LEASE SENTENCES AND EVICTIONS
Eviction Judgment
The judgment dated 25/06/2024 issued by the Court of First Instance and Preliminary Investigation No. 2 of Coria del Río upholds the claim filed on behalf of our client against the tenant, who owed €13,200 in unpaid rent, ordering him to pay the amount and vacate the property. Although the lease agreement was verbal and not written, the existence of the tenancy and the default were proven through conversations held via the WhatsApp messaging app between the parties.
Judgment on eviction due to precarious occupation
The judgment of the Provincial Court of Seville (Eighth Section) dated 15/12/2022 confirms the previous ruling issued at first instance, which upheld our claim for eviction due to precarious occupation, requesting the vacating of the property filed on behalf of our client against an unauthorized occupant, without a contract and who paid no rent. Our client has already recovered possession of the property.
The particularity of this judgment lies in the fact that our client is not the owner of the property, but merely the tenant, as it is a public housing unit owned by the Andalusian Regional Government (Junta de Andalucía).
It is understood that our client has legal standing to bring the eviction action as if he were the owner, being the holder of a long-term public lease contract, without prejudice to any relationship between the Administration and the opposing party.
The particularity of this judgment lies in the fact that our client is not the owner of the property, but merely the tenant, as it is a public housing unit owned by the Andalusian Regional Government (Junta de Andalucía).
It is understood that our client has legal standing to bring the eviction action as if he were the owner, being the holder of a long-term public lease contract, without prejudice to any relationship between the Administration and the opposing party.
Civil eviction judgment for non-payment in a transferred lease contract
This case presents a special situation. The judgment dated 09/07/2013 issued by the Court of First Instance and Preliminary Investigation No. 4 of Sanlúcar la Mayor in the verbal eviction proceedings for non-payment No. 1055/2021—later confirmed by the judgment of 03/12/2014 from the Fifth Section of the Provincial Court of Seville—dismisses the claim filed against our client and fully acquits them of all demands.
The claimant entity – A – filed an eviction lawsuit for non-payment against our client. However, that entity was not the original lessor under the contract but was acting based on an assignment of lease agreement signed between that company and our client.
Previously, entity A had entered into a lease contract with another entity – B – from whom it leased the property. Later, entity A signed a lease assignment agreement by which our client assumed the position of entity A, including rights and obligations, in relation to the original lease signed with entity B, in exchange for an assignment fee to be paid by our client to entity A.
The Court and the Provincial Court concluded that entity A does not have standing to bring an eviction action against our client for non-payment of rent, even if an assignment agreement exists. The eviction action belongs solely to the lessor – entity B – notwithstanding any amounts due for the assignment between A and the client, which would be subject to a separate type of legal action.
It is even irrelevant that the client had been paying rent installments to entity A and into its bank account. What matters is the legal reality. In summary, entity A could claim the unpaid assignment fees but could never file an eviction action for non-payment, as the only party entitled to do so would be entity B, the original lessor.
The claimant entity – A – filed an eviction lawsuit for non-payment against our client. However, that entity was not the original lessor under the contract but was acting based on an assignment of lease agreement signed between that company and our client.
Previously, entity A had entered into a lease contract with another entity – B – from whom it leased the property. Later, entity A signed a lease assignment agreement by which our client assumed the position of entity A, including rights and obligations, in relation to the original lease signed with entity B, in exchange for an assignment fee to be paid by our client to entity A.
The Court and the Provincial Court concluded that entity A does not have standing to bring an eviction action against our client for non-payment of rent, even if an assignment agreement exists. The eviction action belongs solely to the lessor – entity B – notwithstanding any amounts due for the assignment between A and the client, which would be subject to a separate type of legal action.
It is even irrelevant that the client had been paying rent installments to entity A and into its bank account. What matters is the legal reality. In summary, entity A could claim the unpaid assignment fees but could never file an eviction action for non-payment, as the only party entitled to do so would be entity B, the original lessor.
