to date of deposit based upon Supreme Court ruling, .....so the Bank had little opportunity to win an appeal at that stage since case law had been achieved in the interim period?

Unfortunately  however, not all judges have recognised  this  at first instance stage when separate litigation against Bank was ruled upon, as opposed to joint and several claims, preferring instead to provide interest from date of Bank claim as opposed to date of deposit.

Much appears to depend upon the timings of SC rulings being made available and whether the law firm had the opportunity to request interest from date of deposit at first instance stage ( if supportive case law was not in existence at point of original lawsuit submission), or  if they included reference to SC ruling(s) in their subsequent appeal for additional interest i.e.requesting the judge to recognise  the latest SC rulings which clarified that interest should be backdated to date of deposit.

Questions arise from this in terms of the judiciary basing their rulings on their knowledge of existing SC clarification at point of ruling,  or whether they instead prefer to depend upon specific cross reference within the lawsuits. 

Time will tell but it is contentious and some would suggest failure to recognise the latest SC rulings plays into the hands of the Banks who at every opportunity are contesting their legal responsibilities not to mention demonstrating their bad faith and disrespect for clarified law.

In our case Ads the original preliminary hearing and the lawsuit presented was for the capital, the interest and the costs. This being in accordance with the law as stated (or interpreted) by the lawyer, and the court is then asked to provide their own interpretation as the case is heard.

as the case goes along, the more rulings from the SC may filter into the upcoming judgements at first instance, and also influence the banks cases of likelihood of changes when appealing.   

Your rihgt in as much as the bank would always appeal if there is a history of weakness to exploit, but if cases become more predictable after SC rulings, any appeal may become less cost effective?

Perhaps the law is entering a new era and one can only hope the law is also passed that makes everyone aware of their responsibilities at pre contract stage, and how swift and accurate the penalties can be.  

The ongoing concern arises when it is the innocent claimant who is left to appeal after a SC ruling has already been clarified with regard to the right to gain interest from date of deposit, as opposed to date of claim, where the judge does not recognise the SC ruling achieved in the interim period, and the bank continues to contest the claimants appeal for additional interest.

If the judiciary do not recognise that SC clarification and case law achieved at point of appeal ruling, then questions need to be asked with regard to the legal credibility and respect to the issuance of SC rulings let alone the bad faith being demonstrated by the Bank. 

SC rulings I hasten to add, that have ironically been delayed due to no fault of the innocent claimant and as a consequence of a proliferation of Bank appeals that overwhelmed the system of justice.

It's time that all the judiciary recognised SC rulings with regard to LEY 57/68 in a consistent and fair manner so as to make the Banks acknowledge their responsibilities AND CLAIMANTS INALIENABLE RIGHTS according to an existing law in place to protect.

This message was last edited by ads on 20/11/2017.

This message was last edited by ads on 20/11/2017.

Hi,  We were at Malaga Court on 15/03/17 and only partially won our case, because the Bank told the Judge that they had not received all of our deposits,  hence we were not awarded any costs, also the judge only back dated our interest to 2016, instead of when our deposits were first paid to the developer in 2004/5.

Maria has now confirmed that the S.C. has said on 2 occasions (17/03/2016 + 16/03/2017 making it case law) that they should award interest from when the deposits were first paid to the developer yet when our Judge made his decision on 24/03/17 he obviously ignored this case law ?

We are still waiting  (approx 8 months ) for the Court to arrange for the proportion of our money to be returned to us by the Bank whilst they appeal.

Be Lucky post. on 20/11/17 just shows how much the Spanish Law and Court's need a total update. We have waited since 2008. As a community, the Builder has not been found. Even though the company are still building under a different name. He did not turn up at the court to defend the claims against him. 

Belucky a few questions arise for you to query with your legal team if you have not already been informed..... 

In your case, did the judge not recognise your evidence of monies deposited into developer accounts or was there some other complication?

Also re preliminary enforcement  for return of proportional amount of  monies, do you know if those monies according to the ruling have been placed into the court account ready for return, or has the Bank issued an AVAL ( promise to return monies) instead? In which case is there further action outstanding in this regard?

Are those monies in excess of your legal costs, as presumably the law firm will deduct their costs from these monies prior to return, until such time as a final ruling is achieved, when presumably all interest and costs are re-evaluated dependent on the final ruling.

Is there a deadline to preliminary enforcement by which the Banks have to deposit actual monies into the court account?

Just a few thoughts...

The main aspects to consider here for all of these scenarios is how effective are SC rulings in terms of ensuring the law is being administered to its full effect and in a timely manner?

Are Banks being consistently made accountable in that regard and is Ley 57/68 now being enforced as it was intended, i.e.in the event of breach of contract the law was intended to protect offplan purchasers deposited monies placed into developer bank accounts, via effective administrative provision of legal Bank Guarantees together with guaranteed provision of  secure  bank accounts with due regard to inalienable rights thereof, such that in the event of breach, the guarantor Banks and or Insurance companies are ultimately responsible for return of those monies.

The banks have to honour this law and have to act in good faith in all matters appertaining to this. 

Where bad faith is demonstrated in the form of ignoring or continually contesting recent SC rulings at either first instance or appeal levels, then surely the judiciary should respond accordingly to make the Banks accountable?

Anything less becomes disrespectful and a direct challenge to the system of law in Spain, which is not in the interests of claimants, legal teams, or the Spanish Justice system alike.

