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Res. 05604-2024 Tribunal Contencioso Administrativo · Tribunal Contencioso Administrativo · 30/08/2024
OutcomeResultado
The collective claim is granted, and the Banco Nacional de Costa Rica is ordered to pay patrimonial damages, moral damages, interest, and costs to the purchasers of lots in the Bariloche Real Condominium who prove the established conditions.Se declara con lugar la demanda colectiva, se condena al Banco Nacional de Costa Rica al pago de daño patrimonial, daño moral, intereses y costas a favor de los compradores de lotes del Condominio Bariloche Real que acrediten los supuestos establecidos.
SummaryResumen
The Administrative Appeals Tribunal resolved on the objective liability of the Banco Nacional de Costa Rica arising from its activity as a provider of financial services in the sale of lots in the Bariloche Real Condominium. The buyers, grouped as plaintiffs, requested that the Bank be declared liable for damages caused by financing the purchase of lots that were not developed as offered. The Tribunal analyzed the consumer relationship between the Bank and the buyers, applying the Law on Promotion of Competition and Effective Consumer Defense (Law 7472), which establishes an objective liability regime. Documentary, expert, and testimonial evidence was assessed, including an internal audit report of the Bank that revealed weaknesses in internal control and supervision of mortgage loans granted at the Palmares Branch. The ruling determines that the Bank, although not the developer, acted as a provider of consumer services and must answer for the damages caused to the buyers, having failed to adopt the necessary control and supervision measures to ensure the project's viability. The Bank is ordered to pay patrimonial and moral damages, as well as the corresponding interest.El Tribunal Contencioso Administrativo resolvió sobre la responsabilidad objetiva del Banco Nacional de Costa Rica derivada de su actividad como proveedor de servicios financieros en la venta de lotes del Condominio Bariloche Real. Los compradores, agrupados como parte actora, solicitaron que se declarara la responsabilidad del Banco por los daños y perjuicios ocasionados al financiar la compra de lotes que no fueron desarrollados conforme a lo ofrecido. El Tribunal analizó la relación de consumo entre el Banco y los compradores, aplicando la Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor (Ley 7472), que establece un régimen de responsabilidad objetiva. Se valoró prueba documental, pericial y testimonial, incluyendo un informe de auditoría interna del Banco que reveló debilidades en el control interno y en la supervisión de los créditos hipotecarios otorgados en la Agencia de Palmares. La sentencia determina que el Banco, aunque no fue el desarrollador, actuó como proveedor de servicios de consumo y debe responder por los daños causados a los compradores, al no haber adoptado las medidas de control y supervisión necesarias para asegurar la viabilidad del proyecto. Se condena al Banco al pago de daño patrimonial y moral, así como a los intereses correspondientes.
Key excerptExtracto clave
With the enactment of the Law on Promotion of Competition and Effective Consumer Defense, Law No. 7472 of December 20, 1994, the Legislative Assembly aimed, among other things, to protect the rights and interests of consumers — understood broadly as any natural person or de facto or de jure entity that, as final recipient, acquires, enjoys, or uses goods or services, or receives information or proposals for them, and as merchant or supplier, the natural person, de facto or de jure entity, private or public that, in its own name or on behalf of another, habitually offers, distributes, sells, leases, grants the use or enjoyment of goods or provides services, without necessarily being its main activity. Regarding the objective liability regime established by this regulation, this Chamber indicates that current Article 35 provides: "Liability regime.// The producer, supplier, and merchant must respond concurrently and independently of the existence of fault, if the consumer is harmed by reason of the good or service, inadequate or insufficient information about them, or their use and risks.// Only one who proves that they were unrelated to the damage is released."Con la promulgación de la Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor, Ley N° 7472 de 20 de diciembre de 1994, la Asamblea Legislativa tuvo como objetivo, entre otros, proteger los derechos y los intereses de los -consumidores- entendiéndose por tales en sentido amplio, a toda persona física o entidad de hecho o de derecho, que como destinatario final, adquiere, disfruta o utiliza los bienes o los servicios, o bien, recibe información o propuestas para ello y como comerciante o proveedor, a la persona física, entidad de hecho o de derecho, privada o pública que, en nombre propio o por cuenta ajena, se dedica en forma habitual a ofrecer, distribuir, vender, arrendar, conceder el uso o el disfrute de bienes o a prestar servicios, sin que necesariamente esta sea su actividad principal. En cuanto al régimen de responsabilidad objetivo establecido por esta normativa, esta Cámara indica que el actual artículo 35 dispone: "Régimen de responsabilidad.// El productor, el proveedor y el comerciante deben responder concurrente e independientemente de la existencia de culpa, si el consumidor resulta perjudicado por razón del bien o el servicio, de informaciones inadecuadas o insuficientes sobre ellos o de su utilización y riesgos.// Sólo se libera quien demuestre que ha sido ajeno al daño."
Pull quotesCitas destacadas
"El productor, el proveedor y el comerciante deben responder concurrente e independientemente de la existencia de culpa, si el consumidor resulta perjudicado por razón del bien o el servicio, de informaciones inadecuadas o insuficientes sobre ellos o de su utilización y riesgos."
"The producer, supplier, and merchant must respond concurrently and independently of the existence of fault, if the consumer is harmed by reason of the good or service, inadequate or insufficient information about them, or their use and risks."
Considerando VII, citando el art. 35 de la Ley 7472
"El productor, el proveedor y el comerciante deben responder concurrente e independientemente de la existencia de culpa, si el consumidor resulta perjudicado por razón del bien o el servicio, de informaciones inadecuadas o insuficientes sobre ellos o de su utilización y riesgos."
Considerando VII, citando el art. 35 de la Ley 7472
"La actividad bancaria, en particular la custodia y administración de los fondos del público, está rodeada de una serie de mecanismos o servicios periféricos, que son ofrecidos a los clientes como un atractivo y se incorporan otorgándose facilidades anexas a la custodia y administración. Por sí misma, esa actividad genera un riesgo, que se puede ver acrecentado con el uso de esos instrumentos o servicios."
"Banking activity, particularly the custody and administration of public funds, is surrounded by a series of peripheral mechanisms or services that are offered to clients as an attraction and are incorporated by granting ancillary facilities to custody and administration. By itself, this activity generates a risk, which can be increased with the use of these instruments or services."
Extracto de la sentencia de la Sala Primera, Res. 658-F-S1-2018, citada en la sentencia
"La actividad bancaria, en particular la custodia y administración de los fondos del público, está rodeada de una serie de mecanismos o servicios periféricos, que son ofrecidos a los clientes como un atractivo y se incorporan otorgándose facilidades anexas a la custodia y administración. Por sí misma, esa actividad genera un riesgo, que se puede ver acrecentado con el uso de esos instrumentos o servicios."
Extracto de la sentencia de la Sala Primera, Res. 658-F-S1-2018, citada en la sentencia
"Se redistribuye el deber de demostración entre las partes litigantes, en donde el 'onus probandi' (carga probatoria) le corresponde a quien se encuentre en mejores condiciones para aportar la prueba al proceso."
"The duty of proof is redistributed among the litigating parties, where the 'onus probandi' (burden of proof) falls on whoever is in a better position to provide evidence to the process."
Considerando IV, sobre carga de la prueba
"Se redistribuye el deber de demostración entre las partes litigantes, en donde el 'onus probandi' (carga probatoria) le corresponde a quien se encuentre en mejores condiciones para aportar la prueba al proceso."
Considerando IV, sobre carga de la prueba
Full documentDocumento completo
**RESOLUTION No. 05604 - 2024** **Date of Resolution:** August 30, 2024, at 08:12 **Case File:** 14-003379-1027-CA **Drafted by:** Drafter not indicated **Type of Matter:** Proceeding for declaratory relief (Proceso de conocimiento) **Analyzed by:** CENTRO DE INFORMACIÓN JURISPRUDENCIAL **Judgment with Dissenting Vote** **Judgments from the same case file** **Content of Interest:** **Type of content:** Unanimous vote **Branch of Law:** Administrative Law **Topic:** Objective liability of the Administration (Responsabilidad objetiva de la Administración) **Subtopics:** Analysis of bank liability in the case of a development project.
"VII) ON THE OBJECTIVE LIABILITY COVERED IN THE LAW FOR THE PROMOTION OF COMPETITION AND EFFECTIVE CONSUMER DEFENSE: With the enactment of the Law for the Promotion of Competition and Effective Consumer Defense, Law No. 7472 of December 20, 1994, the Legislative Assembly aimed, among other things, to protect the rights and interests of -consumers- understanding these in a broad sense as any natural person or de facto or de jure entity that, as the final recipient, acquires, enjoys, or uses goods or services, or receives information or proposals for them, and as a merchant or provider, the natural person, de facto or de jure entity, private or public that, in its own name or on behalf of others, is habitually engaged in offering, distributing, selling, leasing, granting the use or enjoyment of goods, or providing services, without this necessarily being its main activity. (Law No. 7472). Subsequently, the Legislative Assembly, acting as a derived constituent power, carried out a partial reform of the Political Constitution through Law No. 7607 of May 29, 1995, which elevated to constitutional rank the protection of their health, environment, safety, and economic interests, the right to receive adequate and truthful information, freedom of choice, and equitable treatment, for both consumers and users of these services. On the other hand, the Political Constitution (Art. 189) establishes that state banks are autonomous institutions, whose main activity is provided for in the Organic Law of the National Banking System (Ley Orgánica del Sistema Bancario Nacional), Law No. 1644 of September 26, 1953. Within their powers are, among others, the execution of active, passive, and neutral operations, as well as the opening of savings, credit, guarantee accounts, etc.; all of a banking and financial nature, under the protection of this regulation and other regulations specific to this sector of the economy. In accordance with the foregoing, in this case, Banco Nacional, acting in the exercise of its capacity under private law, as a public enterprise it is, and offering its clients a consumer financial service, determines that in the present case, the Law for the Promotion of Competition and Effective Consumer Defense must be applied, in its articles 32, 34, 35, and 54, which lists a series of consumer rights and establishes the objective liability regime (régimen de responsabilidad objetiva), as well as the exemptions from liability inherent to those consumer relationships and procedural standing. Thus, Article 32, on consumer rights, provides: 'Without prejudice to what is established in treaties, international conventions to which Costa Rica is a party, ordinary domestic legislation, regulations, general principles of law, customs and practices, the following are fundamental and inalienable rights of the consumer: // a) Protection against risks that may affect their health, safety, and the environment. // b) Protection of their legitimate economic and social interests. // c) Access to truthful and timely information about different goods and services, with correct specification of quantity, characteristics, composition, quality, and price. // d) Education and dissemination on the proper consumption of goods or services, ensuring freedom of choice and equality in contracting. // e) Administrative and judicial protection against misleading advertising, abusive practices and clauses, as well as unfair or freedom-of-choice restricting commercial methods. // f) Effective access mechanisms for the administrative and judicial protection of their rights and legitimate interests, leading to adequate prevention, punishment, and prompt repair of harm to them, as appropriate. // g) Receive State support to form consumer groups and organizations and the opportunity for their opinions to be heard in decision-making processes that affect them.// (As its numbering was run by Article 80 of the Fiscal Contingency Law, No. 8343 of December 18, 2002, which transferred it from former Article 29 to current Article 32)'. From this rule, this Chamber considers that it must be highlighted that this legislation classifies consumer rights as a fundamental and inalienable right, whereby the State grants a protection status, among others, and as relevant to this proceeding, to the economic interests of consumers, as well as access to true, timely information about the consumer activity, and in relation to the protection mechanisms thereof. Derived from that access to information, this legislation specifies regarding the obligations of the merchant to the consumer, the duty to sufficiently inform the consumer, in Spanish and in a clear and truthful manner, about the elements that directly affect their consumption decision; having to inform, among others, of any determining fact, as well as to adhere to fairness, good commercial practices, and the law, in their dealings with consumers. (Art. 34 subsections b) and o)).- Regarding the objective liability regime (régimen de responsabilidad objetivo) established by this regulation, this Chamber indicates that current Article 35 provides: 'Liability Regime. // The producer, the provider, and the merchant must respond concurrently and independently of the existence of fault, if the consumer is harmed by reason of the good or service, by inadequate or insufficient information about them or their use and risks. // Only he who proves he was unrelated to the damage is released. // The legal representatives of commercial establishments or, as the case may be, the business managers are responsible for their own acts or facts or for those of their employees or assistants. The technicians, those in charge of production, and controllers are jointly and severally liable, when appropriate, for violations of this Law to the detriment of the consumer.' (As its numbering was run by Article 80 of the Fiscal Contingency Law, No. 8343 of December 18, 2002, which transferred it from former Article 32 to current Article 35). On this last point - of objective liability - the First Chamber of the Supreme Court of Justice has ruled on the issue of objective liability derived from banking activity and the burden of proof in this type of consumer relationship, among other resolutions, in No. 000658-F-S1-2018, at nine thirty hours on July 13, 2018, with great relevance, the following:
III.- On objective liability in banking activity. Banking activity, particularly the custody and administration of public funds, is surrounded by a series of mechanisms or peripheral services, which are offered to clients as an attraction and are incorporated by granting ancillary facilities to custody and administration. In itself, this activity generates a risk, which can be increased with the use of these instruments or services, (....). In the dynamics of this activity, the banking entity is the provider of the noted main service (custody and administration of funds), as well as the accessories and related instruments, such as online or electronic banking. The client, for their part, then assumes the character of consumer. In this relationship, as has been indicated on various occasions, the objective liability regime provided by Canon 35 of the Consumer Law is applicable (in this regard, see judgments of this Chamber, No. 300-F-SI-2009, 778-F-SI-2012, 1568-F-SI-2012 and 1607-F-SI-2012). The system established in this rule provides in general terms that the drawbacks of a for-profit activity – such as banking – are borne by the one who deploys it, with some specifications. And it is that, although it is configured as an objective liability, by disregarding fault and intent, attribution does not operate by full right or automatically. In this order, in addition to proving the harmful conduct of the agent, the scheme is not exempt from the duty to demonstrate the existence of the injury and the causal link (nexo de causalidad), and therefore the criterion of imputation (risk). Regarding the causal link, the same numeral 35 admits its breaking or elimination in cases when the agent proves their unrelatedness to the damage. Finally, it should be noted that in this particular regime, the duty to repair is built or founded on the existence of damage, the conduct of the agent in the exercise of their activity, and the causal link that exists between these two elements, regardless of whether a written agreement exists or not between the consumer and the agent. (Resolution of this Chamber No. 686-2014 at 9 hours 15 minutes on May 28, 2014).// IV.- On the burden of proof. As has been set forth up to this point, it is appropriate to refer to the duty of proof incumbent on each of the parties making up the litigation, when the object of the proceeding is the declaration of a duty to repair damage in cases such as this one. In the first place, it is noted that the plaintiff is in a situation where it is very difficult or practically impossible for them to prove some of the facts or essential presuppositions for their claim, placing them in a situation of potential defenselessness. As a result of the foregoing, and as this decision-making body has previously indicated, the duty of proof is redistributed among the litigating parties, where the 'onus probandi' (burden of proof) falls on whoever is in better conditions to provide proof to the proceeding (in this sense, consult judgment No. 212 at 8 hours 15 minutes on March 25, 2008). However, it cannot be extracted from the foregoing that the victim is exempt from the duty of proof, since it is up to them to prove, in the stated terms, the damage suffered and the causal link (nexo de causalidad). In this way, it is the defendant's responsibility to prove that they are unrelated to the production of the damage, that is, they must demonstrate the occurrence of some of the exempting causes of liability, whether it be the fault of the victim, the act of a third party, or force majeure. The defendant can also free themselves from liability to the extent that they manage to prove that the regime established in Cardinal 35 of Law 7472 is not applicable to them, either because the subjective presuppositions for its application do not concur in the species (for example, if the parties were not in a consumer relationship), or, in the specific case of the risk theory contemplated by said rule, that it is not located at an abnormal degree. Thus, the judges must resort not only to the consequences derived directly from the body of evidence but also to indicia and their own experience at the time of evaluating it. (...) (Consult judgments No. 300-2009 and 1431-2012 recently cited.) [...]' ... See more Citations of Legislation and Doctrine Related Judgments EV Machote Generation: F:\Gestion-Judicial\Servidor de Archivos\Modelos\Contencioso\TCRESOL016.dpj ????????????????
**EXPEDIENTE:** **PROCEEDING (PROCESO):** DECLARATORY RELIEF (CONOCIMIENTO) **PLAINTIFF (ACTOR/A):** PURCHASER GROUP WITH BANCO NACIONAL CREDIT OF THE BARILOCHE REAL CONDOMINIUM (GRUPO DE COMPRADORES DE CREDITO DEL CONDOMINIO BARILOCHE REAL) **DEFENDANT (DEMANDADO/A):** BANCO NACIONAL DE COSTA RICA **No. 2024005604** CONTENTIOUS-ADMINISTRATIVE AND CIVIL TREASURY TRIBUNAL, SECOND JUDICIAL CIRCUIT, SAN JOSÉ, GOICOECHEA, at eight hours twelve minutes on August thirtieth, two thousand twenty-four.- PROCEEDING FOR DECLARATORY RELIEF (PROCESO DE CONOCIMIENTO), filed by the named: PURCHASER GROUP WITH BANCO NACIONAL CREDIT OF THE BARILOCHE REAL CONDOMINIUM (GRUPO DE COMPRADORES DE CRÉDITO CON EL BANCO NACIONAL DEL CONDOMINIO BARILOCHE REAL), (powers of attorney of the plaintiffs to their special judicial legal representatives, are recorded in a separate folder). The special judicial legal representatives present during the oral and public trial hearing were ALEJANDRO BATALLA BONILLA, of legal age, attorney, ID 1-0525-0186, license No. 2573, JOHN ALEXANDER BRENES RODRÍGUEZ, of legal age, attorney, license No. 27062, ADRIÁN MAURICIO VEGA AGUILAR, of legal age, attorney, license No. 16295, against BANCO NACIONAL DE COSTA RICA, represented by its general judicial legal representatives GENARO JOSÉ JIMÉNEZ OROZCO, of legal age, attorney, license No. 22101 and ANDRÉS BOGARÍN BUSTAMANTE, of legal age, attorney, license No. 19132 and **WHEREAS (CONSIDERANDO):** **I) PROCEDURAL MATTERS (ASUNTOS DE TRÁMITE):** All references to images correspond to the virtual judicial file.
**II) OBJECT OF THE PROCEEDING.-** The plaintiff party requested that the claim of this proceeding be granted, which was determined according to the preliminary hearing and to what was ordered by this Tribunal, regarding the survival of only the collective claims, and therefore, it is for the Tribunal to rule on matters corresponding to the latter.
i. That they acquired lots in the Bariloche Condominium through mortgage loans (créditos hipotecarios) with Banco Nacional de Costa Rica, either directly or through debtor novations (novaciones de deudor) of previously constituted loans. ii. That the granting of these loans occurred between the period from January 1st, 2008, and December 31, 2011, both dates inclusive. iii.
That they have suffered damages and losses by virtue of the structuring of the loans for the purchase of lots in the Condominium, consisting of the pecuniary damage (daño patrimonial) and non-pecuniary damage (daño moral) described in the prayer for relief of the complaint.
We request from Your Honor that the existence of the group with these characteristics be duly declared so that, by virtue of the collective interest they hold, the effects of a potential favorable judgment be extended not only to the members of the plaintiff group but also to all members of the affected group; in such a way that the defendant Bank be condemned in the abstract to pay the damages and losses determined in the complaint brief to any subject who proves to be in the objective situation described in the preceding point in a potential judgment enforcement proceeding.
NOTE: During the preliminary hearing, the claim for future interest was adjusted, indicating the following: "payment of non-future interest, and in the last line add: 'both on the principal and on the interest corresponding to the sums awarded according to claim 1.A, 1.B, and 1.C, which are granted in the judgment from the moment those items were paid until their effective payment, at the legal interest rate'." It should be noted that the claims of the main complaint, originally formulated, are the following:
"Based on the facts and legal grounds incorporated into this complaint, we request that the complaint be declared with merit in all its aspects and, therefore, that Banco Nacional de Costa Rica be declared responsible for the damages and losses caused to the plaintiff group, according to the account of the facts in the complaint, and that it be condemned to pay the following items:
I- Pecuniary damage (Daño patrimonial).
We request that the defendant Bank be condemned to pay the pecuniary damage caused to each of the members of the plaintiff group and which consists of:
a. The difference between the amount of the mortgage loan at the time of its constitution in favor of the defendant Bank for each of the members of the plaintiff group, and the real value of each of the properties at the time of their acquisition by each of the members of the plaintiff group and upon which the mortgage loan was constituted.
b. The amount paid by each of the members of the plaintiff group to the defendant Bank for interest on the mortgage loan operations constituted with the Bank to finance the purchase "off-plan" (en verde) of lots in the Condominium, on the resulting amount according to point 1.a of the claims.
c. The sums of money that each of the members of the plaintiff group pay to the defendant Bank for interest on the loan operations, from the filing of the complaint until their due payment, on the resulting amount according to point 1.a of the claims.
d. The difference between the purchase value of each lot by each of the members of the plaintiff group and the real value of said lot at the time of its purchase, once the amount claimed in point 1.a) of these claims is deducted.
e. The loss of opportunity of each of the members of the plaintiff group, of having been able to obtain a capital gain or increase in assets resulting from the appreciation of each lot acquired with the mortgage loan granted by the defendant Bank and the value it would have today had the development of the Condominium been completed, an amount that will be determined in the judgment enforcement proceeding.
2- Non-pecuniary damage (Daño moral): We request that the defendant Bank be condemned to pay each of the members of the plaintiff group compensation for the non-pecuniary damage caused by the anguish and frustration that the limitation on accessing decent housing has caused them, specifically due to: (i) the material impossibility of enjoying the lot they bought through mortgage loans; (ii) the impossibility of selling those lots at a viable price by virtue of the debt they maintain with the Bank; (iii) the impossibility of delivering the lot in dación de pago on reasonable terms without having to keep the debt with the Bank; (iv) the impossibility of accessing loans with other financial institutions for home purchase; (v) the stain on their credit record; and (vi) the collection of the overdraft balance if the lot is foreclosed. We prudentially estimate the non-pecuniary damage at the sum of ¢10,000,000.00 for each member of the plaintiff group.
