INSOLVENCY 36/2012 · EVIDENTIARY CONTINUITY · NOTICE → PROTECTION → EFFECT
7 June 2018: no longer a single LexNET question
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NON-NEGOTIABLE NO-REGRESSION GOVERNANCE
Authority before arithmetic; legal object before number
The 8-February order recognizes creditor succession from Promontoria to Construcciones Acosta Matos while keeping the recorded fixed special-privilege amounts at €8,194,877.88 + €857,373.81 = €9,052,251.69. Creditor identity changed; that does not itself prove an increase in admitted credit.
4 June 2018: different legal object
The clarification/implementation Auto accepted CAM's 17-May certificates for liquidation/payoff/bid calculation: €11,887,314.33 + €1,278,518.03 = €13,165,832.36, with the interest treatment stated in that order. It is a genuine judicial bridge to the higher figure, but is not itself to be described as a demonstrated statutory amendment of the definitive texts.
Correct unresolved question
Did approximately €13.166m lawfully operate only as the secured payoff/liquidation amount while recognized credit remained approximately €9.052m, or was a further statutory final-text modification required for some part of the increase?
No complete later amount-increase bridge has yet been located. Status: NOT LOCATED — not proved never to have existed.
AC knowledge: no longer generically open
By 8 June, Juan Tomás recorded “He llamado a Borja…” and relayed Borja's account. The remaining audit is what the IA then verified, reported, sought to protect, filed, communicated and accounted for. A takeover-specific IA Mercantile filing remains not located.
Counsel instruction/performance ledger
CLIENT WRITTEN INSTRUCTION → COUNSEL AGREES → PROTECTIVE ESCRITO DRAFTED → TACTICAL / TIMING DISCUSSION → FORMAL FILING RECEIPT NOT LOCATED
This is a documented performance tension requiring explanation, not proof of criminal motive or intentional non-filing.
PRE → 7 JUNE → POST
Actual-notice and protection architecture
The audit does not reduce the issue to whether our lawyers filed one perfect pleading. It reads every independent channel together: criminal↔mercantile, the Insolvency Administrator, counsel, contemporaneous documents, the judge meeting, testimony and later orders. The task is to reconstruct when each actor had actual knowledge, what powers they had and what protective response is documented.
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INDEPENDENT INSOLVENCY-ADMINISTRATOR LANE
It cannot be reduced to “counsel had to notify”
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No-regression: actual IA knowledge of the takeover allegations is supported by the 8-June “He llamado a Borja…” record. The unresolved object is the IA's subsequent protection/reporting/filing/accounting conduct.
Functional legal baseline in 2018
Questions the record must answer
CONTINUITY CORRECTION
Definitive texts: modifications did occur; the later amount still requires reconciliation
| Date | Act / checkpoint | Status |
|---|
COMPOSITION → MEETING → LIQUIDATION
The composition was filed; the gap is the official 28 June outcome
CONTINUOUS WORKOUT, NOT ISOLATED EVENTS
Bankia → SAREB → Cerberus/PH122/Haya → CAM
At every handoff the record separates creditor identity from the two underlying mortgage loans. Each loan is audited for principal, contractual interest, default interest, mortgage-security ceiling, enforcement costs, calculation date and procedural use. Procedural succession does not prove the legality of a later amount.
CAM OFFER → IA PLAN → ORDER → IMPLEMENTATION
Audit compliance with the plan, not merely its approval
Approval of the plan does not itself resolve title, amount, publicity, bid improvement, physical possession, third parties, suspension and later implementation. Each phase needs a compliance test against the plan itself and the Insolvency Act/TRLC applicable at that time.
SEPARATE RESPONSIBILITIES · PRESERVE WHAT COUNSEL DID DO
Written instruction → draft → filing → effect
This lane compares contemporaneous instructions with documented action. On 13 June Cuatrecasas accepted that Mercantile should be informed and Rosa Gual said the relevant pleading had already been prepared. The decisive formalisation evidence remains the final version, LexNET receipt/court stamp, DIOR and resulting judicial treatment. “Receipt not located” is not “proved never filed”.
CONTINUITY GOVERNANCE
Questions to pursue until document, answer or certified limit
Master gaps still open
Unitary criminal-first reading
New evidence is not silently civilised into an isolated procedural irregularity. Each actor is tested through: knowledge → historical duty/power → act/omission → stated legal basis → consistency with earlier decisions → alleged arbitrariness/deception → procedural effect → patrimonial effect → beneficiary/harm → evidence bearing on intent → contrary evidence → criminal-law elements → adjudicative status. This preserves allegations of prevaricación, bias/non-neutrality, de-facto control and fraude procesal/concursal without presenting criminal liability as established unless a competent court does so.