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El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche.
www.costaluzlawyers.es

Legal tip 820. Old claimers, new buyers
30 August 2012

 We are seeing with joy how some of our old sucessful claimers, are now turning to buy property  in Spain taking advantage of the good conditions for purchasers now. ( Euribor, reduced VAT, reduced prices)

 

 
 
Los Alcornales Vista
"Los Alcornales Vista", Out of Jimena, Cadiz, South of Spain, by Jess and Colin, at flickr.com
 
 


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Legal tip 819. Connectors, givers and openers
27 August 2012

This is what in the private work and also in the public sector is necessary to go ahead....

Workers, enterpreneurs and leaders need to pass from  the self-centered  paradigm of last decades to the new ways, mainly led by the basic features of the global network that internet is, and which have as main features:

Connection, openness, sharing, generosity, giving, co-working...

The opposite way leads to more retrocession and crisis.

Maria

Teba Castle, Morning

"Teba Castle, Morning", Teba, Málaga, South-East of Spain, by Jess and Colin, at flickr.com



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Legal tip 818. Russian interested on your properties
27 August 2012

Some related companies to CostaLuz are in contact with Russian people interested on buying in Spain.

I think this might be interesting for those of you who cannot keep paying mortgages on your properties, as a parallell effort to dation. 

Of course, feel free to contact us if you are interested on this.

Kindest regards,

Maria

Jimena de la Frontera

"Jimena de la Frontera", Cádiz, South of Spain, by Jess and Colin, at flickr.com



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Legal tip 817. The restore action. A revision
23 August 2012

The restore action post was written in 2009. Some amendments made by September 2010 (italic)

At present many of those claims need to be reconducted against related Banks or Insurance Companies and the deals to be made with them.

It is so good that money was not lost along the way and clients can still give value to their deposits due to the existence of Law 57/68 and developing related Case Law.

There are also cases where developers are offering same properties to same clients even applying a reduction on the outstanding mortgage.

They desperately need buyers. We, as spaniards, need you too. Come!

Legal tip 138. The restore action 

11 September 2009 @ 10:24 

If you are in the middle of an off-plan contract cancellation action or are thinking of claiming.

There are many things to be done depending on how the finantial/economic situation will develope in the coming months. ( + possibilities of your action against the financial institution you paid your deposit into, for more info on this, please click on here)

First thing to bear in mind is that this is going to be a buyer´s market for many years to come, and with that no-pressure by sellers and buyers running the show....

-You can buy at a good price and better interest rates

-You can rent with an option to purchase, fixing the price in advance.

-If you are pursuing cancellation (action that can also be called: "restore action": it puts balance in the contract after an abusive old agreement ), you have got several  finantial assets:

-A potential credit against a developer for the refund of x plus legal interests.

- Buying rights on the property in between (the developer cannot sell to anyone else till the contract is effectively cancelled and your money refunded).

- A better position within the creditor´s meeting (if that ever happened)

So... it is not just a matter of contract cancellation at whatever cost, it is a matter of re-establishment of balance. Many of the clauses of many of the contracts I have seen during the last 4 years and a half, which were drafted during the period 2003-2009 are are corrosively abusive. Repugnant.

They were drafted with no respect at all towards the agreed terms od developers, Ministries, consumers… under the National Institute for Consumers in 2001.

I am enlisting some of the games you can play with the above mentioned assets at hand ( but I am not a finances expert.... so please, make your contributions! ):

- You can negotiate a great price reduction with the developer along the judicial proceeding and complete on the property at a much reduced price and with much reduced interest rates

(some clients of us are using this formula now)

- You can sell your buying rights to someone else and withdraw  the claim,  negotiate with both developer and new buyer on a reduced price and the payment of the judicial costs ( it seems German and Norwegian have already some money to look for some sun).( Almost all developers are now ready for settlements of this nature)

It is all a matter of some fluctuants, not rigid factors such as:

- Evolution of the market

- Flexibility of developer

This factor seems to be clearly determined by the decisions of the finantial institutions regarding their own property stock.

but the possibilities are there ( together with many other ones, I am sure)

that.... together with the awesome sensation of being back in control of the situation  ( a new contract agreement)  or at least of a great deal of it.

What do you think?

 Could we all together transform the current situation in a win-win scheme? Please send your ideas.

 

 Maria L. Castro

Beach "Fuente del Gallo" (Conil de la Frontera, Cádiz), by Luis López-Cortijo

 



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Legal tip 816. Hand keys back to Bank II
22 August 2012

 When making calculations for a dation to work out with much guarantees, it is not the MARKET VALUE what you need to consider but:

1.- The outstanding mortgage debt you have got with the Bank. ( it is the price the Bank is actually paying for the house when a dation is accepted)

2.- 60% of a value ( AUCTION VALUE) which is contained in your mortgage deed, and which includes principal+interests+legal costs. This is the value that Law establishes as minimum for the Banks to value repossessed houses at.

