Battling the banks (Cajamar)

[johnm]

This is an unbelievable, but true, story!
I have been trying to help an elderly friend who has been left penniless by the action of Cajamar Bank who, they claim, are supported by Spanish Law.
5 years ago, this friend had €65,000 in an account at Cajamar. Unbelievably an acquaintance went in to the bank and, having stolen a cheque book, withdrew the whole amount in three tranches. He even signed the withdrawal slip with a different name and signature from the payee and the Banks only defence was that they claimed to have seen the account holder in the bank with the person who withdrew the money.It is hard to believe that a cashier would allow anyone to draw thousands from your account!
In the UK the bank would be totally liable - but not in Spain! The bank stated that they could only refund the money once the guilty party had been convicted in the Spanish Court. This friend therefor spent the remainder of her money on two solicitors to get the guilty party to court and an interim judgement was eventually obtained. At this stage the Guardia returned the passport (originally given to the Guardia to try to prevent the accused leaving Spain)to the accused who promptly did a flit to the UK.
The courts now say that they can now take no further action as the accused is no longer in Spain! Of course , surprise surprise , Cajamar now do not have to pay out as a consequence.
This friend now has no resources to pursue this further and has had to go back to work to live.
Anyone have any ideas as to how to pursue this?

[DavidSearl]

FROM DAVID SEARL

FOR JOHNM

1. Banks in Spain are responsible for due care and diligence in handling their customers’ money. However, if they make a mistake, they will try to get out of it.
2. If you have a complaint about the bank service, you generally go first to your local bank manager. If he does not help, you go to the bank’s own Defensor del Cliente. Send him a written complaint stating the circumstances. Each bank has this “Defender of the Client” and he can often help. If your complaint is turned down by this officer, you have recourse to the Bank of Spain complaint department.
3. You say that someone stole a cheque book and used the cheques to withdraw money from your friend’s account. Were these cheques already signed by the account holder or did the thief sign them himself?
4. Were these cheques made out to the name of the thief or to another person?
5. Then you refer to a withdrawal slip. Does these mean the thief used the cheque book as a reference to withdraw money without writing a cheque?
6. In any case, you say that the thief signed a “withdrawal slip” with a name different from the one to whom the cheque was made out.
7. This alone would constitute grounds for negligence on the part of the bank. The law requires that both parties be identified in any transaction over €3,000. If the bank teller failed to notice that two different names were used, and no identification was presented by the person who either cashed the cheques or withdrew the money, this is grounds for negligence.
8. No, it is not necessary for the fraudster to be convicted in court in order to force the bank to pay for its negligence.
9. I cannot understand why the solicitors did not lead your friend through this process rather than attempting to charge the fraudster in court.
10. If your friend has not communicated with the bank’s own Defensor del Cliente, or the Banco de España, I suggest that she do so. You can contact the Complaints Department by writing to:

Servicio de Reclamaciones
Banco de España
c/ Alcala, 48
28014 MADRID

Or telephone, 901-545400

Or key Banco de España quejas into your search engine, go to the bank’s web site and follow the instructions to make a complaint on the Internet.

One note: You must offer written proof that you have already communicated with the bank’s own Defensor del Cliente.

Good luck with it, David Searl

[johnm]

This information is helpful in introducing the concept of an appeal to the Banco de España. Neither of the two abogados used so far have suggested this option. On the points mentioned the position is as follows:-
1. The bank have simply refused to make any recompense without a court decision
2. both courses have been followed without result
3. The cheques were not signed by the friend but were signed by the person who went in to the bank using a totally different signature (unbelievable !)
4. In the name of the thief
5. Cheques were used, not slips
6. The cheques were signed with a different name
7. Everyone (except the bank) can see that there was gross negligence
8. The bank are adamant that a conviction is necessary. The recourse to the Banco de España is particularly relevant here
9. I think we all share frustrations about many Spanish abogados. Unfortunately she has no money left to appoint a third abogado even if she could find one that she felt she could trust.
10. I will certainly suggest that she contacts the Banco de España particularly to confirm whether the bank are entitled to claim that they have no liability until the thief is convicted in court.

Thanks again for your advice, I will pass it on.