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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 1235. Cases Won: money returning to Spain?
27 November 2014

It would be the perfect end of the story: to have all those funds invested now in reasonably priced finished, legally fully safe, great properties now in the market

By the way... our team does conveyancing work, so.... come on in!

María

Beach "Valdevaqueros", Tarifa, Costa de la Luz, South western Spain



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Legal tip 1234.NEW! Case Won against Reserva de Marbella and BANCO POPULAR
27 November 2014

BANK ACTION WON AGAINST BANCO POPULAR & LA RESERVA DE MARBELLA

Notification sent today to one of our clients informing them that in their case the developer and bank have been made jointly liable for the refund of their off-plan deposit, according to the Banks obligations under Article 1.2 of LEY 57/1968.


Re: YOUR CASE AGAINST LA RESERVA DE MARBELLA S.A. & BANCO POPULAR ESPAÑOL S.A.

 

Please find attached Sentence number xxxxx/2014 from the First Instance Court No.7 in Málaga.

 

Your case against LA RESERVA DE MARBELLA S.A. & BANCO POPULAR ESPAÑOL S.A. has been won.

 

The final paragraphs of the First Instance Sentence delivered on 21 November 2014 state: 


 

“I estimate the Lawsuit filed on behalf of Mr XXXXXX XXXXX  & Mrs XXXX XXXXXX against BANCO POPULAR & LA RESERVA DE MARBELLA:

 

- Declare terminated the Purchase Contract dated 4 February 2004 signed between the plaintiffs and the defendant due to serious breaches of contract by the defendant.

 

- In solidarity condemn LA RESERVA DE MARBELLA S.A. & BANCO POPULAR ESPAÑOL S.A. to return to the plaintiffs the amounts paid to the developer through the existing bank account in such financial institution, stating the legal responsibility of the bank for those funds according to Article 1.2 of Spanish Law, LEY 57/1968, and therefore payment of the outstanding amount of XXX,XXX Euros plus legal interest from the date the amounts were paid until complete repayment and also condemn the defendants to pay the legal costs of this procedure”

  

So the Purchase Contract is cancelled and LA RESERVA DE MARBELLA & BANCO POPULAR ESPAÑOL are sentenced jointly to refund the amount of XXX,XXX€ plus legal interest from the date you paid your off-plan payments to the developer.

 

Even though you did not receive from the Developer an individual Guarantee for your off-plan deposit, Banco Popular is sentenced jointly with the developer according to its obligations under Article 1.2 of Spanish Law, LEY 57/1968.  According to LEY 57/1968 the Bank receiving the off-plan deposit must ‘under its responsibility’ issue or verify the existence of the corresponding guarantee.

 

The Bank failed in its responsibility and therefore once the Purchase Contract is declared cancelled for serious breaches by the Developer your inalienable rights granted by the protective nature of LEY 57/1968 are activated.

 

Your costs of the First Instance Proceedings are imposed on the defendants.

La Reserva de Marbella, Marbella, Málaga, South eastern Spain



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Legal tip 1233. NEW! Comments on recently won case in Sierra Blanca, Marbella, against BARCLAYS
27 November 2014

BANK ACTION RECENTLY WON AGAINST BARCLAYS BANK S.A.

Last week we were very pleased to inform one of our clients that their Bank Action against Barclays Bank had been won.  It is very interesting that the Spanish division of a British Bank will be refunding a UK buyer who had reserved on a failed off-plan development in Spain – SIERRA BLANCA.

The final paragraph of the First Instance Sentence delivered on 12 November 2014  states: 

“I estimate the Lawsuit filed on behalf of Mr XXXXXX XXXXXXX  against BARCLAYS BANK S.A. and condemn the defendant to pay the plaintiff the amount of XXX,XXX  Euro plus interest from the date of filing of the Lawsuit, with legal costs imposed on the defendant”

Very interesting statements by the Judge in the Sentence are:

“In light of the evidence at the Trial it has been established that the defendant Bank knew that the account opened was used by the developer Sierra Blanca for receiving amounts paid by off-plan property buyers and that the Bank failed to demand that the developer obtained the corresponding Guarantee or Certificate of Insurance.

The testimony of the Bank Manager with regards to how the events, subject to these proceedings occurred, also proved especially enlightening.

He explained that the developer Sierra Blanca was his client and that it only had one account opened in the Bank.  He also knew that the client was a developer dedicated to the construction of homes.  In fact he said that during his time as Manager of the Branch, the developer ‘made many off-plan projects’ one of which was financed by the Bank.

When questioned regarding the Bank account, the Manager said it was an account ‘with good movements’ constantly receiving income and transfers.  When asked if he and the Bank were aware of the origins of the money received into the account he replied ‘we are not fools’ and commented that it was common for the developer’s daughter the developer himself to take income and on one occasion he was told ‘it is for one that I sold’.”

A beach of Marbella, Málaga, South eastern Spain



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Legal tip 1232. Legal help for mortgage debtors in Spain 3
24 November 2014

Some concepts you better know if you are struggling for mortgage payments in Spain.