3- Indexation: We request that the sums awarded in judgment be indexed.
4- Costs: We request that the defendant Bank be condemned to pay the costs." III) PROVEN FACTS: The following are considered relevant for the resolution of this proceeding:
Yes, this had already been announced at the time, some time ago, I don't know how long ago, I was interested in looking and getting on the Internet and consulting and there was indeed a well-drafted and well-structured page, so I felt like including it in the report, yes sir. Well, let's see in the clarification of the report, you state that you do not have the necessary documentation to do the work related to the budget for infrastructure works, what do you mean by that clarification that you make or warning that you make, you state, a budget does not correspond to what the expert indicates, you do not have the necessary documentation for said work, therefore, you cannot specify the amount, on folio 780 of the expediente, clarification number three of that document. It was clarified that the documentation corresponds to image 755. Answer three.- That is in response to a request for addition submitted by the plaintiff. And it appears to me on folio 780, from what the office recorded for us. That is the title Yes. Condominio Residencial Horizontal Bariloche Real and it says 2012 at the top. Point three in Roman numerals, point 3 in Roman numerals. That the Expert expands the expert report indicating what the approximate total cost of the necessary works to develop all the condominium works would be, just as they were promised to the workers? That as of today, the amount that was budgeted that is in the expediente would be different due to the rise in materials. Labor and other factors that would intervene in a new calculation with that initial amount as of today, would be double the value, he did not specify that amount as a note, because I do not have that information that I requested from the developers and the firm in charge of the project that for security reasons did not provide it, that is the answer. The question would be, previously, you tell us in that same paragraph the budget amount would be due to the rise in materials, maneuvers and other factors. With that initial amount, today it would be double the value, but then we are told he did not specify the amount because I do not have the information, they never gave it to me. So how do you reach the conclusion that the amount stated at the beginning would be double the value if you tell us here that you never had the information? From my own inputs and experience? Forgive me, let's go back a little just to clarify, you mentioned to us two or three questions ago that you were not a civil engineer, that is why you could not give an opinion on a question that Mr. John asked you, this question is in general, Cost of developing works, is it within the scope of professional experience of a surveyor to determine what the monetary cost of developing a civil work is? No, sir. In your report in the expansion of the report, Um, you presented to us you stated the fifth clarification. Initially in the report, you gave a value of 45000 for the rest of the property. In the clarification to the report you lower the value to 20000 per square meter, but you do not explain in this report why you went from 45000 to 20000, the question, why? Surely because of the criterion I later took to lower that cost due to many occasions that I saw at the time on the terrain and I do not, I do not specify, why I, I do not specify, clearly that I lowered it by almost half of what I had initially set. I do not specify. Was this report made in the year 2017, what date are the values you state in this report, what date do these values correspond to? To current dates. The values you record are from the moment of the visit? Oh, yes?, at that moment. And you, state, previously that you could not take into account works that were going to exist, the question is Can you, within your technique, say how much a good was worth 10 years prior to your visit? No, sir. I have no further questions. Questions from the Tribunal. Mr. Jonatán Canales asked. Was the object of your expert analysis to locate the property and establish the value with respect to all those possibilities, or was it only to locate the property, what was basically what you did? It was the total value of the project, later other cases came that were subdivided, but generalized, yes, sir.
The President asks for clarification: did the Zión Group apply for a loan from Banco Nacional specifically for developing? As the Zión Group, the Desarrolladora, he answered. For developing Bariloche or the subdivisions they had? Not in this case. He indicated that the Zión Group as such was not a client of the Bank. If memory serves me, I believe the loans that were denied to them, Don John, were for another project. If memory serves, it must be around here. Ah, here it is in 2.1, 22.113, it was for the Development of the Bonanza project, not for the development of Bariloche. That is stated in 2.2 point 1.13, it says: "by document dated September 24, Messrs. Rafael Obando Jiménez, regional director of Alajuela, and Carlos Acuña, regional credit director, submitted an approval to the Special Credit Committee, a financing request for 3 million dollars in favor of the company Residencial Bonanza Mountains, which, according to the economic interest group with Zión projects, to invest in the construction of an urban development project located in Colorado, Abangares, the Bonanza project." So it was for that one? It was for that one. But in relation to that, I have my notes, that you said Zión was not a client of the Bank? No, sir. And when it tried to become a client of the Bank, you did not give them the loan? Exactly. Yes, the Zión project was not part of the Bank's project inventory. And this conclusion then, that the difficulty in finalizing the project with its own resources was part of the denial of that loan they requested? No, the denial by the Special Credit Committee not to approve a loan is more a matter of financial analysis of the debtor. Now let's go to 2.10, there in the second to last one it says: As a result of the promotional boost they gave to the company Proyectos de Zión, what did that refer to, this issue of the promotional boost? Ah, well, part of the promotion that the Zión Group did was through the Bank; the Bank put its name in the marketing that was done. It says officials Retana, Cárdenas, and Alvarado Moreira could have administrative and disciplinary liability for failing to comply with the cited regulations, according to fact 2262. Two 2.2 point 2.6 for not having control mechanisms to suppress carrying out constant monitoring and supervision of the loan portfolio in a series that originated from the developer as a result of the promotional boost they gave to the company. Gave to the company Proyectos, this was that within the company's marketing, the Bank, let's say, put the Banco Nacional name, right, and what is being attributed here is that this risk assessment was not done, and regarding the Bank's reputation, precisely because the developer was delayed in the development of the projects. Now on page 2011, in the second paragraph, reference is made to information from the Deputy General Manager, Mr. Juan Carlos Corrales Salas. I am halfway through, it says comments that Juan, rejected by the Deputy Manager, who indicated that in Palmares they processed bad loans due to the pressure exerted by the client. As well as due to the trust that had been placed in him, which led to falling into superficial analyses; loans granted to people who do not have a stable payment capacity, etcetera. The deterioration of the portfolio was evident and although the office specialized in housing, it did so poorly, without having the adequate structure, on one hand, and without knowledge of the risk in its analysis; likewise, it was recommended that the developer's incidence in the office be eliminated? What was being referred to by the developer's incidence in the office? If I remember correctly, this copies verbatim, I believe, what Juan Carlos Corrales, at that time the General Manager, said; those are his words. Okay, were those taken as evidence that they could generate administrative liability? Exactly, let's see, because here, in the same document, the structure of the Office to handle the demand is indicated. Finally, in that document it says, the officials Retana, Cárdenas, in the following paragraph, and Alvarado Moreira, but regarding administrative disciplinary liability and says for not assessing the associated risks, such as image risk due to the exposure of the Banco Nacional brand alongside the company Proyectos Urbanísticos Zión, who sold lots without them having functionality, such is the case of the Bariloche, Terra Verde, Bonanza projects, which show low percentages of completion. What does it refer to by the lots not having functionality? What is the functionality of a lot? The issue probably was the common area zones that are not developed. Everything a prior development entails for a development, of the prior subdivision so that the acquirer can already begin to develop a house or something like that, which are common areas, streets, lighting, electrification. And why was that a risk for the Banco Nacional brand? Well, precisely for what we were talking about earlier in the previous point. Promoting a developer who eventually was going to end up in a bad position with its clients. The President asks: One question, what date is that report from? It says here it is from 2011, Your Honor. It's just that I don't know if that also refers to a contract they signed for the promotion of a lot where they were giving away a specific lot, if they wanted the financing. Yes, sir, it was at a 2010 Expo Construcción held in April 2010, ah, that is what you are referring to with the exposure of the brand? Yes, sir. Well, the report, I mean, is specifically about that topic; the reference is correct. To be clear, because here it could be very broad, let's say the assumptions. In relation to this, with what is indicated or the clarification that His Honor just made, uh? The Bariloche loan files used for this specific file, were they before or after that date that His Honor just indicated? Before or after? After what, sorry? The date that His Honor just indicated of the Expo Casa in 2010. I don't know, Don John, because the list of the loans doesn't come here, right. Of course, but I ask you because at the beginning of the examination you had indicated to me that this covered 2006 to 2010? Yes, the report makes reference, that is, the report as such makes reference to the evolution of the Palmares loan portfolio from 2006 to 2010; in fact, it is in one of the facts specifically, for example, in fact 2.2 point 1.2, it says in the period between December 2006 and October 2010, one of the offices in the regional directorate with the greatest increase in the loan portfolio was Palmares. Very well, and therefore, this financing of lots sold by Zión at the Palmares branch was not until 2010; it is earlier, that is, before, had lots developed by Proyectos Urbanísticos Zión already been financed through mortgage loans at Banco Nacional? That detail, I don't have it, because here it talks about the loan portfolio in general. What was financed to Zión clients is not here. I understand that the analysis done here was of loans that had some relationship with those 3 projects of Terra Verde, Bonanza, and Bariloche, which are from Zión? Yes. But the date when those loans were formalized is not here, and obviously I don't have it. Don John, is it like a contextual framework, right? A contextual framework of the study that they are, yes, sir, the behavior of the loan portfolio in that office; now, regarding specifically Bariloche or Zión, I don't have that information, and there wasn't any here in this report either. Finally, there, is it indicated regarding these lots that do not have functionality? Additionally, on folio 2011, third paragraph, right at the very end, it says: "Initially, they did not consider that the Bank had not financed the developments and that the company Proyecto Urbanísticos Zión was not part of the active portfolio of developers linked to the Bank, coupled with the above, that the financing was granted to third parties and that therefore there was no control of the cash flows generated from the sales in order to ensure the completion of the works necessary for the finalization of the projects." Whose responsibility was it to do that assurance? The completion of the works necessary for the finalization of the projects? The mortgage banking department, it is an office within the Bank. On the last page of this report, 2012, reference is made to a description of the documentary evidence. This, let's say, is documentary evidence; it is the evidence that supports the ideas or the statements made in the report? The assertions, yes, sir. This is a preliminary investigation; it is what is sent to the Bank's Labor Relations Office to open the procedure and to carry out the investigation, with the understanding that the Labor Relations Office has the full authority to investigate on its own. Do you know if, apart from this procedure in the Labor Relations Office, any other type of measures were adopted by any other Bank office to prevent these weaknesses or to correct them? Yes, of course. At the end of the day, these are internal control issues; they are failures in the internal control process, and obviously the Bank is a living organization, so to speak, like any other institution in this country or any private company that constantly has to be improving its processes, and everything related to risk issues. I don't know if that was what you were referring to; yes, what I would like, maybe, is to delve a little deeper into what type of measures were taken or what type of actions were adopted in that case? Don John, the credit process is evolutionary; measures are constantly being taken: the reinforcement of supervision schemes, appetite assessment, in general terms, specifically for credit matters, that is, there can be many measures. Improvement of credit scoring, improvement of the risk schemes it has to measure the payment capacity of future debtors, and so on. Perfect, I have no further questions from my side. The attorneys for Banco Nacional. In one of the responses you gave John, you pointed out that one of the weaknesses found was the growth of the Palmares mortgage portfolio. Can you explain to us, if it is within your knowledge, why the exponential growth of a portfolio is a risk problem? Well, in banking it is always said that when there is exponential growth, headaches come afterwards, because the control schemes may be minimized, or the assessment systems may be minimized. When exponential portfolio growth occurs, which you say brings the headaches, whose, for whom? Who suffers it? In this case, the Bank, because deterioration in the loan portfolio begins to be reflected, deterioration in the delinquency scheme begins to be reflected. Less flow of money entering the organization, right; at the end of the day, the spirit of granting a loan is that the debtor finishes paying it. Another of the points you pointed out in response to John is that there was a concentration of the portfolio? On one hand we had growth, now we find there was concentration; what is the concentration of the mortgage portfolio, in this case. What were you referring to in this case? The concentration occurs, let's say, in a specific activity; it can be all housing, as in this case, from a specific developer. Because representing a risk that the entire portfolio or the entire placement is in housing, for example? Let's see, it is a risk, insofar as the controls and the risk-mitigating measures are being loosened. If credit is being granted and all control schemes are being followed, with all the regulations established to manage risks, well, this should not be a risk, right. But the issue is when there are expansions in the loan portfolio and they do not have the counterbalance, so to speak, of risk assessment and internal control. You pointed out in your response, and this you already mentioned, but I would like for it to be a point on which we are left with no doubt, you said the report was about the Palmares loan portfolio and included loans from 3 developments not specifically related to Bariloche, and you point out that what was perceived were weaknesses in internal control? So, the question is, does this report cover the entire Palmares loan portfolio at the time it was done or only the loans from Zión projects? No, it is a sample of loans to clients of Proyectos Zión, from different developments; I believe there were 55 loan operations, among them was Bonanza, was Bariloche, and the third one, I don't recall if it was Selva Verde or Madero Negro. It was not a sample of the entire Palmares loan portfolio, that is impossible. In one of the last questions asked by Don John, sorry, you said that the possible reputational risk had not been evaluated for whom? For the Bank. Where did you consider that risk could derive from? Well, precisely for what was mentioned, the mortgage banking department, there was an agreement there where I believe a lot was given away, right, where the company's marketing with Banco Nacional logos was used and that this risk, reputational risk that it could be generating for the Bank, was not assessed at the time, marketing, or participating in an agreement with the Desarrolladora Zión company, which had delays in the developments it was selling to its clients. In one of the last questions John asked you in relation to folio 2011 that you had there, it says before point number 3, could you read them: "Officials Retana, Cárdenas, and Alvarado Moreira could have administrative and disciplinary liability for failing to comply with the cited regulations, according to facts 2.2.7, 2.2.8, and 2.2.9, for not assessing the associated risks, such as image risk—image here we refer to reputation—by exposure of the Banco Nacional brand together with the company Proyectos Zión, who sold lots without these having functionality, such is the case of Bariloche, Terra Verde, Bonanza, which show low percentages of completion; additionally, they did not consider that the Bank had not financed the developments and that the company Proyecto Zión was not part of the active portfolio of developers linked to the Bank, coupled with the above, that the financing was granted to third parties and that therefore there was no control of cash flows generated with the sales in order to ensure the completion of the works necessary for the finalization of the projects." In this paragraph, is it indicated that the Bank had not financed the developments and that the company was not part of the active portfolio of developers linked to the Bank? What does this imply in terms of control over the cash flows generated with the sales? What comes next? Yes, let's see, when the Bank has a client that is part of the project portfolio, as there have been others or now that there are many with towers, right, when the Bank finances that project, then the Bank begins to have control of the cash flows that the project is generating; what am I referring to, for example, when the Bank finances the developer, then I will give the example, Your Honor, of a tower, when the Bank finances the construction of a tower, there is a guarantee in favor of Banco Nacional, which is all the mortgages of each of the apartments, so to speak; when the Bank finances, when the Bank finances a client of those, then that part is released, right, the developer's debt with the Bank is renegotiated with the financing that is being provided to a client. Question reformulated, following objection. What do you mean by control of cash flows? Here, when we talk about control of cash flows, I will give the example of a ten-hectare lot, and the developer is going to develop it to sell it; then, when the Bank finances the developer for that part, then, the Bank finances the money so that they develop common areas, streets, park, the clubhouse, and all those things, right. Therefore, because the Bank grants a loan to that developer, that property remains under guarantee in favor of the Bank; now, the developer is going to start selling lots to their clients, when it is a scheme, yes, where the Bank finances the developer. He indicated that they are conventional loans; so, for example, I, Ricardo, am going to buy a lot, then the Bank comes and finances the purchase of that lot for me, but with the money that the Bank finances for me, right, in the control of cash flows, as in a case of these, where, right, where the Bank financed the developer, was the control of cash flows; then the Bank ensures that the loan it financed for me, the money, instead of going to the developer, renegotiates the debt that the developer has with the Bank for the loan granted to finance the common works. That is, let's say, the control of cash flows that this refers to in this part, and here, perhaps to answer the question asked by the Licenciado, in reality, all these matters in this section are related to an issue of reputational risks, basically. The Bank's representative has no further questions. The Tribunal has no questions.
