Legal tip 806. NEW! European Law on abusive clauses
31 July 2012
Posted at 14:09 Comments (0)
Recent Court decission by the Court of Justice of the European Union 14.6.2012 (as. 618/2010) states that, according to provision 6.1 of the Directive 93/13, on abusive clauses, these
" will not be obligatory for the consumer" and that the contract including them
" will still be obligatory in same terms if this can subsist without the abusive clauses"
According to this, national Judges can declare clausesas null and void but they cannot modify, integrate or substitute them.
The contract will be kept without no other modification that the supression of the abusive clause/s, as far as, applying national Law, the contract can subsist without it/them.
This doctrine is clearly applicable for null and void clauses where all paid amounts are kept by developers after breach by Consumers as a penalty in off plan purchases. There is national Law, Law 57/68, which establishes the penalty for breaches in these cases: legal interests: (4-5% yearly).
This is what we have been deffending with more or less results, depending on jurisdictions along these years.
Such an awesome new!
"Playa de Bolonia, Tarifa, Cadiz", Tarifa, Cadiz, South of Spain, by Chodaboy, at flickr.com
Legal tip 805. Law 57/68 and creditors meeting II. Eurohouse case
26 July 2012
Posted at 12:58 Comments (0)
We have received today news about the failure of the Eurohouse creditor´s meeting. It was expected. Creditor´smeetings are not, as we have said repeteadly, (i.e.- posts 493, 747) the solution for your claims regarding off plan puchases.
We, unfortunatedly, expect some other creditor´s meeting to fail within the following months/ year. So implement actions against financial institutions out of Law 57/68 as these are the most effective solutions.
Any good lawyer in Spain will be able to agree and work on this. We know there are many already doing an excellent job.
Let´s keep fighting for balance and restoration,
"Hotel Hurricane, Tarifa, Cadiz", Tarifa, Cadiz, South of Spain, by Chodaboy, at flickr.com
Legal tip 804. Appeal by Cam on Keith Rule´s case
19 July 2012
Posted at 15:07 Comments (12)
PRESS RELEASE - CAM BANK APPEAL
19 July 2012 @ 13:34
PRESS / MEDIA RELEASE - FOR IMMEDIATE RELEASE
FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH DEVELOPER, CLEYTON GES SL
APPEAL SUBMITTED BY BANCO CAM
BANCO CAM (SabadellCAM) FILES AN APPEAL AGAINST THE FIRST INSTANCE COURT JUDGMENT WHICH SENTENCED IT TO REPAY 1.5 MILLION EUROS OF PURCHASERS DEPOSITS AT FINCA PARCS
FINCA PARCS ACTION GROUP – TIMELINE OF THE LAWSUIT
● No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million Euros
● Lawsuit against CAM Bank & developer Cleyton GES SL filed in February 2011
● First Instance Court Preliminary Hearing held on 12 January 2012
● Trial held on Monday 21 May 2012 & Tuesday 22 May 2012
● Judgment released in favour of Finca Parcs Action Group on Friday 8 June 2012
● CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5
million Euros to the buyers with the addition of legal interest and costs
● CAM Bank appeals the First Instance Court Judgment
MEMBERS OF THE FINCA PARCS ACTION GROUP OUTSIDE THE FIRST INSTANCE COURT AND CAM BANK IN HELLÍN –MAY 2012
CAM BANK APPEAL
CAM Bank, recently rebranded as SabadellCAM, has filed an appeal against the Judgment of the First Instance Court in Hellín which sentenced it along with the developer Cleyton GES SL to refund buyers deposits in the case of the Las Higuericas Finca Parcs development near Murcia, Spain.
In the First Instance Judgment CAM Bank was sentenced, jointly and severally, with Cleyton GES SL to refund almost 1.5 million Euros plus interest and costs relating to 55 sales contracts for 47 members of the Finca Parcs Action Group.
The deadline for the submission of an appeal and payment of the deposits to the Court was Tuesday 10 July 2012 and the CAM Bank Appeal was dated 9 July.
The developer, Cleyton GES SL, did not appeal the First Instance Court Judgment.
