08 Jan 2016 12:20 PM:

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.  

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

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08 Oct 2015 8:08 PM:

Hi, Margaret and Charlie,

As explained before, the legal change will not affecto to those purchases made under Law 57/1968 and nor to the actual claims.

You bought under Law 57/1968 and you keep the rights acquired under that Law. After 1st january 2016 Law 57/1968 won't cover new contracts or new payments, but won't affect to previously acquired rights or obbligations. Banks and promoters had the obbligation to cover you, and this doesn't change with the new Law.

 

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

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07 Oct 2015 9:00 PM:

Last friday we attended, invited by the Popular Party (the actual party in the Spanish government), to the Andalusian Justice Forum in Sevilla.

In the Forum we met, appart from many professionals from all over Andalusia, and some relevant polititians, the General Secretary in Andalusia of the Popular Party, several high charges of the Ministry of Justice, the spokesman of the Popular Party on Justice in the Parliament and one of the heads of the Legislation Commission of the Spanish Parliament, and the President of the CADECA (Counsil of Association Bars of Andalusia).

The general feeling was that the actual situation of the Justice Administration is really poor, and the charges from the Government and the Parliament admited Justice was too slow. In this point, they said that one of the reasons was the high litigiousness, the great number of claims the Courts have to resolve, and said that this was the reason of the litigation fees they imposed.

We alleged that, from our point of view, it's not so easy to assure if "the hen was before the egg" or vice versa. And that perhaps there are many claims that could be avoided with an effcient and fast Justice Administration.
After that, we asked them to work hardly on the improvement of the Justice Administration in two directions: 1) Provide more and more appropriate resources (both human and material); and 2) A much more strict management of the actual ones, as sometimes the question is not the resources but how the resources are handled, quite uneffciently most of the times.

We specially emphasised on how bad the reputation of our legal system is abroad, and how it impacts on foreign investors´confidence on Spain, and transmited them some of the problems foreign ex-pats and investors find in our country, from the side of our experience with many British and Scandinavian clients.

Its obvious that, for recovering their confidence, deep improvements on the legal system are needed.

And, in that line, we suggested how useful it would be to incorporate to our legal system the "adhesion to an existing ruling", as it would avoid many and many equal claims. Say, for example, the Supreme Court states, in the case of the latest ruling about BGs, that any buyer under a certain set of facts (amoounts paid thriugh a bank account, subscription of a general policy by the developer, properties not delivered, etc) can adhere to the ruling. This would avoid hundreds of claims that, at last, come into a heavy workload for Courts.

Unexpectedly, the proposal was really welcomed by the spokesman on Justice of the PP in the Spanish Parliament, who said they would explore this possibility.

We have been appointed as permanent members of this Forum, and there will be another session for mid-november, with the attendance of the actual Minister of Justice.

We must admit that, when we were appointed, we were not very optimistic on the practical utility of the Forum, but after the meeting, considering how participative it has been, the attendance of on-site professionals and the continuity it's going to have, we are really hopeful about how influential it could be.  

Some members of the Forum. Between them, Rosalía Espinosa (MP in the Andalusian Parliament) and Loles Lopez (General Secretary of the Andalusian Popular Party)

 

Our CEO, Emilio Lucas; Gabriel Alcoba (lawyer); and José Pascual Pozo (President of the CADECA)

 

Thread: PRODUCTIVE PARTICIPATION IN THE ANDALUSIAN FORUM ON JUSTICE

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07 Oct 2015 8:30 PM:

Dear ads, 

You are right. And let me tell you that last friday we assisted, appointed by the Popular Party (the actual in the Spanish government), to the Andalusian Justice Forum in Sevilla.

In the Forum we met, appart from many professionals from all over Andalusia, and some relevant polititians, the General Secretary in Andalusia of the Popular Party, several high charges of the Ministry of Justice and the spokesman of the Popular Party on Justice in the Parliament and one of the heads of the Legislation Commission of the Spanish Parliament.

The general feeling was that the actual situation of the Justice Administration is really poor, and the charges from the Government and the Parliament admited Justice was too slow. In this point, they said that one of the reasons was the high litigiousness, the great number of claims the Courts have to resolve, and said that this was the reason of the litigation fees they imposed.

We alleged that, from our point of view, it's not so easy to assure if "the hen was before the egg" or vice versa. And that perhaps there are many claims that could be avoided with an effcient and fast Justice Administration.

After that, we asked them to work hardly on the improvement of the Justice Administration in two directions: 1) Provide more and more appropriate resources (both human and material); and 2) A much more strict management of the actual ones, as sometimes the question is not the resources but how the resources are handled, quite uneffciently most of the times.

We specially emphasised on how useful it would be to incorporate to our legal system the "adhesion to an existing ruling", as it would avoid many and many equal claims. Say, for example, the Supreme Court states, in the case of the latest ruling about BGs, that any buyer under a certain set of facts (amoounts paid thriugh a bank account, subscription of a general policy by the developer, properties not delivered, etc) can adhere to the ruling. This would avoid hundreds of claims that, at last, come into a heavy workload for Courts.

The idea was welcomed by the spokesman on Justice of the PP in the Spanish Parliament, who said they would explore this possibility.

We have been appointed as permanent members of this Forum, and there will be another session for mid-november, with the attendance of the actual Minister of Justice.

We must admit that, when we were appointed, we were not very optimistic on the practical utility of the Forum, but after the meeting, considering how participative it has been, the attendance of on-site professionals and the continuity it's going to have, we are really hopeful about how influential it could be.  

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

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06 Oct 2015 6:11 PM:

Dear colleague, it sounds like you mean that we don't inform our clients about possible risks.

Our policy is of an absolute transparency with the clients. We let the clients know all the possibilities and also all the risks implied.

The only point is that we don't see the risk you see. And believe us we have studied deeply all the relevant laws and  legal precedents. 

From our point of view, as said, if you signed a contract in, say, 2006, and the developer incurred in breach of contract by not delivering the property in time, you are covered in the terms and conditions valid at the time both parties signed the purchase contract, which is the moment in which they set their obligational framework.

Should they have rescinded or not the contract, the breach has made it invalid (more in these cases in which is not just a matter of delivering the property in time, but a complete failure to deliver that won't be able to be repaired), and the rights coming up from that cancellation of the contract are the ones coming up from article 1124 of the Civil Code.

The obbligation the developer had to deliver a BG when receiving payments, and the obbligation of the entities subscribing a guarantee policy with the developer to issue that BG came up in the moment the payments were done (say 2006 and 2007, for instance).

So, a new law will not change that matters, unless an express legal provision containing that piece of legislation. 

And that's why we don't see any risk in the way you do.

This is our opinion.

Anyway, the sooner buyers claim, the better. We are sure the SC ruling will bring more claims before Courts that could jam them, and the earlier you claim, the faster you'll be refunded your deposits. 

This message was last edited by LucasAsociados on 06/10/2015.
Thread: NEW!!! - GREAT NEWS!!!! - SUPREME COURT CONFIRMS BANK LIABILITY FOR DEPOSITS UNDER LAW 57/1968

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