Proving payment was made to the Bank

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21 Jun 2021 15:19 by AnnandGraeme Star rating. 7 forum posts Send private message

Hi All,

I have been informed that my appeal for claiming my deposit back has been unsuccessful as the Appeal court stated that there was lack of proof that my money was paid to the bank. 
I have proof that my money was paid to the developer. However, the bankers cheque which was given to the developer, was truncated (i.e. paid) from my Solicitors bank account through to the developers bank account. The problem lies in the fact that very few details from the original cheque are shown at the receiving bank. Truncating cheques (transferring money from one bank to another) in this way is common practice, so I am told. 
Just hoping that the Supreme Court are aware of the truncating process - not holding my breathe though as it was them who first brought out the need for proof of payment.

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21 Jun 2021 22:11 by ads Star rating. 4025 forum posts Send private message

Your conveyancing lawyer should have all the details from your client account held at that time, identifying which Bank this was, the associated client account IBAN number, showing the amount paid, who the cheque was made out to ( developers name)  and signed and dated by your lawyer.

This should have been attached to your contract to act as proof of payment, thus making the link between your lawyers  client account and developer.

 

 




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22 Jun 2021 15:16 by AnnandGraeme Star rating. 7 forum posts Send private message

Hi ads,

Not that straightforward I'm afraid. I paid my money into my solicitors bank account. My solicitor then raised a bankers cheque made payable to the developer. A receipt was given by the developer for the amount stated on the bankers cheque. The developer then paid the bankers cheque into his bank account, who then truncated it somewhere else, and this is were the problem lies. I do not have any details of were the cheque was then cashed i.e. which bank. 
I approached the issuing bank to see if they could trace it, but as it was 15 years ago, they said they do not keep records  beyond seven years.

Unfortunately, my contract makes no reference to the payment.

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22 Jun 2021 18:04 by ads Star rating. 4025 forum posts Send private message

It isn't up to you to prove what the Bank did with the money thereafter, as LEY 57/68 states that it is for the Bank that first received the deposited monies is required by law to make provision for safeguarding those monies into a secure safeguarded developer account. That is the whole purpose of Ley57/68 to ensure that inalienable protected rights are adhered to according to law.
 

What nonsense to suggest that you are responsible for what a Bank does with those monies thereafter. This is the whole purpose of Ley57/68 for Banks to remain accountable for correctly administering and safeguarding purchasers deposited monies from the outset.

 So long as you have proof of payment to your lawyer and your lawyer can prove that monies were transferred to the developer account ( presumably this is proven via the developer's receipt of same) then that should suffice as far as your responsibilities were concerned.


Innocent purchasers should never be made accountable or scapegoated by Banks not adhering to the letter of the law, a law intended to protect in the event of developer insolvency, contract cancellation etc. 

This form of ruling if not careful sadly appears as interference intended to protect the Bank, by failing to recognise the essential Banking administrative procedures as set out in Law Ley57/68 to safeguard offplan deposited monies until such time as the contract is honoured.

Appeal judges and Supreme Court need to reflect on this, as to turn blind eyes to this implies that the rule of law which states that everyone is entitled to protection and legal certainty according to law is at stake here.

To remove an essential element relating to legal certainty in this way undermines the very basis upon which law is enacted, and also if not careful undermines another essential principle to the rule of law, that of judicial independence free from interference of any kind.
 

 




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