 

So, if both figures are near, or better said, debt is not much higher than that 60%, the try is worth pursuing and the result with be a balanced and fair situation for Bank and you.

We also talked about dations in our yesterday´s post



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Legal tip 815. Free guides for the rest of August
22 August 2012

So you can start September being fully informed!

Click here for freeguides

Cheers!

María

Grazalema

"Grazalema", Cadiz, South of Spain, by copepodo, at flickr.com



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Legal tip 814. Hand keys back to Bank I
21 August 2012

For the buyer: who has been paying a mortgage as long as has been able to and enjoying the house at the same time. If the repayments are making ordinary life impossible, that was not the scenario they took into account  when they bought it. Life is first. If house is killing life.... it is clear house needs to be out. It was an artificial product, bought under artificial circunstances, with artificial funds. Let´s go back to nature and life.

For the developer:  who is selling same properties at much cheaper price, possibly at just the price of that remaining mortgage that the buyer cannot keep paying. Many of the properties arr also  being repossessed by Banks and being sold at lower prices too. They lose nothing with dations.

Banks: Well... they have had all the benefits along these years and now are the first recipients of european aid. These european aids are not intended for their speculative benefits to increase but to alleviate the situation of many of the victims ( PERSONS) of the uncontrolled especulation allowed and promoted by them in the past. Not just spanish banks speculated, many european ones did too with the final product ( off-plan properties) being in Spain. We all made this together. It is not a problem created in Spain.

So.... if you cannot keep paying your mortgage, go to dation and re-start a new, natural life.

Let´s all go back to natural life

"Benamahoma", Grazalema, Cadiz, South of Spain, by Luis López-Cortijo



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Legal tip 813. NEW! Adding Case law for buyers and Law 57/68
17 August 2012

 

 Madrid, Valladolid, Logroño , Hellín, Burgos ( dated February- July 2012)

New Court decisions consolidating the pro-consumer interpretation of Law 57/68, with interesting statements such as:

-      Law 57/68 needs to always be interpreted in favor of consumer/buyer.

-      Formalist interpretation of this Law cannot damage buyers rights

-      Illegalities/ irregularities of developers and guarantors can never damage buyer´s rights

-      Issuing and delivery of Bank Guarantees is obligatory for the guarantor and inalienable right of buyer

-      Banks and developer using Law to avoid Law (fraud of law) can never produce effects. Law intended to be avoided (guarantees of buyers) will become effective by virtue of this principle.

-      Knowing deposits are of off plan buyers and not acting measures established by Law 57/68 is also a banking malpractice

-      A special account is that where money from buyers is received. No formal requisite is necessary for this consideration.

Sierra de Grazalema

"Sierra de Grazalema", Cadiz, South of Spain, by Senderismo Sermar, at flickr.com



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Legal tip 812. Press release. Payment of full amount by Cam Bank
17 August 2012

PRESS RELEASE - PAYMENT OF FULL AMOUNT BY CAM BANK 
10 August 2012 @ 15:04 

PRESS / MEDIA RELEASE - FOR IMMEDIATE RELEASE – 10 AUGUST 2012

 

FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH DEVELOPER, CLEYTON GES SL

LEGAL PROCESS FORCES CAM BANK TO REFUND OFF-PLAN DEPOSITS

 

CAM BANK PAYS FULL AMOUNT OF THE BUYERS DEPOSITS PLUS LEGAL INTEREST AND COSTS TO THE COURT FOLLOWING THE FILING OF A PROVISIONAL ENFORCEMENT ORDER BY FINCA PARCS ACTION GROUP


FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION

  2006 - No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million 
    Euros
  February 2011 - Lawsuit against CAM Bank & developer Cleyton GES SL filed to Court

  12 January 2012 - First Instance Court Preliminary Hearing
  21 & 22 May 2012 - Trial held in First Instance Court - Hellín

  8 June 2012 - Judgment released in favour of Finca Parcs Action Group
  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
  July 2012 - CAM Bank appeals the First Instance Court Judgment
  July 2012 - Finca Parcs Action Group submits Opposition to the CAM Appeal
  July 2012 - Finca Parcs Action Group file Provisional Enforcement Order to the Court
  August 2012 – CAM Bank pays full amount of deposits plus legal interest and costs 
    to the Court
  Appeal to be heard by the Albacete Appeal Court – decision expected within 1 year

PROVISIONAL ENFORCEMENT ORDER

 

Following the Finca Parcs trial in May of this year Spanish property developer Cleyton GES SL and CAM Bank (now SabadellCAM) were convicted jointly and severally by the First Instance Court to repay in full the off-plan deposits paid by members of the Finca Parcs Action Group plus interest and costs.  Cleyton GES SL did not appeal the First Instance Court Judgment; however neither defendant paid the funds to the Court within the time limit set by the Judgment.  Therefore the Finca Parcs Action Group filed a Provisional Enforcement Order with the Court which resulted in CAM paying the full value of the deposits plus the amount tentatively set for interest and costs to the Court.