Those people lost absolutely everything, because now they do not even have the land. So I signed authorizing this man, Óscar Mario Vargas, to reduce the lot number, supposedly my lot was not, they were not going to change position at that time, I I could see the lots, I do not understand it, one moment in a brushland that does not exist. Ah by the end of that year it was already revealed that what they had said was that the permits had not been granted. It had not continued because hydrogeological and environmental permits were missing. So they spoke with the municipality to see if they would give us permission to continue with the project, but the municipality refused until those permits were obtained, but then later at the end of 2011 it was revealed that yes, it was a fraud and that what had happened was that this man Mauricio Muñoz had been given the money all at once, in other words the Bank, the trust I had in the Bank was that the Bank was going to supervise that the work was being carried out because there is even a clause there in the contract where it says that if either party fails to comply, they would stop issuing the money, but the Bank did not do that. The Bank gave all the money to this man, in a single payment and not only ours, but another project as well. The man is named Mauricio Muñoz, who was at that time the developer, the representative, of Zión, who is a Pastor of a church. I do not know if at this moment he is still a Pastor, but at that time he was a Pastor of a church, Mauricio Muñoz from Grecia and so, in 2012 I think it was more or less, we appointed a Pro-construction Board (Junta pro construcción), to see if we could develop the project. So we proposed to the Banco Nacional that they be given forty-something lots, within a trust so they could develop the project, and that if something was needed, in other words, that with the sale of the lots, they would recover the money to develop the project and that if something was needed, then they would put it up; as compensation for what they had done to us, for not having supervised the project, but the Banco Nacional did not want to, it only accepted 23 lots. I do not remember exactly how many lots, but the project was not developed. So, in 2013 we decided, we held a meeting and decided to file the lawsuit and hire the Batalla attorneys, and in 2014 a new developer appeared; José Antonio Cuadra, he held an assembly, which was an illegal Assembly, and eight of us, seven or eight, I do not remember the exact number, but we joined together and hired a lawyer to bring the assembly down because there they approved that we had to pay for the lots again to develop the project. Yes, there at that moment, how some would have their money and could do it, but others of us could not face that. So we brought down that Assembly and then they could not charge again because if we did not pay, they would take our lots and we would still be left with the debt, in other words, Antonio was assuming all the lots, he even offered to pay us for the lots, to buy the lots from us, but for a third of what we had paid, he even offered us that he would pay us the down payment, I had given about 7,000 dollars, for those three lots, in other words, please, everything we had paid up to that moment, up to this moment I have paid almost 70 million colones and then I went to the Banco Nacional to see if the Bank would receive the lots from me, because I could no longer assume it, I started when I was 50-something years old, I am 66 years old, so several years had already passed and I went to see if they would receive the lots, well to see if I could do something and what they told me was that they would receive them from me, but at about 4 million per lot, in other words a third, an outrage and that I would still be left with the rest of the debt. From there, that did not, did not seem right to me. And I always, well, I had the confidence that we were going to achieve something, right, that we would achieve something. Later this José Antonio could not do anything because as we brought down the Assembly, he could not do absolutely anything. Later I found out that the mortgage is overvalued, compared to the market value. I wanted to sell the lots, I sent some people, but by then the lots are not even known where they are. I only believe there are one or two developed phases (etapas), the rest was not developed further. And I do not know, really what else. This, I tried later, right, because it appeared there, that they would lend to the woman, well I went. Sorry, but it has been very hard, really. All the dream that we had. Yes, the family dream all came crashing down at that moment that I went, they told me it was not yours, they lend you for 15 years and pay ¢800,000.00 per month, plus what I was paying, how, impossible, in other words, my dream of having my own house came crashing down due to the inefficiency of the Banco Nacional for having supervised. They had the office in Palmares. One would go to the Bank, I did not have to go there because they came to my house, but my sister did have to go, they even invited her to lunch, they paid for lunch and my sister found it strange that when she made the down payment they gave it directly to Ericka Vargas. In other words, handing over the check. They gave it to her directly, they gave the money to her, I paid monthly, I went to Ericka Vargas (the saleswoman of Proyectos Zión) I paid monthly, I went to the Banco Nacional and paid with my transaction number, which was from the Palmares Bank, but I paid in Alajuela. At the auto bank, one day when I arrived to pay they told me, no, that transaction no longer exists, I said how can it no longer exist, they said you have to go to the central offices, you have to go park the car and go and find out, so I went and they told me, no, it's that the entire Palmares operation was closed, they fired a bunch of Bank employees and they brought the operation to the Banco Nacional and they gave me there, they gave me the transaction number, so there I decided better that they deduct it monthly from my Bank account, and that is what currently happens, on the first of each month it is deducted from me. I am now retired, my pension is not very high, so I have to keep working because I have to pay the Bank and nearly half of my pension goes to that. So, if I do not work, I cannot subsist. We have things, from my siblings, but after the pandemic that no, that no longer works. I have some offices but they do not rent. So the only strong income I have is working teaching classes, I have always liked it, but I am now 66 years old and I do not have much time left to work. The President states: Well, well, I believe she has made an extensive statement. Now we will give the floor to her lawyers to ask if they have any clarification and then those of the Banco Nacional. The representative of the plaintiff begins the questioning. Did you know cases of other people who were in the same situation as you? Yes, many known cases. Approximately how many? Well, since we did this, we organized ourselves into a group, to see if we could get the project developed. I knew several cases, one of them two students of mine, one of them lost his car, by the way, due to that, because he stopped paying, the other student, well she is still in it, she has a lot, then I knew a girl whose husband died after that, and the poor thing was left with children and with the debt. Then I knew these other people who invested, eh, gentlemen, already retired who invested their retirement fund in there and lost absolutely everything. Those people you mention, they acquired the lots in the Bariloche and through a mortgage from the Banco Nacional? Yes, I also know many who bought this for cash as well. People from Materiales Meza; they had bought several lots, like eleven lots, in other words, imagine that at that time we were two hundred defrauded people. And do you know if all those people were attended to at the Palmares Branch (Agencia de Palmares) of the Banco Nacional? I could not tell you, that part, I do not know, I know my sister, because she went. In your sister's case, you referred to a down payment being handed over to Ericka Vargas, that down payment your sister handed it over, to whom? To the Bank. And who handed that money over to Erika Vargas? The Bank. Right there, she even told me, how strange, at that moment I said, this sounds strange to me, it does not sound good at all, that is what she said. What is your sister's name? Patricia María Gamboa Bolaños. Do you know if Patricia was part of the people who filed the lawsuit you referred to in 2014? Yes, and a niece, Tatiana Rodríguez Gamboa. We three are among those who filed the lawsuit and those who brought down the illegal assembly that they, those from the Banco Nacional and José Antonio Cuadra, held. Do you remember if the Banco Nacional carried out any kind of promotion of these lots? Look, actually, they carried out promotion, but after the fraud was declared, once it was discovered it was a fraud, they published in La Nación, they published that they were selling lots, we found that very strange, because if it was a project that was stopped, how was the Banco Nacional selling lots when it was impossible to build. The lots are in our name, I pay taxes. But I remember the promotion of Bariloche at the entrance of Alajuela, there was a banner, one of those huge advertisements, they advertised themselves, but I really do not remember having seen the name of the Banco Nacional, that's true. But, it was the only one that the Banco Nacional financed. At that time, I know the manager, sorry, of La Mutual and she heard me, day this saying that I was coming to the hearing and she commented to me, we did not want to finance. The only one that financed them was the Banco Nacional. How did you end up at the Banco Nacional to obtain that financing? No, I did not go. The salespeople did everything. I did not have to do absolutely anything, no paperwork nor go to the Banco Nacional, nothing, they handled all the procedures. And these salespeople offered you any other banking institution that could finance? No, only the Banco Nacional. Did they offer you special financing conditions? Well, this one that would cover the costs and covered almost the complete loan. What do you mean by complete? Because I made a down payment of 6,000 dollars, so they deducted those 6,000 dollars from the total. But I did not have to pay separately, I do not know, administrative costs, or lawyers or anything. In other words, I only made those down payments, nothing more. Did any official of the Banco Nacional warn you that there was a possibility that the work might not be finished? No, not at any moment, and when I went to see if I could hand over the lots, I started asking the Bank official questions and he told me, oh, excuse me, but we are prohibited and I am threatened that I can be fired if I talk about that, I cannot tell you anything else because I started asking him questions, to see what were the options we could do and he told me, no, I told him, it is okay, I respect, take it easy, I will not ask you more. The President of the Tribunal requested the witness, when referring to something, to specify at what time, let's say, when those facts that you are answering happened, because let's say how this started around 2007 and in 2011 and you refer in broad terms, but yes, perhaps to be more precise. The witness, indicated, that this happened after it had been declared bankrupt and several years had passed. The President, indicated that the lawyer is asking her about the negotiations (tratativas), and she is answering about the negotiations. The witness indicated that it was fine. The lawyer asked: Do you recall if anyone, at the time of the formalization of the credit for the purchase of the lot, placing us in the year in which you made this purchase in 2008, warned you that the developer had liquidity problems? No. (The BNCR Lawyer objected to the question as untimely, specifying that the question assumed that the developer had liquidity problems). The President, indicated that she had already answered, that he should object in a timely manner and that this was a matter of evidence. The witness continued clarifying that nobody warned us. That they, they trusted that he was a good developer, that he had several projects and that what gave the most confidence, was that it was backed by the Banco Nacional and that the Banco Nacional was going to supervise that the work was carried out; so, that gave me peace of mind. The President intervened so that she would specify who had told her that the Banco Nacional backed the work? She answered, that yes, since they were the ones who provided financing and then, when an entity finances one, let's say, if one asks for a loan, they do not give the money all at once, they are supervising that the work is being carried out. She was asked if she bought a house or a lot? She indicated that she bought three lots. She was asked in what phase (etapa) it was? She answered B. The lawyer for the plaintiff continues. Could you narrate to us, how was the process to obtain the appraisal (avalúo) of that property or the properties you bought? She indicated, that she did not remember that, so she could not say. Were you told that on those lots you could build a house? Yes, they even had these construction guidelines, in other words, one could not build however one, let's say, fancied, no. There you had to maintain certain characteristics for the construction. But you could build perfectly. At any point did they tell you that you were going to be a financier (financista) of the project? No, they never told me that, that they were going to develop the entire project, the phases. Proyectos Zión, was going to develop, financed by the credits that we assumed. What can be done on your three lots at this moment, what are you using them for? Well, it's that they cannot be used there, you cannot even enter and those lots, there are no, the streets no longer exist, when I acquired them at least the streets existed and one would go and see where the property was, at this moment absolutely nothing can be done because there is no electricity, no water, no pipes, in other words it is green, it remains green. That phase remains green. Ah, I do not know what I could do there, I cannot do absolutely anything. Continue paying the municipality for a property I cannot use. For three properties that cannot be used. You have referred several times that you trusted the Banco Nacional, what gave you that confidence? Well, that it is an institution that is supposed to be a very strong institution, it is not private, it was not going to go bankrupt, it is a supervised institution, by the SUGEF, to whom they are accountable, and that it had financed several projects. From this one realizes that yes it has solidity, at that time I worked only with the Banco Nacional, after that I lost confidence and I only have it to pay the loan, nothing more. But that was the confidence one had. You referred that you knew other cases. The reasons why other people trusted the Bank? There was an objection and it was accepted given that it does not refer to firsthand facts. With all due respect, sir, I am going to maintain the question. After several arguments, the question was reformulated. If you knew about the reasons why other people, or rather if they told you, why they trusted the Banco Nacional. She indicated, that yes, the sister, the niece and nephew. The two students who had bought because they trusted the Banco Nacional and that the Banco Nacional was going to supervise the work. The President, asked her to clarify, since initially she indicated that she had bought three lots, two of hers, and the ones of her niece and nephew was verbally. She indicated that the nephew initially participated and then could not pay. She indicated that she does have half of the third lot, the niece a quarter part and the sister the other. The lawyer for the plaintiff finished his questions, the turn of the representative of the Banco Nacional continues. You indicated that on September 19th you made a down payment of 3,000 dollars, that in November you made a second down payment, to whom did you hand over that money? To Erika Vargas. Who was Ericka Vargas? Saleswoman for Proyectos Zión, together with Oscar Mario Vargas. From whom did you buy those lots? From Proyectos Zión, financed by the Banco Nacional. You indicated that you were able to see the lots and that the project was green. Before buying, did you go to visit the place where the lots were or did you go to see the lots you were going to buy? Yes, I went when it was totally green, which was when my nephew told us about the project that they were going to do, later I visited again when they had already done, well, it was all like ballast, there was nothing cemented, supposedly it was going to be paved with cobblestones (adoquinado), nothing, but at least it was dirt, but they were separated already, you could already see the lots. When you made these two down payments to the company, did you sign any document? Yes, I have receipts. I have the invoices that they gave me. Did you sign any type of contract with the company regarding the sale of the properties? I signed when they came the following year, in 2008, it was Óscar Mario, who was the corresponding salesperson and the licensed Jorge Mario Marín, from the Banco Nacional. The representative of the Banco Nacional finished his questions. Judge Jonatán Canales, asked her, if she remembered anything about the appraisal, of this matter that was done at the Palmares Branch of the Banco Nacional. The representative of the Banco Nacional objected to the question, indicating that the lawyer for the plaintiff asked him the same question and she answered that she did not remember anything about the appraisal. The President, confirms that situation. Another question. Jonatán Canales, asked her if she had paid for the appraisal? She stated she did not remember. Regarding the topic of the evangelical pastors, she indicated that the representative was a Pastor, the owner of Proyectos Zión, his name is Mauricio Muñoz, he is from Grecia, from Rincón. She denied being a parishioner of that Church. She indicated she did not know him. Judge Rodolfo Marenco, did not ask questions. The President, by turn of this process, asked her if when she went to the project, who attended to her? To which she stated that it was Ericka Vargas. She denied that she gave the earnest money (señal de trato) that day. She indicated, that she had gone, much earlier, to see the area, since the nephew had shown it to her, since he was a friend of the lady who had sold the property to Proyecto Zión. He told her that they had sold it and that they were going to build a beautiful project. And he suggested why not we all buy, so we could all be together as a family, nearby. She was asked if the nephew was a salesperson for Grupo Zión, and she denied it. She indicated that the contact was because he knew the property. Did you go with your nephew and later arranged an appointment with the people from Grupo Zión? With Erika, it was the nephew who contacted her, and there they arranged the appointment. She arrived and told Ericka that she would like to buy three. She indicated that she did not sign anything at that moment. She indicated that later she handed over the papers through Ericka. She indicated that later in September she made the first down payment. That they gave her a receipt. Then she signed until the following year when they went to her house. She was asked if Ericka had informed her what the condominium consisted of? And she indicated that yes, of course, they had a large sketch, of everything, that is where she chose the lots. And what did she tell you it was going to have? That it was going to be paved with cobblestones. What did she tell you it was going to include? In reality I do not remember very well, electricity, piping and I do remember that each phase was going to have a separate entrance and each phase had a name, like of Argentine places or cities, like Palermo. Who was going to carry out the earthworks (obras urbanísticas)? Proyectos Zión, but financed by the Banco Nacional, with those of us who bought on credit, that part was going to be financed by the Banco Nacional. Regarding the condominium owners' meeting minutes (actas de condóminos), that were held, in the evidence there are two, did you only challenge the $96 fee or what PROSUM was going to develop? No, we challenged that assembly. They proposed that we had to refinance the credit and said that the Banco Nacional, was going to give them a much lower interest rate so that we could acquire it, but that was not true, because I went to the Banco Nacional and inquired and it was not like that. Who told you that? Those who were there. The ones from the Banco Nacional? No, it was one of the administrators, with José Antonio Cuadra. Communications of the Assemblies always arrived, that Assembly -of the extraordinary fee- and another ordinary one, a payment, to whom? To José Antonio Cuadra. But you had to acquire the credit with the Banco Nacional. There were some who could not refinance. It was challenged since the communication was made in La Gaceta, not by mail. Did PROSUM develop it or not? No, they could not continue, since we brought down the Assembly, I really do not know. They did not continue and how were they going to continue, without money. She indicated that month by month they pay the maintenance fee.
We ran the numbers, checked whether we had enough money to buy, and then scheduled an appointment with the sellers—I don’t remember her name now—and requested an appointment at Mauricio Muñoz’s offices to formalize, to finalize, to nail down what they were offering us and formalize the purchase. So, there would have been two times: the first time you arrived there and at the Container this young woman attended to you; did she give you any information? At that time she gave us a brochure and the rest was by word of mouth. Once, let’s say, you decided, what did you do? Did you call the young woman, say you were in agreement? We called the young woman, scheduled the appointment at Mauricio Muñoz’s offices. We had another meeting; Mauricio Muñoz also offered us a project near the Puente de la Amistad, I think it was Bonanza, which we were not interested in. Why were you not interested in that other one, further out? No, we could not afford it. The purpose of buying was to formalize or close on a residence where I was going to live; I was going to get married and, in theory, start a family, so I was looking for a place to reside, and it was very close to my workplace because I work at ICE, near the Tribunales de Justicia there. So the location was very convenient for me, and the price was relatively comfortable, and there were sufficient funds to buy what was bought, not to go somewhere else to buy something else. How big was each lot? 303 square meters, 304 square meters for the ones I bought. And why did you buy two? Did you plan to combine them, or what were you thinking? At the beginning, that was the idea: to build a house in the center with them and have a bit of green area around it, with the idea of forming a family in the future and my kids having a recreation space. Do you remember how much each lot cost you? Twelve million each. The bulk was 12 million. Did you consider that a good price or an expensive price? No, I considered it, at that time for the area and the location, and according to the scale models and what they were offering, a reasonable price—in fact, quite comfortable, because we had already been around residential developments and subdivisions in Alajuela surveying the market. And that’s what attracted us: proximity, how they sold the product, the finishes they were, in theory, going to provide, right, and the condominium regime (régimen de condominio) was just starting up, so it was attractive for the security and everything else; that is what led us to buy there. Do you know who was obligated to build those urban infrastructure works (obras de urbanísticas)? To this day I don’t know; the truth is, no, it wasn’t clear to me who it was, whether it was… I don’t know, the truth is I don’t know. Didn’t the purchase-sale contract say? Well, the purchase-sale contract said, “Proyectos urbanísticos Zión commits to deliver the lot with grass established (enzacatado), cobblestone streets (calles adoquinadas), this and that.” That’s what the contract said? That’s what it says; I have a copy of it there. Alright, no further questions from my part; we thank you very much for coming and contributing to the mission of Justice. You are released from the responsibilities for which you were sworn in.
The President interrupted and asked whether that was in relation to those who purchased in cash or those on credit? He indicated that he saw some of the cash and credit options, as the condominium owners provided them, which were in the case files. In those options, who was the seller, if you recall? Proyectos Urbanísticos Zión. And according to those options, who was responsible for developing? The Developer at that time was Proyectos Urbanísticos Zión. When PROSUM enters, as you tell us that PROSUM develops stages A and B after 2018, do you at that time have any relationship with the condominium or not? No, I had already left the administration. And how do you know what happened with PROSUM starting in 2018, if you were no longer there? I live near the area, right, so one notices the movements and things. And Mr. José Antonio Cuadra Maradiaga, who is, let's say, the person representing PROSUM, continues to have a relationship with me, let's say he consults me on things professionally, but regarding his company, not the condominium. I don't know if I'm making myself clear, it's like together but not mixed, right. But regarding the condominium, let's say I did not return to advise or sign any document. Maybe just to clarify, and forgive me. Are you or were you an advisor to PROSUM, as a company, or an advisor to the representative of the company, in a personal capacity? Not subsequently, let's see, subsequent to my leaving the administration, Mr. José Antonio Cuadra Maradiaga, in his personal capacity, sought me out and asked if I could continue advising him on some matters of his company. Not related to this? Well, some did have to do with the development of the condominium, right. But in that case, what I did was, let's see, advise PROSUM on the matter of condominium permits and the whole matter, let's say, not to be more specific, the entire matter of the Municipality of Alajuela, of SETENA, of MINAE, of all these things because, let's say, the Board (Junta), at that time, still managed the condominium permits, and he needed, let's say, certain guidance and certain action in that regard, right, regarding the permits at the Municipality, at SETENA, the environmental feasibility (viabilidad ambiental), etcetera, etcetera, and all that work, from the time the Board was formed until the moment I left as Administrator, I had performed all that work of keeping those permits up to date, and that is how my, let's say, my work for José Antonio was channeled.
Do you know what ended up happening with PROSUM, since you advised the company regarding the project? Yes, yes, unfortunately. What ended up happening, did they finish developing it? They did not finish; they completed stage A and stage D, which is behind the Church, that is the one for, but I am not sure, and then it had a problem with the sale of lots and the condominium's turnover, and in the end, the last thing I heard, right, from the words of Mr. José Antonio, was that he lost the trust (fideicomiso) he had with Banco Nacional and that Banco Nacional is now the owner of approximately 48% of the condominium. Returning to the topic of the credit files, Walter, forgive me for jumping around, you said you reviewed around 70 - 80 files, and that around 60% of the clients acquired with financing, that 100% of those clients that you were able to see out of those 70 were with the Bank? I see that by checking the condominium registration (registro condominial), not the credit files, they are different things. Do you remember the chronology of these files? Do you recall what came first in the processing of the files, because you told us there were purchase-sale options (opciones de compra venta), then you told us there was a common mortgage contract, that there were appraisals (avalúos). Do you remember which documents had earlier dates or not? Very difficult, no, I don't even remember, let's say, the order in which they were integrated, I couldn't tell you; that is, they had a certain foliation (foliatura), there was a cover page and all the documents came, and in reality I don't remember how they were integrated in order. The representative of Banco Nacional concluded the questioning. Judge Alonso Soto asked the following question. Well, you referred to when, let's say, the stage where you had been advising some clients who purchased in cash, that there were infrastructure problems, no progress was being made, they made, let's say, contacts with the people from Banco Nacional. I ask you, for what reason did those who purchased in cash go to the people from Banco Nacional, for what purpose? Yes, let's see, to be clearer, because the group was the Group of Condominium Owners, it was large, it was a large and very heterogeneous mass. When we presented the results of the condominium census (padrón condominal) to the Assembly (Asamblea), and told them, look, there are so many financed lots, so many are cash, that 60% of the project was sold financed with Banco Nacional, then everyone, right, said, well, there is an issue here that Banco Nacional has to answer for, right, that was the common sentiment of all the condominium owners. And the cash ones, well, the people I spoke with at the time said they had been influenced to buy because they had, let's say, an expectation that the Bank was financing the project, or that is what they believed at the time. You referred to the billboard (valla), do you remember specifically what the billboard stated, what it said? It was a huge billboard, I mean, those ones they put on the highway; I believe it said project financed by Banco Nacional, but really, let's say, to the level of asserting it under testimony, I know that, yes, it referred to Banco Nacional, but I cannot state specifically exactly what it said, whether it was the project financed with Banco Nacional or buy your lot here with Banco Nacional, it was one of those two phrases, unfortunately, I don't remember it precisely. Regarding the amparo appeal (recurso de amparo), what was it that happened, let's say. What was it, was there some dispute with a neighbor or some problem with a neighbor of the condominium? Yes, a problematic individual from the Community had filed an amparo appeal indicating that there was aquifer contamination and whatnot, that the project and that it was the water springs (nacientes) of Alajuela and the whole matter. So, the Constitutional Chamber (Sala Constitucional) ordered a study of the project's aquifers, which involved the Municipality, SETENA, the Water Office, everyone, and the hydrogeological study was conducted by geologist Leonel Rojas, and it showed that the soil's permeability would not allow any spill, let's say, to pass beyond the superficial layers, so there was no danger to the aquifers (mantos) but even so, because the project had initially been designed with septic tanks, it had to be corrected, and it was switched to a treatment plant. And how much did that delay the project, if you know, let's say, it happened, from when that complaint was filed until it was resolved? I estimate between four to eight months. At that point I was looking at the Minute Book of Condominium Owners (Acta de Condóminos), where you appear as administrator and PROSUM appears at the same time. I don't know if that was the moment when your term was expiring and the appointment. PROSUM was explaining what the possible financing that was going to be done consisted of, where you say that indeed an extraordinary fee (cuota extraordinaria) comes out. The question I see is that you were also involved in IMPROSA; how was it structured in a trust (fideicomiso), what was it that was intended to be done? I don't handle the technical financial part very well, but the idea was that Banco Nacional was going to finance PROSUM, through a trust, to repurchase the lots from all the people—as was done with many people—PROSUM, through this trust, repurchased those lots that had problems, assumed them, and then, with that, PROSUM was going to have control of the condominium, a majority, and through that, well, it was going to finance the development of the zones. I read there that PROSUM made an offer, supposedly, made an offer that if it reached 51% of the condominium owners, it would do it, and if not, it wouldn't. Did it reach that 51%? Yes, it had the support of other condominium owners to be able to carry out the development of the condominium. Do you know for what reason it did not continue developing the other stages? I believe there was a financial problem, let's say, within PROSUM, among them, the low sales turnover of the lots. I know that Mr. José Antonio Cuadra Maradiaga was behind the authorities of Banco Nacional to continue, to see if they would refinance, but in the end the decision was a banking decision, right; they did not continue financing PROSUM and the trust was collected. Since you were the lawyer for José Antonio Cuadra Maradiaga? Is he the President of PROSUM, what position does he hold? I don't remember if he was the President, really. Do you know if José Antonio Cuadra Maradiaga, or PROSUM, could not continue with the development due to the challenge (impugnación) of some minutes (actas) by another group of the Condominium Owners where the condominium fee (cuota condominal) was brought down? Effectively, there is a lawsuit, your honor, where a group of condominium owners tried to bring down that assembly, and that was resolved recently, if I am not mistaken in April, in the Civil Court of Alajuela; the ruling was favorable in the sense that it must be collected, and in fact, the payment of the fee was never suspended, it always continued to be executed. Do you know what happened regarding the complaint you filed with SUGEF? Do you know what happened with that? I know very little, your honor, because it was a personal matter. What the condominium owners told me was that SUGEF turned a blind eye. Earlier, when you were testifying, you said that you went looking to Banco Nacional to refinance. At what moment are you talking about refinancing? That is, in the first stage when the people purchased, or in this second one with PROSUM? In the first moment when the people purchased. Let's say, the people's perception, let's say, to make the matter clear, was that the Bank had financed Mauricio, the developer, Proyectos Urbanísticos Zión, through the mortgages; so what the people wanted was for the Bank to refinance the construction of the project, let's say, of what was missing, that is what they were seeking, that's why I use the term refinance. Are you a lawyer? Yes, and you say you studied 70 credit files. I imagine you read at least some of the mortgages. What did those mortgages establish? What did the Bank lend money for? Yes, the Investment Plan (Plan de Inversión), let's say, of that mortgage, what it pertained to was the purchase of the filial property (finca filial). Of the lot in green (lote en verde)? Yes, it didn't say in green, it was for the purchase of the filial property. No, it didn't say expressly, at least in the ones I saw, it didn't say expressly that it referred to the purchase of an unbuilt property (finca en verde), rather it referred to the purchase of a final property (finca final). It would be supposed, right, from my understanding at least, that when a filial property is spoken of, it must have the conditions to fulfill the purpose it must have. Did the mortgage say that, or do you suppose it? No, I suppose it, based on the fact that a condominium, well, it is supposed to have a purpose. That leads me to, well, I think, it seems to me the representative of Banco Nacional today, that, but you indicated having seen some purchase-sale options. Yes, do you remember who was obligated to build the amenities (amenidades), as they called them? Yes, the condominium amenities, the infrastructure works (obras de infraestructura), the developer, Proyectos Urbanísticos Zión. It was the one who committed through the purchase-sale option. Is this where you say there are variations regarding the conditions, that in some they said some things and in others they said other things? Yes, let's say, the options were particular to the cases, so there, some people, let's say, were offered other things, others were offered other things, it was something curious, and some of them said nothing at all, I mean, just a filial property for a certain amount, and I even saw options with no delivery deadline, I mean, it didn't say when the project would be delivered.
Regarding financing, I ask you—was there any limitation on seeking financing with another Bank? Not that I know of, no sirs, but in reality, all of the, let's say, mortgages that we saw on the condominium were from Banco Nacional. The testimony was concluded.