RESPONSE TO THE APPEAL
The Appeal filed by CAM Bank was admitted into the Court system on 13 July and the Finca Parcs Action Group now has 10 working days to file their opposition to the appeal.
Jaime de Castro, Lawyer for the Finca Parcs Action Group, expects a favourable decision from the Albacete Appeal Court considering “the strength of the First Instance Judgment against CAM Bank and the available Case Law relating to Banks liabilities and obligations according to Spanish Law, LEY 57/1968”
PAYMENT OF 1.5 MILLION EUROS
De Castro also announced that payment of 1,494,710 Euros had not been made to the Court by either defendant; therefore he has now “requested the provisional execution of the Judgment while the appeal process continues”.
As for the timescales for reaching a Judgment in the Appeal, De Castro said that the Albacete Appeal Court normally resolves these cases in a reasonable time, which can be between two months and one year depending on the characteristics of each case.
Throughout the trial in May, CAM Bank maintained it was not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.
MISMANAGEMENT, NEGLIGENCE & MALPRACTICE
However, regarding the involvement of CAM Bank, which claimed it has no relationship with the buyers, the judgment of the First Instance Court states that:
“The truth is that CAM knew that the payments made by buyers into accounts at their branches were on account of real estate purchases and CAM showed absolute disregard to the obligations imposed on financial institutions by LEY 57/1968 and this behaviour can be described as banking malpractice. It is clear the off-plan deposits were used in a manner contrary to the requirements of Spanish Law, LEY 57/1968.
We must not forget that the obligation to deposit the amounts advanced to an account opened specifically for that purpose is that of the financial institution as not only does it receive the premium of the guarantees but also benefits by way of profit from the project”
CAM Bank was taken over by the Bank of Spain in July 2011 and then sold to Banco Sabadell for One Euro at the end of 2011. The report produced for the Bank of Spain by the FROB described the many irregularities committed by the former CAM managers, especially the reckless real estate lending and the granting of annuities and pensions to senior management.
In March 2011 CAM reported profits of 38.9 million Euros, however just 3 months later its accounts showed losses of 1,136 million Euros.
In 2011 the Bank of Spain described CAM as ‘Scandalous’ and called the Bank ‘The Worst of The Worst’.
The CAM senior managers to whom the Finca Parcs Action Group took their complaint in 2009 are currently appearing in the High Court accused of committing corporate crime, price manipulation, embezzlement, fraud and misappropriation.
Last week CAM Bank was liquidated after 137 years as a Savings Bank (Caja) and the CAM business is now incorporated under the Banco Sabadell brand as SabadellCAM.
APPEAL WAS EXPECTED
Keith Rule, coordinator of the Finca Parcs Action Group said:
“We expected an appeal from CAM and were therefore prepared to respond accordingly. We are in a good position with a high profile case and a very strong First Instance Judgment against both defendants.
Our fight is not yet over; this is just another hurdle that CAM is putting in our way on the long road to Justice. However, we remain positive and I believe we have one of the strongest cases of its type – that of buyers without Bank Guarantees.
The First Instance Judgment was a landmark ruling and therefore the result of the appeal will be eagerly awaited by many thousands of buyers of off-plan property in Spain.
It is clear from the First Instance Judgment that Banks do have liabilities and obligations according to Spanish Law, LEY 57/1968. This law was introduced in the public interest in 1968 specifically to protect purchasers’ deposits when purchasing off-plan properties in Spain. It was even strengthened by the Building Act of 1999 but has been largely ignored by the developers and Banks over the past decade.
If the Law had been adhered to and properly enforced during the real estate boom then the Banks would not have lent so recklessly to builders and developers as they would have been restricted by the liabilities imposed on them by LEY 57/1968.
