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.  

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

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19 Nov 2015 9:44 PM:

Hi, ads,

In fact, the appeal before SC was admited, then BBVA had to formalise their appeal, and in that step is when they abandoned, failing to submit the relevant writing. They were not prohibited to submit, and they could have gone forward.

We ignore at all the reason why BBVA abandoned some appeals submitted to the SC. I guess it has something to see in saving legal costs once the ruling has been executed.

We don't thnk they really wanted to obstruct. On the contrary, we giess they really had faith in their previous appeal before the SC to be resolved in their favour, and wanted to "keep alive" for free as many cases as possible just in case they won SC appeal. And when I say "for free" I mean that, once they had to formalise appeal before SC and incur in higher expenses iwthout being sure of the result of the previous one, and having paid to the buyers on provisional execution, they decided to "minimize the damage" (I hope you understand what I mean) and save legal costs from their part and from the part of the buyers.

In summary, I believe they have delayed thinking in the best defense of the ones they considered their rights, but not tried really a bad faith obstruction.
The obbligation of a lawyer is doing his/her best in fighting for the rights of his/her client. We do this with the rights of our clients and the bank's lawyers will do the same for their clients. And, at the time we were fighting for the inalienable rights of the buyers, BBVA lawyers were fighting for what they considered were their rights.

It's fair that each part makes as much as possible in Law to defend what they consider their rights. And you must remember that, at least in our case, they had paid the deposits back as consequence of the provisional execution. 

Well, at the end we won, they lost. Courts are intended for that: stating who is right. And the SC has stated the banks liable.

We miss in our system any kind of addtitional punishment (as the "punitive damages" of the saxon legal systems), but actually there's nothing further than the obbligation to respond of all interests of the deposits since they were paid and for legal costs.

Anyway, I'm sure banks are still not happy and will try to avoid paying any time they can.

Community thread: Supreme Court question

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19 Nov 2015 7:56 PM:

Hi, M11block

Santander Bank holds nearly all the bank acounts of the Courts, and the only exceptions accepted are when Banco Santander does not have a branch in the village in which the Courts are placed (i.e. in Berja -Almeria- there's not any branch of Banco Santander, and the Courts of Berja have their accounts in BBVA).

If the bank involved in the litigation is Banco Santandr nothing should change. They are obliged to pay, and if they don't they get their accounts seized, and the money is transferred into the Court's bank account in Santander, from which Santander is obliged to make any payment ordered by the holder, which is the Court itself.  

Community thread: HIGH COURT CONFIRMS THAT GENERIC BANK GUARANTEES FOR SANTA ANA ARE ENFORCEABLE

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19 Nov 2015 7:51 PM:

There are some Courts (very few) that require a bank account from the lawyer in the case to send a direct transfer, but when the amounts are "big" (over 12.000 €), they prefer to make the payment order issued in favour of the client.

Perhaps the reason of this extreme caution is any bad previous experience.

In any case, we agree they should choose sending the one into the account of the lawfirm that gained POA to take on with all tramits, and then everything would be quite much faster.

But this is not something of our choice, but the judges'.

So, one the order of payment in favour of the client is presented by us, as representative of the client, Banco Santander must make sure before paying that the POA is enough to get money in the name of the client.

And they, of course, could do that just by reading the POA, which is clear enough.

But, according to their internal rules, they always need a favourable crosscheck report of the legal dept in that sense before doing any payment. And here is where we have a bottleneck.

Of course what you propose would simplify everything, and you are not missing anything, but both people in the administration and the banks love bureaucracy.

 

Community thread: HIGH COURT CONFIRMS THAT GENERIC BANK GUARANTEES FOR SANTA ANA ARE ENFORCEABLE

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18 Nov 2015 6:39 PM:

Hi, ads,

The procedure is the following:

1) Once the ruling is enforced (doesn't matter if provisionally or definitively) the entity obblied to pay (in this case, BBVA) has 20 working days to deposit money and, if they don't do it, the Court would make a seixure on the accounts of BBVA. In both cases, money is paid into the Court's accounts, all of them in Banco Santander

2) Once the money is in the Court's account (doesn't matter if it has been voluntarily paid by BBVA or sent because of the seizures), the Court issues a payment document called "mandamiento" (payment order) in favour of the client, that can only be cleared in Banco Santander

3) We present this document to Banco Santander together with our power of attorney, as they won't pay without checking we have faculties to get the money.

4) Though the POA is really clear, the bank protocols state that the branch has to send a copy of the "mandamiento" and a copy of the POA to their central legal department in Madrid for them to give "green light" to the payment.

5) This verification tramit (called "bastanteo de poder" in Spanish) takes 5-20 working days.

6) Once the legal dept gives OK to payment, the branch staff call us to go and present the original of the "mandamiento" and then they pay us. This can be done by checque (then we take it to our ccounts, in whish the money is cleared afeter 2 working days) o by transfer to an account in the same Banco de Santander.

7) We send the client his/her money

In the case of john123, we've had a really poor and slow response from the central legal dept of Banco Santander and, on top, many bank holidays (monday 2nd november and monday 9th november were bank holidays in Madrid)

But now, he should have received the money.

I hope this explanation lets you understand better the development of the procedure.

Kind regards

 

Emilio Lucas

Community thread: HIGH COURT CONFIRMS THAT GENERIC BANK GUARANTEES FOR SANTA ANA ARE ENFORCEABLE

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