A strong battle against Supreme Court´s recent interpretation of Law 57/68 we are in

Post reply   Start new thread
:: New - Old :: Old - New

Pages: 1 |

Forum home :: Latest threads :: Search forums
The Comments
23 Mar 2021 10:58 by mariadecastro Star rating in Algeciras (Cadiz). 9344 posts Send private message

Legal Questions? Speak to Maria Direct

A recent email to someone who contacted us after losing a case against the bank where her off plan payments were made.

Supreme Court  has recently set that teh control duties of the Bank do not exist if the payment ws not detailed by the client. This ws never made a condition for the client who trust on the existence of a protected account and is against the protective charcter of Law 57/68. As we say to the client, we are trying to battle this in favour of clients needing it.

 

Dear xxxxx:

 

It is totally natural and reasonable you are perplexed. Interpretation of Provision 1.2 of Law 57/68 ( liabilities of deposit banks) was totally rights till very recently, our Supreme Court made what we consider a very wrong and against Law interpretation of the same by stating that for a Bank to be made liable ( due to lack if active surveillance of funds deposited in their accounts), the buyer had to (1)pay himself, never through an intermediary-- requisite that has been later on suppressed by SC--- and (2) specify property in the off plan payment.

 

These requisites are against former CaseLaw interpretation on active surveillance of banks. We are still defending this cases. So far we have failed both at the Constitutional Court and European Court of Human Rights. Cases were not admitted into procedure by none of these Courts.

 

Many Appeal Courts ( lower than Supreme) defend that there is no no need for specification and we strongly defend that as according to Supreme Court, the surveillance duties starts as soon as a Bank realises the possibility of off plan funds being deposited in a developer´s bank account, that is , in our opinion, as soon as the Bank account is opened by the developer. There are also Money Laundering protection legal reasons which makes this control necessary since a developer opens an account.

 

The change of criteria by the Supreme Court is the reason we won cases in the past which are not being won anymore

 

Hope this explains

 

Kind regards

 

Maria



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



Like 0      
24 Mar 2021 12:04 by ads Star rating. 4025 posts Send private message

Basic questions.

When monies are deposited into a Spanish Banks safe keeping into a defined developer account, what law protects those monies from “ theft” by the Bank itself, I.e. enables the return of those monies upon request, when substantiated proof of deposit has been provided together with substantiated proof of developer breach of contract? Was this not law Ley 57/68?

What laws are in place to safeguard interim monies deposited into developer accounts in the event of developer insolvency? Was this not law Ley 57/68?

What legal guarantees are in place to ensure that in the event of developer insolvency deposited monies are rightly safeguarded? Was this not law Ley 57/68?

What legal mechanisms are in place to ensure that safeguarding existing guarantee laws of this nature are adhered to? Is this not the rule of law which provides the basics upon which laws in Spain are required to be enforced and adhered to?

What message does this relay to purchasers when Spanish Banks and legal mechanisms in place to protect are “allowed” to be overridden by the highest court in the land ? 

Is the Supreme Court in this instance in breach of the rule of law?

Is the Supreme Court now acting in a protectionist manner to safeguard the Banks at the expense of purchasers?

What message does this relay to the whole of the Spanish real estate industry if protective safeguarding laws are not enforced and adhered to? Does this undermine faith in this industry as a whole?

What message does this relay to the wider aspect of adhering to the rule of law?

Does this undermine faith in the rule of law and thereby undermine faith in  the Spanish justice system?

How can any of this be in the interests of Spain as a whole when it appears to be undermining trust in the very basics of justice and Banking compliance, the basis upon which the Spanish real estate industry is so reliant?

Stay strong Maria and once again thank you for all your educative postings.





Like 0      
24 Mar 2021 15:49 by mariadecastro Star rating in Algeciras (Cadiz). 9344 posts Send private message

Legal Questions? Speak to Maria Direct

Answer in bold green, Ads:

Basic questions.

When monies are deposited into a Spanish Banks safe keeping into a defined developer account, what law protects those monies from “ theft” by the Bank itself, I.e. enables the return of those monies upon request, when substantiated proof of deposit has been provided together with substantiated proof of developer breach of contract? Was this not law Ley 57/68? Yes, it is.

What laws are in place to safeguard interim monies deposited into developer accounts in the event of developer insolvency? Was this not law Ley 57/68? Yes, it is.

What legal guarantees are in place to ensure that in the event of developer insolvency deposited monies are rightly safeguarded? Was this not law Ley 57/68? Yes, it is.

What legal mechanisms are in place to ensure that safeguarding existing guarantee laws of this nature are adhered to? Judicial mechanisms. Is this not the rule of law which provides the basics upon which laws in Spain are required to be enforced and adhered to? Correct.

What message does this relay to purchasers when Spanish Banks and legal mechanisms in place to protect are “allowed” to be overridden by the highest court in the land ? ....

