VICTORY FOR FINCA PARCS ACTION GROUP LAWSUIT 2 IN FIRST INSTANCE COURT IN HELLÍN

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09 Jun 2012 01:04 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

FINCA PARCS ACTION GROUP vs CLEYTON GES SL & CAJA DE AHORROS DEL MEDITERRÁNEO

Today (Friday 8 June) we received the judgment from the First Instance Court In Hellín:

The Judge found the developer Cleyton GES SL and the Bank - Caja de Ahorros del Mediterráneo (CAM) jointly and severally liable for the repayment in full of the deposits paid (1,494,710 Euros) under the 55 Sales Contracts which were the subject of the Lawsuit, together with legal interest and costs.

This is a significant judgment as none of the buyers received the Bank Guarantees as required by Spanish Law, LEY 57/1968.

The Finca Parcs Action Group are represented by Costa Luz Lawyers and De Castro Gabinete Jurídico.  We are truly grateful for their dedication, hard work and support during the past 4 years.  Special thanks go to María de Castro - back in 2008 she was one of the only Lawyers who believed in my view that the Banks had a liability in such cases and to Jaime de Castro, our litigator, with whom I have worked very closely during the past 2 years.

We are currently studying the Judgment in more detail and further information will follow soon.

As in every First Instance Court judgment the defendants have the right of appeal.

Kind regards

Keith
FINCA PARCS ACTION GROUP



_______________________

LEY 57/1968
CLICK HERE FOR THE BANK GUARANTEES IN SPAIN WEBSITE

       
      

fpag@btinternet.com




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09 Jun 2012 04:59 by pff001 Star rating. 123 posts Send private message

Congratulations Keith and very well deserved you have worked tirelessly on this and I have great admiration on what you and Costaluz lawyers have acheived.

 





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09 Jun 2012 08:48 by ChrisBW Star rating. 50 posts Send private message

Wonderful news Keith! Congratulations to you and all involved.

What are the chances the Bank and developer will appeal? A slight aside; how many times can a judgement be appealled against; do they just get the one chance and if that fails do they have to pay up, or can they go on appealling indefinately?

Congratulations!

ChrisW





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09 Jun 2012 10:40 by Margaret and Charlie Star rating in Scotland. 34 posts Send private message

Congratulations Keith on your great achievement as going back a few years ago all the lawyers would not dream of suing the Banks again congratulations





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09 Jun 2012 10:56 by belucky358 Star rating in North Yorkshire. 185 posts Send private message

Hi Keith,

What a great result, and I hope any appeals are dealt with swiftly and with the same decision

Although I think Maria is being a little premature when she states on her latest blog about this being a positive result for Spains image abroad, it's justice and its financial system.                          Lets not count our chickens before they are hatched. 

Well done.  





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09 Jun 2012 11:51 by ads Star rating. 3021 posts Send private message

Wonderful news Keith and so deserved after all your tireless efforts and dedication to gain justice, not to mention the effort involved in keeping this fight for justice so high profile through your remarkable and detailed petition website and the logistics of bringing all your group together.

To Maria and legal team - thank you for trusting Keith and having the courage and determination to follow this through, hopefully to the benefit of many more who follow in his footsteps.

Many eyes will now be looking towards the enforcement of this ruling and how this finally transpires given the defendants have a right of appeal , but in the interim we wish you all the best and pray that a just and fair final resolution is reached within a reasonable timescale!

WELL DONE and sincere thanks to all concerned.


 


This message was last edited by ads on 09/06/2012.



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09 Jun 2012 14:07 by sandra Star rating in . 776 posts Send private message

sandra´s avatar

That's great news and frankly no less than I expected.

After all your hard work together with  Maria and Jaime's professionalism and attention to detail when presenting the case, you left the judge with no other alternative. Hopefully any thought of launching an appeal by either the bank or developer has been dashed by the strength of you case. Congratulations to all concerned.



_______________________

  

 

 

 

 




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10 Jun 2012 01:18 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

Thank you for all your kind comments.

I am now posting our latest Press Release which gives more details of the Judgment.

Once again, thanks for all your support.