Refreshing a post from this summer

Legal tip 1168. What after defaulting on mortgage payments? 
12 June 2014 @ 14:03 

 

Qué será, será?

 1. Generally, the Bank will send to you a notice of Case being sent to Courts after three monthly defaults.  They do not always send the case to Courts right away but  an active negotiation with the Bank, with the help of a professional advised at this stage. It is not a good idea just to leave payments unattended and run away.

2. Once in Courts, the Judge will issue an enforcement order and will notify this to you for you to oppose it. Notification needs to be made to you in due address and through right means.Right address is that  which was agreed as address for notifications in the mortgage deeds. You need to have full control of any notification being sent there after your payment default as this is in many cases taken as an advantage by the Banks- notify you while and where absent-  forobstructing your defence rights.

 3. Defence of your position in Courts. Reasons to oppose the enforcement have been recently increased after a Decision by the High Court Of Justice of the European Union. Specially if you are claiming against Ground Clause in your mortgage deed

  4. Best strategy at this point is to  answer the repossession with a dation counteroffer in order to  reach an agreement with the bank to have the whole debt  settled after the auction.  Of course the difficulty of this varies depending on the equity you have on the house and policies of the Bank.

 5.-As you know the way the Bank has to obtain  liquid value out of the house is through public auction. If no one bids the bank can keep it for no lower than 70%  (for first residences) and 50% (for second residencies ) of value for auctions. Value for auctions is a big value the house was valuated for for mortgage purposes. It is contained in mortgage deeds and comprises:  borrowed capital+ interests+ legal expenses.

IF YOU CALCULATE THAT YOUR REMAINING DEBT IS NEAR 50% OF THAT VALUE, GO FOR A STRAIGHT NEGOTIATION WITH THE BANK.

So, three CostaLuz Golden rules:  (1)Never leave a repossession order unattended ,(2) Have control of the address for notifications,(3) Hire a good lawyer to fight the repossession procedure. 

Tarifa, Cadiz, Costa de la Luz, South western Spain

 



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Legal tip 1231. Do anyone wants conversation with a psychologist in English?
19 November 2014

A very good friend of mine wants to practise English conversation. He is a spanish psychologist with a 14 years expertise in Alzheimer so.... you could exchange British conversation for terapeutic advise in relation to Alzheimer or.... any other matter.

Anyone interested, please email me ( web     at      costaluzlawyers.es)

Cheers

Maria

Facinas, Cadiz, South western Spain



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Legal tip 1230- NEW! Barclays punished by Law 57/68 in Sierra Blanca
19 November 2014

I write in green as it is the color of hope!.

So encouraging news:

Barclays has been punished to refund a client of us who paid for an off plan unit in Sierra Blanca and did not receive a Bank Guarantee for the refun of the deposits once the development failed to be finished.

A UK Bank refunding a UK client under a Spanish Law dated 1968. Interesting!

Developer: Sierra Blanca Country Club SA

Congrats to judge, client and Costaluz-DeCastro teams!

Cheers

Maria

Alcalá del Valle, Cadiz, South western Spain



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Legal tip 1229. Legal help to mortgage debtors in Spain 2
18 November 2014

Number two of this serie on Legal Help to Mortgage debtors. An abstract of latest Spanish Law for Mortgage Debtors Help:

Summary of Act 1/2013, of May 14, on measures to strengthen the protection to mortgage debtors, debt restructuring and social rent (BOE of 15-5-2013)

 
In "attention to the exceptional circumstances facing our country, motivated by the economic and financial crisis, in which many people who hired a mortgage loan to purchase their primary residence have  difficulties to meet their obligations"  Act 1/2013 has just been published
 
This Act, contains four chapters.
 
Chapter I (Suspension of repossessions) : provides immediate suspension for a period of two years for evictions of families who are in a particular risk of exclusion.
 
We estimate as families in such a situation those:
 
a) Single-parent families with two dependent children, families with a child less than three years old  or a disabled or dependent member, or families in which the mortgagor is unemployed and has exhausted the social benefits or, finally, the victims of domestic violence.
 
b) Whose income does not exceed three times the Public Indicator of Multiple Effect Income.
 
This limit rises on households in which a member is disabled or dependent or residing with disabled or dependent persons.
 
 It is also necessary that in the four years preceding the time of the application, the family unit has undergone a significant alteration of their economic circumstances,in terms of effort to access to housing. This significant alteration of their economic circumstances is measured based on the change of the mortgage burden in the income suffered in the last four years.
 
This measure, exceptionally and temporarily, will affect any prosecution of foreclosure or extrajudicial sale.
 
In these cases, the Law, without altering the foreclosure process prevents the eviction.
 
Finally, the inclusion in the scope of application goes through the fulfillment of other requirements, among which we can highlight that the resulting mortgage payment exceeds 50 percent of the net income received by  all the members of the family unit, or it is a question of a loan or mortgage loan secured only falling upon the only owned debtor's home and granted for the acquisition of it.
 
For these particularly vulnerable debtors, the debt will not  accrue more delay  interest than the result of adding to the compensatory interests two percent on outstanding debt.
 