Keith Rule coordinator of the Finca Parcs Action Group comments: 

“We continue to make progress in this case and it shows that the Provisional Enforcement Order can work in a timely and efficient manner if you are enforcing a judgment against a solvent entity. Our case differs to other similar cases due to the fact that we also included the Bank in our Lawsuit.  We filed our Provisional Enforcement Order with the Court on 18 July, it was admitted and enforced by the Court against both defendants on 19 July and on 1 August CAM paid the full amount to the Court.  In due course the Court will transfer the funds to our Lawyers client account and we will have ‘interim’ possession of our funds pending the result of the Appeal”.

OPPOSITION TO THE CAM BANK APPEAL

Finca Parcs Action Group filed their Opposition to the CAM Bank Appeal on time and the Appeal will now be heard by the Albacete Appeal Court.

Keith explains, “The Appeal is not a physical hearing so we will not be called to appear in person again.  Three magistrates in the Albacete Appeal Court will preside over the Appeal reviewing all the evidence and the first instance Judgment.  Based on the timescales of other appeals in theAlbacete jurisdiction, we expect the appeal decision to be released within one year”.

Jaime de Castro, Lawyer for the Finca Parcs Action Group comments, “After reviewing the Banco CAM appeal and submitting our Opposition to that Appeal, I feel confident of a successful outcome in this case given the strength of the First Instance Judgment against CAM and the available Case Law relating to Banks liabilities and obligations according to Spanish Law, LEY 57/1968”

 

Maria de Castro, Director of Costa Luz Lawyers, one of the two legal teams that have been working on this and other similar cases over the past few years adds, "The success of this appeal will enhance confidence in our judicial and banking systems abroad which have been severely weakened during these years of crisis.  We are confident that the precise interpretation of LEY 57/1968 by the courts will help to encourage future real estate investment by ensuring that these abuses do not occur again"


Despite its actions being described by the First Instance Judge as ‘banking malpractice’ CAM Bank continues to maintain that it is not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.

APPEAL DECISION EAGERLY AWAITED BY OTHER OFF-PLAN VICTIMS

Other buyers of off-plan property who were not issued with the legally required bank guarantees will be awaiting the outcome of this appeal with interest as an Appeal Court decision can be used as a Case Law precedent in other similar cases.

Keith says;     “During the past few years buyers without Bank Guarantees were advised to take legal action only against the developer.  They win the case, but enforcing the judgment proves very difficult as on most occasions the developers have asset stripped, gone missing, declared bankruptcy or entered Administration.

For buyers in that situation it is important their cases are now reviewed by their legal teams to see if they have the necessary evidence required to file a Lawsuit against either the Bank who knowingly accepted the off-plan deposit and failed in its legal obligation to issue or verify the existence of the corresponding Bank Guarantee or against a Bank who may have issued a Generic or Collective Bank Guarantee to the developer”.

 

LICENCE TO BUILD AT LAS HIGUERICAS, FINCA PARCS EXPIRES

The Ayuntamiento de Hellín (Hellín Town Hall) has issued a Resolución de la Adjudicación
del Programa de Actuación Urbanizadora en el sector de Las Higuericas.

The result of this is that Finca Parcs developer Cleyton GES SL has had the contract for the licence to build the Las Higuericas Finca Parcs development cancelled after they failed to complete the urbanisation within the time limit set according to the Contract signed with theTown Hall.

The Town Hall has now claimed the funds under the security bond that was given by Cleyton GES SL at the time of signing the contract
.

Cleyton GES SL abandoned the Las Higuericas Finca Parcs project in May 2009 completing only 10% of the planned 617 detached villas and none of the properties were granted a First Occupation Licence.

CAM Bank (SabadellCAM) as the single largest creditor now owns the properties that were constructed but they or any other developer or promoter cannot continue with the Urbanisation without first submitting a new draft plan to the Town Hall and requesting a new licence.

HUGE FOREST FIRE ALMOST DESTROYS LAS HIGUERICAS, FINCA PARCS

In July a huge forest fire burned out of control for 2 days in the mountains of the Sierra de los Donceles.  The fire came very close to the Las Higuericas Finca Parcs site and although the infrastructure was not affected, much of the forest area at the back of the site was destroyed.

 

Sierra de Grazalema

"Sierra de Grazalema", Cadiz, South of Spain, by Senderismo Sermar, at flickr.com



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Legal tip 811. Lawyers repeating us
16 August 2012

Humility is truth.