Kind regards

Keith



_______________________

LEY 57/1968
CLICK HERE FOR THE BANK GUARANTEES IN SPAIN WEBSITE

       
      

fpag@btinternet.com




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10 Jun 2012 01:20 by Keith110 Star rating in the UK and I am lead.... 682 posts Send private message

PRESS / MEDIA RELEASE - FOR IMMEDIATE RELEASE

 

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

VICTORY FOR THE FINCA PARCS ACTION GROUP IN THE FIRST INSTANCE COURT

JUDGMENT CONDEMS CAM BANK & CLEYTON GES SL, JOINTLY AND SEVERALLY, TO RETURN THE DEPOSITS PAID BY THE GROUP MEMBERS WITH INTEREST AND LEGAL COSTS

 

 

FINCA PARCS ACTION GROUP – TIMELINE OF THE LAWSUIT

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

  First Instance Court Preliminary Hearing held on 12 January 2012
  Trial held on Monday 21 May 2012 & Tuesday 22 May 2012

  Judgment released in favour of Finca Parcs Action Group on Friday 8 June 2012
  CAM Bank and Cleyton GES SL must return deposits amounting to almost 1.5 million
    euros to the buyers with the addition of legal interest and costs

JUSTICE

Justice was delivered in an overwhelming manner on Friday 8 June 2012 when the Judge in the First Instance Court in Hellín found in favour of 47 buyers who make up the Finca Parcs Action Group.

The court convicted jointly and severally both defendants, the developer Cleyton GES SL and the sole financial entity of the project, Caja de Ahorros del Mediterráneo (CAM), to return the off-plan deposits paid by group members totalling almost 1.5 million euros for houses that were never built at the abandoned Las Higuericas, Finca Parcs development close to Agramón, Albacete.

Furthermore, the judgment orders the payment of interest and costs.

The Judge declared the 55 sales contracts terminated due to “serious breaches” by the developer, in particular, “the long and indefinite delay in delivery of the properties, the failure to obtain the First Occupation Licences and the lack of Bank Guarantees for deposits paid by the buyers”.  The Judge also stated that CAM Bank “failed in its legal obligations to control the use of off-plan deposits paid in advance for this development”.
 

STRONG SENTENCE

The sentence is strong and fully in favour of the buyers.

The decision of Consuelo Romero, Judge of the First Instance Court No.2 in Hellín was announced on Friday 8 June 2012 and concludes that both the developer and financial entity failed to fulfil their legal obligations.

The ruling requires CAM and Cleyton GES, jointly and severally, to return 1,494,710 Euros in off-plan deposits paid by 47 Finca Parcs Action Group members for 55 Sales Contracts, plus interest and costs.

The costs may represent a significant amount considering that the case was started in February 2011 and has accumulated over 5,000 pages in the Courts records.  In addition 70 members of the Finca Parcs Action Group were forced to travel to Spain following the request to the Court by CAM Bank for all buyers to appear in person at the trial.

In the sentence the Judge states that, “this is not just a simple delay in the delivery of the housing but in this case it can be considered as an excessive delay that has obstructed the very purpose of the contract and broken mutual good faith”. 

The Judge quotes the testimony of Keith Rule, who himself paid over 53,000€ in off-plan deposits to CAM Bank, during which Mr Rule when questioned by Cleyton GES said that under no circumstances would the buyers now be willing to accept a property from the 50 completed, but unlicensed houses on Phase 1, as the delay for the buyers already amounted to between 5 and 7 years from the signing of each individual contract and completion cannot be left to the discretion of the developer indefinitely.

The Judgment states expressly that “the lack of the First Occupation Licence is attributable exclusively to the developer” and that the lack of Bank Guarantees is also “cause for termination of the contract, since it is an obligation of legal and mandatory character”.

MISMANAGEMENT, NEGLIGENCE & MALPRACTICE

Regarding the involvement of CAM Bank, which claimed it has no relationship with the buyers, the detailed and comprehensive judgment also rules in this area.  The Judge quotes extensively from the preamble of LEY 57/1968 and from the Law itself and says in this regard, “we cannot ignore the testimony of the purchaser who when interrogated said that the buyers were encouraged to pay reservation deposits at the development due to the promise of Bank Guarantees from CAM and because of the intense involvement of CAM as a financial partner not only in the promotional material but also in the contract”. 

CAM maintained in their defence that it was oblivious to transactions in the two ‘current accounts’ into which the buyer’s money was paid.  However, in view of the documents submitted as evidence and the testimonies of those who managed the transactions in CAM and Cleyton GES, the judgment states that, “The fact is that CAM knew that the payments into Cleyton GES accounts opened at the CAM branches were payments by buyers on account of off-plan real estate purchases and CAM failed in its obligations as a financial institution under LEY 57/1968 and this behaviour can be described as malpractice”.  The Judge noted that “it is clear the off-plan deposits were used in a manner contrary to the requirements of Spanish Law, LEY 57/1968”.