Oh, I don't really remember, but I don't recall who I went with a long, long time ago. Don't worry about this person, Ericka Vargas that you mentioned, who did she work for? Yes, for Grupo Zión, she, in fact, owned a house in that development in Grecia. Do you state that the contract stipulated that it was a lot that would be available within a period of 2 to 3 years? What contract are you referring to? The contract. Oh, I don't know if it's in the contract, really, I don't know which one. I signed a contract where that clause appeared, which stated. I cannot affirm that it is the contract I signed with the Banco Nacional or if it was an agreement I signed with Grupo Zión, the truth is at this moment I don't have the documents, but I don't have them here in Guatemala. Don't worry about what you just mentioned, so you signed an agreement with Grupo Zión? I mean, I did yes, that is, what I did was an agreement to buy the lot and there I made 3 installment payments. That, yes, I remember because I even have the receipts, right, and then afterward, the formalization was with the Banco, for the loan and they facilitated everything so that I could obtain that loan with the Banco. Those 3 installment payments you refer to, to whom did you make them? To whom did you pay? Oh, that is to Grupo Zión, to the Grupo yes. You previously mentioned some amenities that the project had, who told you or who showed you what the project was going to have? Ericka. Everything was through Ericka. You mentioned that last year and that something is still happening there, but that it hasn't been resolved and your attempt to sell it to the developer who is now, who is now willing to pay the cost of the lot. Do you know if there is currently a developer working on that project? No, I don't know, I mean because let's see, I don't know what happened, but he contacted us and told us that there had been an assembly and that the Banco had already assumed control and so there's a feud there, I don't know. So, at this moment, I mean, I know that Cuadra was the representative of that group of developers, but I don't know at this moment, I don't know anything about him, this year I no longer know what happened. And when you say Cuadra, Cuadra is a person's last name, sorry? Yes, Cuadra is the last name of this person. Yes it is, because I don't know who is developing behind him. Who is behind him? I don't know, he is the representative.
Do you know, the full name, we only have the last name? The truth is I think it's José, Antonio, José Antonio Cuadra, but I'm not sure, I know the last name for sure. You told us that previously the developer told you he couldn't continue, he strung them along for months and it's good, he said that he already spent all the money and he isn't going to develop. When you tell us, he already spent all the money and he isn't going to develop, who were you referring to? In this statement is that no, we didn't have any name? Grupo Zión, sorry yes it is, I mean, that information, because that man kept saying that the problem wasn't Grupo Zión, but that it was the representative of Grupo Zión. Several visits were made to him, that were made to him, I never went personally, but yes through the acquaintances who were affected. There were several people who went and he guaranteed that there was no problem on his part, but later we found out through the representatives of the Grupo of the affected people, what was happening, right, they, in an Assembly, were the ones who clarified for us what was happening. When you present yourself to the Banco Nacional or when the credit process with the Banco Nacional is rather carried out for that moment, had you already paid or not paid the installment payments to Grupo Zión? I had paid two of the installments to the Grupo because the third one had to be paid at the moment the credit was formalized. At the moment the signing was done, so it was at that same time, in June 2008, that I made the installment payment I had left and I also signed. For this moment you, well, you already explained to us that Grupo Zión was the one selling you the lot, for that moment when you are going to do the formalization, you had already agreed with Grupo Zión on a price for the sale of the lot? Yes, of course, the price, the price was agreed upon from the beginning, because in fact the installment payments were based on the price of the lot. So from the beginning, when the first installment payment is made, you already had the price set for which you were going to sell the lot? Yes, the price was set. What I didn't know, and later on the way I did find out, is that within the loan the formalization expenses and those things were going to be included, that no, I didn't know that and later initially we spoke of a loan for 20 years and later it turned out to be 30 years. Those were conditions that changed. At the moment of signing was when I found out. You indicated to us that, in one of the assemblies a refinancing proposal was made to you, that the partners had to refinance the development. Who made that proposal to you in the Assembly? The representatives we had at that moment looked for several developers and there was no one who wanted to commit, at the end they presented options to the Banco; they were some lots that they were going to give in trust (fideicomiso). I don't remember how many lots it was, but the Banco accepted some of the lots and did not want to refinance projects, but rather what these representatives told us at that moment was that we had to refinance it ourselves and they spoke of amounts that at this moment, well I cannot remember how much it was, what paying that implied and then in the Assembly we did not agree, I was in that Assembly where we voted and by majority, well no, we did not agree on having to pay for that development ourselves. So then that in that Assembly was voted negative, this proposal was not approved? No, it was not approved at that moment, it was not approved. Subsequently they held an Assembly again where they approved refinancing by the condominium owners. The Banco's lawyer finalized it. Judge Jonatán Canales Hernández asked her: Do you continue paying the Banco today? Yes. I continue paying. And how much have you paid? In total, after so much time, I don't have the figure. It's 150 and something, like 157,000 per month, during all these years. 25, 30 million. No, it's not no. I recently did the calculation. The President of the Tribunal consulted her about a contract called "Option to Purchase Agreement (Contrato de Opción de Compraventa)" and she was asked if, when she said she signed a contract with Grupo Zión, if it was this one. She acknowledged that that was the document she signed with Grupo Zión. She indicated that there, the amount appears. Furthermore, she acknowledged her signature. She indicated that she signed the option in September 2007. The deed was presented to her. She indicated that she signed it in June in her office. You indicated that there was a fraud (estafa), what are you referring to? What I can tell you is that I felt aggrieved, since I am paying for a lot over 30 years that I cannot use, I cannot sell, so that would be simply, I say fraud, because I feel that way, right. Because the developer did not fulfill his part, the Banco did not fulfill its part and I, well I have to fulfill my part. So, that is the sense I give to this. To specify what is the function that corresponds, corresponded to the developer? To develop, that is, to use the funds that the Banco gave him to develop the condominium. And what was the function of the Banco? To supervise so that the development would happen on time. Do you agree what you requested the credit for? To buy the lot, a lot. In a condominium, right Yes. Did you now refer to the fact that once the other stages, A and D, were being developed, you said you had to ask for a loan or credit again to finish building this? No, no, I mean, not to build, I mean, what you remember well, my lot is, my lot is worth approximately 18 million colones, so I had to pay another other 18 million colones so that the stage where I have my lot could be developed. So, and getting that money is what for me was impossible. How did they structure that, if you remember, let's say I know you are not a lawyer, but how was it? No, I know that about 30% had to be paid at the beginning of the development and another 70% when the development was ready in the stage in question then. To whom did that have to be paid? To the developers? Who they are, I know that the representative was Cuadra. She was asked about the company PROSUM? But indicated she was unaware of further details. Well, I ask you, you say you were in those assemblies of Condominium Owners, how was that negotiation structured, to finish, let's say, developing the urban infrastructure, how was it, let's say how was it, how did they propose it, if it was a trust (fideicomiso), you had to sell your land. You were going to transfer to the trust this, the credit here was not going to request if the trustee, the trust beneficiary, who for purposes of, let's say, guaranteeing the lot, let's say or the development if you know or if you remember? The truth is, I don't remember, I mean we had, you are referring to the first, attempted negotiation, which was around 2012. Yes, at that time I do remember that the representative of all the condominium owners was a developer, he had a Hardware Store or something like that, that is, a construction company, the truth is that I cannot give further details because I don't know that much, but then he looked for options and I don't know how they spoke of a trust (fideicomiso) of x number of lots, no, I'm not going to say how many, because I don't remember how many lots and what they offered to give to the Banco. What I understand is like swapping them, I give you the lots and you give me the money to refinance, something like that then. And let's say, what function did you all fulfill, let's say? Let's say, it's to try to understand, because no, I wasn't in that meeting, but of this? I mean, we, what I didn't do was inform ourselves, right; inform ourselves about what it was they were trying to do to be able to develop the condominium on account, yes. We were all the affected people and we had a representative who was elected in the Assembly. Let's say, the condominium is two hundred and some filiales, you all maintained ownership, or you all sold to that developing company, what was the idea? Yes, each one maintained ownership and they were going to develop the condominium, so that we could use the lots. The interrogation was concluded.
The law not only provides in Article 9 of the CPCA that these unorganized groups have procedural capacity to bring claims. Now, this must be related to Article 10 of the CPCA; therefore, those who invoke the defense of diffuse and collective interests have standing. Who has standing to seek the claim? Well, those who have a collective interest may seek the claim. If, in addition, there are damages and losses, it receives special treatment. He specified that the lack of standing alleged by the representatives of BNCR does not exist and must therefore be rejected, since the group has standing to file this proceeding. He stated that the plaintiff group has standing to bring claims, since they acquired a financial product from Banco Nacional, and that means that this group, as a whole, shares the same situation because they are part of the same development, because Banco Nacional put up a large sign saying they were financing this project, et cetera, et cetera, so that active standing exists to act and to sue Banco Nacional. Evidently, what is being claimed is damages and losses. He argued that the law is so sophisticated that it says, and you have legal capacity to represent all the members of the group, that is, procedural capacity, I mean. Article 9, which has been misinterpreted by the judges, specifies the possibility of claiming damages and losses in the cases of this subsection, that is, subsection b) of Article 9, when there is standing based on collective interests. It will be necessary to prove ownership of the injured legal situation or of the person suing, and then. But this Court ordered separate case files, but that, let us say, is a concept that I do not know if it is a technology matter and perhaps I do not understand it well regarding what a file means; I honestly understood that claims would be made there, let us say, the executions of a judgment for damages and losses so that each of the plaintiffs, separately, determined the difference between this and this (material damage). What were the interest amounts between this and this? And, in short, all the damages and losses claimed and, in addition, moral damages. But the Court here says, look, besides, I do not have time to comply with the law and issue a judgment within the time limit it requires, because there are a lot of plaintiffs, but what that reveals is that those who resolved this frankly had a problem understanding the cause of action, because the cause of action is not the different contracts; the cause of action is a behavior of Banco Nacional that we will demonstrate here is a behavior that does not conform to the rules of how banks act regarding green financing projects and the protection of consumer rights. One of the arguments we will make corresponds to the allegation regarding liability established by Article 35 of the Law for the Promotion of Competition and Effective Consumer Defense, which provides that the producer or the supplier and the merchant must respond concurrently, regardless of the existence of fault, that is, nearly strict liability, if the consumer is harmed because of the good or service, from inadequate and insufficient information for them, or from the use of risks. BNCR never indicated to any of the Group's members, nor in any prospectus, nor in any of its advertisements, warned people they had to be careful, they had to make provisions, they had to tell the developer this, such as, for example, establish a trust so that the necessary funds for the development product are deposited there, et cetera, et cetera, everything that exists today, because now no one can sell without registering with the Ministry of Economy, Industry and Commerce and, in addition, establishing a trust to deposit the sums there and guarantee consumers their rights. Well, the fact that this did not exist at that time, in that regulation, was not an exoneration of the responsibility that Banco Nacional had to its consumers, but in addition, we are here in a jurisdiction, although it is mixed, administrative litigation and civil Treasury, the fact is that Banco Nacional is an autonomous institution of the State and is so established by the Constitution; they are ultimately Administration, and here we are here more under Article 49 of the Constitution, which is the one that establishes the administrative litigation jurisdiction; an article that constitutes an individual guarantee, which gives the impression that people take it for granted, but it is the last of the individual rights and guarantees established by the Constitution, and he pointed out that although it might be the last, it was no less important, being the procedural one through which private individuals, or those administered, are guaranteed access to a protectionist jurisdiction for the rights of the people. The size that Banco Nacional has in the market and the possibility that from the deposits it holds, makes the loans it grants, especially for housing, relatively cheap because it has a cost of funds from millions of current accounts on which it pays no interest. So it can use these funds to lend, and it is a relatively cheap cost. BNCR represents an enormous size in the market. And the trust that consumers place in a public bank is different from that placed in a private bank. We will demonstrate everything the Bank did during the development of this project, and which were failures that caused consumers to incur risks, and that this risk ultimately materialized. He emphasized that this is not just any type of consumer credit. It is not the purchase of a computer, a car, a washing machine; it corresponds to the purchase, the expectation of having a home. Of course, there is a difference between one product and another. Banco Nacional had to exercise triple diligence, since it is financing something fundamental for families, which is housing. If you read the response to the complaint, it washes its hands. They say, here they came, I gave the money, here he told me I had to give it, I financed it, I had nothing to do with the matter. I am not responsible here. He indicated that the appropriate precautions should have been taken; I ask myself if we were in a trial before a civil court, against a private company, whether the liability and requirement regime that the consumer must have, that of the merchant towards consumers, is not much higher than the requirement that has been established in administrative courts against a Public Administration that provides commercial services, and let us remember that there is nothing more commercial than a bank, than banking activity. We will identify the cause of a harm, which is all that conduct, that relationship that Banco Nacional has with the developer. The way it was carried out caused it to be concentrated in a specific place. There is no evidence in any of the credit files. We will hear the witnesses, that Banco Nacional did not warn them that they had to be careful because all this money was going to the developer and that development was not finished, quite the contrary. BNCR hired an expert, the expert says it is well built, and that is a problem of the expert? We must see what this is, but before whom are we? No, the standard of behavior of a public Bank, the size of Banco Nacional, must be three times higher than the behavior of a private bank, which in any case the consumer can say, well, it is a private bank. It is not the same to place trust in a Bank that also has the State's guarantee. Consumers are there, let us say, confident, right? Precisely because BNCR is the intermediary. And the thing is, in the housing financing industry or lot financing, is this not a small store that sells one product and another small store that sells another product? It corresponds to an ecosystem where the Bank is part of the ecosystem, the developer is part of the ecosystem, and the consumer is part of the ecosystem, and they must behave within that ecosystem. Why does Banco Nacional put up a large billboard saying it finances this project? What does that mean? What trust does it give to consumers? Without considering that Article 190, in addition to the General Law of Public Administration, also establishes a liability regime, right? And I do not want to reference various articles alleged in the complaint from the Organic Law of the National Banking System regarding how financing must be conducted. What guarantees must they have? And the regulatory regime of banks? They tell you, for this purpose, for this type of financing, you must have a guarantee that implies no less than 100% of the value of the property. You may finance more than this, or you might tell me, Ah, no, and that is a consumer problem. No, no, that is a regulatory problem of the Bank, and consumers rely even on that regulation. So, are there a series of provisions that obligate the Bank to never finance, let us say, without the appropriate security? Ah, what is this type of project called? Of course, the Bank can finance and say, yes, yes, look, here is this money. But, look, I have calculated that this costs 10 million dollars to develop, and that means there are so many square meters in each of the lots, and for each financing, I will retain a portion and put it in a trust to begin making progressive disbursements as the work advances. Well, Banco Nacional did none of this. Instead, what did Banco Nacional have? A group of executives who had conspired with the developer and the developer's executives to finance this as quickly as possible, because you have to see that at the time this was being financed, Banco Nacional had a need to place credit, to place credit quickly, and that is what they did. They placed 370 real estate loans very quickly. Is that something that, evidently, any manager demands of his people, but he does not demand it to the detriment of consumers, because consumers are there, and I have nothing to do with the business of consumers, but ultimately, if it is not that way, what is Banco Nacional for? What is the public administration for? Where it has a diminished liability regime towards the consumer. Better to privatize and hand it over to private banking so that they do have liability. Private banks have also done their share, but that does not mean they should not be judged. In reinforcement of our case theory, Banco Nacional did not behave like a loyal merchant with its consumers, much less being a Public Bank, much less being a Bank of the size it was. Then these circumstances will be demonstrated, and what the damages and losses were. So that these material damages and losses can be defined in the execution of the judgment for each one of them, because what the First Chamber has said is that in these matters of the execution of damages and losses, the condemnation cannot be in the abstract, that is, I do not say, I do not know what the cause is. Here, the concept must be indicated, what the damage consisted of. The amount, the quantum, is defined in a judgment execution proceeding, and that is what we are going to request here, that the quantum of the damages and losses be defined in the execution of the judgment. Here, the nature of the damage and losses must be defined, and in addition, what this court can and must do is the condemnation for moral damages for each of the members of the plaintiff Group. The claims for damages and losses are made within the framework of a collective proceeding, and what that means is that, furthermore, as we have requested, a declaration is made about the existence of this group, right? What does that mean? That within a specific timeframe that we have set, all those who applied for a mortgage loan for this, what was it called, specific urban development. And who were financed with Banco Nacional, all of them, can later be indemnified in the execution of the judgment for the same reasons. In closing arguments, the plaintiffs indicated to this Court that the basic legal foundation of our complaint for all purposes is a consumer complaint. He stated that in 1996, the Political Constitution was reformed in its Article 46, and the last paragraph stated that consumers and users have the right to the protection of their health, environment, safety, and economic interests and to receive adequate and truthful information. On many occasions, the Constitution and International Treaties are pointed out as programmatic norms that require, let us say, the application of a law because the judge can hardly apply them; but this provision is such a clear provision, and the judges in this case are called upon to apply it directly. To verify whether there really was adequate and truthful information on the product consumed by consumers, that is the first point, and the second is that the Law for the Promotion of Competition and Effective Consumer Defense, in its Article 35, provides that the producer, the supplier, and the merchant respond concurrently, regardless of the existence of fault, as it is strict liability if the consumer is harmed because of the good or service, from inadequate and insufficient information about them, or from their use and risk. That is the framework of the complaint. Banco Nacional is, effectively, a service provider, it engages in commerce—almost nothing—since banking activity is almost par excellence the most important commercial activity, along with insurance activity. He referred to the beginnings of the creation of Banking, when in Italy, the lenders dealt seated on benches (banquillos). Today, in commercial activity, there is no commerce without banking. The producer cannot access the resources to be able to produce and sell. The consumer cannot buy without the facility that banks have to conduct financial intermediation, that is, to attract money from the public and lend it, so that it is a product and, as such, is not without risk. The product, and the Bank, like any other merchant, must look after its product, with the warnings so that the consumer is not adversely affected in the first place. Then, in this relatively recent development, because we are talking about 1996, the Constitution is reformed in 1995 with the creation of this law. Although previously there was a consumer protection law, the truth is that consumer rights in Costa Rica have been little considered. At some point, a group of researchers decided to reform the Civil Code in 1888 in its Article 1023, and inserted a series of subsections that regulate abusive clauses, which are basically for consumer protection. At that time, in 1976, this was quite advanced. That was the first introduction of this type of regulation. But that is the part, let us say, of purely substantive law. The point is that in the procedural part, there has also been a substantial modification. Because already the issues of joint litigation are annulled in the new consumer law. Why? Simply because traditional procedural law is an individualistic law, and as I said at some point, there is nothing wrong with that individualistic law; it is just that society was not designed in the 19th century. With the Spanish Civil Procedure Law, which influenced us initially, it was designed for disputes between two persons, because there was no consumption, there was no mass consumption, there was no mass production, and what there was, let us say, there was no commerce; of course there was commerce, there was an old man who sold bread, there was a lady who sold such a thing, but it was not really in those factories, right? This phenomenon, the existence of a company that is publicly traded, with the largest market capitalization that sells these phones, and one of them explodes in the face, something has to be done, furthermore, the company has to issue a recall to review the product, which is what is happening now, and there are a lot of obligations that, from other individualistic law perspectives, did not exist, and that is why the Code of Administrative Litigation Procedure contains provisions that reflect those aspects and also reflect the rights of the group, or collective rights, whether this was a collective interest or not. Simply to clarify, the Law of Constitutional Jurisdiction establishes as a standing requirement to file a direct action, without a prior matter pending resolution, that there be a collective interest or a diffuse interest, which is why the Chamber has defined these aspects in environmental matters, in issues of protection of certain State artworks, because we all participate in some way, we are all interested. And so the interest is kind of diffused there; maybe at some point a theorist explained that the translation from German was done poorly; the interest is a diffused interest, it is not diffuse, that is, diffuse is when something is not so clear. In this case, it is an interest that is diffused, or if you will, perhaps the diffuser is what makes the light emanate in all directions; however, this has been limited more to environmental issues, or as I say, certain interests where we all have some interest in it, right? But the law also establishes that those who have a collective interest can do so directly, and there have been some differences in the Constitutional Chamber regarding collective interests, and it has been interpreted that this interest is more a collectivized interest, that is, when they are chambers, for example business associations or unions, right. Or these types of organizations whose interests of their members are affected, right. And so they can go and claim directly, but they must necessarily be constituted as a legal entity. So, that is not the case of the CPCA, because the code even in the same article refers to the same term of collective interest and refers to two meanings, both in Article 9 and in Article 10. Thus, he indicated that Article 10 refers to active standing, and standing is nothing more than the key to enter the proceeding. He referenced Article 10 of the CPCA and subsection b), regarding active standing and diffuse and collective interests, so it says b), the entities, corporations, public law institutions, and that hold the representation of interests for representation and defense, of general, guild, or corporate interests insofar as such interests or rights are affected, and the groups governed by a Statute insofar as they defend collective interests. So, there is the first definition, but it tells you, you must be organized, but there is another norm that is the following, which is for those who invoke the defense of diffuse and collective interests. But it said collective, which were already referred to in the previous norm, as they are two different hypotheses. This lawsuit is already 10 years old, so we were, in some way, novel in the investigation that was originally done, and we determined that there exists the procedural possibility of standing, by alleging the collective interest, to act, but not only that, rather Article 10 of the Law of the Code of Litigation Procedure establishes who has procedural capacity. Those having civil capacity, in the first place, then it says that the groups in subsection b) of Article 9, the groups, unincorporated associations, independent or autonomous estates affected in their legitimate interests, without the need to be integrated into formal structures of legal entities. This is the representation of supra-individual interests, because that is what it is about in consumer matters, so what happens is that, immediately thereafter, it says for the claim of damages and losses in the cases of this subsection. That is, one can indeed establish damages and losses in this subsection of groups, collectives, of the organization, can claim damages and losses; what happens is that what the article says is you have to, let us say, demonstrate that you hold the rights. This leads me to enter into what, according to our criterion, the Court is called upon to declare. The first thing is that the Court is called upon to declare that, indeed, first, this procedural capacity granted by Article 9 to this group to represent this collective exists, and the second is that it has standing based on the collective interest; it is not a diffuse interest in the sense that the Constitutional Chamber has understood it, although if you delve a little deeper into this topic, you will realize that sometimes the difference between one and the other is not so clear. In any case, there is an article on the internet called "Procedural Mechanisms for Consumer Access to Justice," by author Miguel Ángel Larrosa Amante, which references the collective interest. So, what it is called upon to say is whether, for the first part, you have the legal capacity, if you have the standing, and what it is that you claim, then, first, we claim that the Bank is liable in the terms of Article 35 and, if not, under Article 190, subsection 1) and 191 of the General Law of Public Administration, because the Bank is a merchant and Public Administration, and both norms were cited in the complaint, so it does not correspond to a new aspect. If it is not liable on one side, it would be on the other. Regarding strict liability under the Consumer Protection Law, he indicated that BNCR has placed 10 billion dollars in the market, just for your reference, the current portfolio of Banco Nacional is 10 billion dollars, which implies 25% of this country's total credit portfolio; that is, the Bank is a quarter of that total, indicating that BN is a monster, and it has the capacity to reach where private banking does not. But BN, when deploying that level of services and financial intermediation, sometimes it bumps someone with its elbow and causes harm. He pointed out the case of ICE, and the case of a transformer that explodes and damages a vehicle due to a fortuitous event, making the distinction with force majeure. In relation to the specific case, he indicated that Banco Nacional moves 25% of the country's credit and may bump someone in its activity. The foundation for why a merchant or the public administration is liable, he indicated that from the reading of the Political Constitution, Article 18, which refers to the fact that we all must contribute to public burdens, and Article 33 refers to the principle of equality, so we should all have the same burdens. Thus, he indicated that in fault, in liability for unlawful conduct, a fortuitous event is not a ground for exclusion, but the idea is that simply where State activity is deployed, it can cause harm to someone, and that is normal, and then it must be indemnified. In this case, the framework is extremely important; in this case, as in art, the frame is as important as the work. He referred, on another note, to judicial independence and the vicissitudes of this proceeding, which, he alleges, have produced a form of denial of justice. He indicated that the Bank's liability has been arrived at, but based on what facts that have been proven, and he specified that if one had to perform a hypothetical suppression exercise of facts and if I, for example, in the evidence related to the Audit Report, found at folio 1979 and following, this evidence is the relation of facts concerning the alleged non-compliance or omissions of laws, regulations, and policies and procedures in the approval and supervision of processes in progress. Approval and formalization and follow-up of mortgage loans at the Palmares branches. These are precisely the facts that Mr. Ricardo Araya, the Bank's auditor, are related in the Report, which was made after conducting fifteen interviews, that is, it is not a superficial report, and it is here said that this Audit Report is not conclusive of anything, because this must be taken to an administrative procedure, of course, to sanction a person to see if they are liable, but this report is conclusive regarding the facts; what is not conclusive is regarding the responsibility of each of those involved in the matter. But a distinction must be made between what the audit report discovers and whether that is attributable or not to the officials. A very deep investigation was conducted, and this was done because suddenly the Bank's portfolio grew more than 600% in the Mortgage loan portfolio of the Palmares Branch. When the BN Audit investigation was conducted, they found horrors. Thus, on page 1098 of the same, the following weaknesses in the credit processes were identified. Commission agents or developers preparing files, who delivered them to the Bank's Palmares Agency. Clients only came to the banking office to sign documents in chronological alteration of the requirements at the Developer's facilities, appraisals and mortgage sales, residence of debtors outside the Agency's area of influence, and financing of properties in development or in the process of development without the corresponding supervision, and disbursement of resources without verifying the progress of the work. To determine the above, it is not necessary to conduct an administrative procedure to ascertain this. He indicated that credit operations were approved in nine days or fewer after the registration of the application in the SIAC, which is a system the Bank has. Credit approvals outside normal working hours. Those Bank officials were sacrificing themselves, at 8:00 at night, approving loans. Financing of 100% of the investment plan, purchase-sale options had a value lower than the market value; that is, the appraised sale values were not requested by the Bank, and it was the developer that provided them and established a value as if it were already finished, and it was not finished. The experts, in their reports, did not substantiate the references or sources used in assigning the final values. Properties taken as collateral on more than one occasion. Income certificates in photocopies, et cetera. Now, if we perform the hypothetical suppression exercise of these facts, the question is: Would they have suffered harm? No, because loans were not going to be approved based on an appraisal done by the developer? No, because I am not going to give credit for the value of a lot that is not developed, not the Bank. No, the Bank was granting credit 300, 400, and even 500% more than the value of the land. The Bank cannot grant a mortgage loan for an amount worth five times the value of the property. Since if the property has to be foreclosed, in the words of Mr. Ricardo, it is not desirable in the market, the desirability, right. So, what happens with all those circumstances? The people went there to the Bank, and why the developer, of course the developer is the number one responsible party, but what happens is that the strategic alliance that Banco Nacional and the developer had was a very good strategic alliance; that is, strategic alliances do not create a new legal entity, it is not a company. It is not even a joint venture. Strategic alliances are when two companies agree to promote each of them through a single mechanism. The two products being offered, for example, the developer, you see a building that is happening, this is financed by the Bank. There are certain promotions and such a thing, they give you a card, right? From the airline where you go, if you have the airline's card, there is a strategic alliance. It is not that the airline is issuing cards; it is simply a way of life, and thus there are hundreds of businesses that are strategic alliances. What does this report say about strategic alliances? This report establishes that BN is promoting, jointly with the developer, without the product being developed; what is the consequence for Banco Nacional? Ah, there is a risk that is extremely important in banking. There, there are a lot of risks. Risks of, let us say, financial risk, risk of fraud, but there is a very important risk, which is reputational risk, about which Mr. Ricardo spoke to us extensively. But of course, this entire report says that, for not assessing the associated risks, such as image risk, due to exposure of the Banco Nacional brand together with the project company. In the case of the Bariloche, Terra Verde, and Bonanza projects, then they formed a strategic alliance, which is very good, and if not, this is not a sin; forming a strategic alliance is very good; what happens is that one has to know with whom one forms it and what the consequences of it are. Why? The problem is that, in addition to the above, right?
