Loyalty
When does it cease to be reasonably sustainable that an act served LPB/the estate, even if it may have been wrong?
2008 → PRE-CAM → CONFLICT → INDEPENDENCE → CAM → LIQUIDATION
When, if ever, did powers entrusted to the administrator to protect LPB begin functioning for the adverse perimeter?
The question is not simply whether a decision harmed LPB. It is whether, at some point, powers that existed because the insolvency administrator administered the debtor and its estate began solving, validating or implementing objectives belonging to parties adverse to LPB.
Hypothesis to prove or disprove: there may have been a gradual transition from the pre-CAM Monte Lanza/Molina/Community private architecture, through administrator acts and omissions, into later adoption and monetisation of that architecture by the Acosta Matos perimeter. Por Derecho does not present that as a proven fact; it subjects the hypothesis to act-by-act reconstruction.
1. The legal duty makes the question legitimate
The historic Spanish Insolvency Act required the insolvency administration to perform with the diligence of an orderly administrator and a loyal representative, subject to judicial supervision. The current consolidated regime expresses the institutional continuity through diligence in the interest of the insolvency, impartiality and independence.
Official sources: Ley 22/2003, Article 35 · current consolidated insolvency law, Article 80 and current regime. Historic conduct is governed by the law applicable at the time; the current text is used as institutional continuity, not retroactively.
The review must therefore distinguish error, debatable judgment, negligence, conflict, loss of independence, functional alignment and concerted action. They are different evidential levels.
2. Four thresholds, not one accusation
Conflict
When does the administrator know or have reason to recognise that conduct is materially aligned with an adverse private interest?
Independence
When do disclosure, abstention, independent contrast, replacement/separation or enhanced judicial supervision become necessary?
Functional agency
When, if ever, does the pattern move beyond conflict into knowing implementation of objectives that the adverse party needed insolvency power to achieve?
3. “Functional / de facto adverse agency”: what it means and what it does not
Por Derecho forensic definition: the first question is not whether a formal mandate existed. It is whether administrator powers were knowingly used to do for the adverse perimeter something that perimeter could not do for itself, removing its obstacles and producing its objectives through power derived from LPB.
“Functional agency” is not used as a standalone doctrine of Spanish insolvency law or as a substitute for proof of representation. If the facts ever reached that threshold, legal consequences would still have to be determined separately: conflict, loss of independence, excess of authority, invalidity or ineffectiveness where available, liability, indefension, restitution, unjust enrichment, accounting or criminal relevance.
Not asserted: that Borja was a secret lawyer or formal agent of Molina/CAM; that collusion existed; that every later act is void; or that functional alignment alone establishes a crime.
4. Before CAM: reconstruct the predecessor perimeter
The group position reaches back to the 2008 transfer between Monte Lanza and Multimatrix and the intended continuity of the hotel operation. The public dossier already identifies a later fracture between the integrated majority and dissident owners/interests.
The recorded 11 June 2016 meeting provides a concrete control point: Juan Carlos Prieto Puente appears for Molina-family interests and Francisco Mario Matos Matas as Community administrator, opposite LPB/PwC/Simó/Cristo advisers. The meeting discusses the 2008 operating structure, charges, debt, access, governance and the position of the insolvency administration.
Pre-CAM question: did the administrator merely manage a dispute between LPB and those actors, or begin accepting, certifying, protecting or operationalising debt, voting, access or authority positions originating in the adverse perimeter? What was independently verified and what benefit accrued to LPB?
Boundary: the conflict and adverse private actors are documented in the controlled corpus; that does not by itself prove administrator agency, agreement or collusion.
5. CAM: economic successor, adopter or independent actor
2008 SALE / OPERATION → FRACTURE → COMMUNITY / DEBT / VOTE / ACCESS → ADMINISTRATOR ACTS OR OMISSIONS → CAM ENTRY → CREDIT / CONTROL → JUNE 2018 → LIQUIDATION / ADJUDICATION → HNT / MYND / FINANCE
The more precise hypothesis is not “CAM created everything.” It is to identify what already existed and what CAM independently created, inherited, acquired or adopted.
Knowledge
When did CAM learn of the Community, debt, access, operation and title disputes? Who supplied the information?
Dependency
Which CAM objectives rested on its own legal rights and which required an administrator act, permission, report or omission?
Continuity
Which positions earlier advanced by the Monte Lanza/Molina perimeter later reappear for the benefit of CAM or its successors?
Neutral alternative
What would an independent administrator have done on the same facts and what contemporaneous document explains the course actually chosen?
6. The power-source test
What power did the administrator use, where did that power come from, for what purpose was it entrusted, and what adverse-party problem did it solve?
