1. Legal Framework - LEC

Basic Rule - Preclusion: Art. 264-272 LEC

"We must provide, together with the lawsuit and the other part with its response to it, the documents that support the respective filings, so as not to be untimely: article 265.1 and 270 LEC."

• Art. 265 LEC: What must be filed with claim/defence: foundational documents, constitutive of right.
• Art. 270 LEC: Exception - late documents allowed only if:
  a) dated after claim/response, or
  b) you prove you could not obtain before despite diligence, or
  c) new facts (hecho nuevo) under Art. 286 LEC.
  In practice Judges are extremely strict.

Art. 268 LEC - Private Documents: Manner of presentation of private documents - original or authenticated copy. Simple photocopy is allowed but has no probative value if challenged.

Art. 273-280 LEC - Electronic filing: Through LexNet.

2. Value of Documentary Evidence

Art. 317 and 319 LEC - Public Documents:

"Public documents... shall product full proof of facts"

Public documents are: notarial deeds (escritura pública), judicial records, certifications from Bank of Spain, CNMV. Art. 319 LEC gives them prueba plena - full proof - unless falsehood is proved via querella de falsedad.

Art. 326 LEC - Private Documents:

"extends the same effect provided for public documents to private ones where authenticity is not contested"

In financial litigation, contracts, bank orders, extractos are private documents. If authenticity is challenged, they are valued by sana crítica - rules of sound judgment Art. 326 LEC. Printout of email can be considered documentary evidence - its value will be assessed by rules of sound judgment Art. 326 LEC.

Art. 217 LEC - Burden of Proof:

Art. 217 LEC sets out general principles of allocation of burden of proof

• Claimant proves facts constituting his claim.
• Defendant proves facts that prevent, extinguish or weaken.
• Crucial nuance for banks: Art. 217.7 LEC - availability and ease of evidence principle - disponibilidad y facilidad probatoria. Bank has custody of contract, MiFID test, recording. If bank does not produce, adverse inference.

Art. 328 and 330 LEC - Exhibition Request:
There is no discovery, but only a limited and specific duty to exhibit documents

You can request court order other party to exhibit specific document that you do not have. You must submit simple copy or indicate content as accurately as possible.

If unjustified refusal:

• Court may attribute probative value to your copy, or
• Order forced bringing of documents.

This is vital in financial cases: client requests contrato de compra de preferentes, test MiFID, grabación telefónica under Art. 328. If bank refuses, Art. 329 LEC adverse inference.

Third parties - Art. 330 LEC - CNMV, Banco de España, Iberclear can be ordered to exhibit.

3. Rules Specific to Financial Litigation

A. Double Transparency Control - Product Complexity

Created by Supreme Court case law, not LEC.

For banking product to be valid, bank must prove:

1. Documentary transparency (control de inclusión) - clause is in contract and client signed.
2. Material transparency (comprensibilidad real) - bank proved it explained economic burden and risks, with pre-contractual documentation.

Bank bears burden to produce:

• FIPER / FEIN, binding offer
• MiFID test - test de conveniencia e idoneidad (Art. 213-214 LMV)
• Documento de información previa
• Simulaciones de escenarios

If not produced, clause is abusive.

B. Electronic Evidence in Financial Litigation

Law 6/2020 electronic signature and Art. 326 bis LEC:

Electronic documents are documentary evidence. But if challenged, need pericial informática.

In financial litigation:

• WhatsApp where banker offered product -> valid as documentary, but needs hash authentication
• Email with order to buy swaps -> considered documentary
• Bank's internal recording (obligatory under MiFID II Art. 16.7) -> bank must produce original support. Printout without metadata = weak.

4. Key Case Law

1. Cláusulas Suelo - STS Pleno 241/2013, 9 May 2013 - The landmark

Facts: Thousands of mortgage holders with floor clause that said variable Euribor but never below 3%. Banks argued clause was clear.

Supreme Court: Declared floor clauses abusive when there is lack of transparency. Establishes doble control de transparencia. Mere documentary transparency not enough. Bank must prove it made client understand real cost.

Doctrine: For mass financial contracts, notarial deed does NOT cure lack of transparency.

Result: Led to CJEU C-154/15 Gutiérrez Naranjo - retroactive nullity full refund.

2. IRPH - STS 669/2017 of 14 Dec 2017 and STS 17 Nov 2017

"The clause that references the mortgage loan interest rate to the IRPH is a clause that defines the main object of the contract, and is subject to a double transparency control, in the same sense as was established to control the transparency of mortgage floor clauses, since the famous ruling of Tribunal Supremo, dated May 9, 2013"

Bank reference to official index IRPH does NOT automatically mean transparent. Supreme Court 2017 sided with banks initially, but CJEU C-125/18 March 2020 reversed: bank must provide evolution of IRPH and explain it is more expensive than Euribor. Burden on bank to document information.

3. Preferentes and Subordinated - STS 840/2013, STS 20 Jan 2014 and STS 17 April 2018

In financial sale of complex products to retail, there is presumption of error vicio if bank does not produce MiFID suitability test.

Supreme Court: Bank must produce signed test de conveniencia. If not, error excusable and contract void under Art. 1266 CC.

4. Bankia IPO - STS Pleno 23/2016, 3 Feb 2016 (Bankia case)

Documentary evidence: Prospectus registered at CNMV is public document with full proof under Art. 319 LEC. Investors proved error using accounting documents that showed false accounts. Supreme Court accepted that documentary evidence of financial statements vs prospectus was enough for annulment of share purchase for error.

5. Swaps / IRS - STS 560/2015, 30 Oct 2015

Banks tried to defend with clause "client declares he is not advised". Supreme Court: That documentary clause is mere formula and has no value if bank does not produce evidence of real pre-contractual information meeting (minutes, risk disclosure). This is application of Art. 217.7 ease of proof.

6. CJEU - Aziz C-415/11 and SPV - Transparency for Documentary Enforcement

Spanish mortgage enforcement via proceso monitorio requires documentary evidence of debt: invoices, delivery notes, certificates, or any document signed by debtor. CJEU said judge must ex officio review abusive nature even if documentary proof looks perfect.

5. Practical Checklist for Financial Litigation in Spain

For Plaintiff Investor:

1. File with demand: contrato, orden de compra, extractos showing charge, reclamación previa al Banco de España, MiFID if you have it.
2. Simultaneously file solicitud de exhibición documental Art. 328 LEC: request bank to bring: expediente completo, test MiFID, grabación, comunicaciones CNMV.
3. If electronic proof (email from banker): provide with hash, and offer pericial at same time.

For Bank Defendant:

You must file FEIN, FIPER, binding offer, test, product sheet, recordings within 20 days of response. Late filing = inadmissible.