Chapter II  on Measures to improve the mortgage market:
 
Especially relevant is the fact that, for mortgages on first residence,  default interest will be limited to three times the legal interest.
 
It also explicitly  prohibits capitalization of these interests and provides that in case that the result of the repossession is insufficient to cover the entire secured debt, this result will be  applied  to delay interests, so that it is  allowed,  in a big extent, that the principal amount stops  accruing interest.
 
In the extrajudicial sale of mortgaged properties, law  introduces the possibility that the notary can suspend it when the parties can prove that it has been requested to the competent court, as provided by Article 129 of the Mortgage Law, to issue resolution decreeing inappropriateness of such sale, because of the existence of abusive clauses in the mortgage loan or its continuation without the application of the abusive clauses. Furthermore, it expressly empowers the notary to advise the parties on abusive clauses .These amendments are adopted as a result of the judgment of the Court of Justice of the European Union of 14 March 2013
 
On the other hand, it is strengthened the independence of valuation companies from  credit institutions. And legal valuations made by the client need to be accepted by the Bank under strong sanctions.
 
Chapter III on Modification of the foreclosure procedure :
 
These modifications are intended to ensure that foreclosure is done so that the rights and interests of the mortgagor are adequately protected and, overall, a speedier and more flexible enforcement proceeding is done.
 
In particular, as a measure of great importance, it is established  the possibility that if after an usual home foreclosure it  still remains  an outstanding debt ,during the subsequent  moeny enforcement proceedings part of the payment of the remaining debt will be  canceled , provided that certain payment obligations are fulfilled. 
 
In addition, the debtor is allowed to participate in the potential future appreciation of the executed house.
 
On the other hand, it facilitates access of bidders to auctions and the requirements imposed on them are reduced, so that, for example, it decreases the necessary guarantee to bid from 20 to 5 per cent of the appraised value of goods.
 
Also it doubles, in the same sense, the period to consign the price of the award for the bidder of an auction.
 
Certain improvements in the auction procedure are introduced , establishing that the appraised value for it will  not be less than 75 percent of the appraised value that was used to grant the loan. Previously there was no limit to the type of auction. In addition, in the event that the auction ended without any bidder, the percentage of the allocation of the property increases. Specifically, it would rise from 60 per cent to a maximum of 70 percent, always for cases of residence.
 
 
This Chapter also includes the modification of the enforcement proceedings to the effect that, on its own initiative or upon request, the competent court canappreciate the existence of abusive clauses in the enforcement order and, therefore, it declares the invalidity of the execution or , in its  case , its continuation without application of those clauses estimated abusive.
 
 
Chapter IV . It offers different solutions against foreclosure to those under exclusion risk and meeting certain requisites.  
 
 
Retroactivity: For repossession procedures already started, this Law will be applied just to those enforcement acts still to be perfomed
 
 
Setenil de la Sierra, Cadiz, South western Spain


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Legal tip 1228. Legal help to mortgage debtors in Spain 1
10 November 2014

We are producing this month a number of posts on possible solution when any of you faces problems with mortgage repayments.

It is not essencially necessary but I recommend you to hire a lawyer for this.

First set of solutions consist on possible offers to the Bank:

  1. Dación en pago: Keys back to the Bank

  2. Negotiate an interest-only period. Just advisable for a short period of time

  3. Deadline extension: to amply period of repayment to 10 or 20 years more

  4. Bank change: You might find another bank with better conditions for your repayments

  5. Default updating: To negotiate a special payment plan for bringing your mortgage up to date.

If you are paying a mortage on a property with no license, a more sophisticated legal solution is necessary. PLease contact us if you want to know on this.

The aim is for as many of you to be able to stay in Spain. We need YOU! 

 

 

Cheers

María

Cathedral Santa María la Real of the Almudena, at facebook.com

 

 



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Legal tip 1227. Repossession and rental rights III
05 November 2014

Just off the phone with the Cajasur Lawyer who is so nicely trying to get a rental scheme for the client of us who was about to be evicted.

( see part I and II of the story here)

We are trying to obtain a  social rent for her so she can stay in Spain! She needs to meet requirements of Law 1/2013

Will keep you posted!

Maria

An Andalusian patio



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Legal tip 1226. Aifos being liquidated
03 November 2014

http://www.surinenglish.com/20141031/news/costasol-malaga/aifos-goes-into-liquidation-201410311543.html

As the colombian writer García-Márquez´ Crónica de una muerte anunciada.

I am glad to say goodbye to one of the most shameful examples of spanish companies in the area of last years. Exemplary Fall.

Now... action against related financial institutions. Soon, so administrators are still active to provide documents to lawyers acting law 57/68.

Good as all contracts are considered cancelled now and gate to Law 57/68 claim reinforced.

Cheers

María

Sierra of Ronda in Autumn



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Legal tip 1225. A beautiful project by an EOS member
03 November 2014

Very early in this monday morning.

One of those news that make your day.

An EOS member asked me for some guidance on how to promote his free English lessons for spanish kids.

So sweet, so human. That is all about, at the end of the day.

Nice!

Kids playing in a park of Spain



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