That said, they present percentages under further determination, but they do not consider that the Bank had not financed the projects. The company Proyectos Urbanísticos Zión was not part of the portfolio of assets developed and linked to the Bank, in addition to the fact that the financing is granted to third parties and therefore there was no control of the cash flows generated for sales in order to ensure the completion of the works necessary for the financing of the projects. Because, members of the Court, this is not a matter that needs to be proven, I mean, this is just seeing it on the street, right? A developer begins a project, gets a Bank, finances it, and begins to finance the development, and each time a sale is made, right, they keep a portion to pay the credit that is being given to them to build, right? The common works, the entire building or the urbanization or whatever you want. But here there is no control of the flows; instead, I just grab it and sign. They arrived and handed over all the developer's money to them. That was a high-risk product that the Bank was issuing. That is the shove that Banco Nacional delivered, which caused, here, in this case, damages and losses to 168 people; that is why, if one makes the subtraction or suppression of those facts, one asks: Would this have happened? These facts are constitutive of liability, because there is a causal connection. A relationship of causality between these facts and the damage suffered. And Article 50 and the Bank, and Article 46 of the Political Constitution, and Banco Nacional, which should be ensuring, since it is a public Bank, also the consumer rights of the consumers. From the testimony of Mrs. Gamboa Bolaños, Marcela, spontaneous, natural, it is what happened. This sixty-six-year-old woman must continue working, even though she is already retired, but it is not enough. And for her, the exact same thing happens with the other 168 plaintiffs, who wanted to come here to make a claim. Among these people, who were terribly affected. They have paid around fifty million, which is a lot of money; for any middle-class family, it is a lot of money. I don't know about you, but I said, it hurts me to hear about those millions of colones from people and also that I have to pay municipal taxes and the condominium fees and I have nothing, and I also have to pay the Bank and I pay you interest? How many of the witnesses today and on Monday referred to the existence of a huge billboard at the site, right? That is part of, let's say, of the strategic alliance. The Bank is responsible, because the Bank knew that this company did not have the economic capacity to handle it. The officials Obando Jiménez and Acuña Rodríguez could have liability, in principle for non-compliance with the regulations, because knowing the difficulty the developer faced in completing the project with its own resources and the refusal by the Special Credit Committee for the procedure required by the company, there was no evidence that they took any concrete action to safeguard the interests of the institution, and what the auditors do not know is that they should have also said, and of the consumers. It is a confession from the Bank itself, and this was done naturally, according to the report. It indicated, as stated on folio 1981, that an analysis of the growth of the credit portfolio at the Palmares Branch was carried out in the period between December 2006 and October 2010; it was precisely during that period that all the credits of the plaintiff group were formalized, and all of them are related. What did the Bank have to say? Is there a risk to the product you are acquiring? Is the financial product a risk? That eventually it might not be built, right? You must know that; we do not have control of the cash flows to carry it out. I don't want to? It's called deceiving you. So, I don't finance it, well then? As it is being done, without financing and without controlling the flows so that the Development gets done, and of course, there is a risk to the Bank's reputation that it has to protect; but what about the consumer, just ignore them, no, no, no. And what's more, these are recent rights, but they are constitutional rights, right? They are in Article 46 of the Political Constitution. The Bank should know, as I have said elsewhere, that it seems the measuring stick is different if it is a private entrepreneur versus a public one. In this case, a public Bank that has all the liability regimes. If the size of that public institution causes damage to someone, it must be repaired, evidently; if there is fault on the part of the victim, well, that is different. As the witness, Mrs. Marcela Gamboa Bolaños, indicated, she thought the Bank had control of the matter, which is why she had no problem with it, and the other witnesses who testified today also referred to the fact that Banco Nacional was there. In addition, we brought a witness who bought in cash, and he says the same thing: look, yes, well, I got carried away; I cannot file the lawsuit because I have no relationship with the Bank. He stated that the facts of the complaint are developed in their entirety in the audit report that has been referenced. From the declaration of Mrs. Marcela Gamboa, it is clear that the deed was brought to her already prepared, that she did not know if the term was twenty or thirty years. Here is the push: the Bank's portfolio growing; how much each of the officials was paid. As the witness Ricardo Araya indicated, the administrative procedure ended in nothing; I suppose it will have prescribed. That is the world we want in an institution of this size, like the Bank, where when it moves, it strikes many people. And the Bank officials must know that they have to turn toward the consumers and say, I have to be careful, unless, right, there is a line of exoneration of liability for all these conducts for the Bank, right? Because it is a public Bank? Well, the idea is that there was participation here by the consumers. Of course, but is it not that they were not warned of the risks? Because what Article 35 says is that regardless of the Bank's fault, it must respond to the consumer; Article 35 just adds, if they are harmed as a result of the good or service, due to inadequate or insufficient information about them, or about its use and the risks. But what would it have cost Banco Nacional? Banco Nacional understands the financing industry for developments; it finances developers, and each time a property is sold, it keeps a part and does not give it all to the developer; it collects separately from the credit. And if this was the case, and if the auditor, who is not in the active administration of the Bank, knows that this is how it is, knows the industry of how financing is managed and knows there is no control of the flows, and that this is a reputational risk for the Bank — of course, reputation, because it is going to harm the consumers. But, then do consumers not have that right? So it must be said in this judgment that the Bank has no liability here because there is no right to be compensated, right? In the manner established by Article 35 and 46, in a direct application of the Constitution, because it says it is necessary to receive adequate and truthful information, adequate in relation to the risks being assumed; it is not just any information, it is information adequate to the product I am delivering, right? So, remember that all the formalization, all the files, according to this same report, were handled by the developer; that is, the Bank and the developers were one single thing, right? And evidently, one says, ah, we didn't know Proyectos Zión; is this a recent relationship? The same report says that projects had been financed for years; it even says on the page at folio 1993, point 2.2, point 2.13, regarding the verification of the project's progress at the time of signing the Agreement: upon consulting Mrs. Alvarado Moreira, some verifications had been made on the state of the Zión lots offered for sale in the aforementioned; she stated that the company was a client, a client with a long track record, and there were no indications that something was wrong. No, no, it is not a matter that arrived suddenly. No, no. If the report says that the Palmares Branch was an agency called the Zión agency, I mean, sorry, the Banco Nacional branch, right? Because all the services there were focused on servicing the Zión projects; so if I suppress all of that, remove everything, and say, these credits had to be granted where they normally should be granted with the appraisals, the credits would not have been granted, right? Or if they had made different structurings so that the Bank could withhold from the sales price what was necessary to develop, we would not be here. That is why Banco Nacional is responsible. These facts are what mark that responsibility. To conclude, some things remain in my CPU because one no longer even has an inkwell, but what are the damages and losses claimed for these facts? First, the consumers acquired a credit not for the value of the undeveloped land they were buying, but for a value four or five times higher, and even today, as revealed by the evidence we offered for a better provision in court, which is at Image 2206. That is an appraisal from Banco Nacional, which we obtained on the Internet; it is posted for public consultation and was offered and admitted. It is from April 2022, and it establishes the price, let's say, as of the year 2022, of the price per square meter, and it corresponds to a fraction of the financed amount; that is, in 2022, it is not what was financed. In the year 2009, I mean, because furthermore, lots do not depreciate; no one admits depreciation in tax matters for a property, for land; it only appreciates. But let's say, in a description of the blocks in this report prepared by Banco Nacional, it indicates that they are without access — this for the safety of the current inhabitants and visitors, since, due to lack of maintenance, the grass is very tall and there are snakes. It indicates that in the event of a sale, it should not be through Bank financing, given that they do not meet the conditions to be a credit guarantee; that is, today, yes, today they do not, but at that moment, they did, and no one warned the consumers that this was not a guarantee or that the Bank should make a very simple structure. Yes, I am going to reduce for you from this amount that I am not financing; I am going to give you 30% and reserve the other 70% and I will deliver it to you as the works progress, the flow control that the auditor talks about. So the first damage is that the Bank has to compensate all members of the plaintiff group for the difference between the value of their greenfield land and the value of the mortgage. So, if, for example, a greenfield land is really worth 100,000 colones and the mortgage was for 300,000, the Bank is obliged to compensate each of the members 200,000 colones. So our position on this first point is that the Bank be condemned to compensate this damage, because due to the Bank's fault they incurred this loss. Yes, this loss would not have existed if there had been this, let's say, perverse structuring that this entire audit report refers to. But what happens during all these years regarding this 70% that I should not have paid, because that is compensation that must be given to me, since due to the Bank's fault I lost this money, due to the Bank's fault? The Bank is the Public Administration, and it grants 10,000 billion dollars to the country's economy, and that is not a problem; that is very laudable, and they do it very well, except that someone gets hit; that is, they come out with a bruise, with a bruise the size of the Cathedral, and in these cases, the Administration has to respond, as it is part of the operation of the public service. Sometimes someone gets damaged, and therefore, the rules of liability themselves: here it is liability for fault. Because we saw all the things that generated this fault; but in any case, the consumer does not have to go around investigating whose fault it was, because Article 35, regardless of the existence of fault, the thing, the apparatus, the service, the product harms someone; here the mortgage harmed me, and you are responsible for paying, right? For what? For that difference in the interest I have paid during all these years, from the start of the mortgage formalization until what I have paid on this portion, right? But also, I have to pay interest on those damages. But also, I suffered. My time is running out; I refer to the claims in the complaint and in the amendment to the complaint, because we have also requested a declaration of the existence of a group with specific rules that are in the amendment to the complaint, and that is part of what we request. The Bank is responsible for paying these damages and losses and is also responsible for paying the costs of this proceeding and the moral damage. We are requesting that a declaration in abstract of the moral damage be made, but that declaration in abstract is not a generic declaration; it is the product of a cause, which is the one I pointed out. What we are demanding is that the Court declare that there is a cause, that there are damages whose exact amount we do not know, that there is a causal relationship between these damages and this cause, and that those specific amounts will have to be, what is it called, left for execution of the judgment. So, thank you very much, your honor.
Regarding the issue of liability, we must point out that, based on the theory of created risk, which is embedded in the strict liability (responsabilidad objetiva) regime in consumer law found in article 35 of Law 7472, it has not been proven that the credit service with the Bank presented such a degree of abnormality that it caused the developer to be unable to finish the Bariloche Real project. A causal link in that sense does not exist and has not been established; quite the opposite. It has been stated that the service in general was efficient for the consumers who applied for their loans with Banco Nacional, so far from there having been an abnormality that resulted in an intolerable risk, which caused harm to the plaintiff Group, it did not occur because their loans were processed exactly as expected. The application of a collective process would have been appropriate if it were directed at the cause of the general harm to the group members. Why, who was it? It was Zión. Take into consideration that this nudge that the plaintiff's representative refers to is non-existent and has no basis. Proof of this is that the cash buyers are in the same situation as the credit buyers. Why? Because it does not matter if the purchase was made in cash or on credit, what matters here is that the developer was the one responsible for developing the amenities and did not do so, placing all buyers, regardless of whether they paid cash or credit, in the same situation. Now, the fact that the developer did not finish the work constitutes, rather, a liability exclusively attributable to the developer and not to Banco Nacional, which, as has been stated, is not a business partner of the developer and instead acted as a financing instrument freely chosen by the Group's debtors. Banco Nacional has proven that it was unrelated to the strict liability attributed to it; from the documentary evidence presented by my client, it is clear that the development of the missing works was the responsibility of the developer company, thus establishing the ground for exclusion of liability due to the act of a third party (hecho de un tercero), since, according to the Agreement between the parties, a purchase and sale option contract for the real estate was signed, in which it was indicated, pertinently regarding delivery, that the condominium would be delivered within timeframes ranging from two to four years; therefore, if this did not happen, it is not possible to attribute to my client a liability that belongs to the company Proyectos Urbanísticos Zión. The plaintiff party states that Banco Nacional disbursed the credit funds to the latter without exercising the necessary controls, but it must be noted that the purchase made by the plaintiffs was "en verde" (pre-construction) and that they had signed an agreement granting the developer, as I indicated, between two and four years to complete those works. The obligation to finish the infrastructure falls on Proyectos Urbanísticos Zión and not on Banco Nacional de Costa Rica, which did not even consider managing a risk that was further removed from the risk presented by the credit itself, which was considered by Banco Nacional as needing to be covered by the real estate property that represents the guarantee for the loans. The documents admitted as evidence in this proceeding mention nothing regarding the condominium's infrastructure; it is not taken into account because it was not relevant, only the loan guarantee was, in this case the properties; the condominium's amenities were relevant as a future element to consider for evaluating, through an appraisal, the desirability of the guarantee, and not because it implied a risk that had to be managed by Banco Nacional. Within the judicial file, and within the credit file, there is no contract signed by Banco Nacional containing an agreement to supervise the work. Proof of the above is that the payment of a commission for Work Inspection was not even contemplated. This can be seen on the cover pages of the loans in each of the files, where there is a section regarding work inspection and all these loans indicate that it was not applicable. Regarding the appraisal that was offered as evidence for a better provision by the plaintiff party. This proves the current values assigned by the expert, well, and not so current, as we are talking about an appraisal that is a little over 4 years old now; if a devaluation of those values occurs, it is due to the condition in which the real estate is found; currently, the current condition of said property was caused by the developer who, as has been amply stated, was responsible for finishing the infrastructure works and not Banco Nacional; each appraisal is different; they cannot be homogenized, as each lot has its own characteristics and even different locations. It is worth noting that the appraisals used clearly indicate that the common works are in the process of construction, as in the case of Mrs. Tatiana Rodríguez Gamboa, which on page 37 of the credit file, as well as page 41 of the file of Mrs. María Marcela Gamboa Bolaños, indicates that the works are in the process of construction. Note that the prices of the lots, and this is very important, the prices of the lots were agreed upon prior to the formalization of the loans, so the appraisals were not taken into account to set said prices. In all of these credit files, there exists a purchase and sale option signed prior to formalization with the Bank. And in that purchase and sale option, what do the two parties do? They agree on the price, so it is not acceptable to suggest that the appraisals were part of that consumer decision, which was already made earlier, before the formalization of the loans. Banco Nacional granted financing for the purchase of lots "en verde" (pre-construction), and the party responsible for delivering said works was Proyectos Urbanísticos Zión. I concluded that there is no agreement allowing the Bank to supervise the infrastructure works, as it was not the Bank's responsibility to finish them; the non-compliance and the alleged damage were caused by the company Proyectos Urbanísticos Zión. The fact that the plaintiffs' loans were processed expeditiously and that there is an investigation against the Developer is not sufficient reason to generate a causal link between the alleged damage claimed by the plaintiffs and an abnormality in the credit service that might have caused it. Regarding the testimonies, well, the former collaborator of the company, Carlos Mario Hidalgo Bogantes, in his testimony, stated that the person in charge of finishing the amenities was the Developer. The declarant María Marcela Gamboa Bolaños stated that she heard that the Bank would finance the project, that she did not hear this firsthand from a Bank representative. She specified that one of the lots she acquired was a rental lot, which must be taken into consideration as this therefore does not make her a final consumer. She pointed out that the delivery deadline was from Zión and not from Banco Nacional. It is false that the Bank was going to refinance, as she indicated; from the plaintiffs' evidence, it is clear that it was this company that offered to provide references to the lot purchasers, not the Bank. And which company is this? PROSUM. Likewise, it is false what the declarant states, that she did not sign any type of document in September 2007, when in her file, her signature on a purchase and sale option dated September 25, 2007, can be seen and is proven. This is on page 10 of the declarant's credit file. It is also false that the Bank changed the credit conditions regarding the term at the last minute. Said term was already established by the Bank, according to the credit cover page, which can be seen on page 58 of the credit file. It is also false that the Bank had to supervise the works. Note also that on page 59 of the credit cover page, it is indicated that the work inspection does not apply. Nor is there any record in that credit file that the declarant paid the appraisal cost. We also do not fail to point out that Mr. Walter Isidro Rodríguez Castro also stated that the party responsible for finishing the works was Proyectos Urbanísticos Zión, and that the Bank was financing the purchase of the lots. The witness, Mr. Eduardo, a cash buyer, stated that the contract was with Zión. Regarding the purchase and sale, note that he even indicated that the scale model he was able to see was in the facilities of a building owned by the owner of Zión. He did not say it was inside Banco Nacional de Costa Rica; the purchase and sale contract signed with Zión states that they are the ones who committed to deliver the completed Amenities. Regarding the declarant Mrs. Tatiana, she stated that the developer company was going to develop the project, meaning she had it very clear. Who was responsible for developing? It is also clear from her statement that she was, or is, aware that the party responsible for finishing the amenities was the developer. She signed the purchase and sale option on September 27, 2007. This can be seen on page 17 of the declarant's credit file, and she formalized with the Bank on June 11, 2008. So, how could the Bank have influenced her consumer decision if this had materialized months prior, with the signing of the purchase and sale option with Grupo Zión? It is false that the Bank changed the credit conditions regarding the term for her as well, at the last minute, because if you look at the credit cover page on page 49, the term is clearly indicated. Nor is there any record in her credit file that the declarant paid the appraisal cost, as already indicated in the case of Mrs. Tatiana. The Bank did fulfill its part; it granted the credit, not to supervise, as she indicated. See that page 49 of the credit file also states that the work inspection did not apply to her because it was a purchase of a lot "en verde" (pre-construction) and not the construction of a dwelling. We believe it is of utmost importance to take into consideration that the only surviving claim in this proceeding concerns the determination of a collective interest, which does not exist, as it was not demonstrated in this trial by the plaintiffs. Proof of this is also that the de-accumulation of the processes of the members of the plaintiff Group was ordered. And no less important is to state that, as my colleague Mr. Genaro also indicated in his opening argument, there is already Case Law emanating from the First Chamber of the Supreme Court of Justice (Sala Primera de la Corte Suprema de Justicia), and we say, with complete propriety, that it is not just one, no, there are two rulings, we are talking about three rulings and more to come. These are votes N°160-F-S1-2024, at 11:28 a.m. on February 15, 2024, as well as Resolution 868-F-S1-2024 at 10:52 a.m. on July 4, 2024, and Resolution N° 1021-F-S1-2024 at 2:12 p.m. on July 30, 2024; the foregoing, without disregarding the abundant number of rulings issued by the Administrative Litigation Tribunal (Tribunal Contencioso Administrativo), not only from the Eighth Section but also from the Fifth Section of the Tribunal. All these lawsuits are dismissed, because the Bank is not liable, as it was the plaintiffs who assumed the risk, not the BNCR. Finally, to conclude, what greatly draws our attention is the grievance always attributed to the Bank regarding the appraisals, that the appraisals did not represent the reality of the property at the time; but the truth of the matter, and with all due respect we must say it, is that through deed number 36, before the notary Alejandro Batalla Bonilla and notary Rafael Solano Granados, public notaries, Óscar Vargas Murillo and the company Proyectos Urbanísticos S.A. appeared. In that deed, the notaries begin to describe the property, and what is interesting is that in that description of the property, it mentions that it contains the amenities. So, if we are being accused of a supposed nullity of the appraisals, shouldn't this deed also be null because it is attesting that this property, even before Proyectos Urbanísticos Zión began selling, one of the plaintiff's representatives was already stating that the amenities existed. Therefore, we believe this is something that draws a great deal of attention and must be taken into account by the Judges. For the foregoing reasons, we respectfully request that this lawsuit be rejected in all its aspects, that the defense of lack of right due to the act of a third party be granted, and that the plaintiff Group be ordered to pay both costs of this proceeding. Thank you very much.
