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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 1224. On how those promises of a Creditor´s meeting can fail
31 October 2014

http://www.eyeonspain.com/blogs/costaluz/7471/legal-tip-805-law-5768-and-creditors-meeting-ii-eurohouse-case.aspx

Below an example of what it has already happened in Eurohouse creditor´s meeting: being liquidated at the end. NO refunds out of that way.

For that reason and mainly because Law 57/68 was created for off plan buyers to be specially protected, and not to have to suffer the burdens of mechanisms like this--creditor´s meetings!!--, for these reasons we never sign any creditors´ meeting agreement.

That is not a solution for our clients.

National Park of Monfragüe, Cáceres, Extremadura, Western Spain, at facebook.com



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Legal tip 1223. Aifos now
31 October 2014

Please report on how today´s meeting for Aifos bankruptcy goes.

We have of course not attended that meeting of today as,  actively being part of this agreement might be seen by some judges, with no legal ground in our opinion, contrary to the exercise of rights out of Law 57/68.

Malaga Courts are being very diligent when obtaining information for our clients when these have been requested through preliminary diligences. The necessary information to bring actions against related financial institutions.

We definitely bet for actions of Law 57/68 for these claims.

You may like to review these old posts:

http://www.eyeonspain.com/blogs/costaluz/5384/legal-tip-493-what-is-happening-with-aifos.aspx

http://www.eyeonspain.com/blogs/costaluz/10159/Legal-tip-940-NEW-Aifos-administrators-provide-information-for-action-against-Bank.aspx

http://www.eyeonspain.com/blogs/costaluz/13099/Legal-tip-1161-Aifos-and-GOOD-for-Malaga-Courts.aspx

http://www.eyeonspain.com/blogs/costaluz/13160/Legal-tip-1166-Aifos%C2%B4s-Bank-Guarantees-and-special-accounts.aspx

Alájar, Huelva, Costa de la Luz, South western Spain, at facebook.com

 

 

 

 

 



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Legal tip 1222. NEW! Case won against Corvera and BANCO MARE NOSTRUM
24 October 2014

Won Court decission communicated to day to another client of us:
 
 Dear Mr XXXXXX  XXXXXXX, 
 
Re: YOUR CASE AGAINST CORVERA GOLF & COUNTRY CLUB S.L. & BANCO MARE NOSTRUM S.A.
PO 1768/2011
 
Please find attached Sentence number 00168/2014 from the First Instance Court No.13 in Murcia.
 
Your case against CORVERA GOLF & COUNTRY CLUB S.L. & BANCO MARE NOSTRUM S.A. has been won.
 
The final paragraphs of the First Instance Sentence delivered on 20 October 2014 state: 
 
“I estimate the Lawsuit filed on behalf of Mr XXXXX XXXXXXX & XXXXX XXXXXXX against CORVERA GOLF & COUNTRY CLUB S.L. & against BANCO MARE NOSTRUM S.A. and declare terminated the Purchase Contract dated 3 November 2007 signed between the plaintiffs and the defendant due to contract breaches by the defendant.  Order the defendant CORVERA GOLF & COUNTRY CLUB S.L. jointly with the guarantor Bank according to their obligations under LEY 57/1968 to return to the plaintiffs the amounts paid on account of the contract price amounting to the sum of 71,010.50 Euros plus interest at the legal rate from the date of the off-plan payments until complete repayment.
 
I must also condemn the defendants to pay the legal costs of this procedure”
 
So the Purchase Contract is cancelled and Corvera Golf & Country Club S.L. and Banco Mare Nostrum S.A. are sentenced jointly to refund the amount of 71,010.50€ plus legal interest from the date you paid your off-plan payments to the developer. 
 
Your costs of the First Instance Proceedings are imposed on the defendants.
 
The convicted defendants have 20 working days from the date of notification of the Sentence, which was 22 October 2014, to comply with the Sentence or to file an Appeal.
 
If an Appeal is filed by the defendants it will be necessary for us to file an Opposition to the Appeal on your behalf.
 
If the defendants fail to comply with the sentence then we will enforce the sentence against them.
 
