Lost my case

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05 Jul 2011 00:00 by FHS Star rating. 27 posts Send private message

Unlike many success stories I have read in this thread mine is a UNSUCESSFUL one so far!  I have lost my case in the first court at  la Linea Capcion against Promaga/Bank.

I had the BG and the property was 12 months late. This has been dragging on since Oct-2008 when the property should have been completed and the LFO was not given until NOV-2009. I had instructed my lawayer to cancellation of the contract in July-2009 when there was no news from promaga when the poperty would have LFO, even though Promaga was pressuring me to complete before the LFO was granted.

In January-2011 the case finally came to the court and both myself and my wife were asked to be present and it was postponed to April-2009 due to courts mistakes and again postponed to June-2011 again court excuses. When it finally was heard It was said that by the judge based the decion on heavy rains and that this provoked movements in the basement which required a new report regarding the area to guarantee the security of the building, and this according to the Judge, was unforeseen. The Judge considers that the delay was only of a few months and that this doesn’t justify the cancellation of the contract.

What Chance do I have against this kind of unfairness and can I hope for better unbiased and fair judgement in the appeal?

 





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05 Jul 2011 21:26 by louth Star rating. 9 posts Send private message

You poor thing, we know how you feel. We also lost our case in June last year. Similar senario, judge sided with developer, despite being a year late and having a gaurentee, ridiculous. We are now appealing for what good it will do, our hearing is in November 2012, yes 2012! We started this in April 2006.

Huw





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05 Jul 2011 21:53 by ads Star rating. 4022 posts Send private message

So sorry to hear this news.

Hope you both add your details to the petitions... these delays are incredulous and need reporting back.

We are working our socks off behind the scenes to try and bring this to the attention of the powers that be.... researching other avenues as we speak and will report back.

Even those with successful judgements are having real problems getting them enforced.

Stay strong and please pass the message on to everyone concerned, to sign the petitions. It's essential that the message gets to those who maybe aren't aware of EOS.

http://www.gopetition.com/petitions/stop-the-spanish-property-roadshow-open-letter-to-davi.html

http://www.bankguaranteesinspain.com/

.

 



This message was last edited by ads on 05/07/2011.



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05 Jul 2011 21:55 by FHS Star rating. 27 posts Send private message

Dear Huw

Thanks for a reply post. Thanks for your concern. I am also sorry to hear of your case. You have to wait another over 2 years for appeal - oh my God. This is NO justice - its a slow torture which hurts even more!  We could compare notes, what good will that do, the end result is the same. I expected a democratic justice from a democratic European country bur have yet to experience it. 

This case has ruined my health and is testing our marriage to extermes! I just hope that there is a hope there somewhere!

FHS. 





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05 Jul 2011 22:12 by FHS Star rating. 27 posts Send private message

Dear ads

Thank you your comments. I have already signed the petition and the bank-gurantee-in spain. It certainly gives me some hope that maybe just maybe its NOT too late for Spain to put it house in order and be counted as a Good Fair Justice System country and be proud of it in the Europe. I love Spain and I have long distance relation though the Moors of historical Spain.

A good Fiar Justice System will help to bring the buyers back and lift the country out of debts and put it back on the road to recovery. I was hoping that with my funds released I will reinvest back in Spain.

Please Spain wake up and help your Economy!

FHS





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06 Jul 2011 10:56 by GuyT Star rating. 494 posts Send private message

Can you fill us in regarding where you stand? In the event you get nowhere re cancelling the contract, is there still an apartment for you to move into? I can imagine that the judge wonders whether the falling property prices might have motivated your action. Say, for instance, that property prices had doubled since 2008, would you still have wanted out?





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06 Jul 2011 11:15 by FHS Star rating. 27 posts Send private message

Yes I would still have wanted out - as my circumstances have changed.

I am told that the aprt ment is ready but the complex is far from completion as per the catalogue and there are signs of vandalism at the site, The amenities rae not ready etc. So I would be fool to complete at a site like this.

I am sure the developer would also have readily cancelled and returned the deposit - if the prices had doubled as he would have quickly sold it at the double the price!

