The Civil Chamber of the Supreme Court (TS) has rejected the appeal presented by the parliamentary spokesman of Vox, Iván Espinosa de los Monteros, and thus confirms the sentence of the Provincial Court of Madrid that condemned him in 2019 for not having faced to the payment of 63,183 euros that he owed to a renovation company for the works they carried out in his chalet.
In the order, advanced by ‘eldiario.es’ and to which Europa Press has had access, the Chamber understands that there is a “manifest lack of foundation” in the appeal, and agrees to declare the sentence of June 2019 final and imposes the payment of the costs of the process to the leader of Vox. The rapporteur, Judge Francisco Javier Arroyo, also warns that “there is no recourse” against the resolution.
This resolution, dated November 24, recalls that the debtor company, ‘Promociones Pedro Heredia 6 SL’ (PPH6), was managed by Espinosa de los Monteros, who was a “sole partner”, and points out that the contract that ended in court is the one referred to the reform of the defendant’s own home in the district of Chamartín, near the Paseo de la Habana.
However, Espinosa de los Monteros has assured that he abides by the judgment of the Supreme Court although he has defended that “it has nothing to do” with the penalties imposed on other deputies.
“It is something so simple and so frequent in the world of construction as a discrepancy procedure for contradictory prices,” he summarized after learning that the Civil Chamber of the Supreme Court (TS) has rejected his appeal and confirmed the sentence of the Provincial Court of Madrid that sentenced him in 2019 for not having made the payment of 63,183 euros that he owed to a renovation company for the works they carried out in his chalet.
In this sense, he recalled that he had already explained the case in previous phases of the judicial procedure, but he has again given his version and justified that the case is due to a disagreement over payments. “The procedure has continued, the Supreme Court has arrived and when the last moment has arrived, what has to be done is to pay and that’s it,” he assumed.
The matter comes from September 2018, when the Court of First Instance number 36 of Madrid decided that it had to pay those more than 60,000 euros plus accrued interest. That first ruling was appealed by Espinosa de los Monteros.
The court now indicates that, according to the ruling of the Provincial Court, once the existence and amount of the debt between the contractor company ‘Rehabilitación, Urbanización y Edificación SL’ (RUE) and the one belonging to the Vox leader in March of 2015, the Espinosa company proceeded “to the request for competition and conclusion due to lack of mass, declared in May 2016.”
The 2019 resolution and that of instance
In that sentence, to which Europa Press has had access, it was explained that since the condemned company was extinguished in 2016, the reform company presented the claim in front of the Vox deputy in application of the theory of the lifting of the veil, due to confusion and instrumentalization of society in fraud of third parties, and unjust enrichment.
The Espinosa de los Monteros company opposed this claim, although it recognized that the deputy was the sole administrator and sole partner of the company, that it was established in 2007 and that it was active until 2014. It also acknowledged that the company PPH 6 signed the contract for the execution of work with RUE in 2012, and that the invoices were paid through the company PPH 6 for 90 percent, a company with which it was joined by a service lease contract.
The court ruling, subsequently endorsed by the 2019 ruling, was an estimate of the claim, and ordered the defendant to pay the costs, in application of the theory of the lifting of the veil, considering that the defendant “used the company for his benefit to the detriment of third parties, and he also considered that there was an unjust enrichment ».
A society for your own home
In fact, in 2019, the courts concluded that although the company PPH 6 was created by Espinosa de los Monteros as the sole partner «to take advantage of his wife’s activity (…) by offering construction services to clients, in 2012 , when he no longer had any activity, as this is reflected in the company’s accounts and the expert report (…), it is used by the managing partner himself to contract the construction of his own home, being the only activity that appears in that anus”.
The company PPH6, according to that sentence two years ago, did not have capital or property and only had the income that the deputy himself made as a client. “And it is when at the end of the work the company PPH 6 has a disagreement with RUE and it is resolved through a judicial procedure in which RUE is recognized as a credit in its favor,” he says.
According to the Madrid court Espinosa de los Monteros, as administrator of PPH 6, “he should have proceeded as usual, turn the invoice to the client to face the execution of the final judgment, or file a legal claim for the lack of payment for breach of the service lease agreement that linked them.
“Contrary to good faith”
But he did not do so and filed a bankruptcy, “which prevented the plaintiff from collecting her credit.” And remember that this corporate situation already existed prior to the contracting of the work in question in 2012, and yet Espinosa did not act in the same sense, “so the justification alleged by Mr. Espinosa to present the tender constitutes an action contrary to the good faith that must preside over the fulfillment of contracts, in accordance with article 7 of the Civil Code ”.
The Provincial Court pointed out that PPH6 should have issued a bill to the deputy, and if he did not pay, he should claim it in court. Instead it declared “its insolvency leaving the debt outstanding, which indicates creditors’ fraud.” “Therefore, the sentence under appeal correctly applies the theory of the lifting of the veil, and therefore the motive for the appeal must be dismissed,” it said.
Espinosa’s resource
Now, the First Chamber of the Supreme Court indicates that Espinosa de los Monteros decided to appeal that 2019 sentence on cassation with a single reason: it alleges the “infringement of articles 6.4 CC in relation to article 7.1 and 2 CC” and as an infringed jurisprudential doctrine it refers to both the lifting of the veil and the “unjust enrichment” theory. He cited several judgments that establish as a criterion the restrictive or limited application of the doctrine of the lifting of the veil.
But the Chamber responds to this that, in view of the foregoing, the appeal incurs “the cause of inadmissibility of manifest lack of foundation” by assuming the issue: “it tries to combat in the appeal the probative elements valued by the appeal judgment that lead to the lifting of the veil and which are those referred to in the second law foundation and replace this assessment with the appellant’s own.
This second foundation explained that the doctrine of the lifting of the veil is a jurisprudential construction that allows the judge to penetrate the substratum of companies to perceive their authentic reality and thus be able to find out “if the patrimonial autonomy inherent to the legal personality is or not used as a fiction with fraudulent use ».
It also indicates that the requirements of the Chamber to admit appeals are not met. It indicates that the concept of jurisprudence involves, in principle, reiteration in the doctrine of the First Chamber of the Supreme Court. Consequently, it is necessary that two or more judgments of the First Chamber be cited in the interposition brief and that it be reasoned how, when and in what sense the appealed judgment has violated or ignored the jurisprudence established in them.
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