FAMILY LAW JUDGMENTS
Family court ruling on shared custody
The judgment of the Provincial Court of Seville dated 23/11/2023, issued in the Civil Appeal Case No. 3202/2022, partially upholds the appeal filed on behalf of our client, the mother of the minors, ruling that in cases of shared custody, the establishment of a child support payment with no time limitation is appropriate, provided there is a substantial difference in the parents' incomes.
The well-being of the children cannot be conditioned upon whether the mother finds employment or obtains higher income in situations of economic hardship.
The well-being of the children cannot be conditioned upon whether the mother finds employment or obtains higher income in situations of economic hardship.
Judgment on termination of child support due to economic independence
The judgment dated 10 October 2017 from the Court of First Instance and Preliminary Investigation No. 1 of Carmona upholds the claim filed on behalf of our client and declares the termination of said gentleman's obligation to continue paying child support to his adult son, on the grounds that the latter is now financially independent.
CRIMINAL LAW SENTENCES
Criminal judgment regarding misappropriation of community property
Judgment No. 205/2021, issued by Criminal Court No. 3 of Seville, in which our law firm acted as private prosecutors on behalf of our client—the husband—convicts the wife for having misappropriated the amount of €2,954.56, which had been deposited by the financial institution into their joint account as a refund for the mortgage floor clause. The misappropriation was committed with the intent of unjust enrichment, as she failed to pay Francisco José Martínez the half of the amount he was entitled to. Although an ordinary civil proceeding had been initiated by both parties to claim said amount, at the time of the events the spouses were no longer living together, and the existence of a severely strained relationship was proven.
Acquittal for fraud related to financial title retention clause
Criminal Court No. 2 of Seville, in its judgment dated 22/03/2017 (Summary Proceedings 307/14), acquits our client of a fraud charge for which the financial institution, acting as private prosecutor, requested a 2-year prison sentence and compensation of €9,284 (the outstanding amount of the vehicle's purchase price), plus interest for late payment.
This case is notable in that our client, after purchasing a second-hand vehicle from a third-party dealership (unaffiliated with the manufacturer), and signing a financing agreement that included a title retention clause in favor of the lender, sold the vehicle a few months later to a third party without having repaid the loan.
The court found no criminal fraud for several reasons:
- It was proven that our client was employed when the vehicle was purchased, but lost that employment shortly thereafter, making continued payment impossible and leading to the forced sale.
- It was not proven that the dealership explained the implications of the title retention clause to the buyer. Additionally, the dealership's representative failed to appear in court despite multiple adjournments.
- Interestingly, the individual who later purchased the vehicle from our client was the same person who originally sold it to him, and the vehicle had numerous mechanical issues previously reported by our client.
- The financial institution did not file a complaint until nearly a year after the events, when it discovered it could no longer register the title retention due to the vehicle already being in another person’s name. The court ruled that the lender's inaction and delay in registering the clause contributed to the situation. Had the clause been registered in the Register of Movable Property within a normal timeframe (and not nearly a year later), the vehicle could not have been legally sold without full repayment and cancellation of the encumbrance.
For all these reasons, the court concluded that our client acted without criminal intent or fraudulent intent against the lender, and therefore acquitted him of all charges.
This case is notable in that our client, after purchasing a second-hand vehicle from a third-party dealership (unaffiliated with the manufacturer), and signing a financing agreement that included a title retention clause in favor of the lender, sold the vehicle a few months later to a third party without having repaid the loan.
The court found no criminal fraud for several reasons:
- It was proven that our client was employed when the vehicle was purchased, but lost that employment shortly thereafter, making continued payment impossible and leading to the forced sale.
- It was not proven that the dealership explained the implications of the title retention clause to the buyer. Additionally, the dealership's representative failed to appear in court despite multiple adjournments.
- Interestingly, the individual who later purchased the vehicle from our client was the same person who originally sold it to him, and the vehicle had numerous mechanical issues previously reported by our client.