III.- On strict liability in banking activity. Banking activity, in particular the custody and administration of public funds, is surrounded by a series of peripheral mechanisms or services, which are offered to clients as an attraction and are incorporated by granting ancillary facilities to custody and administration. In itself, this activity generates a risk, which can be increased with the use of these instruments or services, (....). In the dynamics of this activity, the banking entity is the provider of the noted main service (custody and administration of monies), as well as the related accessories and instruments, such as online or electronic banking. The client, for their part, then assumes the character of consumer. In this relationship, as has been pointed out on various occasions, the strict liability regime provided for in canon 35 of the Consumer Law is applicable (in this regard, consult the rulings of this Chamber, no. 300-F-SI-2009, 778-F-SI-2012, 1568-F-SI-2012, and 1607-F-SI-2012). The system established in this norm provides in general terms that the inconveniences of a lucrative activity – such as banking – are assumed by the party who deploys it, with some specific details. And it is that, although it is configured as strict liability, by dispensing with fault and willful misconduct, the attribution does not operate by full right or automatically. In this order, in addition to the proof of the agent's harmful conduct, the scheme is not exempt from the duty to demonstrate the existence of the injury and the causal link, and therefore the criterion for imputation (risk). Regarding the causal link, the same numeral 35 admits the rupture or elimination in cases where the agent proves that they were unrelated to the damage. Finally, it should be highlighted that in this particular regime, the duty to repair is built or founded on the existence of the damage, the agent's conduct in the exercise of their activity, and the causal link that exists between these two elements, regardless of whether there is a written agreement or not between the consumer and the agent. (Resolution of this Chamber no. 686-2014 at 9:15 a.m. on May 28, 2014).// IV.- On the burden of proof. As has been set forth up to this point, it is pertinent to refer to the duty of demonstration that falls on each of the parties comprising the litigation, when the object of the proceeding is the declaration of a duty to repair damage in cases such as this one. First, it is noted that the plaintiff is in a situation where it is very difficult or practically impossible for them to prove some of the essential facts or premises for their claim, placing them in a situation of potential defenselessness. As a result of the above, and as this decision-making body has previously indicated, the duty of demonstration is redistributed between the litigating parties, where the "onus probandi" (burden of proof) corresponds to the party in the best position to provide evidence to the proceeding (in this sense, consult ruling no. 212 at 8:15 a.m. on March 25, 2008). However, it cannot be inferred from the above that the victim is exempt from the evidentiary duty, since they must prove, in the stated terms, the damage suffered and the causal link. In this way, it is up to the defendant to prove that they are unrelated to the production of the damage, that is, they must demonstrate the concurrence of one of the grounds for exemption from liability, whether it be the fault of the victim, the act of a third party, or force majeure. The defendant can also be freed from liability if they manage to prove that the regime established in cardinal 35 of Law 7472 is not applicable to them, either because the subjective requirements for its application do not concur in the species (for example, if the parties were not in a consumer relationship), or, in the specific case of the risk theory that this norm contemplates, that this risk is not at a degree of abnormality. Thus, the judges must resort not only to the consequences derived directly from the body of evidence, but also to indications and their own experience when evaluating it. (...) (Consult rulings no. 300-2009 and 1431-2012 recently cited.)
i. That they have acquired lots in Condominio Bariloche through mortgage loans with the Banco Nacional de Costa Rica, either directly or through debtor novations (novaciones de deudor) of previously constituted loans.
ii. That the granting of these loans occurred within the time period between January 1, 2008, and December 31, 2011, both dates inclusive.
iii. That they have suffered damages and losses by virtue of the structuring of the loans for the purchase of lots in the Condominium, consisting of the pecuniary damage and non-pecuniary damage described in the petition of the lawsuit filing.
We request Your Honor that the existence of the group with these characteristics be duly declared so that, by virtue of the collective interest they hold, the effects of an eventual favorable judgment be extended not only to the members of the Plaintiff Group but also to all the members of the affected group; in such a way that the defendant Bank be condemned in abstracto to pay the damages and losses determined in the lawsuit memorandum to any subject who demonstrates being in the objective situation described in the preceding point in an eventual judgment enforcement proceeding.
THE COURT RESOLVES: It is reiterated, in addition to what has already been indicated regarding the merits of this matter, each claim is specifically considered individually. In relation to this first claim, this Chamber observes that several things are sought, not just one. The first is the declaration of the existence of a collective interest group, but as will be seen, not purely and simply but conditioned to certain characteristics. And second, the existence of a specific and determinable group of persons holding a collective interest, which includes not only the plaintiffs but third parties who have not been part of this proceeding, whether natural or legal persons, who prove a series of requirements applicable to the former as well, which would be 1) having acquired a lot in Condominio Bariloche Real through mortgage loans with the BNCR, directly or through -debtor novations (novaciones de deudor)-, 2) That the loans were granted between 2008 and 2011, and 3) That they have suffered damages and losses by virtue of the structuring of the loans for the purchase of lots in the Condominium and losses derived from the structuring of these for the purchase of lots in the Condominium, consisting of the pecuniary damage and non-pecuniary damage described in the lawsuit, which as we have seen from the preceding recitals (considerandos) are based on the thesis of the alleged liability of the BNCR for having financed the Developer of the Condominium, Proyectos Urbanísticos Zión, with the proceeds from the sales of lots, and on the lack of supervision by the banking entity, for not having controlled the flow of funds directed to the Developer according to the progress of the works. As indicated supra, this Chamber by majority has determined that the BNCR was not legally obligated to make a disbursement of resources from the sale of the properties -derived from the purchase by the plaintiffs- in installments according to the progress of the urban development works that, as the witnesses and parties declared, was the obligation of Proyectos Urbanísticos Zión to develop. Having said this, it is clear that there is no causal link between the conduct generating the alleged damage and losses and the commercial activity of the BNCR. Consequently, this claim must be rejected in all its aspects, as is hereby ordered.
THE OTHER CLAIMS STATE:
"Based on the facts and legal grounds incorporated in this lawsuit, we request that the lawsuit be upheld in all its aspects and therefore that the Banco Nacional de Costa Rica be declared liable for the damages and losses caused to the Plaintiff Group, according to the relation of the facts of the lawsuit, and be ordered to pay the following items:
I- Pecuniary damage.
We request that the defendant Bank be ordered to pay the pecuniary damage caused to each of the members of the Plaintiff Group, consisting of:
a. Difference between the amount of the mortgage loan at the time of its constitution in favor of the defendant Bank for each of the members of the Plaintiff Group, and the real value of each of the properties at the time of their acquisition by each of the members of the Plaintiff Group and upon which the mortgage loan was constituted.
b. The amount paid by each of the members of the Plaintiff Group to the defendant Bank for interest on the mortgage loan operations constituted with the Bank to finance the "pre-construction" (en verde) purchase of lots in the Condominium, on the amount resulting from point 1.a of the claims.
c.
The sums of money that each of the members of the plaintiff Group pay to the defendant Bank as interest on the credit operations, from the filing of the complaint until their due payment, on the resulting amount according to point 1.a of the claims.
d. The difference between the purchase value of each lot by each of the members of the plaintiff Group and the real value of said lot at the time of its purchase, once the amount claimed in point 1.a) of these claims has been deducted.
e. The loss of opportunity of each of the members of the plaintiff Group, of having been able to obtain a capital gain or increase in assets resulting from the appreciation of each lot acquired with the mortgage loan granted by the defendant Bank and the value it would have today had the development of the Condominium been completed, an amount to be determined in enforcement of judgment." THE COURT RESOLVES: These other claims are accessory to the principal claim already resolved, such that when the principal is rejected, these accessory claims or those pending from the other must follow the same fate and be rejected, since the active standing to claim the damages sought was not accredited, as the causal link was broken between the conduct for which the banking entity is blamed and the party responsible for the failure to construct the urban development works, namely Proyectos Urbanísticos Zión. That said, each and every one of the claims of the plaintiff group must be rejected since they are directly related to the first and, as indicated, once it is rejected, all the others follow the same fate. It is so resolved.
CLAIM 2, REGARDING MORAL DAMAGES, STATES:
"2- Moral damages: We request that the defendant Bank be ordered to pay each of the members of the plaintiff Group compensation for the moral damages caused by the anguish and frustration that the limitation on accessing decent housing has caused them, specifically due to: (i) the material impossibility of enjoying the lot they purchased through mortgage loans; (ii) the impossibility of selling those lots at a viable price by virtue of the debt they maintain with the Bank; (iii) the impossibility of delivering the lot as dación de pago on reasonable terms without having to maintain the debt with the Bank; (iv) the impossibility of accessing credit with other financial entities to purchase housing; (v) the stain on their credit record; and (vi) the collection of the overdraft balance if the lot is auctioned. We prudentially estimate the moral damages in the sum of ¢10,000,000.00 for each member of the plaintiff Group." THE COURT RESOLVES: This other claim, like the previous one, is accessory to the first. From the unproven facts, it is evident that a large part of the sources of moral damages claimed were not accredited with suitable evidence. Likewise, given that BNCR accredited being unrelated to the conduct for which it is blamed, due to the act of a third party, who was required to carry out the urban development works, such as Proyectos Urbanísticos Zión, BNCR cannot be reproached with the duty to indemnify for a conduct alien to it. Consequently, this claim is rejected and so declared.
CLAIM 3, REGARDING INDEXATION: This claim states: "3- Indexation: We request that the sums awarded in judgment be indexed." THE COURT RESOLVES: This claim is accessory to the principal, since indexation is eventually applicable when the payment of a sum of money is recognized and the value sum is indexed so that it does not lose value over time. However, in this case, the payment of damages and the granting of sums for damages have been rejected as ordered supra, so this claim follows the same fate as those, therefore it is rejected and so ordered.
CLAIM 4, REGARDING COSTS: This states: "4- Costs: We request that the defendant Bank be ordered to pay the costs" THE COURT RESOLVES: As is customary, this claim will be resolved in a separate section.
POR TANTO:
The exception of lack of right is upheld. The lack of passive standing is rejected. The defense of exclusion of liability due to the act of a third party is declared with merit, and the exception of fault of the victim is rejected. The lawsuit filed by the GRUPO DE COMPRADORES DE CRÉDITO CON EL BANCO NACIONAL DEL CONDOMINIO BARILOCHE REAL against the BANCO NACIONAL DE COSTA RICA is declared inadmissible in all its aspects. Costs are to be borne by each of the parties. Notify.- PAULO ANDRÉ ALONSO SOTO RODOLFO MARENCO ORTIZ JUDGE JONATÁN CANALES HERNÁNDEZ, ISSUES A SEPARATE OPINION Separate opinion of Judge Jonatán Canales Hernández, in expediente N° 14-3379-1027-CA, PROCESO DE CONOCIMIENTO, filed as a Proceso de conocimiento processed as pure law, filed by Grupo de compradores de lotes en el Condominio Bariloche Real against BANCO NACIONAL DE COSTA RICA: Respectful of the decision of the majority of the Court, I issue a separate opinion and declare the action brought by the plaintiff group without merit, for these other reasons.-
Considering:
"OBJECT OF THE PROCESS.- The plaintiff party requested that the claim of this process be declared with merit, which was determined as set forth in the preliminary hearing and as ordered by this Court, regarding the claims of a collective nature:
i. That they acquired lots in the Condominio Bariloche through mortgage loans with the Banco Nacional de Costa Rica, either directly or through novations of debtor of previously constituted loans.
ii. That the granting of these loans occurred during the time period between January 1, 2008, and December 31, 2011, both dates inclusive.
iii. That they suffered damages by virtue of the structuring of the loans for the purchase of lots in the Condominium, consisting of the economic damages (daño patrimonial) and moral damages described in the prayer of the complaint brief.
We request your Authority that the existence of the group with these characteristics be duly declared so that, by virtue of the collective interest they hold, the effects of an eventual favorable judgment are extended not only to the members of the plaintiff Group but also to all members of the affected group; such that the defendant Bank is condemned in the abstract to pay the damages specified in the complaint brief to any subject who demonstrates being in the objective situation described in the preceding point in an eventual judgment enforcement proceeding.
NOTE: During the preliminary hearing, the claim for future interest was adjusted, indicating the following: "payment of non-future interest, and in the last line add: 'both of the principal and of the interest corresponding to the sums awarded according to claim 1.A, 1.B and 1.C, which are granted in judgment from the moment those items were paid until their effective payment, at the legal interest rate'" II) I proceed to analyze each of the claims:
Petitory extreme a) i), as I have previously stated in multiple dissenting votes "(...) it is evident that in the Palmares office of the Banco Nacional, there existed all types of irregularities in the appraisals of the lots, giving values far superior to the market value, which obviously harms the consumer as the weakest party in the existing legal relationship, because it obviously hinders or makes it impossible for the properties to be sold to any interested parties. From the foregoing it follows: 1) In this business, the bank always knew that the loan was for the purchase and sale of a land in condominium to build a house and that construction could not be done until the common works were completed (depending on the will of the developer), and cannot claim ignorance about the substance of the business for which it granted the loan, as it did in this trial and in the other derived expedientes". However, one cannot speak of an identity among all the cases of the actors here, because some signed a mortgage credit deed with the bank and others purchased their rights from third parties who had done so, thus, who caused the damage and who breached the duty of information to the detriment of the consumer is different. In this way, it is evident that one cannot speak of an identity of situations producing the damage, and it cannot be assumed that an interest group existed under the same circumstances, the decision to have de-accumulated this process in due course and to hear the situation of each actor separately always being correct.- Recall that it has also been stated in dissenting votes that "(...) the bank, by deviating from legality, is jointly and severally liable for the damages in the plaintiff's economic sphere, in accordance with Articles 326 and 667 of the Civil Code, which state: 'ARTICLE 326.- In the event that the act or omission giving rise to the indemnity is attributable to two or more individuals, all shall be jointly and severally obligated to indemnify' 'ARTICLE 667.- Each debtor may be pursued for the full compliance of the indivisible obligation, but the defendant has the right to be granted a term within which it may summon its co-debtors, in order to prevent a judgment for the total amount from being pronounced against it alone, unless the obligation by its nature can be fulfilled by it'. Thus, the bank must respond not only for the vicissitudes derived from the credit contract, but also for the purchase and sale of a condominium lot to build housing, in which the development company and the plaintiff here were parties, thus breaking the principle of privity of contracts (numeral 1025 ejúsdem), which the bank has repeatedly invoked in its defense at trial.-// See that the bank, as the predisposing and economically strong party in the consumer relationship, breached constitutional numeral 46 (reformed in 1996), 34.b) and 35 of the Ley de Defensa Efectiva del Consumidor (N° 7472), as a result of the irregular actions of its employees, in collusion with the development company; it knew that the developer, for multiple reasons, might never finish the stage of the condominium project where the lot for the housing was located, even acknowledging that the credit contract was for housing and with all the irregularities that in the majority vote judgment are clear, specifically those produced by the bank's employees at its Palmares agency (see the studies conducted by the bank's Internal Audit), for which the institution must respond, due to the evident gross fault in eligendo e in vigilando of those public servants", but that is an issue that must be analyzed and resolved case by case, to see if those facts materialized; it is not possible that in a process where various actors under different situations are accumulated, it be resolved by abstracting the particular situations of each of them.- Regarding claim a.ii) which concerns limiting those facts in time, it must be rejected because to resolve it, the situation of each actor would have to be analyzed and proven separately, and that cannot be done in this process, due to the way the claims are structured, besides being a topic analyzed and resolved in each individual ordinary process.- In the same way, claim a.iii) must be rejected, because the damage must be proven in the plenary process (complying with the requirements of Articles 190 and 196 LGAP) and it is procedurally inappropiate to wait for an eventual judgment enforcement stage. Subsequently, the eventual extension of effects from one case file to another cannot be declared from the initial process, but could eventually be done, as required by the Código Procesal Contencioso Administrativo, in each derived process.- Claim b) must be rejected because if the principal petitory extremes are rejected, the claim for interest, being subsidiary, must also be rejected in application of the principle that the accessory follows the fate of the principal.- Jonatán Canales Hernández, Judge.- ???????????????
PAULO ANDRÉ ALONSO SOTO - JUEZ/A DECISOR/A ???????????????
ELEUTERIO RODOLFO MARENCO ORTIZ - JUEZ/A DECISOR/A ???????????????
JONATHAN CANALES HERNÁNDEZ - JUEZ/A DECISOR/A Goicoechea, Calle Blancos, 50 meters west of BNCR, frente a Café Dorado. Teléfonos: 2545-0107 or 2545-0099. Ext. 01-2707 or 01-2599. Fax: 2241-5664 or 2545-0006. Correo electrónico: [email protected] Classification prepared by CENTRO DE INFORMACIÓN JURISPRUDENCIAL of the Poder Judicial. Its reproduction and/or distribution in onerous form is prohibited.
It is a faithful copy of the original - Taken from Nexus.PJ on: 08-05-2026 16:34:26.
Tribunal Contencioso Administrativo Clase de asunto: Proceso de conocimiento Analizado por: CENTRO DE INFORMACIÓN JURISPRUDENCIAL Sentencia con Voto Salvado Sentencias del mismo expediente Contenido de Interés:
Tipo de contenido: Voto unánime Rama del Derecho: Derecho Administrativo Tema: Responsabilidad objetiva de la Administración Subtemas:
Análisis de la responsabilidad bancaria en caso de proyecto urbanístico.
