El blog de Maria

ads said:
Thursday, September 19, 2013 @ 4:02 PM

Dear Maria

If the Banks are pursuing these forms of abusive actions why are there not calls for them to be better regulated in Spain so that such compromising situations are prohibited in the first place?

Why are there not swift large fines to act as disincentive?

mariadecastro said:
Thursday, September 19, 2013 @ 4:08 PM

Culture of opposing Banks and claiming against them is just starting in Spain.

I fully agree we need to denounce those practises to Consumer Regulators

ads said:
Friday, September 20, 2013 @ 11:48 AM

Well done to expose this Maria. We need a collective effort to get the Banks accountable for their malpractice and failure to recognise their legal and ethical responsibilities, by all means at our disposal.

lifeinvejer said:
Saturday, September 21, 2013 @ 8:12 AM

Maria
What sort of things are you talking about with the deeds? Any particular bank that is doing this ? I agree with the point about a deposit agreement and using a lawyer first but some actual information would help us all understand the issue better

Woodbug said:
Saturday, September 21, 2013 @ 9:46 AM

The answer is pretty simple ADS We are in Spain!

ads said:
Sunday, September 22, 2013 @ 1:06 PM

Keith Rule identified back in 2010, would you believe, "There does not seem to be any regulatory body in Spain who have a firm control over the Banks or Savings Banks and whose decisions are binding on the Bank". Astonishing!

So I wonder Maria, who are these consumer regulators in Spain?
And why are they not proactively monitoring and effectively regulating, not only the Banks, but the Justice system to ensure that regulatory proceedings are conducted in a timely way that respects the due process of law?

I'm sure it must be as frustrating for you as it is for us.

These failures to effectively monitor and swiftly regulate are all self-defeating as the purchasing and better-informed consumer grows ever more wary of continuing malpractice in Spain. Consumer patience is wearing very thin I’m afraid.

What is desperately needed is for legal professionals to consistently report back theses instances to independent regulatory bodies, free of political persuasion, via a credible system of complaints so that effective swift action can be taken to safeguard consumer rights.

Sadly self-regulation is not working in Spain, hence in the interim the growing call for assistance from outside Spain through the likes of the World Justice Project, the media and press.

mariadecastro said:
Monday, September 23, 2013 @ 11:50 AM

Type of clauses Banks are proposing are to have clients renouncing all rights to claim any hidden deffect on the property.

This time was Sabadell, but, reading Spanish online forums and others´ experiences, it seems it is being commun practise I am afraid.

The point is that they are not acting in this type of businesses as financial agents but as property companies. The fact that they are using standard models of contracts for selling these property to people make them fall into Consumers Law so, best way to denounce them is to Consumers Organisms.

Hope this helps and clarify.

Kindest,

Maria

ads said:
Monday, September 23, 2013 @ 11:07 PM

Thank you for the clarification Maria.
When you mention "common practice" do you have any idea of the scale of this activity by the Banks?
I'm hoping that this cannot be a repeat of the form of abuse witnessed with Bank Guarantees.
Would conveyancing lawyers who have POA be bound by due diligence to act in the best interest of their clients (as you have demonstrated) and stop what appears to be an abusive "proposal" by the Bank(s) in its tracks?

ads said:
Tuesday, September 24, 2013 @ 9:04 AM

Sorry, I meant to say "legally bound" in my last posting.

In other words if conveyancing lawyers had not acted in the best interest of their clients to identify the renouncement of all rights to claim against hidden defects on the property to their client, could action be taken against them for negligence?

Or is this requirement a purchasers' responsibility to comprehend and check such clauses in the contract?

Do you consider that this form of contract clause falls into the category similar to other abusive contract clauses that have subsequently been deemed illegal by the Supreme Court?

How would this be subsequently legally challenged if the purchaser had no knowledge of this clause?

Do you think that this practice should be stamped out from the outset by making the legal representatives responsible for checking such occurences, which would immediately act as an effective deterrent to the Banks behaviour?

mariadecastro said:
Tuesday, September 24, 2013 @ 9:38 AM

Anne:

I love answering your questions, they are all most interesting. Let me give to you my opinion on this.

(Anne)-When you mention "common practice" do you have any idea of the scale of this activity by the Banks?

(Maria)- Have no idea but have visited spanish forums and have realised it is being a practise by Banks. Have not gone deep in the research.

(Anne)I'm hoping that this cannot be a repeat of the form of abuse witnessed with Bank Guarantees.

(Anne):Would conveyancing lawyers who have POA be bound by due diligence to act in the best interest of their clients (as you have demonstrated) and stop what appears to be an abusive "proposal" by the Bank(s) in its tracks?

( Maria): I do think they have to clearly inform the client on the existence of this clause and just sign it on behalf of the client if that is expressly his/her will. That´s what we are doing after stopping the signature at the Notary. As explained in the post, this client had already signed a deposit contract where she agreed on renouncing any action in regards of hidden deffects. I do not know if knowingly or not.