- The financial institution did not file a complaint until nearly a year after the events, when it discovered it could no longer register the title retention due to the vehicle already being in another person’s name. The court ruled that the lender's inaction and delay in registering the clause contributed to the situation. Had the clause been registered in the Register of Movable Property within a normal timeframe (and not nearly a year later), the vehicle could not have been legally sold without full repayment and cancellation of the encumbrance.
For all these reasons, the court concluded that our client acted without criminal intent or fraudulent intent against the lender, and therefore acquitted him of all charges.
Acquittal for fraud and forgery of a private document
The judgment issued on 04/12/2024 by Criminal Court No. 12 of Seville acquits our client of charges of fraud and forgery of a private document, rejecting the request for a sentence of 2 years in prison, 10 months of fines, and civil liability amounting to €6,750.
The complaint was filed by an agricultural company that regularly received invoices from a law firm based in Madrid. Somehow, presumed cybercriminals allegedly altered one of these invoices online, changing the bank account number to that of our client.
As the company did not notice the change, several payments were made to this account, totaling €6,750, which were spent within a few days.
The accusation against our client is based solely on her being the account holder. There is no evidence proving her involvement in any criminal act. Prior to the events, she had reported the theft of all her personal documents, including the credit card linked to the account in question. There is also no indication that she possessed the technical ability to hack an email account or modify an invoice.
Our client closed the account—albeit after the funds had been used—stating that the account had been inactive since the card theft and that she believed it had been closed after notifying the bank by phone.
Since it cannot be proven who withdrew or spent the funds, and there is no authentication documentation regarding the transactions, the court concludes that, considering the particular circumstances of the case—including the prior reported theft—there is reasonable doubt to convict our client, who may in fact be a victim herself. The presumption of innocence prevails, and our client is acquitted of all charges.
The complaint was filed by an agricultural company that regularly received invoices from a law firm based in Madrid. Somehow, presumed cybercriminals allegedly altered one of these invoices online, changing the bank account number to that of our client.
As the company did not notice the change, several payments were made to this account, totaling €6,750, which were spent within a few days.
The accusation against our client is based solely on her being the account holder. There is no evidence proving her involvement in any criminal act. Prior to the events, she had reported the theft of all her personal documents, including the credit card linked to the account in question. There is also no indication that she possessed the technical ability to hack an email account or modify an invoice.
Our client closed the account—albeit after the funds had been used—stating that the account had been inactive since the card theft and that she believed it had been closed after notifying the bank by phone.
Since it cannot be proven who withdrew or spent the funds, and there is no authentication documentation regarding the transactions, the court concludes that, considering the particular circumstances of the case—including the prior reported theft—there is reasonable doubt to convict our client, who may in fact be a victim herself. The presumption of innocence prevails, and our client is acquitted of all charges.
INVENTORY JUDGMENTS IN LIQUIDATION OF COMPANY COMPANY
Judgment on inventory in liquidation of community property
The Provincial Court of Seville, in a judgment dated 28/09/2018 (Appeal Docket No. 10.853/17, Case No. 44/17), partially upholds the appeal filed on behalf of our client and rules in her favor, modifying and annulling the previous judgment. The ruling acknowledges a credit right in favor of the wife, including in the assets of the community property inventory a credit she holds against her former spouse, amounting to €36,060.73. This amount had been unilaterally withdrawn by the husband from a fixed-term deposit, half of which corresponds to our client.
As only the husband had access to the fixed-term deposit opened in 1999 (as the authorized party), and although the deposit was in the name of the couple’s minor daughter and matured in 2001, there is no direct documentary evidence that he repaid the withdrawn amount (the bank has no records due to the age of the contract). However, based on logical inference and proper assessment of the evidence, the Provincial Court of Seville concludes that the amount necessarily remained in the possession of the husband, and such circumstance must be reflected in the community property inventory.
As only the husband had access to the fixed-term deposit opened in 1999 (as the authorized party), and although the deposit was in the name of the couple’s minor daughter and matured in 2001, there is no direct documentary evidence that he repaid the withdrawn amount (the bank has no records due to the age of the contract). However, based on logical inference and proper assessment of the evidence, the Provincial Court of Seville concludes that the amount necessarily remained in the possession of the husband, and such circumstance must be reflected in the community property inventory.
