INSOLVENCY 36/2012 · CLASSIFICATION · PRIOR KNOWLEDGE
What the Court already knew before Judgment 163/2023
The record no longer permits LPB's attempts to rescue the company, pay creditors, preserve the hotel business and recover defensive capacity to be treated as an explanation constructed after the culpable-classification judgment. There is proof of a formal viability/payment route filed with the Court in 2017 and a contemporaneous professional account of a direct June 2018 meeting with the judge concerning a financed exit, hotel operator and defence against private actors.
TWO LEVELS OF KNOWLEDGE
Proved procedural notice and documented personal notice
Composition proposal + viability plan + payment plan formally entered Insolvency 36/2012
LexNET acknowledgement 1201710147863429, sent by procuradora María del Pilar García Coello to Mercantile Court No. 1 of Las Palmas in Insolvency 36/2012, identifies the principal filing as presentation of a composition proposal and lists the notarised proposal, viability plan and corporate documents as annexes. The reproduced principal pleading says LPB presents the proposal together with a viability plan and payment plan.
The signed and notarised proposal states that its objectives were to overcome LPB's financial crisis, preserve business activity and satisfy creditors. This proves formal receipt by the court institution; it does not, by itself, prove that the judge personally read every annex.
A concrete hotel operator and a concrete refurbishment programme
A signed ONA proposal for Sun Park contemplated a long-term management relationship, operation of 220 units/common areas and investment in apartment/common-area refurbishment to reach ONA standards and projected commercial performance. It is contemporaneous evidence that preserving and improving the hotel was tied to a real operator and business programme.
Refurbishment programme subject to validation by the new operator
The May 2018 commercial presentation describes reforms planned for 2018–2019 and states that changes were subject to validation by the new hotel operator. It independently reinforces a strategy of improvement and operation rather than simple abandonment.
Up to €15.5m, with €13.84m allocated to insolvency/post-petition debt
The financing material reviewed contemplated up to €15.5 million, with €13.84 million expressly allocated to cancelling insolvency and post-petition debt, plus project/CAPEX uses. Conditions included judicial authorisation/consent, an updated debt certificate from the insolvency administrator and lender-committee approval.
The reviewed copy has blank signature boxes. Por Derecho therefore describes it as contemporaneous financing structure/terms, not as a finally executed loan commitment.
The judge was personally informed, according to the lawyer's same-day report
Daniel Irigoyen Fujiwara emailed on the night of 13 June 2018 reporting his meeting with the judge that morning. His account says he explained that he had been tasked with resolving the matter by coordinating the fund, the shareholder/company and the hotel chain; that the preferred route was conclusion of the insolvency by paying the debt; that the asset could support that payment; and that conclusion would restore LPB's legal autonomy, control of the apartments for hotel operation and ability to defend itself or bring claims against the minority and other responsible actors.
The account attributes a substantive response to the judge: allowing the route to be explored, asking for the conclusion application immediately, obtaining an updated debt figure from the insolvency administrator and keeping the improved-offer route alive in the meantime so CAM's contemplated award would not become irreversible. The communication also frames protective measures in terms of effective judicial protection and the survival of the company and its business.
This is a contemporaneous professional account of an oral meeting, not a verbatim judicial transcript. Its significance is strengthened by the operator, refurbishment and financing documents existing at the same time.
NOT A SINGLE ATTEMPT
The exit and preservation strategy continued
Later correspondence records further work to obtain the exact debt figure “to exit the insolvency”, prepare requests under former Article 176 of the Insolvency Act and maintain financing, operator and operating alternatives. A developed application dated 8 February 2019 was located as a working copy, but the copy reviewed bears no signature or visible LexNET/court filing acknowledgement. Por Derecho therefore keeps open the question of which later conclusion applications were actually filed.
The 2017 discovery closes one specific point: a formal composition/viability/payment route was transmitted to the Court. It does not turn every later Article 176 draft into a filed pleading. Strategy document, signed document and actually filed document remain separate categories.
WHY THIS MATTERS TO THE CLASSIFICATION
Judgment 163/2023 must be read against what the court had already received and what the judge had reportedly been told personally
| Later issue | Earlier relevant evidence | Significance |
|---|---|---|
| Broad aggravation/passivity narrative | 2017 composition/viability/payment plan; financed exit put forward in 2018 | Requires assessment of the full course of conduct, not an assumption of indifference to escaping insolvency. |
| Non-collaboration | Approach to judge and insolvency administrator to update debt and structure payment/conclusion | Material context for scope, causation and intent; it does not prove compliance with every specific request. |
| Passivity concerning the business | ONA, 2018–19 refurbishment, financing and recovery of control for operation | Contradicts a categorical characterisation that there were no efforts to preserve/improve productive activity. |
| Rent/operation | Control conflict, operator transition and refurbishment plan | Potentially relevant to practical control, causation and intent, but does not automatically extinguish a specific collection obligation. |
The institutional point
This prior record materially reduces the explanation that the Court simply did not know LPB was trying to pay, preserve activity, introduce financing/operator support and regain autonomy to defend itself against private actors.
That makes scrutiny of any later finding incompatible with those facts more exacting, including whether the judgment confronted them adequately. It does not, by itself, turn an adverse judgment into a criminal offence.
Article 446 of the Spanish Criminal Code requires, for judicial prevarication, an unjust judgment/resolution issued knowingly. Supreme Court case law requires objective, legally unsustainable/arbitrary injustice plus knowledge of that injustice; legal error, contested reasoning or an appealable ruling is not enough by itself. The material collected here is especially relevant to prior knowledge; the remaining elements require separate proof.
Legal framework: Insolvency Act 22/2003, former Article 176.1.4; Criminal Code Article 446; Supreme Court jurisprudence on judicial prevarication.
EVIDENCE STATUS
What is proved and what remains open
Documentarily proved: 2017 LexNET receipt of composition/viability/payment materials; ONA operator/refurbishment proposal; June 2018 financing structure; contemporaneous Irigoyen email reporting the direct judicial meeting; Judgment 163/2023 and appeal.
Contemporaneous account, not transcript: the statements and reactions attributed to the judge on 13 June 2018.
Still to complete: filing receipts/docket entries for the 2018–2019 conclusion requests; proof of which commercial documents were themselves filed; an immediately subsequent court order that independently corroborates each reported judicial direction; and the complete evidence-before-the-court matrix for each adverse ground in Judgment 163/2023.