(Anne) In other words if conveyancing lawyers had not acted in the best interest of their clients to identify the renouncement of all rights to claim against hidden defects on the property to their client, could action be taken against them for negligence?

(Maria):Yes, but only if the damage arised. I mean, only if once a deffect being identified in the future, buyer cannot claim compensation/cancellation for this and he can demonstrate his lawyer signed this without his express consent.

(Anne): Or is this requirement a purchasers' responsibility to comprehend and check such clauses in the contract?

( Maria): It is not buyer´s requirement as he has hired a lawyer for protecting his interests.

(Anne): Do you consider that this form of contract clause falls into the category similar to other abusive contract clauses that have subsequently been deemed illegal by the Supreme Court?

( Maria): I do, if they are being placed in contracts by a company, using standard contracts.

(Anne):How would this be subsequently legally challenged if the purchaser had no knowledge of this clause?

(Maria)Lawyer representing him needs to challenge it, as we are doing. We are also communicating this to Consumers Authorities and Bank of Spain

(Anne) Do you think that this practice should be stamped out from the outset by making the legal representatives responsible for checking such occurences, which would immediately act as an effective deterrent to the Banks behaviour?

( Maria) By principle and ab initium, lawyers are risponsable of protection of their clients´rights and interests. Being this a very important one.

ads said:
Wednesday, September 25, 2013 @ 11:27 AM

Thank you so much Maria for addressing these questions.

If I have understood this correctly then the assumption is that Banks who are selling property off cheaply (distressed sales) are most likely to have this clause (renouncement of all rights to claim against hidden defects on the property) in place as a default in their standard contracts, as part of their conditions of sale. Is this correct Maria?

I think the question relating to default is really important here.

If this is standard practice under these circumstances, would this clause be subsequently deemed abusive if it is not the EXPRESSED WISH of the purchaser? Surely this clause should never be allowed to be inserted into a contract AS A DEFAULT?

Is there any way therefore that Banks can be prevented from having this clause in place AS A DEFAULT from the outset?

mariadecastro said:
Wednesday, September 25, 2013 @ 2:12 PM

( Anne) :If I have understood this correctly then the assumption is that Banks who are selling property off cheaply (distressed sales) are most likely to have this clause (renouncement of all rights to claim against hidden defects on the property) in place as a default in their standard contracts, as part of their conditions of sale. Is this correct Maria?

( Maria): It is correct. But the sellers are not Banks but their Property divisions; which are independent entities. As being companies selling to consumers and using standard contracts, they are under Consumer Law.

I think the question relating to default is really important here.

(Anne): If this is standard practice under these circumstances, would this clause be subsequently deemed abusive if it is not the EXPRESSED WISH of the purchaser?

(Maria): I would say they will certainly be fallen into that by a Judge. If not expressly consented by the buyer, they are against provision 86.1 of Spain Consumers Act which declares as abusive the non adequate exclusion or limitation of legal rights of the consumer linked to full or partial default or deffects.

(Ann): Surely this clause should never be allowed to be inserted into a contract AS A DEFAULT?

( Maria): In my opinion, it should not. A good lawyer should never sign that for a client.

( Anne): Is there any way therefore that Banks can be prevented from having this clause in place AS A DEFAULT from the outset?

( Maria): I would say that the route is to communicate every one of these practises to National Institute of Consumers for the Bank of Spain to instruct their entities on how to propose these business.

Of course, a good lawyer plays a big part on this.

ads said:
Thursday, September 26, 2013 @ 4:56 PM

Thanks again Maria.

Communicating all compromising instances to a regulatory body is absolutely essential for continuing consumer protection, and I wonder, is this yet acknowledged by all good legal professionals in Spain?

Is the National Institute of Consumers a regulatory body and do they have the authority to instruct the Bank of Spain (and their entities) to immediately comply with this provision 86.1 of Spain Consumers Act, before this gets out of hand (i.e. before large numbers of consumers become exposed to this abuse?)
Or do we have to wait until large numbers are affected before they would instruct the Banks?

It seems very unfair to expose consumers to abusive clauses of this nature if there is already a regulatory body in place to prevent this from the outset. Let’s hope this gets stopped in its tracks before too many innocent consumers are affected, as more and more Banks endeavour to offload their properties and use these compromising contract clauses.

What is equally baffling is why have the Banks’ legal advisers allowed these Banking entities to contravene an existing Consumer Act by inclusion of these abusive clauses?

There needs to be a concerted effort by all good legal professionals to consistently and swiftly address these issues relating to consumer protection in Spain, via a well co-ordinated plan to place these instances on official record, by reporting them back to the relevant authorities.

mariadecastro said:
Tuesday, October 1, 2013 @ 9:52 AM

Anne:

I am writing in my work schedule to write to National Institute for Consumers before the week ends.

Will post the letter here

Kindest,

Maria

ads said:
Tuesday, October 1, 2013 @ 6:22 PM

Excellent. Thank you Maria.