Let’s hope that many other Lawyers now see that the Courts do recognise that in certain circumstances Banks do have liabilities and obligations according to LEY 57/1968”
BBC RADIO 4 INTERVIEW
Keith Rule, coordinator of the Finca Parcs Action Group was interviewed by Radio 4 on Wednesday 11 July. You can listen to that interview on the link below:
"Playa de Barbate", Barbate, Cádiz, South of Spain, by woto at flickr.com
Legal tip 803. Law 57/68 and creditors meeting
18 July 2012
Posted at 17:42 Comments (6)
Regardless of what the creditors meeting is offering to you,regardless you voted yes or not to the Convenio, rights contained in Law 57/68 are imperative and inalienable. As a matter of public order.
"Algeciras. Estrecho de Gibraltar", Algeciras, Cadiz, South of Spain, by woto, at flickr.com
Legal tip 802. Buyers
18 July 2012
Posted at 07:09 Comments (0)
Few, timid buyers starting to take advantage of the extremely favourable conditions of the market these days.
Yesterday, a client os us buying in Murcia with a 60% reduction on 2007 price.
Who is next?
"Barco en un andamio", Punta Carnero, Algeciras, Cadiz, South of Spain, by woto, at flickr.com
Legal tip 801. Siesta time
12 July 2012
Posted at 17:23 Comments (1)
I am always so happy when I receive a thanks email from readers of my blog .
It really is me who needs to give thanks to you all as this blog makes one of the dreams I have from childhood: to write and help people with my writings. Yes, I always try my posts to contribute in a simple and accessible way to make good:bring hope, positive sense of life among other aspects..... It would not make sense to me otherwise. Becuase it is the content and the mission which matters, more than the form. I do not care too scrupuluousl ( as you all already know) about a perfect use of the English language. And you... so graciously accept this!
So, thanks from very deep inside me.
I am still at Zahara de los Atunes. Children and husband are enjoying sun and water at Doña Lola hotel´s pool and I take the siesta time as a chance to check emails and write a bit to you.
For your enjoyment today, these two activities: TorreTavira in Cádiz and A Campo Abierto in Medina Sidonia, both, of course, in Costa de la Luz.
I was enjoying my conversation with a young South African girl, Bridget, working as an au-pair with some kids here at the town. She was mentioning to me how she was discovering the richness of the spanish family and how caring we are. Yes, it is much in the essence of our society. Zahara de los Atunes, for instance is a small town composed by families which interact, mingle and know each other.
We are starting, hopefully in September, a collaboration with a Spanish company that tries to populate and settle people in little, low-populated towns in Spain, helping them even to find a job or create a company. We will tell you more as the project is more settled.
Anyhow.... thanks again to you all. Indeed.
"durmiendo la siesta", Spain, by claudiolobos, at flickr,com
Legal tip 800. Keith Rule on BBC
12 July 2012
Posted at 16:48 Comments (2)
As always, accurate and cutting Rule:
You can listen to the broadcast version of the interview regarding the Finca Parcs case on this link below. Just click on ‘Listen Now’. It starts at 12min 30sec and finishes at around 20min.
Victories like this one, which promotes adequate and healthy rules and control over financial institutions need to be multiplied and promoted... for the good and balance of society.
Good for Keith Rule!
"Hotel Reúma", Alhambra - Granada, South of Spain, by Landahlauts, at flickr.com
Legal tip 799. Three good reasons to post while on vacations
06 July 2012
Posted at 18:54 Comments (2)
I am currently with the family in Zahara de los Atunes, as every year.
Pace is slow and we are enjoying simple things in life. I have been thinking of you these days and whether if writing normal legal posts as the rest of the year or, otherwise, to write a more special type of things during the summer break.
Firstly, for those of you who still do not know Zahara, I highly recommend you to come over. You can feel more Spain than in other coastal areas and nature, traditions, idiosincrasy... is vividly felt at every step. Whale watching, horseriding at the beach, mule rides through natural park, kite surf, contemporary art and nature, trekking, mountain bike, try dives, fun diving, kayak, beach games.... are also among the sports and cultural offers of the area.
Best tunna fish of the world of course! Japanese come over here every year for huge purchases of this specie.
Simple and near people wiling you to enjoy and smile at every single corner.
