Supreme Court rulings - ongoing concerns

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10 Nov 2018 13:31 by ads Star rating. 4011 posts Send private message

 

https://www.spanishpropertyinsight.com/2018/11/07/spanish-supreme-court-finally-decides-that-borrowers-must-pay-mortgage-taxes/

 

According to the above link relating to mortgage tax it now appears that the Supreme Court has overturned a previous SC ruling which favoured consumers ( the latest SC ruling has ruled in favour of the Banks).

Is this correct? 

 

Is this also happening with regard to over ruling ( and undermining) previous SC rulings and precious case law associated with Bank Guarantee law Ley 57/68 , which have  taken years to attain? 

 

Is this now demonstrating a “ pattern “ of overturning previous SC rulings that were in favour of consumers, thus shifting away from consumer protection in favour of the Banks?

In which case does this now beg the question, is this shift as a consequence of some form of Govt political interference which is against the rule of law?

 

More importantly, does this now place thousands of existing claimants in the justice system at risk going forward, given they have cross referenced previous supportive SC rulings and case law in their lawsuits?

 

So the question then remains ....is this of such significance to undermine the rule of law in Spain,  and thereby threaten the ability for ALL citizens to gain justice and fair rulings, without fear of outside interference?

Does it  pose a threat to the system of justice in Spain?

 

Does this therefore need to be reported by all good law firms to Rights International Spain?





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11 Nov 2018 09:34 by lobin Star rating. 245 posts Send private message

The issue at hand has to do with a tax on Notarised Documents (sort of a stamp tax).  It is completely unrelated to Ley 57/68 cases as it only applies to Notarised Documents containing mortgages.  The applicable Law states that the tax is payable by the party who benefits from the notarised transaction.  For many years, the SC had been interpreting that this was the mortgagee, the party receiving the funds thus giving more relevance to the transaction.  A SC judge ruled recently that the fact the transaction is notarised benefits the bank giving the mortgage as a notarised documents provides more enforceability that one that is not.

Since this contravenes standing SC precedent, the President of the SC called a special plenary meeting of the SC to review the issue and after long deliberations the plenary session concluded that the tax should be paid by the bank, therefore reverting the isolated decision and confirming the previous interpretation.  

However, many borrowers had raised expectations of being able to recover the tax from the Tax Authorities (not from the banks as the tax has been paid to the Tax Authorities and in this case to the Autonomous Communities (local governments).  The Autonomous Communities would then have to reimburse the tax to the borrower and subsequently, but not before, recover it from the banks.  There are millions of Euros involved plus taking up a lot resources just to manage all of this.  

Because reverting the isolated SC decision mostly damages the finances of the Autonomous Communities, the press and left wing politicians are arguing that the calling of the plenary SC session to revert the isolated ruling and return to the standing precedent was done because the Government and Banks pressed the SC to do it and the most left wing party is trying to stir up people's demonstration against the outcome of the plenay session.  They also state that it is the banks who have commited fraud to the customer when this is not correct because the banks were applying the standing SC interpretation.

The Government then passed an direct Decree changing the Law to say that the tax is payable by the Banks in the future.  This is criticised by everyone stating that a Law cannot be modified by a Decree and as such the Decree could be declared unconstitutional or, depending on the different views, that it does not solve the problem because the Banks are now going to increase the commisions or interest from mortgages to pass on the cost to the borrower in an indirect manner.

That is the current situation and the logical thing is to have a Law passed modifying the Tax Law but this would take a lot of time and the outcome is unpredictable as the party in Government does not have sufficient backers in the Parliament to support this so, we yet have to see whether a new Tax Law will be enacted.  

Whatever happens this is totally unrelated to Ley 57/68 and the precedents set by the SC in connection to that Law.  There is no "patern" of overturning SC rulings or anything like or a challenge to the rule of Law.  It is simply a case of the SC calling a plenary session to review the change in interpretation of earlier SC rulings that had set precedents because there were at least two SC decisions on this matter pending.  Whether or not this was done at the pressure of the Government because of the effect on the finances of the local governments is something that is open to opinion because there is certainly no evidence.  Just appealing the isolated decision would have been the standard procedure but this would have taken years to resolve.  I believe the President of the SC acted correctly in calling the plenary session to review its rulings and to decide on a change of interpretation rather than following the standard procedure.  

 





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11 Nov 2018 12:07 by ads Star rating. 4011 posts Send private message

Thank you lobin for your response.

I am confused however....did the plenary conclude that the Banks should pay the tax as you stated  ( which would result in the local authorities having to reimburse and reclaim it from the banks)? If so why would this be challenged by those trying to make the banks accountable for this tax, as it sounded as though the Banks were ultimately being made accountable to pay this tax? 

If on the other hand if the plenary decided that the mortgagee should still  pay the tax, then presumably the objectors would seem to be suggesting that this “ reversion” back to make the mortgagee responsible was due to outside political interference by Govt and Banks lobbying, which resulted in a decision that undermined an independent SC judicial ruling in favour of the mortgagee  ( which is against the rule of law since judges must be seen to be independent from outside persuasion or influence).

Could you therefore clarify this, as perhaps I have completely misunderstood the logic? 

As for Ley 57/68 it has been suggested that there is instance of SC rulings (doctrine?) and majority case law that have taken years to achieve, being recently overridden ( albeit not from plenary decisions), so it would be really helpful to gain clarification of this, both in terms of whether this is a questionable ruling that brings into question any form of outside influence in favour of the Banks, given the large sums of monies involved, and exactly what has been ruled upon and who it will impact going forward?

 


This message was last edited by ads on 11/11/2018.



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