JUDGMENTS ON BANKING AND CONSUMER LAW
Judgment declaring the nullity of a mortgage SWAP contract
Judgment No. 148/2020, dated 28/09/2020, issued by the Court of First Instance No. 16 of Seville, declares NULL the mortgage hedge or SWAP contract (interest rate swap) due to the vitiated consent of our clients. The court upholds our claim and orders the financial institution to return all reciprocal payments made by both parties, amounting to €3,144.96, plus legal costs and interest.
As a result, our clients went from “owing” €12,336.24 in unpaid amounts derived from the contract—amounts the bank had already formally demanded at the end of the contract’s term—to having the financial institution refund them €3,144.96 (the only amount our clients had actually paid), plus legal costs and interest. This represents a significant legal victory.
This case involves a financial product known as a SWAP. It is a financial instrument whereby two parties agree to exchange flows or obligations, typically intended to protect the client from a potential rise in interest rates. However, it can result in substantial losses in the event of sharp declines. This product is usually tied to a mortgage or similar loan.
In this case, our clients were not adequately informed by the bank at the time of signing the complex financial product about the clear risks it entailed, including factors such as Euribor fluctuations and other technical conditions. Despite being retail customers, the bank failed to provide essential information—for example, that they could lose money because of this product.
While a failure to inform does not automatically imply the existence of an error in consent, in this case our clients were not informed nor did the bank comply with Articles 79 and 79 bis of the Spanish Securities Market Act (Ley del Mercado de Valores).
As a result, our clients went from “owing” €12,336.24 in unpaid amounts derived from the contract—amounts the bank had already formally demanded at the end of the contract’s term—to having the financial institution refund them €3,144.96 (the only amount our clients had actually paid), plus legal costs and interest. This represents a significant legal victory.
This case involves a financial product known as a SWAP. It is a financial instrument whereby two parties agree to exchange flows or obligations, typically intended to protect the client from a potential rise in interest rates. However, it can result in substantial losses in the event of sharp declines. This product is usually tied to a mortgage or similar loan.
In this case, our clients were not adequately informed by the bank at the time of signing the complex financial product about the clear risks it entailed, including factors such as Euribor fluctuations and other technical conditions. Despite being retail customers, the bank failed to provide essential information—for example, that they could lose money because of this product.
While a failure to inform does not automatically imply the existence of an error in consent, in this case our clients were not informed nor did the bank comply with Articles 79 and 79 bis of the Spanish Securities Market Act (Ley del Mercado de Valores).
Judgment declaring nullity of floor clause and waiver of legal actions
The judgment dated 13/02/2024, issued by the Court of First Instance No. 19 Bis of Seville, fully upholds the claim filed on behalf of our client against the financial institution and declares null and void the floor clause inserted in the mortgage loan. It also declares null the express waiver of legal actions signed by our client after the bank had eliminated and ceased applying the clause, ordering the bank to pay €4,316 plus legal interest and court costs.
The nullity of the floor clause is based on the bank's failure to comply with legal requirements regarding transparency and adequate information, as the client was not properly informed of the existence of the clause at the time of signing the loan. These requirements also apply in cases of mortgage subrogation and novation, regardless of whether the financial institution is present on the day of signing.
Additionally, the court declares the nullity of the later waiver signed by the client, on the grounds that such waivers are invalid if, at the time of signing, the consumer lacks the necessary information to fully understand its meaning and the specific amount being waived—according to established Supreme Court doctrine.
The nullity of the floor clause is based on the bank's failure to comply with legal requirements regarding transparency and adequate information, as the client was not properly informed of the existence of the clause at the time of signing the loan. These requirements also apply in cases of mortgage subrogation and novation, regardless of whether the financial institution is present on the day of signing.
Additionally, the court declares the nullity of the later waiver signed by the client, on the grounds that such waivers are invalid if, at the time of signing, the consumer lacks the necessary information to fully understand its meaning and the specific amount being waived—according to established Supreme Court doctrine.