"VII) DE LA RESPONSABILIDAD OBJETIVA TUTELADA EN LA LEY DE PROMOCIÓN DE LA COMPETENCIA Y DEFENSA EFECTIVA DEL CONSUMIDOR: Con la promulgación de la Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor, Ley N° 7472 de 20 de diciembre de 1994, la Asamblea Legislativa tuvo como objetivo, entre otros, proteger los derechos y los intereses de los -consumidores- entendiéndose por tales en sentido amplio, a toda persona física o entidad de hecho o de derecho, que como destinatario final, adquiere, disfruta o utiliza los bienes o los servicios, o bien, recibe información o propuestas para ello y como comerciante o proveedor, a la persona física, entidad de hecho o de derecho, privada o pública que, en nombre propio o por cuenta ajena, se dedica en forma habitual a ofrecer, distribuir, vender, arrendar, conceder el uso o el disfrute de bienes o a prestar servicios, sin que necesariamente esta sea su actividad principal. (Ley N° 7472). Luego, la Asamblea Legislativa, en función de constituyente derivado, realizó una reforma parcial a la Constitución Política, mediante la Ley N° 7607 de 29 de mayo de 1995, que elevó a rango constitucional la protección de su salud, ambiente, seguridad e intereses económicos, a recibir información adecuada y veraz, a la libertad de elección y a un trato equitativo, tanto de los consumidores como de los usuarios de estos servicios. Por otra parte, la Constitución Política, (art. 189), establece que los bancos del Estado son instituciones autónomas, cuya actividad principal se encuentra prevista en la Ley Orgánica del Sistema Bancario Nacional, Ley N° 1644 de 26 de setiembre de 1953, dentro de sus atribuciones, se encuentran, entre otras, la realización tanto operaciones activas, pasivas y neutras, así como la apertura de cuentas de ahorro, de crédito, de garantía, etc; todas de carácter bancario y financiero, bajo el amparo de esta normativa y demás regulaciones propias de este sector de la economía. Conforme con lo anterior, en este caso, el Banco Nacional, actuando en ejercicio de su capacidad de derecho privado, como empresa pública que es y ofreciendo a sus clientes un servicio financiero de consumo, determina que en el presente caso, deba aplicarse la Ley de Promoción de la Competencia y Defensa Efectiva del Consumidor, en sus artículos 32, 34, 35 y 54, la cual, enumera una serie de derechos del consumidor y establece el régimen de responsabilidad objetiva, así como las eximentes de responsabilidad inherentes a esas relaciones de consumo y de la legitimación procesal. Así, el artículo 32, sobre los derechos del consumidor, dispone: "Sin perjuicio de lo establecido en tratados, convenciones internacionales de las que Costa Rica sea parte, legislación interna ordinaria, reglamentos, principios generales de derecho, usos y costumbres, son derechos fundamentales e irrenunciables del consumidor, los siguientes: // a) La protección contra los riesgos que puedan afectar su salud, su seguridad y el medio ambiente. // b) La protección de sus legítimos intereses económicos y sociales. // c) El acceso a una información, veraz y oportuna, sobre los diferentes bienes y servicios, con especificación correcta de cantidad, características, composición, calidad y precio. // d) La educación y la divulgación sobre el consumo adecuado de bienes o servicios, que aseguren la libertad de escogencia y la igualdad en la contratación. // e) La protección administrativa y judicial contra la publicidad engañosa, las prácticas y las cláusulas abusivas, así como los métodos comerciales desleales o que restrinjan la libre elección. // f) Mecanismos efectivos de acceso para la tutela administrativa y judicial de sus derechos e intereses legítimos, que conduzcan a prevenir adecuadamente, sancionar y reparar con prontitud la lesión de estos, según corresponda. // g) Recibir el apoyo del Estado para formar grupos y organizaciones de consumidores y la oportunidad de que sus opiniones sean escuchadas en los procesos de decisión que les afecten.// (Así corrida su numeración por el artículo 80 de la ley de Contingencia Fiscal, N° 8343 del 18 de diciembre de 2002, que lo traspaso del antiguo artículo 29 al 32 actual)". De esta norma considera esta Cámara que se debe resaltar que esta legislación cataloga como un derecho fundamental e irrenunciable, los derechos del consumidor, con lo cual el Estado le otorga un estatus de protección entre otras, y en lo conducente a este proceso a los intereses económicos de los consumidores, así como el acceso a una información, veraz, oportuna, sobre la actividad de consumo, y en relación a los mecanismos de tutela de los mismos. Derivado de ese acceso a la información, esta legislación, precisa en cuanto a las obligaciones del comerciante con el consumidor, se encuentra el deber de informar suficientemente al consumidor, en español y de manera clara y veraz, acerca de los elementos que incidan de forma directa sobre su decisión de consumo; debiendo informar entre otros de cualquier dato determinante, así como apegarse a la equidad, los buenos usos mercantiles y a la ley, en su trato con los consumidores. (art. 34 incisos b) y o)).- En cuanto al régimen de responsabilidad objetivo establecido por esta normativa, esta Cámara indica que el actual artículo 35 dispone: "Régimen de responsabilidad.// El productor, el proveedor y el comerciante deben responder concurrente e independientemente de la existencia de culpa, si el consumidor resulta perjudicado por razón del bien o el servicio, de informaciones inadecuadas o insuficientes sobre ellos o de su utilización y riesgos.// Sólo se libera quien demuestre que ha sido ajeno al daño.// Los representantes legales de los establecimientos mercantiles o, en su caso, los encargados del negocio son responsables por los actos o los hechos propios o por los de sus dependientes o auxiliares. Los técnicos, los encargados de la elaboración y el control responden solidariamente, cuando así corresponda, por las violaciones a esta Ley en perjuicio del consumidor." (Así corrida su numeración por el artículo 80 de la ley de Contingencia Fiscal, N° 8343 del 18 de diciembre de 2002, que lo traspaso del antiguo artículo 32 al 35 actual). Sobre este último punto, -de la responsabilidad objetiva- la Sala Primera de la Corte Suprema de Justicia, ha resuelto sobre el tema de responsabilidad objetiva derivada de la actividad bancaria y de la carga de la prueba en este tipo de relaciones de consumo, entre otras resoluciones en la N° 000658-F-S1-2018, de las nueve horas treinta minutos del día 13 de julio de 2018, con gran pertinencia lo siguiente:
III.- Sobre la responsabilidad objetiva en la actividad bancaria. La actividad bancaria, en particular la custodia y administración de los fondos del público, está rodeada de una serie de mecanismos o servicios periféricos, que son ofrecidos a los clientes como un atractivo y se incorporan otorgándose facilidades anexas a la custodia y administración. Por sí misma, esa actividad genera un riesgo, que se puede ver acrecentado con el uso de esos instrumentos o servicios, (....). En la dinámica de esta actividad, la entidad bancaria es el proveedor del servicio principal anotado (custodia y administración de los dineros), así como de los accesorios e instrumentos relacionados, como lo es la banca en línea o electrónica. El cliente, por su parte, asume entonces el carácter de consumidor. En esta relación, según se ha señalado en diversas oportunidades, resulta aplicable el régimen de responsabilidad objetiva que prevé el canon 35 de la Ley del Consumidor (en este sentido pueden consultarse las sentencias de esta Sala, no. 300-F-SI-2009, 778-F-SI-2012, 1568-F-SI-2012 y 1607-F-SI-2012). El sistema estatuido en esta norma, dispone en términos generales que los inconvenientes de una actividad lucrativa –como lo es la bancaria- sean asumidos por quien la despliega, con algunas precisiones. Y es que si bien se configura como una responsabilidad objetiva, al prescindir de la culpa y del dolo, la atribución no opera de pleno derecho o en forma automática. En este orden, además de la acreditación de la conducta lesiva del agente, el esquema no está exento del deber de demostrar la existencia de la lesión y el nexo de causalidad, y por tanto del criterio de imputación (riesgo). En cuanto al vínculo causal, admite el mismo numeral 35, la ruptura o eliminación en los casos cuando el agente acredite ajenidad en el daño. Por último, debe destacarse que en este particular régimen, el deber de reparar se construye o se funda en la existencia del daño, la conducta del agente en ejercicio de su actividad y el nexo de casualidad que existe entre estos dos elementos, al margen de que exista un convenio por escrito o no entre el consumidor y el agente. (Resolución de esta Cámara no. 686-2014 de las 9 horas 15 minutos del 28 de mayo de 2014).// IV.- Sobre la carga de la prueba. Según se ha expuesto hasta este punto, cabe referirse al deber de demostración que le incumbe a cada una de las partes, quienes integran la litis, cuando el objeto del proceso es la declaratoria de un deber de reparar un daño en casos como el presente. En primer término, se advierte que el actor se encuentra en una situación donde le resulta muy difícil o prácticamente imposible comprobar algunos de los hechos o presupuestos esenciales para su pretensión, colocándole ante una posible indefensión. Producto de lo anterior, y según lo ha indicado este órgano decisor con anterioridad, se redistribuye el deber de demostración entre las partes litigantes, en donde el “onus probandi” (carga probatoria) le corresponde a quien se encuentre en mejores condiciones para aportar la prueba al proceso (en este sentido, consúltese el fallo no. 212 de las 8 horas 15 minutos del 25 de marzo de 2008). Sin embargo, de lo anterior no puede extraerse que la víctima se encuentra exenta del deber probatorio, ya que le corresponde acreditar, en los términos dichos, el daño sufrido y el nexo de causalidad. De esta manera, corre por cuenta del accionado probar que es ajeno a la producción del daño, es decir, ha de demostrar la concurrencia de alguna de las causas eximentes de responsabilidad, ya sea la culpa de la víctima, el hecho de un tercero o la fuerza mayor. También puede librarse el demandado de la responsabilidad en el tanto logre comprobar que el régimen establecido en el cardinal 35 de la Ley 7472 no le es aplicable, ya sea porque no concurren en la especie los presupuestos subjetivos para su aplicación (por ejemplo, si las partes no se encontraran en una relación de consumo), o bien, en el caso específico de la teoría del riesgo que contempla dicha norma, que este no se ubica en un grado de anormalidad. Así las cosas, los juzgadores deben recurrir, no sólo a las consecuencias que se derivan en forma directa del acervo probatorio, sino también de indicios y su propia experiencia al momento de valorarlo. (...) (Consúltense los fallos no. 300-2009 y 1431-2012 de reciente cita.) [...] " ... Ver más Citas de Legislación y Doctrina Sentencias Relacionadas EV Generación de Machote: F:\Gestion-Judicial\Servidor de Archivos\Modelos\Contencioso\TCRESOL016.dpj ????????????????
CONOCIMIENTO ACTOR/A:
GRUPO DE COMPRADORES DE CREDITO DEL CONDOMINIO BARILOCHE REAL DEMANDADO/A:
BANCO NACIONAL DE COSTA RICA N° 2024005604 TRIBUNAL CONTENCIOSO ADMINISTRATIVO Y CIVIL DE HACIENDA, SEGUNDO CIRCUITO JUDICIAL, SAN JOSÉ, GOICOECHEA, a las ocho horas con doce minutos del treinta de Agosto del dos mil veinticuatro.- PROCESO DE CONOCIMIENTO, interpuesto por el denominado: GRUPO DE COMPRADORES DE CRÉDITO CON EL BANCO NACIONAL DEL CONDOMINIO BARILOCHE REAL, (poderes de los demandantes a sus apoderados especiales judiciales, constan en carpeta aparte). Los apoderados especiales judiciales presentes durante la audiencia de juicio oral y pública, fueron ALEJANDRO BATALLA BONILLA, mayor, abogado, cédula 1-0525-0186, carné N° 2573, JOHN ALEXANDER BRENES RODRÍGUEZ, mayor, abogado, carné N° 27062, ADRIÁN MAURICIO VEGA AGUILAR, mayor, abogado, carné N° 16295, en contra el BANCO NACIONAL DE COSTA RICA, representado por sus apoderados generales judiciales GENARO JOSÉ JIMÉNEZ OROZCO, mayor, abogado, carné N° 22101 y ANDRÉS BOGARÍN BUSTAMANTE, mayor, abogado, carné N° 19132 y
CONSIDERANDO:
i. Que hayan adquirido lotes en el Condominio Bariloche a través de créditos hipotecarios con el Banco Nacional de Costa Rica, ya sea directamente o a través de novaciones de deudor de créditos previamente constituidos.
ii. Que el otorgamiento de estos créditos se hayan realizado entre el período de tiempo comprendido entre 1° del 2008 y 31 diciembre de 2011 ambas fechas inclusive.
iii. Que hayan sufrido daños y perjuicios en virtud de la estructuración de los créditos para compra de lotes del Condominio, consistentes en el daño patrimonial y el daño moral descritos en la petitoria del escrito de demanda.
Solicitamos a su Autoridad que la existencia del grupo con estas características sea debidamente declarado para que, en virtud del interés colectivo que detentan, se extiendan los efectos de una eventual sentencia favorable no sólo a los miembros del Grupo actor sino también a todos los integrantes del grupo afectado; de forma tal que se condene al Banco demandado en abstracto a pagar los daños y perjuicios determinados en el memorial de demanda a cualquier sujeto que demuestre estar en la situación objetiva descrita en el punto anterior en un eventual proceso de ejecución de sentencia.
NOTA: Durante la audiencia preliminar, se ajustó la pretensión de intereses futuros, indicando lo siguiente: "pago de intereses no futuros, y en la última linea agregar: "tanto del principal como de los intereses correspondientes a las sumas otorgadas según la pretensión 1.A, 1.B y 1C, que se conceden en sentencia desde el momento en que se pagaron esos rubros hasta su efectivo pago, a la tasa de interés legal".
Cabe indicar que las pretensiones de la demanda principal, originalmente formuladas son las siguientes:
"Con base en los hechos y fundamentos de Derecho incorporados en esta demanda, solicitamos que se declare con lugar la demanda en todos sus extremos y por ende se declare al Banco Nacional de Costa Rica responsable de los daños y perjuicios ocasionados al Grupo actor, según la según la (sic) relación de los hechos de la demanda y se le condene al pago de los siguientes rubros:
I- Daño patrimonial.
Solicitamos que se condene al Banco demandado al pago del daño patrimonial causado a cada uno de los miembros del Grupo actor y que consiste en:
a. Diferencia entre el monto de crédito hipotecario al momento de su constitución a favor del Banco demandado por cada uno de los miembros del Grupo actor, y el valor real de cada una de las fincas al momento de su adquisición por cada uno de los miembros del Grupo actor y sobre la que se constituyó el crédito hipotecario.
b. El monto pagado por cada uno de los miembros del Grupo actor al Banco demandado por concepto de intereses de las operaciones de crédito hipotecaria constituidas con el Banco para financiar la compra en "verde" de lotes del Condominio, sobre el monto resultante según el punto 1.a de las pretensiones.
c. Las sumas de dinero que cada uno de los miembros del Grupo actor paguen al Banco demandado por concepto de intereses de las operaciones de crédito, desde la interposición de la demanda hasta su debido pago, sobre el monto resultante según el punto 1.a de las pretensiones.
d. La diferencia entre el valor de compra de cada lote por parte de cada uno de los miembros del Grupo actor y el valor real del dicho lote al momento de su compra, una vez deducido el monto reclamado en el punto 1.a) de estas pretensiones.
e. La pérdida de oportunidad de cada uno de los miembros del Grupo actor, de haber podido obtener una ganancia de capital o aumento patrimonial producto de la plusvalía de cada lote adquirido con el crédito hipotecario otorgado por el Banco demandado y el valor que tendría en la actualidad de haberse terminado el desarrollo del Condominio, monto que se determinará en ejecución de sentencia.
2- Daño moral: Solicitamos que se condene al Banco demandado a pagar a cada uno de los miembros del Grupo actor una indemnización por el daño moral ocasionado por la angustia y frustración que les ha provocado la limitación para acceder a una vivienda digna, específicamente por: (i) la imposibilidad material de disfrutar del lote que compraron mediante créditos hipotecarios; (ii) la imposibilidad de vender esos lotes a un precio viable en virtud de la deuda que mantienen con el Banco; (iii) la imposibilidad de entregar el lote en dación de pago en términos razonables sin tener que mantener la deuda con el Banco; (iv) la imposibilidad de acceder a créditos con otras entidades financieras para compra de vivienda; (v) la mancha en el récord crediticio y (vi) el cobro del saldo en descubierto si el lote es rematado. Estimamos prudencialmente el daño moral en la suma de ¢10.000.000.00 por cada miembro del Grupo actor.
3- Indexación: Solicitamos que se indexen las sumas concedidas en sentencia.
4- Costas: Solicitamos se condene al Banco demandado al pago de las costas" III) DE LOS HECHOS PROBADOS: Se consideran de relevancia para la resolución de este proceso los siguientes:
¿Con relación a financiamiento, le pregunto porque si había alguna limitación a buscar financiamiento con algún otro Banco? Que yo sepa, no señores, pero en realidad todas digamos, las hipotecas que nosotros vimos sobre el condominio eran del Banco Nacional. Se dio por finalizado el testimonio.
¿Sabe, el nombre completo solo tenemos el el apellido? La verdad creo que es José, Antonio, José Antonio Cuadra, pero no estoy segura, sé el apellido con seguridad. ¿Usted nos dijo que previamente el desarrollador le dijo que no podía seguir, los rodó durante meses y es bueno, dijo que él ya gastó todo el dinero y no va a desarrollar. ¿Cuando usted nos dice, él ya gastó todo el dinero y no va a desarrollar a quién se refería a usted? En esta afirmación es que no, no tuvimos ningún nombre? El Grupo Zión, perdón sí es que, o sea esa información, porque este señor estuvo diciendo que el problema no era el Grupo Zión, sino que era el representante del Grupo Zión. Se le hicieron varias visitas, que se le hicieron, yo nunca fui personalmente, pero sí a través de las de los conocidos que estaban afectados. Hubo varias personas que fueron y él garantizaba que no había problema de parte de él, pero después ya nos dimos cuenta a través de los representantes del Grupo del los afectados, que de qué era lo que estaba pasando, verdad, ellos fueron en Asamblea, los que nos aclararon que era lo que estaba pasando. ¿Cuando usted se presenta al Banco Nacional o cuando más bien se hace el trámite de crédito con el Banco Nacional para ese momento, usted ya había pagado o no había pagado los abonos al Grupo Zión? Había pagado dos de los abonos al Grupo porque el tercero había que pagarlo en el momento en que se formalizará el crédito. En el momento en que se hiciera la firma, entonces fue en ese mismo, en junio del 2008, que yo hice el abono que me faltaba y además firmé. ¿Para para este momento usted bueno, ya nos explicó que el Grupo Zión era quien le vendía el lote, para ese momento cuando van a hacer la formalización ya usted había acordado con el Grupo Zión, un precio para la venta del lote.? Sí, claro, el precio, el precio se acordó desde el principio, porque de hecho los abonos eran con base en el precio del del lote. ¿Entonces desde el inicio, cuando se hace el primer abono, ya tenían el precio fijado por el cual iban a vender el lote.? Sí, el precio estaba fijado. Lo que no sabía que después sobre la marcha sí supe es que dentro del préstamo iba a quedar los gastos de formalización y esas cosas que no, eso no sabía y después inicialmente hablamos de un préstamo a 20 años y después resultó que era 30 años. Esas fueron como condiciones que cambiaron. Al momento de firmar fue que me enteré. ¿Usted nos señalaba que, en alguna de las asambleas se les hizo una propuesta de refinanciar, que los socios tenían que refinanciar el desarrollo. ¿Quién les hizo esa propuesta en en la Asamblea? Los representantes que teníamos en ese momento buscaron varios desarrolladores y no había quien quisiera comprometerse, hubo al final presentaron opciones al Banco; eran algunos lotes que iban a dar en fideicomiso. No recuerdo cuántos lotes eran, pero el Banco aceptó algunos de los lotes y no quiso refinanciar proyectos, sino que en lo que nos dijeron en ese momento estos representantes es que teníamos que refinanciarlo nosotros y hablaron de los montos que en este momento pues no puedo acordarme yo en cuanto era lo que lo que implicaba pagar eso y entonces en la Asamblea no estuvimos de acuerdo, yo estuve en esa Asamblea en donde votamos y por mayoría, pues no, estuvimos de acuerdo en tener nosotros que pagar el ese desarrollo. ¿Entonces ese en en esa Asamblea se votó negativo, esta propuesta no se aprobó.? No, no se aprobó en ese momento, no se aprobó. Posteriormente volvieron a hacer una Asamblea en donde aprobaron un refinanciamiento por parte de los condominios. El abogado del Banco finalizó. El Juez Jonatán Canales Hernández, le preguntó: ¿Usted sigue pagando al Banco hoy? Sí. sí sigo pagando. Y en cuánto ha pagado? En total, después de tanto tiempo, no tengo el dato. Son 150 y que es como 157000 al mes, durante todos estos años. 25, 30 millones. No, no es no. He sacado la cuenta recientemente. El Presidente del Tribunal le consultó sobre un contrato denominado "Contrato de Opción de Compraventa" y se le consultó que si cuando ella decía que firmó un contrato con el grupo Zión, si era este. Reconoció que ese fue el documento que suscribió con el grupo Zión. Indicó que ahí, viene el monto. Además, reconoció su firma. Indicó que la opción la firmó en setiembre del 2007. Se le presentó la escritura. Indicó que la firmó en junio en su oficina. ¿Usted indicó que hubo una estafa, a qué se refiere? Lo que le puedo decir es que yo me sentí agraviada, ya que estoy pagando un lote a 30 años que no puedo usar, no puedo vender, entonces ese sería simplemente, yo digo estafa, porque yo me siento de esa forma, verdad. Porque el desarrollador no cumplió su parte, el Banco no cumplió su parte y yo pues tengo que cumplir mi parte. Entonces, ese es el sentido que le doy a esto. ¿Para precisar cuál es la función que le corresponde le correspondía al desarrollador? Desarrollar o sea usar los fondos que le dio el el Banco para desarrollar el el condominio. ¿Y cuál era la función del Banco? Fiscalizar para que el desarrollo se diera en tiempo. ¿Usted de acuerdo para que pidió el crédito? Para comprar el lote un lote. En un condominio, verdad Sí.¿Usted ahora refirió a que una vez estaba desarrollando las otras etapas, la A y la D, dijo que tenía que volver a pedir un préstamo o un crédito para este para terminar de construir? No, no, o sea, no para construir, o sea, lo que lo que recuerdes bueno, mi lote es, mi lote vale 18 millones de colones aproximadamente, entonces tenía que pagar otros otros 18 millones de colones para que la etapa donde yo tengo mi lote se pudiera desarrollar. Entonces, y conseguir ese dinero es lo que para mí era imposible. ¿Eso cómo fue que lo estructuraron si usted recuerda, digamos yo sé que usted no es abogada, pero cómo era? No, sé había que pagar alrededor de un 30%, al inicio del desarrollo y otros 70% cuando el desarrollo estuviera listo en la etapa en cuestión entonces. ¿A quién había que pagarle eso? ¿A los desarrolladores? Quienes son, yo sé que el representante era Cuadra. ¿Se le preguntó por la empresa PROSUM? Pero indicó desconocer mayores detalles. ¿Bien la pregunto, usted dice que estuvo en esas asambleas de Condóminos, como era que se estructuraba esa negociación, para terminar digamos, de desarrollar las infraestructura urbanística, cómo era que lo digamos cómo lo era, que lo plantearon, si era un fideicomiso, usted tenía que vender su terreno. Usted iba a traspasar al fideicomiso este el crédito aquí no iba a pedir si el fiduciario, el fideicomisario, quién afectos de, digamos, garantizar el lote, digamos o el desarrollo si sabe o si, recuerda.? La verdad, no recuerdo, o sea nosotros teníamos usted se refiere a la primera, intenta ativa de negociación, que fue alrededor del 2012. Sí es que en aquel momento sí recuerdo que el representante de todos los condóminos era un desarrollador, tenía una Ferretería o algo así, o sea, una una empresa de construcción, yo la verdad es que no puedo dar mayores detalles porque no conozco tanto, pero entonces él buscó opciones y yo no sé cómo hablaron de un fideicomiso de equis cantidad de lotes, no, no voy a decir cuántos, porque no recuerdo cuántos lotes y qué ofrecieron darle al Banco.Lo que entiendo es como canjearlos, yo le doy los lotes y usted me da el dinero para refinanciar algo así entonces. ¿Y digamos que, qué función qué función cumplían ustedes digamos? Digamos, es que para tratar de comprender, porque no, yo no estuve en esa reunión, pero de este.? O sea, nosotros, yo lo que no hacía era informarnos, verdad; informarnos sobre qué era lo que estaban tratando de hacer para poder desarrollar el condominio por cuenta, si. Nosotros éramos todos los afectados y teníamos a un representante que se eligió en Asamblea. ¿Digamos, el condominio son doscientas y resto de filiales, ustedes mantenían la propiedad, o ustedes vendían a esa empresa desarrolladora, cuál era la idea?. Si, cada uno mantenía la propiedad y ellos iban a desarrollar el condominio, para que nosotros pudiéramos usar los lotes. Se dio por terminado el interrogatorio.