Hi Ads

Good post. I would like to see what the answers would be in relation to my case. Our case is with SC since Sept 2016 and we have not any of our deposit back at all having won in 2016 which included costs and interest. Having won we thought mistakenly that our deposit would follow. It would be really nice for the SC to think we have waited approx 12 years and someone was responsible for treating us so badly.

Thanks again Ads

Hi ads, 

Thank you for the info,  and regarding "the monies paid into the Developers accounts"  I don't know if this was an issue as we were claiming against the Bank who issued the General Bank Guarantee and our lawyer says that the depositing of some monies into different Banks should not have made any difference to the claim. However this decision made by the Judge meant that we did not win our case 100% and therefore were not awarded the costs, resulting in us being approx. 8,000€ out of pocket.

As for the return of the proportional amount of monies, or the AVL, I will need to make enquires with our lawyer.

Cheers 

Yes, Case Law is clear on stating that once there is a General Guarantoor, there is no requisite for money to be placed in accounts of this.

No doubt case law is very good, however as long as the banks appeal for every minor point, the poor buyer is left out of pocket by not being awarded the costs, plus the buyer will then have to wait for another 2 years for the appeal to be heard. 

Costs are generally being imposed against Banks in these cases. There are some exceptions ( as in every matter), which can, of course, be appealed with the necessary good arguments. 

Interests of the whole period ( from date of payment into developers account to refund day) are also being imposed on them so.... despite I agree Justice is slow ( efforts are also being made to improve this reality), Banks are being extensively and heavily punished in Spain.

One recent post on our website tells about this in regards to Floor Clauses. I confirm is always the case with law 57/68 cases. I do a daily review of Case Law in the whole territory:

https://blog.costaluzlawyers.es/blog/2017/11/20/spains-supreme-court-hits-banks-harder-court-europe/

If you are not awarded your costs by the Judge at the Final Hearing, due to only being awarded 80% of your claim, as another bank had received the remaining 20%. Even though the Bank that received the 80% was also a Guarantor.

If you then appeal and the 3 Judges agree that the bank who had received 80% of your deposits was also a Bank Guarantor and you win your case, is this sufficient "good argument" to appeal for the thousands of euros involved in the costs of the Final Hearing ?

Did you pay your money to a single account or to seperate accounts?

I feel the argument about who pays you the interest is between the banks and the responsibility for who offered the guarantee is between the banks, courts, lawyers and builder.

In the meantime an 80/20 split seems like the way you should be dealt with and the court should make that order (my opinion).

My money was paid  to my first Spanish Lawyer who in turn paid it into two separate Banks which I assume means two separate accounts.

I am not refering to the interest ? That is another story.... In 2009 I took my Developer to Court and won the case unfortunately the Developer went into liquidation and I did not receive a penny, however during our latest Court case in 2017 the bank pointed out that when I went to court in 2009, my second Spanish Lawyer had inserted a clause in the claim (without my knowledge) that I did not require any interest, and therefore I should not be allowed to claim any interest in this case ?

Needless to say the Bank has appealled so I have another two years to await the Court case which will make it 15 years since I handed over my money.

Oh.    So who’s representing your interests?  

They should answer your questions and the ones you need to get very forceful with, agree?

At the 2008 completion of our Spanish property the Notary refused to take the matching cheque from the Builder as he had made his cheque out to the wrong Bank account. The person who we assume was his wife had to go back to his office and collect another from the correct account.

We should of seen some odd we going on then, The cheque from the Builders account was to match our final payment and gaurantee the funds for the uncompleted work which today is still not completed.

2 weeks after our completion the Builder ceased to trade. That was10 years in February 2018. this has been a great worry.

10 years and the community now have €80k for the Transformer to be installed. and the owner of the same Building that will also use the transformer for their utility usage  now expect our community to pay €11k extra for the instalation.

The Spanish owners of the empty building without any sold apartments,   are not playing fair, because without the Transformer which our community have saved hard for, over the last 9 years they will never be able to sell any of their unsold apartments. They seem to be looking for Charity.

Where are the Spanish Laws that protect buildings with a community that have worked hard and paid all the debts of that the missing Builder left, The Builders Huge electricity & water utility Bills had to be paid before we could get our Utilities connected. The Lift worked for one week and the lift company removed the working parts, therefore the upper floors have to climb three flights of stairs.

Regards & Good luck in getting your problems sorted. we pray that ours may soon get a little better.

Doedoe. xxxx

Poedoe:

Do you have habitation licenses for your units?

Poedoe,

A few questions.....

Is this building to house the transformer already built, and how has it come under the ownership of the vacant property? If already built isn't it already deemed part of the community?

Have the Spanish owners of the empty building without any sold apartments (are these owners now Bank(s) by the way?) that you refer to, paid anything towards the Community to date? Are they owing Community fees, or does a building with empty unsold apartments exempt them from contributing in some way?

Might any outstanding fees owed be a financial route to cover extra costs associated with this installation, or even contribute towards the cost of transformer?

Just a few thoughts!

Maria,

This is a sensitive question but If there is no habitation licence in place for units, does this legally exempt owners in those units from having to pay community fees, or do their legal obligations to contribute to the community still stand regardless of issuance of habitation licence?

Also when you purchase a property doesn't the amount you pay cover the cost of installation and provision of utilities (not to be confused with individual service connection charge) irrespective of issuing a habitation licence? So in effect are these owners paying twice for the installation and provision of utilities that should have been paid for by the developer?

Does this therefore make any Bank who took over the debts and obligations of the developer in the event of insolvency liable for any outstanding provision and installation of utilities?