We can be proud that same Law Firms who were "skeptical" on our work against Banks using Law 57/68 are doing exactly what we have been doing for a while now and offering their clients low cost actions in order to attract them.

I am not talking about Guadalupe of GM legal experts to whom I have full respect and consideration and who actually  shared with us information and Case Law at the beginning of this fight. She is a great lawyer. Guadalupe please, keep the good work up and please have us available for anything you may need.

I am refereing to other law firms I do not need to mention as you all well already know of. It is not my style to use blogs for fighting against colleagues. This needs to be done at the Bar Associations or Courts, if necessary. 

I wonder how a client can trust same law firm which did not obtain guarantees for them during the conveyancing,  and whose negligence is at the origin of the problem these clients are now and the same lawfirm is trying to solve. Possibly is a gesture of reparation.

Sierra de Grazalema

"Sierra de Gazalema", Cádiz, South of Spain, by Senderismo Sermar, at flickr.com



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Legal tip 810. 15th of August. Feast.
14 August 2012

 Tomorrow is a National Feast day in Spain and my husband´s birthday. You can leave Happy birthdays at his blog. He will be so happy and encouraged with that. Did not have an easy life!

My husband´s blog:http://www.eyeonspain.com/blogs/luislopezcortijo.aspx

The reason of the celebration, as Spain being a historically Catholic country is the Asunción of Mary to Heaven, but all of you, believers and not believers are welcome to join our joy.

For all of you living in my wonderful country: have a great feast day!

Maria 

"Virgin of La Palma"; she is the Patron Saint of Algeciras (Cadiz), South of Spain.

 

Postkarte

"Plaza Alta and the Church of La Palma", Algeciras, Cadiz, South of Spain, by tellmewhat2, at flickr.com

 



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Legal tip 809. Community fees and European Order for Payment
07 August 2012

We recently opposed the treatment of debts to commuity of owners of one of our british clients who was being requested to pay through the  European Order for Payment Procedure . Our arguments have not been opposed by the debt recovery company and the case has been redirected  by the UK Court  to ordinary jurisdiction in England and Wales where we are also opposing jurisdiction.

These matters, are, in our opinion, according to the Horizontal Property Act  and law governing the European Order for Payment to be decided in the Court where the house is located.

We will keep you posted on how this finishes!

Kindest,

Maria

Tarifa 5

"Tarifa 5", Tarifa, Cadiz, South of Spain, by kjelljoran, at flickr.com



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Legal tip 808. People who care
02 August 2012

This is what we meanly have always been in Spain: people who care for other people. This is possibly what has alwas made our country a very attractive place and not such a good one for ultra competitive businesses.

  I saw it very clearly when I was living in the US, my second home-country, to which and to whose people I am eternally grateful. It was in 2001, months before the Towers fell down, among excellent colleagues and mates that, at the same time did not know the meaning of the word solidarity: in literal words.

The experience I relate below is clearly an effect of the ultra-wilde-liberalism these friends had grown in. I understood many things of the culture and my friends behaviour and way of living values when reading this book at the Witherspoon Fellowship: Habits of the Heart. Americans are people who criticise and reinvent themselves for what they believe is better, that is why I believe in them and their vibrant country.

 

Back to Spain and its natural sense of community and caring: this feature of our nation is what our Judges are now showing in many cases when passing Court decissions against Banks. Banks which have followed, during the last decades, an inhumane behaviour , according to the rules of the wild, uncotrolled financial markets. In other words: dominated by the cruel power of money without heart.

 

Great example is last Court Decission passed at the same time we were waiting for Court Decission in Las Higuericas, Finca Parcs, June 2012, two months ago by the Appeal Court of Burgos: a clear punishment on banks for not caring for people´s deposits under law 57/68.

 And it is just an example among many other beautiful ones in Courts. Powerful reasons for celebration as they are a proof of how human beings are very capable of justice and caring for other ones.

 

   Maria

playa-bolonia-tarifa

"playa-bolonia-tarifa", Tarifa, Cadiz, South of Spain, by aferve, at flickr.com



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Legal tip 807. CAM paying FPAG provisionally
01 August 2012

Just posted by Keith Rule on the EOS forum:

UPDATE – BANCO CAM (SabadellCAM) PAYS 1,494,710€ TO THE COURT BANK ACCOUNT

We have just been informed that following the filing of our Provisional Execution/Enforcement Demand on 18 July 2012 in relation to our Lawsuit, Banco CAM has today paid the 1,494,710€ to the Court Bank account. This is the principal amount of the deposits claimed in our Lawsuit. 

Panorámica del Estrecho desde Tarifa, Cádiz

"Panoramica del Estrecho desde Tarifa, Cadiz", Tarifa, Cadiz, South of Spain, by Chodaboy, at flickr.com



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