III.- Sobre la responsabilidad objetiva en la actividad bancaria. La actividad bancaria, en particular la custodia y administración de los fondos del público, está rodeada de una serie de mecanismos o servicios periféricos, que son ofrecidos a los clientes como un atractivo y se incorporan otorgándose facilidades anexas a la custodia y administración. Por sí misma, esa actividad genera un riesgo, que se puede ver acrecentado con el uso de esos instrumentos o servicios, (....). En la dinámica de esta actividad, la entidad bancaria es el proveedor del servicio principal anotado (custodia y administración de los dineros), así como de los accesorios e instrumentos relacionados, como lo es la banca en línea o electrónica. El cliente, por su parte, asume entonces el carácter de consumidor. En esta relación, según se ha señalado en diversas oportunidades, resulta aplicable el régimen de responsabilidad objetiva que prevé el canon 35 de la Ley del Consumidor (en este sentido pueden consultarse las sentencias de esta Sala, no. 300-F-SI-2009, 778-F-SI-2012, 1568-F-SI-2012 y 1607-F-SI-2012). El sistema estatuido en esta norma, dispone en términos generales que los inconvenientes de una actividad lucrativa –como lo es la bancaria- sean asumidos por quien la despliega, con algunas precisiones. Y es que si bien se configura como una responsabilidad objetiva, al prescindir de la culpa y del dolo, la atribución no opera de pleno derecho o en forma automática. En este orden, además de la acreditación de la conducta lesiva del agente, el esquema no está exento del deber de demostrar la existencia de la lesión y el nexo de causalidad, y por tanto del criterio de imputación (riesgo). En cuanto al vínculo causal, admite el mismo numeral 35, la ruptura o eliminación en los casos cuando el agente acredite ajenidad en el daño. Por último, debe destacarse que en este particular régimen, el deber de reparar se construye o se funda en la existencia del daño, la conducta del agente en ejercicio de su actividad y el nexo de casualidad que existe entre estos dos elementos, al margen de que exista un convenio por escrito o no entre el consumidor y el agente. (Resolución de esta Cámara no. 686-2014 de las 9 horas 15 minutos del 28 de mayo de 2014).// IV.- Sobre la carga de la prueba. Según se ha expuesto hasta este punto, cabe referirse al deber de demostración que le incumbe a cada una de las partes, quienes integran la litis, cuando el objeto del proceso es la declaratoria de un deber de reparar un daño en casos como el presente. En primer término, se advierte que el actor se encuentra en una situación donde le resulta muy difícil o prácticamente imposible comprobar algunos de los hechos o presupuestos esenciales para su pretensión, colocándole ante una posible indefensión. Producto de lo anterior, y según lo ha indicado este órgano decisor con anterioridad, se redistribuye el deber de demostración entre las partes litigantes, en donde el “onus probandi” (carga probatoria) le corresponde a quien se encuentre en mejores condiciones para aportar la prueba al proceso (en este sentido, consúltese el fallo no. 212 de las 8 horas 15 minutos del 25 de marzo de 2008). Sin embargo, de lo anterior no puede extraerse que la víctima se encuentra exenta del deber probatorio, ya que le corresponde acreditar, en los términos dichos, el daño sufrido y el nexo de causalidad. De esta manera, corre por cuenta del accionado probar que es ajeno a la producción del daño, es decir, ha de demostrar la concurrencia de alguna de las causas eximentes de responsabilidad, ya sea la culpa de la víctima, el hecho de un tercero o la fuerza mayor. También puede librarse el demandado de la responsabilidad en el tanto logre comprobar que el régimen establecido en el cardinal 35 de la Ley 7472 no le es aplicable, ya sea porque no concurren en la especie los presupuestos subjetivos para su aplicación (por ejemplo, si las partes no se encontraran en una relación de consumo), o bien, en el caso específico de la teoría del riesgo que contempla dicha norma, que este no se ubica en un grado de anormalidad. Así las cosas, los juzgadores deben recurrir, no sólo a las consecuencias que se derivan en forma directa del acervo probatorio, sino también de indicios y su propia experiencia al momento de valorarlo. (...) (Consúltense los fallos no. 300-2009 y 1431-2012 de reciente cita.)
i. Que hayan adquirido lotes en el Condominio Bariloche a través de créditos hipotecarios con el Banco Nacional de Costa Rica, ya sea directamente o a través de novaciones de deudor de créditos previamente constituidos.
ii. Que el otorgamiento de estos créditos se hayan realizado entre el período de tiempo comprendido entre 1° del 2008 y 31 diciembre de 2011 ambas fechas inclusive.
iii. Que hayan sufrido daños y perjuicios en virtud de la estructuración de los créditos para compra de lotes del Condominio, consistentes en el daño patrimonial y el daño moral descritos en la petitoria del escrito de demanda.
Solicitamos a su Autoridad que la existencia del grupo con estas características sea debidamente declarado para que, en virtud del interés colectivo que detentan, se extiendan los efectos de una eventual sentencia favorable no sólo a los miembros del Grupo actor sino también a todos los integrantes del grupo afectado; de forma tal que se condene al Banco demandado en abstracto a pagar los daños y perjuicios determinados en el memorial de demanda a cualquier sujeto que demuestre estar en la situación objetiva descrita en el punto anterior en un eventual proceso de ejecución de sentencia.
EL TRIBUNAL RESUELVE: Se reitera, además de lo ya indicado en relación al fondo de este asunto, puntualmente se entra a considerar cada pretensión de forma individual. En relación a esta primera pretensión observa esta Cámara que se pretenden varias cosas, no solo una. La primera la declaratoria de la existencia de un grupo de interés colectivo, pero como se verá no de forma pura y simple sino condicionada a ciertas características. Y segundo, la existencia de un grupo determinado y determinable de personas que detentan un interés colectivo, que incluye no solo a los demandantes sino a terceras personas que no han sido parte de este proceso sean físicas o jurídicas que acrediten, una serie de requisitos aplicables a los primeros también que serían 1) haber adquirido lote en el Condominio Bariloche Real, a través de créditos hipotecarios con el BNCR, directamente o a través de -novaciones de deudor-, 2) Que los créditos hayan sido otorgados entre el 2008 y el 2011 y 3) Que hayan sufrido daños y perjuicios en virtud de la estructuración de los créditos para compra de lotes del Condominio y perjuicios derivados de la estructuración de éstos para la compra de lotes en Condominio, consistentes en el daño patrimonial y moral descritos en la demanda, que como hemos visto de los considerandos anteriores parten de la tesis de la supuesta responsabilidad del BNCR de haber financiado al Desarrollador del Condominio, Proyectos Urbanísticos Zión, con el producto de las ventas de lotes y a la falta de supervisión de la entidad bancaria, al no haber controlado el flujo de gastos dirigidos al Desarrollador conforme al avance de las obras. Tal y como se indicó supra, esta Cámara por mayoría ha determinado que el BNCR no estaba jurídicamente obligado a realizar un giro de recursos producto de la venta de los inmuebles -derivado de la compra por los demandantes- a tractos conforme al avance de las obras urbanísticas que como declararon los testigos y partes era obligación desarrollarlos por parte de Proyectos Urbanísticos Zión. Dicho esto, es claro que no existe nexo de causalidad entre la conducta generadora de los supuestos daño y perjuicios y la activad de comercio del BNCR. En consecuencias esta pretensión debe rechazarse en todos sus extremos, como en efecto se dispone.
LAS OTRAS PRETENSIONES DICEN:
"Con base en los hechos y fundamentos de Derecho incorporados en esta demanda, solicitamos que se declare con lugar la demanda en todos sus extremos y por ende se declare al Banco Nacional de Costa Rica responsable de los daños y perjuicios ocasionados al Grupo actor, según la según la (sic) relación de los hechos de la demanda y se le condene al pago de los siguientes rubros:
I- Daño patrimonial.
Solicitamos que se condene al Banco demandado al pago del daño patrimonial causado a cada uno de los miembros del Grupo actor y que consiste en:
a. Diferencia entre el monto de crédito hipotecario al momento de su constitución a favor del Banco demandado por cada uno de los miembros del Grupo actor, y el valor real de cada una de las fincas al momento de su adquisición por cada uno de los miembros del Grupo actor y sobre la que se constituyó el crédito hipotecario.
b. El monto pagado por cada uno de los miembros del Grupo actor al Banco demandado por concepto de intereses de las operaciones de crédito hipotecaria constituidas con el Banco para financiar la compra en "verde" de lotes del Condominio, sobre el monto resultante según el punto 1.a de las pretensiones.
c. Las sumas de dinero que cada uno de los miembros del Grupo actor paguen al Banco demandado por concepto de intereses de las operaciones de crédito, desde la interposición de la demanda hasta su debido pago, sobre el monto resultante según el punto 1.a de las pretensiones.
d. La diferencia entre el valor de compra de cada lote por parte de cada uno de los miembros del Grupo actor y el valor real del dicho lote al momento de su compra, una vez deducido el monto reclamado en el punto 1.a) de estas pretensiones.
e. La pérdida de oportunidad de cada uno de los miembros del Grupo actor, de haber podido obtener una ganancia de capital o aumento patrimonial producto de la plusvalía de cada lote adquirido con el crédito hipotecario otorgado por el Banco demandado y el valor que tendría en la actualidad de haberse terminado el desarrollo del Condominio, monto que se determinará en ejecución de sentencia." EL TRIBUNAL RESUELVE: Estas otras pretensiones, son accesorias a la principal ya resuelta, de modo tal que al rechazarse la principal, ésta accesorias o pendientes de la otra, deben seguir la misma suerte y ser rechazadas, toda vez que no se acreditó la legitimación activa para el reclamo de los daños y perjuicios reclamados al romperse el nexo de causalidad entre la conducta cuya responsabilidad se le achaca a la entidad bancaria y el responsable del incumplimiento de la construcción de las obras urbanísticas, a saber Proyectos Urbanísticos Zión. Dicho esto, se deben rechazar todas y cada una de las pretensiones de grupo actor ya que están directamente relacionadas con la primera y como se indicó rechazada ésta, todas las demás siguen la misma suerte. Así se resuelve.
LA PRETENSIÓN 2, RELATIVA AL DAÑO MORAL, DICE:
"2- Daño moral: Solicitamos que se condene al Banco demandado a pagar a cada uno de los miembros del Grupo actor una indemnización por el daño moral ocasionado por la angustia y frustración que les ha provocado la limitación para acceder a una vivienda digna, específicamente por: (i) la imposibilidad material de disfrutar del lote que compraron mediante créditos hipotecarios; (ii) la imposibilidad de vender esos lotes a un precio viable en virtud de la deuda que mantienen con el Banco; (iii) la imposibilidad de entregar el lote en dación de pago en términos razonables sin tener que mantener la deuda con el Banco; (iv) la imposibilidad de acceder a créditos con otras entidades financieras para compra de vivienda; (v) la mancha en el récord crediticio y (vi) el cobro del saldo en descubierto si el lote es rematado. Estimamos prudencialmente el daño moral en la suma de ¢10.000.000.00 por cada miembro del Grupo actor." EL TRIBUNAL RESUELVE: Esta otra pretensión al igual que la anterior es accesoria de la primera. De los hechos no probados, se desprende que gran parte de las fuentes de daño moral reclamado no se acreditaron con prueba idónea. De igual forma, dado que el BNCR acreditó ser ajeno a la conducta cuya responsabilidad se le acusa, por hecho de un tercero, quien debía efectuar las obras urbanísticas, como lo era Proyectos Urbanísticos Zión, no se le puede reprochar al BNCR el deber de indemnizar por una conducta ajena al mismo. En consecuencia se rechaza esta pretensión y así se declara.
LA PRETENSIÓN 3, RELATIVA A LA INDEXACIÓN: Esta pretensión dice: "3- Indexación: Solicitamos que se indexen las sumas concedidas en sentencia." EL TRIBUNAL RESUELVE: Esta pretensión es accesoria a la principal, toda vez que eventualmente procede la indexación cuando se reconozca el pago de una suma de dinero y que se indexa la suma de valor a efecto de que la misma no pierda valor en el tiempo. Sin embargo, en este caso, se ha rechazado como se ha dispuesto supra el pago de daños y perjuicios como el otorgamiento de sumas por concepto de daños y perjuicios, entonces, esta pretensión sigue la misma suerte que éstas, por lo tanto se rechaza y así se dispone.
LA PRETENSIÓN 4, RELATIVA A COSTAS: Esta dice: "4- Costas: Solicitamos se condene al Banco demandado al pago de las costas" EL TRIBUNAL RESUELVE: Tal y como se acostumbra, esta pretensión se resolverá en acápite aparte.
POR TANTO:
Se acoge la excepción de falta de derecho. Se rechaza la falta de legitimación pasiva. Se declara con lugar la causa de exclusión d responsabilidad por hecho de un tercero y se rechaza la excepción culpa de la víctima. Se declara improcedente en todos los extremos la demanda incoada por GRUPO DE COMPRADORES DE CRÉDITO CON EL BANCO NACIONAL DEL CONDOMINIO BARILOCHE REAL, contra el BANCO NACIONAL DE COSTA RICA. Son las costas a cargo cada una de las partes. Notifíquese.- PAULO ANDRÉ ALONSO SOTO RODOLFO MARENCO ORTIZ EL JUEZ JONATÁN CANALES HERNÁNDEZ, REMITE VOTO PARTICULAR Voto particular del Juez Jonatán Canales Hernández, en el expediente N° 14-3379-1027-CA, PROCESO DE CONOCIMIENTO, interpuesto por Proceso de conocimiento tramitado como puro derecho, interpuesto por el Grupo de compradores de lotes en el Condominio Bariloche Real contra el BANCO NACIONAL DE COSTA RICA: Respetuoso de la decisión de la mayoría del Tribunal, emito voto particular y declaro sin lugar la acción intentada por el grupo de actores, por estas otras razones.-
Considerando:
"OBJETO DEL PROCESO.- La parte demandante, solicitó se declare con lugar la pretensión de este proceso, la cual quedó determinada conforme en la audiencia preliminar y a lo ordenado por este Tribunal, a las pretensiones de carácter colectivo:
i. Que hayan adquirido lotes en el Condominio Bariloche a través de créditos hipotecarios con el Banco Nacional de Costa Rica, ya sea directamente o a través de novaciones de deudor de créditos previamente constituidos.
ii. Que el otorgamiento de estos créditos se hayan realizado entre el período de tiempo comprendido entre 1° del 2008 y 31 diciembre de 2011 ambas fechas inclusive.
iii. Que hayan sufrido daños y perjuicios en virtud de la estructuración de los créditos para compra de lotes del Condominio, consistentes en el daño patrimonial y el daño moral descritos en la petitoria del escrito de demanda.
Solicitamos a su Autoridad que la existencia del grupo con estas características sea debidamente declarado para que, en virtud del interés colectivo que detentan, se extiendan los efectos de una eventual sentencia favorable no sólo a los miembros del Grupo actor sino también a todos los integrantes del grupo afectado; de forma tal que se condene al Banco demandado en abstracto a pagar los daños y perjuicios determinados en el memorial de demanda a cualquier sujeto que demuestre estar en la situación objetiva descrita en el punto anterior en un eventual proceso de ejecución de sentencia.
NOTA: Durante la audiencia preliminar, se ajustó la pretensión de intereses futuros, indicando lo siguiente: "pago de intereses no futuros, y en la última linea agregar: "tanto del principal como de los intereses correspondientes a las sumas otorgadas según la pretensión 1.A, 1.B y 1C, que se conceden en sentencia desde el momento en que se pagaron esos rubros hasta su efectivo pago, a la tasa de interés legal" II) Paso a analizar cada una de las pretensiones:
Extremo petitorio a) i), tal como lo he dicho anteriormente en múltiples votos salvados "(...) se evidencia que en la oficina de Palmares del Banco Nacional, existieron todo tipo de irregularidades en los avalúos de los lotes dando valores muy superiores al valor de mercado lo que obviamente perjudica al consumidor como parte más débil de la relación jurídica existente, lo que obviamente perjudica al consumidor como parte más débil de la relación jurídica existente, porque obviamente dificulta o imposibilita que los bienes puedan ser vendidos a algún interesados. De lo anterior se deriva: 1) En este negociado siempre el banco supo que el crédito era para compraventa de un terreno en condominio para construir una casa y que la construcción no se podría hacer, hasta que se concluyeran las obras comunes (dependiendo eso del arbitrio de la desarrolladora), no pudiendo alegar la ignorancia sobre el fondo del negocio para el cual concedió, como lo hizo en este juicio y en los otros expedientes derivados". No obstante no se puede hablar de una identidad entre todos los casos de los aquí actores, porque algunos suscribieron escritura de crédito hipotecario con el banco y otros compraron sus derechos a terceros que sí lo habían hecho, siendo de esta forma distinto quién produjo el daño y quién incumplió el deber de información en perjuicio del consumidor. De esta forma se evidencia que no se puede hablar de una identidad de situaciones productoras del daño, no pudiéndose asumir que existió un grupo de interés en las mismas circunstancias, siendo siempre correcta la decisión de haber desacumulado este proceso en su oportunidad y conocer la situación de cada actor por aparte.- Recuérdese que también se ha dicho en los votos salvados que "(...) el banco al desviarse de la legalidad, es responsable solidario de los daños en la esfera patrimonial del demandante, de conformidad con los artículos 326 y 667 del Código Civil, que dicen: "ARTÍCULO 326.- Caso de que el acto ú omisión que motive la indemnización fuere de dos o más individuos, todos quedarán solidariamente obligados a indemnizar" "ARTÍCULO 667.- Cada deudor puede ser perseguido para el cumplimiento íntegro de la prestación indivisible, pero el demandado tiene derecho para que se le conceda un término dentro del cual le sea posible citar a sus codeudores, con el objeto de impedir que se pronuncie contra él solo una condenación por el total, salvo que la prestación por su naturaleza pueda ser cumplida por él". Así el banco debe responder no solamente por las vicisitudes derivadas del contrato de crédito, sino también por el de compraventa de lote en condominio para construir vivienda, en que eran parte la empresa desarrolladora y la aquí demandante, rompiéndose de esa forma el principio de relatividad de los contratos (numeral 1025 ejúsdem), que ha invocado reiteradamente el banco en su defensa en juicio.-// Véase que el banco como parte predisponente y fuerte económicamente en la relación de consumo, quebrantó los numerales 46 constitucional (reformado en el año 1996), 34.b) y 35 de la Ley de Defensa Efectiva del Consumidor (N° 7472), a partir de la actuación irregular de sus empleados, en colusión la empresa desarrolladora, conocía que el urbanizador por múltiples razones, podía ser que nunca terminara la etapa del proyecto en condominio donde estaba ubicado el lote para la vivienda, reconociendo incluso que el contrato de crédito, era para vivienda y con todas las irregularidades que en la sentencia del voto de mayoría quedan claras, específicamente las producidas por los empleados del banco, en su agencia de Palmares (véanse los estudios realizados por la Auditoría Interna del banco), por las cuales la institución debe responder, por existir una evidente culpa grave in eligendo e in vigilando de esos servidores públicos", pero eso es un tema que se debe analizar y resolver caso por caso, para ver si se concretaron esos hechos, no es posible que en un proceso donde se acumulen diversos actores en situaciones distintas, sea resuelto abstrayendo las situaciones particulares de cada uno de ellos.- En cuanto a la pretensión a.ii) que tiene que ver con limitar en el tiempo esos hechos, debe rechazarse porque para resolverla habría que analizar y probar la situación de cada uno de los actores por aparte y eso no puede hacerse en este proceso, por la forma en que las pretensiones están estructuradas, además que fue tema analizado y resuelto en cada proceso ordinario individual.- De la misma forma debe rechazarse la pretensión a.iii), porque el daño debe probarse en el proceso plenario (cumpliendo con los requisitos de los artículos 190 y 196 LGAP) y inconducente procesalmente esperar a una eventual etapa de ejecución de sentencia. Luego la eventual extensión de efectos de un expediente a otro, no puede declararse desde el proceso inicial, sino que eventualmente podría hacerse según lo exige el Código Procesal Contencioso Administrativo, en cada proceso derivado.- La pretensión b) debe rechazarse porque si los extremos petitorios principales, la pretensión de intereses, por ser subsidiaria también debe ser rechazada en aplicación del principio que lo accesorio sigue la suerte de lo principal.- Jonatán Canales Hernández, Juez.- ???????????????
PAULO ANDRÉ ALONSO SOTO - JUEZ/A DECISOR/A ???????????????
ELEUTERIO RODOLFO MARENCO ORTIZ - JUEZ/A DECISOR/A ???????????????
JONATHAN CANALES HERNÁNDEZ - JUEZ/A DECISOR/A Goicoechea, Calle Blancos, 50 metros oeste del BNCR, frente a Café Dorado. Teléfonos: 2545-0107 ó 2545-0099. Ext. 01-2707 ó 01-2599. Fax: 2241-5664 ó 2545-0006. Correo electrónico: [email protected] Clasificación elaborada por CENTRO DE INFORMACIÓN JURISPRUDENCIALdel Poder Judicial. Prohibida su reproducción y/o distribución en forma onerosa.
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