Judgment declaring nullity of floor clause, mortgage expenses, and opening commission
The judgment dated 02/01/2025, issued by the Court of First Instance No. 29 of Seville, fully upholds the claim filed by this law firm on behalf of our client and declares the nullity of the floor clause included in the mortgage, as well as the nullity of the clause assigning the mortgage expenses to the borrower and the loan opening commission clause. The court orders the bank to pay the amount of €9,487 in principal plus €3,726.65 in legal interest (a total of €13,213.65), along with legal costs.
This ruling is based on the lack of adequate information and transparency regarding the floor clause, and on the fact that the expense and commission clauses are contrary to law and disproportionate in content.
This ruling is based on the lack of adequate information and transparency regarding the floor clause, and on the fact that the expense and commission clauses are contrary to law and disproportionate in content.
JUDGMENTS ON REAL ESTATE LAW
Judgment on reivindicatory action and right of possession
The judgment dated 02/04/2024 issued by the Court of First Instance and Preliminary Investigation No. 3 of Carmona dismisses the claim filed against our client, which sought his expulsion and removal from the property where he resides, alleging that he lacked legal title to possess it. The court acquits our client of all claims and orders the opposing party to pay legal costs.
The reasoning behind this decision is that the purchase deed submitted by the claimant, the ex-wife of our client, refers only to the acquisition of an undivided share of a large rural estate in a residential development in Carmona (from which all the plots originate). Contrary to the claim, this deed does not grant her any specific right over the individual plot currently occupied by our client—as explicitly stated in the contract itself.
Therefore, the claimant cannot be said to have more right to the property than our client, who continues to live in what was the couple’s last family residence.
The reasoning behind this decision is that the purchase deed submitted by the claimant, the ex-wife of our client, refers only to the acquisition of an undivided share of a large rural estate in a residential development in Carmona (from which all the plots originate). Contrary to the claim, this deed does not grant her any specific right over the individual plot currently occupied by our client—as explicitly stated in the contract itself.
Therefore, the claimant cannot be said to have more right to the property than our client, who continues to live in what was the couple’s last family residence.
RULINGS ON CIVIL CLAIMS
Judgment of acquittal in debt recovery claim
Judgment dated 17/06/2024, issued by the Court of First Instance and Preliminary Investigation No. 1 of Carmona in Ordinary Proceedings No. 1097/2022, dismisses the claim filed by the opposing party and acquits our client of the amount claimed, freeing him from having to pay the sum of €14,445.81, plus interest and legal costs.
The claimant, a well-known entity that purchases large batches of debts from financial institutions for subsequent recovery, failed to prove the alleged debt and did not provide the amortization schedule for the loan agreement in question. In short, it did not submit the necessary documentation required in this type of legal action. As a result, the court upheld the arguments presented in the defense submitted on behalf of our client and ruled in our favor.
The claimant, a well-known entity that purchases large batches of debts from financial institutions for subsequent recovery, failed to prove the alleged debt and did not provide the amortization schedule for the loan agreement in question. In short, it did not submit the necessary documentation required in this type of legal action. As a result, the court upheld the arguments presented in the defense submitted on behalf of our client and ruled in our favor.
JUDGMENTS ON CRIMINAL LAW AND GENDER-BASED VIOLENCE
Judgment for gender-based violence – unjust vexation via WhatsApp with restraining order
The judgment dated 19/12/2024, issued by the Court of First Instance and Preliminary Investigation No. 1 of Carmona in the minor offense case 239/2024, convicts the defendant—represented by our law firm acting as private prosecutor on behalf of the female victim—of a minor crime of unjust vexation within the context of gender-based violence. The court found that the defendant sent the victim insulting and degrading messages via WhatsApp, which caused her distress, unease, and fear. As a result, the court imposed a fine of 3 months at a rate of €6 per day, and a restraining order of 200 meters and prohibition of communication with the victim for a duration of 6 months.