In the middle of all these treasures, at the papers, so many apparently negative and depressing news. I am determined to the positive interpretation of the same. It is a era of changes. Just the fact that Banks and ultra liberal capitalist systems are being put into questions, and before Judges is a reason for big celebrations. We need to go through the measles but, rooted in rights once declared as pivotal for all of us, human dignity crowning them, I am confident we will find the solution.
Among the statistical and macroeconomical news, three pieces with great soul and value for this July:
1. Antonio Hernández Gil, dean of Lawyers in Madrid, has recently written in ABC on the importance of logics of donations, gifts and solidarity within the mercantilism of our societies. For the promotion and consolidation of values expressed in our constitution: social and democratic estate which higher values are freedom, justice and equality.
The article made me think on one of my habitual matters: culture of work. A clear understanding of equality and equal oportunities is necessary so we will not mistake equal opportunities and equalitarism. Equal oportunities needs to be given to all people. Different wills and efforts will finally work them out differently. The value of the product is what it will be prized.
2. Sir John Elliott, who, also at ABC stated yesterday nice and truthful things such as:
"There is a very well educated and interesting new generation in Spain, especially among women"
" There is a crisis of values. Specially within the financial sector. Morality and sense of civic actitude are lost. They are out of reality and live in a virtual world. Civic sense is missed"
and thirdly and finally:
3. Bank of Spain has recently prohibitted "small letters" in financial products as part of a new actitude and part of a transparency code which will govern relationships between Banks and consumers".Let´s hope for a great development of the actitude and the code
I am going to the pool with kids and husband now
See you in a moment
"006345 - Zahara de los Atunes", Zahara, Cádiz, South of Spain, by M.Peinado, at flickr.com
"006344 - Zahara de los Atunes", Zahara, Cádiz, South of Spain, by M.Peinado, at flickr.com
Note: Almost in the middle of the picture, but to the left side, on the sea, you can see "The Almadraba" (the place where some fishing boats are fishing many tuna).In the spotlight, you can see the area named Atlanterra --where you can find on all developments; and, to the right and top of the picture, but beside of the beach, you can find the little village of Zahara de los Atunes.If you need to go to the village, you have take a little road till Zahara; but if you just want to go to Atlanterra, you can take a new road almost before reaching the village to the left side.Thn, you will reach Atlanterra directly. Atlanterra is around 3,5 Kms from the village.
Legal tip 798. Europeans buying property is Spain jumped 12.3% in 2011
01 July 2012
Posted at 12:57 Comments (0)
Great report by Mark Stucklin at Spanish Property Insight
Posted on June 30, 2012 by Mark
Filed Under Market reports | Leave a Comment
In a bit of good news the latest figures from Spain’s property registry reveals that the number of Europeans buying holiday homes in Spain jumped 12.3pc in 2011 compared to the year before, and to 6pc of the overall market (chart above). British buyers are declining but still dominant.
I have finally had a chance to analyse the 2011 annual report on the housing market from the property registers (registradores.org), which I briefly mentioned a while ago just to report that the overall Spanish housing market shrank last year by 17pc, from 445,885 in 2010, to 370,204 home sales last year.
The analysis shows that, although the domestic demand slumped 18pc in the face of declining output and rising unemployment, European demand for holiday homes in Spain surged 12.3p lead by big jumps in the number of French, Russian, and Scandinavian buyers.
It appears that Europeans with stronger economies than Spain are taking advantage of lower Spanish property prices, with the exception of the British and the Dutch. The Irish have their own problems. The following table shows sales by nationality in 2010 and 2011.
British buyers demand but not out
The number of British buyers have been declining for several years but they are still the biggest group of buyers by far. As a percentage of European demand they are still more than a quarter of the market, albeit down from something like 70pc of the market in the boom years.
Unfortunately, foreign demand is not yet strong enough to sort out the glut of homes on the Spanish coast. There could be as many as 400,000 new homes on the coast built with holiday-home buyers in mind. At this rate it will take 20 years to sell them all to foreigners.
You can downlaod the whole 2011 report on the housing and mortgage market from the Registrars here (pdf in Spanish)
"Feria de Málaga", Málaga, South of Spain, by Landahlauts, at flickr.com
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