Then ask: who requested or anticipated the act, whose legal theory it adopted, what information it accepted and verified, what the counterparty gained, what LPB/the estate gained, what neutral alternative existed, and whether conflict was disclosed and supervision enhanced.
Then ask: who requested or anticipated the act, whose legal theory it adopted, what information it accepted and verified, what the counterparty gained, what LPB/the estate gained, what neutral alternative existed, and whether conflict was disclosed and supervision enhanced.
This test prevents “CAM benefited” from being silently converted into “the administrator acted for CAM.” Moving up the evidential scale requires knowledge, capacity, direction of effect and a connection increasingly difficult to reconcile with LPB's estate interest.
7. PP 1041 / Article 1535: diagnostic case of debtor-derived power
The two routes remain separate: the Article 1535 / PP 1041 PH122→CAM credit-assignment workstream, and later unit/property-level tanteo-retracto or preferential-acquisition rights.
For PP 1041 it is documented that Cristo Suárez Pimentel initiated LPB's route; on 25 January 2018 the insolvency administration directly terminated his specific formal LPB mandate and subjected future LPB action to authorisation; and the 5 March 2018 decree records that LPB requested withdrawal, CAM did not oppose and Borja was listed as LPB's lawyer. The specific internal withdrawal instruction, drafting and filing chain remains P0.
The difference in power matters: CAM could oppose PP 1041, defend its credit and seek recognition. It could not remove LPB's lawyer or control LPB's litigation instructions. The insolvency administrator exercised powers derived from the insolvency over LPB. The question is whether those powers served a documented estate interest or functionally removed an obstacle confronting the adverse perimeter.
If a material conflict/independence breakpoint predated that intervention, the legal consequence for each later act must be analysed separately rather than presumed.
8. L0–L6 evidential scale
| Level | Meaning | What it still does not prove |
|---|---|---|
| L0 | Loyal/neutral explanation is documented and sufficient. | No basis for an alignment inference. |
| L1 | Isolated adverse effect. | Conflict, agency or intent. |
| L2 | Repeated adverse effects with the same beneficiary perimeter. | Agreement or representation. |
| L3 | Conflict or independence warning signs requiring explanation/safeguards. | Knowing implementation of another party's objectives. |
| L4 | Strong functional alignment: a pattern difficult to reconcile with estate interest. | Mandate, consideration or common agreement. |
| L5 | Functional-agency hypothesis: evidence of knowing implementation of adverse objectives using administrator powers. | It is not yet a formal mandate or criminal agreement. |
| L6 | Direct concerted-action evidence: instructions, representation, agreement, consideration, common planning or knowing coordination. | Any criminal classification still requires its own constituent elements. |
9. The court has a supervision question too
At what point, if any, did administrator independence cease to be a premise that could safely be assumed and become a fact requiring court verification through contrast, orders for information, abstention, replacement/separation or enhanced supervision?
Knowledge held by the administrator is not automatically attributed to the judge. The reconstruction must prove what entered the court file, what was reported, what risk was objectively verifiable and what control measure followed.
10. Consequences if a breakpoint is proved
There is no single consequence. Each act must be classified by legal nature, right-holder and forum. The review must test conflict/loss of independence, duty breach, separation, lack or excess of authority, invalidity/ineffectiveness/unopposability where available, rescission/reversal, patrimonial liability, restitution, unjust enrichment, accounting, material indefension, restoration of lost positions and criminal relevance where the elements exist.
For HNT, MYND, RICPE, RIC, incentives or other later parties, the issue is downstream dependency: which later position depends legally on an earlier act and which survives on an independent title, good-faith protection, registration or other legal basis.
11. P0 evidence capable of moving the level
- all administrator↔Community/Molina/Monte Lanza communications 2012–2018;
- first administrator↔CAM contact and first CAM knowledge of predecessor disputes;
- complete Community debt/vote/accounting reconciliation and administrator treatment;
- security, keys, access, works and authorisation chain;
- the PP 1041 withdrawal pleading and internal instruction chain;
- the authority chain for later tanteo/retracto workstreams;
- contemporaneous estate-benefit analysis for each decision benefiting an adverse perimeter;
- conflict disclosures, abstentions, recusals and judicial supervision;
- communications around the 2017 credit acquisition, June 2018 and 2020–22 adjudication;
- evidence distinguishing coincidence/deference/negligence from knowing implementation and concerted action.
Control conclusion: the strongest proposition presently fit for publication is not “the administrator was CAM's agent.” It is: there is a unitary forensic question whether powers entrusted to the insolvency administration for LPB ceased, at some point, to serve the debtor/estate independently and began functioning as a mechanism implementing objectives of a pre-existing adverse perimeter and its possible economic successor. The record must identify any breakpoint and its act-specific consequences.