11 Jan 2024 7:44 PM:
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Thank you Maria for that clarification.
Is it correct to surmise that there is every incentive for the Bank to delay any payment into the court ( and not abide by a "voluntary payment " at point of preliminary execution) following their first instance loss, as this provides them an opportunity to continue to accrue interest on claimants deposits that they are withholding in the interim period, even though the first instance ruling went against them?
If the bank initiates an appeal process, the payment of the principal amount from the judgment is not mandatory for the bank, unless the opposing party requests the provisional execution of the judgment.
Is it correct to surmise that the "voluntary" nature of return of funds by the Bank to the court (within the provisional execution procedure) is allowed only when the Bank have submitted an appeal ? Does this voluntary aspect therefore incentivise the Bank to swiftly appeal the first instance ruling at every opportunity so long as elements of doubt exist ( I.e. no SC doctrine yet exists)?
If the bank pays after the provisional execution, it is not considered a voluntary payment because, in the absence of payment, the funds in their accounts could be seized through legal means.
Provisional execution can only be initiated once the appeal has been filed and formally accepted for processing. If the bank fails to submit the appeal within the 20 business days stipulated by the law, the initial trial or appellate court's judgment would be considered final. In such a scenario, any subsequent execution would not be provisional but rather a definitive execution of the judgment.
Would a mandatory requirement to return monies by the Bank to the court after the first instance supportive ruling in recognition of the provisional enforcement order in favour of the claimant, have acted as effective disincentive to proliferate Bank appeals? Is this where the Banks have been afforded an unfair advantage over the claimant given the current system of voluntary payments into the court? Do you envisage any change or review to this voluntary aspect given the subsequent impacts that have overloaded and thereby compromised the justice system?
When a judgment is dismissed, and money has been recovered in provisional enforcement, it must be returned. This obligation applies to both banks and ordinary citizens, signifying a commitment to justice and compliance with judgments.
A change in regulations is set to take effect in the coming months: provisional enforcements will incur costs borne by the party obligated to pay.
This aims to discourage provisional enforcements and encourage voluntary payments, even in the presence of an appeal.
While provisional enforcement indeed facilitates quicker recovery of funds, it temporarily places the recovered money at the disposal of the claimant, albeit at the expense of foregoing interest accrual during that period.
Is it correct to surmise that so long as elements of doubt exist that it becomes essential to review all aspects that can compromise the achievement of SC doctrine which assist judges in their deliberations?
It is absolutely correct to acknowledge the importance of carefully reviewing all aspects when there are elements of doubt. The doctrine of the Supreme Court plays a crucial role in judicial deliberations, and ensuring its effective application is essential to maintain the integrity of the process.
Given the current system, have the Banks been incentivised to proliferate appeals and withdraw at the last minute any SC appeals on their part, (both of which led to the overloading of the justice system), and in so doing significantly delayed the ability for claimants law firms to eliminate those areas of doubt and gain essential SC doctrine?
The law acknowledges the legitimacy of withdrawing legal actions if deemed appropriate, along with the corresponding consequences that may follow ( a little court costs). However, there is no apparent incentive, or at least none that we are aware of.
It is undeniable that such a practice is highly unethical and immoral, given that there are individuals awaiting a judicial resolution, eagerly seeking a prompt resolution to their cases. However, the fundamental issue persists: banks are not individuals, and the lawyers representing them do not advocate for people; instead, they represent large corporations without the moral imperative to work in tandem with the client for a swift and satisfactory resolution.
The act of submitting appeals only to later withdraw them contributes to the overburdening of the justice system. There should be a more stringent penalty, perhaps in the form of imposing higher fees, to discourage such practices and ensure a fair and efficient legal process.
But also hasn't the "voluntary" nature of provisional enforcement, where Banks have the choice to deposit monies into the court, undermined the ability for claimants to gain early access to their deposited monies?
Provisional execution is not voluntary; it entails compelling the bank to make payments while the appeal is being resolved, allowing the prevailing party to access the awarded funds without waiting. Additionally, banks can choose to voluntarily deposit the money with the court, in line with the conviction, similar to any individual with a judgment against them.
Pros of this voluntary deposit or post-provisional execution: the individual recovers their money while their case is being resolved, a process that can span over several years.
Cons: the money ceases to accrue interest during this period.
It needs re-emphasising that the current system of voluntary payment into the court by the Bank, appears to allow Banks the ability to chose NOT to pay those monies into court according to the first instance ruling ( making a mockery of this ruling) and furthermore they continue to gain interest on claimants monies throughout any continuing appeal procedures they instigate until all elements of doubt (SC Doctrine) have been established. BUT THEIR ACTIONS ARE IRONICALLY DELAYING SUCH ELEMENTS OF DOUBT TO BE FINALLY RESOLVED.
Is it therefore essential that judges remain aware (at their final deliberations) of these " purposeful ploys" on the part of the Banks that have created an unequal playing field with regard to interest?
Judges act in accordance with the law.
The sums do not accrue interest once the sentence is fulfilled through payment to the court.
However, the amounts not yet delivered continue to accrue interest.
Can law firms bring this to the judges attention? Is this in effect a necessary requirement to demonstrate how the system for Banks' " voluntary" payments to the court at point of provisional enforcement, where the Banks chose to not deposit monies into the court, has in effect unfairly significantly compromised innocent claimants ability to acces their monies and retain the right to a fair assessment of interest throughout the remaining stressful and costly judicial appeal procedures instigated by the Banks?
I understand it can be frustrating, but it's important to note that provisional enforcement is designed to grant the citizen access to funds while the appeal is being resolved. This means the principal amount is received, although interest isn't accrued during this process.
While legal proceedings can indeed be costly, if there's a cost award, the losing party essentially reimburses those expenses. In summary, although the legal process might seem intricate, the system aims for fairness and justice for all parties involved.
Is there any facility in the current system to request this review by the judge at final deliberation of interest?
Interest amounts are determined by the judge or the judicial secretary after both parties have submitted their respective amounts in line with the court's decision. It's important to emphasize that judges operate within the framework of the law.
Once the interest is approved, if you are not satisfied with the decision, you have the option to appeal within the stipulated period, which typically ranges between 5 to 20 days. The specific time frame depends on whether the resolution is issued by the judge or the judicial secretary. This ensures that there is a fair and transparent process in place for any concerns or disagreements regarding the approved interest amounts.
Have these purposeful actions on the part of the Bank also compromised the award of costs in favour of the claimants?
Presently, provisional execution does not involve a judgment for costs; such court costs are typically associated with definitive execution. Therefore, if the bank does not opt to voluntarily make the payment once the resolution becomes final, the option to request final execution arises, and this process does involve costs.
Thread:
Question for Maria. How long can Spanish courts hold claimants monies and what are the rules governing interim interest?
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