It is likely that due to its financial situation, Corvera Golf & Country Club S.L. will not comply with the Sentence.  However, as a solvent entity, Banco Mare Nostrum S.A. should pay the amount to which they have been made liable.
 
 
 
Chipiona, Cádiz, Costa de la Luz, South western Spain
 
 
 
 
   

 



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Legal tip 1221. NEW! Action won against BBVA in Herrada del Tollo case
22 October 2014

Just copying recent communication to one of our clients:
 
Re: YOUR CASE AGAINST BANCO BILBAO VIZCAYA ARGENTARIA S.A.
 
 
Please find attached Sentence number 340/2014 from the Provincial Appeal Court of Madrid Section .
 
The Appeal filed by BBVA against the First Instance Sentence has been lost.
 
The final paragraph of the First Instance Sentence delivered on 9 May 2012 stated: 
 
“I estimate the Lawsuit filed on behalf of xxxxxxxxxx & xxxxxxxxxx  against BBVA and I condemn and order the defendant to pay to the plaintiff the sum of 83,445 Euro plus legal interest accrued from 6 August 2010 and condemning the defendant to pay the costs of this procedure”
 
 
So the First Instance Court upheld your Lawsuit and condemned BBVA to refund you the amount of 83,445€ plus legal interest from 6 August 2010.  The costs of the First Instance Procedure were also imposed on BBVA.
 
The final paragraph of the Provincial Appeal Court Sentence delivered on 9 October 2014 states:
 
“We dismiss the appeal made on behalf of BBVA against the First Instance Sentence of 17 January 2013 issued by the Judge of the First Instance Court No. 55 of Madrid in Ordinary Procedure No. 440/2011 and confirm that Sentence with the express imposition of costs on the Appellant Bank”
 
So the Provincial Appeal Court has dismissed the BBVA Appeal and confirmed the First Instance Sentence.  Costs relating to the Appeal are also imposed on BBVA.
 
BBVA has 20 working days from the date of notification of the Sentence, which was 22 October 2014, to comply with the Sentence or to file a Cassation Appeal to the Supreme Court.
 
If a Cassation Appeal is filed by the defendant it will be necessary for us to file an Opposition to the Appeal on your behalf.
 
If the defendant fails to comply with the sentence then we will enforce the sentence against it.
 
GREEEEAAAAAT!!!!
María
 
 

Herrada del Tollo, Alicante, Eastern Spain
   



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Legal tip 1220- Repossession and rental rights II
22 October 2014

As we told you a couple of days ago, we are proposing a Bank who is repossesing one of our UK client´s home in Spain to let her there paying a rent... and open the possibility to sign a  new purchase contract within 3 years.

Contradiction? No, adapting to times.

I will keep you posted on this... it may be a nice solution for some of you too.

María

Chiclana de la Frontera, Cadiz, Costa de la Luz, South western Spain



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Legal tip 1219. Law 57/68- Were you ever called to complete?-Supreme Court says
22 October 2014

That is, in our understanding, the key point for your cancellation/refund rights to be active or not, according to recent Supreme Court decission of last April 2014.

If you were called to complete, did not attend the appointment nor oppose a non completion reason then, Supreme Court considers your own acts tell you just wanted to forget about the investment so your contract is cancelled but no refund is due.

Refining...

Cheers

María 

The Supreme Court in Madrid, Spain

 

 

 



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Legal tip 1218. International Ethic Principles for Online Lawyers
22 October 2014

Reminding principles for the good conduct of Online Lawyers

http://www.ibanet.org/Committees/Divisions/Legal_Practice/Impact_of_OSN_on_LegalPractice/Impact_of_OSN_Home.aspx

Cheers!