Judgment for gender-based violence – physical assault with restraining order
The judgment dated 21/12/2020, issued by Criminal Court No. 11 of Seville, finds the defendant guilty of a crime of bodily harm within the scope of gender-based violence and imposes a restraining order. In this case, our law firm acted as private prosecutor on behalf of the female victim. The court found that during one of the scheduled visits with their son, after an argument, the ex-husband punched the victim in the shoulder. While the injury was not serious, it caused redness that was documented at a medical center and included in the medical report. Although the testimonies at trial were contradictory, the objectivity of the medical report confirmed the injury and served as sufficient evidence to convict, overcoming the presumption of innocence.
Acquittal judgment – alleged physical assault in gender-based violence case
The judgment issued on 19/05/2017 by the Provincial Court of Seville (Fourth Section), in Appeal Case No. 10348/16, upholds the appeal filed on behalf of our client against the previous criminal conviction. That earlier ruling had sentenced him to 9 months in prison and imposed a 21-month restraining order and communication ban for an alleged crime of physical assault within the scope of gender-based violence. The grounds for the successful appeal were the flawed assessment of the evidence by the lower court, which assumed that a medical report confirmed the victim's allegations merely because she sought medical attention. However, the actual report clearly stated that no injuries were observed. With both parties providing contradictory accounts and no corroborating physical evidence—despite immediate medical attention—the Provincial Court concluded that the alleged crime had not been proven. The prior conviction was therefore annulled, and our client was acquitted of all charges.
Acquittal judgment – alleged breach of restraining order in gender-based violence case
Judgment No. 38/2025, dated 24/01/2025 and issued by Criminal Court No. 9 of Seville, acquits our client of the alleged crime of breaching a restraining order against his former partner, as well as a minor offense of unjust vexation within the context of gender-based violence. The prosecution had sought a sentence of 9 months in prison and a fine. The court ruled in favor of acquittal on the grounds that, although both parties acknowledged an incident where they were in close proximity, the judge found the encounter to be accidental, brief, and unintentional. The alleged offensive remarks reported by the complainant were not proven, as the client’s version of events was entirely different—he claimed to have been insulted himself and stated that he left the scene immediately upon noticing his ex-partner, without addressing her in any way.
FORECLOSURE RULINGS
Favorable ruling on mortgage enforcement proceedings
Ruling No. 88/22, dated 17/03/2022 and issued by the Sixth Section of the Provincial Court of Seville, upholds our appeal against the judgment from the Court of Carmona, which had previously dismissed our opposition to the mortgage enforcement that would have resulted in the eviction of our clients from their home. The ruling also orders the bank to pay the legal costs.
With this decision, our clients were able to remain in their home. The court justified the ruling on the grounds that, in determining the outstanding debt, the bank had applied a “floor clause” or interest rate limitation clause. If such a clause were excluded, there would be serious doubt as to the bank’s ability to seek mortgage enforcement. In any case, the financial calculation submitted was deemed incorrect and could not serve as a valid basis for enforcement.
Furthermore, even assuming the clause were valid, the Provincial Court of Seville held that the early maturity clause had been improperly applied. Specifically, in light of a minimal default of approximately €2,500, the law and the principle of good faith prevent the bank from initiating enforcement proceedings unless the unpaid amount is significantly higher and meets the legal requirements of seriousness and proportionality in relation to the overall loan amount.
With this decision, our clients were able to remain in their home. The court justified the ruling on the grounds that, in determining the outstanding debt, the bank had applied a “floor clause” or interest rate limitation clause. If such a clause were excluded, there would be serious doubt as to the bank’s ability to seek mortgage enforcement. In any case, the financial calculation submitted was deemed incorrect and could not serve as a valid basis for enforcement.
Furthermore, even assuming the clause were valid, the Provincial Court of Seville held that the early maturity clause had been improperly applied. Specifically, in light of a minimal default of approximately €2,500, the law and the principle of good faith prevent the bank from initiating enforcement proceedings unless the unpaid amount is significantly higher and meets the legal requirements of seriousness and proportionality in relation to the overall loan amount.