 





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06 Jul 2011 11:52 by FHS Star rating. 27 posts Send private message

Dear all who are reading this and Maria of Casta Luz Lawyers

Please may I ask - are you also one of those who have lost your first case? Have you appealed? Have you a date for the appeal? Have you also lost the appeal? What happens after this? Do the Developers Chase you to Complete and do they actually do it? Does any body have been forced in the UK to complete as does any body have an emabrgo put on their house in UK?

Has anybody been sued in the UK becuse they lost the cases in Spain.

I am worried sick of the consequesnces of this and that I will loose my property in UK - my only asset and have to buy a Spanish proprty that I no longer want.

HELP





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06 Jul 2011 12:03 by Mchristie Star rating. 2 posts Send private message

Hello FHS

I'm sorry to hear the bad news. Unfortunately, you are not alone, as the number of cases which are being lost are going more and more unnoticed. I wonder why...

I recommend that you seek a second opinion (and even a third) before appealing, as things can turn even worse for you.

Good luck

Regards





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06 Jul 2011 14:03 by ads Star rating. 4022 posts Send private message

To all lawyers,

On a more general note, I would be really grateful for answers to the following:

  • From first hand experience are you experiencing an increase in cases having to resort to appeal following 1st instance losses?
  • To your knowledge is there any record kept by the High Council of Judiciary relating to judgements overturned, and are these statistics forwarded to the Inspectorate Service of the General Coucil of the Judiciary?
  • Likewise are there any records kept of backlogs of cases that remain unresolved and again are these forwarded to the Inspectorate Service?
  • Are records available for viewing from the Inspectorate Service or from the Ministry of Justice, National Commission for Statistics, General Council of the Judiciary, Judicial Statistics Section?
  • How do you obtain these statistics?

Many thanks in anticipation.

 

 



This message was last edited by ads on 06/07/2011.



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07 Jul 2011 00:32 by cbrammeld Star rating. 172 posts Send private message

 There is this perceived belief by Spanish judges that a few months delay is expected as 'its Spain' with a shrug of the shoulders. Quote is from my ex solictor. With your delay and non delivery of advertised facilities the builder is in breach of contract but it is a lottery going to court.

My case delays were about the same as yours but the Murcian judge decided in my favour. My property has been ready for over a year now but the facilities are still not built. Glad I got my deposit back and purchased else where.

You will never know if the judge has been nobbled but to totally disregard Spanish law and come up with a feeble excuse about rain, I have my doubts. If the full contract has not been honoured by the builder then he is in breach - its a no brainer.

 

Good luck  with the appeal.





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07 Jul 2011 10:27 by mariadecastro Star rating in Algeciras (Cadiz). 9330 posts Send private message

Legal Questions? Speak to Maria Direct

 FHs: Do not lose your hope and go to Appeal.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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08 Jul 2011 11:02 by GuyT Star rating. 494 posts Send private message

"Yes I would still have wanted out - as my circumstances have changed."

Let's hope your lawyer didn't mention this to the court as it  gives you powerful incentive to get out of the deal. It comes down to who is in good faith and who will have the sympathy of the court. Your developer is saying hey, we had the worst flooding in a century, we did our best but we ran behind time. The judge appeared to sympathise with him. How would the judge calculate your loses? He would think, well if it had been delivered on time the claimant would have had two or three years use out of his flat. If he had taken it when he could have done, then he would only have missed out on one or two years use. In either case he would now be sitting on a relatively unsellable flat worth far less than he paid. That last fact isn't your developers fault. The judge will decide between whether the developer was in bad faith. Or whether you tried to exploit the delay because your circumstances changed. If the flat hadn't been delivered - as is the case with many on this board - then it would be a different matter.  My instinct is that you'll get nowhere.





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08 Jul 2011 11:18 by Sneezey Star rating. 64 posts Send private message

Sneezey´s avatar
In reply to ADS questions
 
We have not really noticed any increase in the number of appeals at present as there have always been a very high number of them.
 
Of course, there are records for all cases that come before courts. These records are controlled by various people, e.g Juez decano, inspection service and the High Council of Judiciary Committee (Consejo General del Poder Judicial) etc.
 
These statistics are published by the "Consejo General del Poder Judicial" and are available once they are published. They can be obtained from their website: www.poderjudicial.es
 
Jose Manuel de Manilva Solicitors




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