María

College of Lawyers in Madrid, Spain

 



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Legal tip 1217. A wise commentary by a Notary on First Occupation Licenses
21 October 2014

A comment by a Notary in 2010, before checking on licenses was mandatory for them:

"Personalmente, entiendo que razones de prudencia y de buen hacer, en aras de la seguridad jurídica preventiva a la cual nos debemos, deben de llevarnos a no prescindir en ningún caso de la licencia de primera ocupación, - con independencia del momento en que la misma sea exigible, que eso es ya harina de otro costal, si me permiten la expresión -, principalmente por razones de protección y de evitar problemas a los usuarios. Cuestiones urbanísticas aparte, recordemos que muchos de los aspectos que rodean la adquisición de un inmueble están también ligados a la licencia de primera ocupación, así por ejemplo, el alta en el suministro eléctrico, de agua o de gas van condicionados a la previa obtención y presentación de la licencia de primera ocupación... Imaginemos los problemas prácticos que a diario se podrían plantear a los adquirentes de inmuebles si, en algún momento, prescindimos de la licencia de primera ocupación, aún en el caso de que la ley arbitre mecanismos para exigir responsabilidad a los promotores, como indica la DGRN, por el incumplimiento de sus obligaciones."

Prudence and good practise reasons, for the sake of  precentive legal safety that we are devoted to,must drive us to not ommitt First Occupation License in any case, - independently to when this is mandatory, which is a different matter- mainly for protection reasons and in order to avoid problems to consumers. Planning reasons apart, let´s remember that many of the aspects in relation to the purchase of a p`roperty for instance, electricity, gas or water connection, are conditioned top previous obtention of First Occupation License.Let´s think of all practical problems consumers can find on a daily basis if, at any moment, we do without First Occupation License, despite Law provides a liability action against developers as our DGRN expresses for breaching said obligations.

Castle of Mendoza, Manzanares El Real (Madrid), Spain, at facebook.com

 



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Legal tip 1216. Repossessions and rental rights I
20 October 2014

A  UK lady contacted us just one month being evicted of her home in Spain due to defaulting on mortgage payments

On negotiations with the Bank ( with the aid of  nice, very collaborative external lawyer) for her to be allowed to stay there on rental.

Wise/nice behaviour.

La Cerrada de Elias - Rio Borosa (Parque Natural de la Sierra de Cazorla, Jaén), at facebook.com



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Legal tip 1216. Courts to protect enforcement notification rights
09 October 2014

Life is full with paradoxes

Back in 1861, when Spain created the Mortgage Act for the main aim of attracting foreign investors for the sponsorship of the railways net, the legislator included radical  measures against default by debtors, being one of them that of provision 682.2.2º and 683 of the Civil Procedure Act by which address for notifications of the start of mortgage enforcement procedures and its ammendent is regulated.

The provisions above allowed the lender to communicate the starting of the enforcement procedure at the Registry Address.

Now, in 2014, century and a half later,  our Constitutional Court is protecting foreign buyers just the opposite way. By securing they get proper notification of possible embargos of their Spanish property. Constitutional Court states Courts have the risponsibility of ensuring the personal notification is made, being the Edict communication, a last resort.

 

Related Constitutional Court Decissions

STC 100/1997, de 20 de mayo, FJ 3;
SSTC 151/1988, de 15 de julio, FJ 2;
STC 158/2001, de 2 de julio, FJ 3;

STC 138/2003, de 14 de julio, FJ 3;

STC 19/2004, de 23 de febrero, FFJJ 2 y 4;
STC
128/ 2005, de 23 de mayo, FJ 2;
STC 111/2006, de 5 de abril, FJ 5;
STC113/2006, de 5 de abril, FJ 6
STC
STC 106/2006, de 20 de abril, FJ 2;
STC
126/2006, de 24 de abril, FJ 3;
STC 304/2006, de 23 de octubre, FJ 3
;

STC 162/2007, de 2 de julio, FJ 2;
SSTC 210/2007, de 24 de septiembre, FJ 2; 
STC 223/2007, de 22 de octubre, FJ 3;

STC 231/2007, de 5 de noviembre, FJ3;
STC 2/2008, de 14 de enero, FJ 2
STC 78/2008
STC  28/2010,  de 27 de Abril
STC 131/2014 de 21 de Julio

Gaucín, Málaga, South eastern Spain

 

 

 



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Legal tip 1215. Mortgages of the future--- a Princeton view
08 October 2014

Much looking forward to reading this book: 

Authors ( Princeton guys) are proposing flexible-debt programs. I would called them "person centered debt programs" 

One of them is shared-responsability mortgages. These loans will protect homeowners if the house market crashes. How? By including an agreement by which the principal of the loan and mortgage payments would decrease if home prices in an area devalued

As a compensation, Banks would receive an upfront fee and a 5% of capital gains if the borrower sells with profit.