Is the Supreme Court in this instance in breach of the rule of law? It clearly is , in my opinion. In sensitive matters such as property, second residencies, retirement savings, consumers

Is the Supreme Court now acting in a protectionist manner to safeguard the Banks at the expense of purchasers? It is, in my opinion.

What message does this relay to the whole of the Spanish real estate industry if protective safeguarding laws are not enforced and adhered to? Does this undermine faith in this industry as a whole? It does, in my opinion.

What message does this relay to the wider aspect of adhering to the rule of law? Terrible, in my opinion.

Does this undermine faith in the rule of law and thereby undermine faith in  the Spanish justice system? It does, in my opinion. And in the European Court of Human Rights, as it has dismissed to give its voice on the matter, which we based on Right to Property, one of the rights of the Chart, saying that it is not under its scope of juriscition.

How can any of this be in the interests of Spain as a whole when it appears to be undermining trust in the very basics of justice and Banking compliance, the basis upon which the Spanish real estate industry is so reliant? Should be alarming as it is voiding all the active surveillance duties of banks in off plan projects. The very essence of Law 57/68.

Stay strong Maria and once again thank you for all your educative postings. Thanks. Not easy sometimes!



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



Like 1      
24 Mar 2021 17:25 by ads Star rating. 4025 posts Send private message

Thank you for your honest responses Maria.

LEGAL CERTAINTY....

According to this contribution on the rule of law by the European Commission no less

https://ec.europa.eu/info/sites/info/files/stakeholder_contribution_on_rule_of_law_-_european_central_bank.pdf

"Third, from a general economic perspective, legal certainty - one of the fundamental precepts contained within the rule of law, ensuring that people are able to organise their lives relying on the predictable legal consequences of their actions and forming reliable expectations on the basis of the law7 - is a prerequisite for economic stability. Where the integrity, stability and proper functioning of the safeguard mechanisms established at national level to secure effective protection for the rule of law falter, the economic stability and prosperity are also at risk. As the Commission notes, effective judicial systems and robust anti- corruption frameworks are essential for the economy. 

In this instance legal certainty appears to have been undermined in favour of the Banks, and in that process reliable citizens' expectations have been significantly compromised have they not?

So how can this be deemed " not under the scope of jurisdiction"? 

If legal certainty according to existing law has been proven to have been undermined by the Spanish Supreme Court in this instance, surely this is deemed part of the scope of the EU Commission's jurisdiction is it not?

Or are we now questioning the independence of the EU Commission with regard to ensuring the rule of law is adhered to in terms of ensuring legal certainty principles are fully adhered to? 
 

Isn't this threatening the basis upon which all citizens rely, I.e. the legal certainty that their matters with regard to property acquisition, contract law, ( whether this be single or second residencies) and monies deposited into Banks safekeeping in all good faith according to existing law in Spain are entitled to protection under the rule of law?

Are you fighting this alone Maria or are the various legal professional bodies coming together to fight for this basic principle of legal certainty within the rule of law in Spain, as one voice? Or are the Banks working on the principle that they can divide and rule the legal fraternity in Spain given this scenario?
 


 

 





Like 0      

Pages: 1 |

Post reply    Start new thread


Previous Threads

Getting Your House Bills Electronically When Stuck In The UK - 8 posts
Pain Clinic - 2 posts
Driver and campervan required June/July for Spain to UK repatriation 1 person, 2 cats and luggage - 0 posts
Mapfre insurance - 4 posts
Law changed to protect the councils ? - 6 posts
Where to get permission to be out in curfew? - 0 posts
Costaluz lawyers return of Off plan deposit plus costs and interest - 1 posts
planning permission for a swimming pool ?. - 3 posts
Still Waiting......... - 6 posts
Benamara/Benavista Footbridge over A7 Highway - 0 posts
Money Transfers - 12 posts
Let me help you! Expat in Spain (Andalusia) - Anything that needs to be done on your property... - 0 posts
New-Build Property and Guarantee Insurance - 2 posts
Playa flamenca Jumilla complex - 1 posts
Non-Lucrative Residence Visa - 20 posts
3% retention - 9 posts
Banco Santander, Manilva (San luis de Sabinillas) email address known? - 3 posts
New buyer location advice - 2 posts
looking to rent and then buy in Chantada/Rodeiro area - 2 posts
Bank Charges - 19 posts
Desk Top Computer Shops - 5 posts
Importing car to Spain post Brexit - 1 posts
Community AGMs - 6 posts
Import duty - 2 posts
Taxes on gift ? - 0 posts

Number of posts in this thread: 4

DISCLAIMER:  All opinions posted on these message boards are the opinion solely of the poster and do not necessarily reflect the opinion of Eye on Spain, its servants or agents.


1 |
Our Weekly Email Digest
Name:  
Email:
   


This site uses cookies. By continuing to browse you are agreeing to our use of cookies. More information here. x