People/ Reality centered economists, keep coming!

Maria

A PDF paper of the author here

Bello Pueblo de Conil de la Frontera.....en La Janda Litoral, Conil, Cádiz, Costa de la Luz, South western Spain, by Manuel Acebedo, at flickr.com

 

 

 

 



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Legal post 1214. Appeal to European Court of Human Rights in regards to penalty clauses in off plan contracts
06 October 2014

Just a quick note:

After our case being dismissed by the Supreme Court we are proceeding to the European Court of Human Rights in regards to a very used clause in off plan contracts where penalty clauses after breaches were clearly unbalanced in favour of  developers

We will keep you posted on this

A challenging week ahead!

Maria

Dobargánes, Liébana, Cantabria, North of Spain, at facebook.com



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Legal post 1213. NEW! 57/68 Won case against BANKIA in a Promilorci off plan development
06 October 2014

Notification made by us to client today:
 
Your case against BANKIA S.A. has been won.
 
The final paragraph of the First Instance Sentence delivered on 1 October 2014 states: 
 
 
“I estimate the Lawsuit filed on behalf of Mr XXXXXX  XXXXXXXXX  and condemn BANKIA S.A. to give to the plaintiff the Guarantee securing the amounts paid to the account of Promilorci for the purchase of a property within one month.  In case of failure to comply with the above I sentence the defendant to pay the plaintiff the amount of 83,635.89 Euro and 2,000 Pounds Sterling plus legal interest according to LEY 57/1968 from the date of payment of the amounts, with legal costs imposed on the defendant”
 
 
So BANKIA S.A. is sentenced to provide you with the legally required Guarantee within ONE MONTH from the date of the Sentence.  If BANKIA S.A. fails to comply with the above, then it is sentenced to refund 83,635.89€ & £2,000 plus legal interest from the date you paid the amounts to the developer.
 
Costs of the First Instance proceedings are also imposed on BANKIA S.A.
 
BANKIA S.A. has 20 working days from the date of notification of the sentence, which was 2 October 2014, to comply with the Sentence or to file an Appeal.
 
Zaragoza, North eastern Spain, at facebook.com


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Legal tip 1212. Spanish Judge protecting those who suffered
03 October 2014

I am sure you all already now, but wanted to remark as it is a good new to finish the week with: a judge in Almeria has awarded €135,000 € in concept of moral damages to three British families who bought illegal homes a decade ago in Albox.

 

So proud of many judges in our country applying Law for the protection of individual- goof faith people, who once felt in love with Spain.

 

The Judge even expresses in his ruling that he is sure that these homes will be legalized in a time frame that depends on administrative procedures. Always not as quick as we needed them to be.

 

Excellent that diverse actors involved there are being made liable (developers, architects and Local Council)

 

Congrats to Gerardo Vázquez, who we have the pleasure to know for years now and who is an excellent lawyer

Albox, Almería, South eastern Spain



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Legal tip 1211. UK hearing on European Enforcement Order II
02 October 2014

As a continuation of post of 19th of September, I have GOOD NEWS to report.

Bank has decided to settle with our client in regards to our dation ( giving keys back to the Bank) offer, leaving a low partial debt for our client that will be recovered by the Bank with the sale of the repossessed house.

Bank and  dation maker client have agreed on putting the property on the market and once this is sold, they get the rest of the debt paid with the fruits of the sale.

In the interim, preventively, our client is providing a guarantee to the Bank with a temporary legal charge on his UK property.

A good end, in our opinion

Cheers

María

"Arch Santa Maria", Burgos, North of Madrid, at facebook.com

 



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