The Judgment also refers to the ‘special account’ and notes that, “documents submitted corroborate that the value of Bank Guarantees issued by CAM to other buyer,  not party to these proceeding, amounts to approximately 6.5 million Euros, however the total payments into the ‘special account’ amount to significantly less”.  Furthermore, the Judge says that “other documents submitted during the course of the trial are of importance and very interesting items are the copies of CAM Bank Guarantees issued to other buyers, not party to these proceedings, as they describe as ‘Special’  the 2 accounts, that CAM maintained throughout the trial were just ‘ordinary’”.

CONCLUSION

The Judgment concludes:

“The truth is that CAM knew that the payments made by buyers into accounts at their branches were on account of real estate purchases and CAM showed absolute disregard to the obligations imposed on financial institutions by LEY 57/1968.

We must not forget that the obligation to deposit the amounts advanced to an account opened specifically for that purpose is that of the financial institution as not only does it receive the premium of the guarantees but also benefits by way of profit from the project.  In fact, CAM was the only financial entity involved in the project as it demanded exclusivity.

The claimant questioned at the trial clearly demonstrated that the buyers contacted both the developer and Bank through multiple means urging them to grant the Bank Guarantees for the deposits paid”
.

APPEAL

As in any First Instance Court decision the defendants have the right of appeal.

COMMENTS FROM FINCA PARCS ACTION GROUP

JAIME DE CASTRO - LAWYER


Jaime de Castro, the lawyer for the Finca Parcs Action Group said he was pleased with the ruling yesterday, and stressed that:

"It is technically flawless; it analyzes all the points, leaving no gaps and has forceful arguments that make it difficult to challenge.  So I think that ultimately my clients will receive their refund in this case”

He noted that it is a decision which because of the significance of the case will be an important precedent for similar cases, and is also:

"Good for the image of Spain, its Justice System and even the financial system.  Given the sensitivity of this type of issue in the United Kingdom, and the situation we are currently facing in Spain, it is good to convey the message that the system works and solves these issues fairly and expeditiously”.

KEITH RULE – COORDINATOR – FINCA PARCS ACTION GROUP

After the group coordinator, Keith Rule was informed of the decision, he said the group members were elated, but commented that "it has been a very stressful process and we have endured many years of struggle and effort to defend our rights"


Keith continues: “For us this is a great judgment.  It is a credit to the work and determination of all those involved.  This is an important judgment as none of the buyers received the Bank Guarantees as required by Spanish Law, LEY 57/1968.  The wider significance of this judgment should not be underestimated.

I really think this case and Judgment will be studied far and wide.  As the news spreads there will be many very interested observers.

Unfortunately it does not mean that every other buyer of off-plan property in Spain without the legally required Bank Guarantees will be able to follow the same course of action against the Bank.  There were several specifics in this case and the volume of evidence gathered, in our opinion, is probably unprecedented.  However, parallels can be drawn between this case and similar cases on other developments and undoubtedly this First Instance Court Judgment will be used, not as a precedent, as Case Law is only established by an Appeal Court or Higher Court, but as an argument in many other future Lawsuits.

KEITH RULE’S COMMENTS ON THE LIABILITES OF THE BANKS ACCORDING TO LEY 57/1968

The Finca Parcs Action Group is represented by Costa Luz Lawyers and De Castro Gabinete Jurídico.  We are truly grateful for the professionalism, dedication, hard work and support of our legal team during the past 4 years.  Special thanks go to María de Castro whom I first contacted in 2008 and to Jaime de Castro, our litigator, with whom I have had the pleasure of working with very closely on this case during the past 2 years.

It now seems strange to think that in 2007 when we first realised there was a problem with the Finca Parcs project I was unable to find a single Lawyer who shared my view that the Banks had a liability in these type of cases.  That was until 2008 when I found María de Castro and Costa Luz Lawyers via the Eye on Spain internet forum.  If a little sceptical at first María soon realised that I was not going give up and there was only one way forward – legal action against the developer and Bank.  We encountered many hurdles along the way, not least from other Lawyers who, for various reasons, did not share our philosophy.

FAIR AND TIMELY JUSTICE

As I have said many times before, the Spanish Law which grants inalienable rights to protect off-plan purchasers is not new.  It was introduced in 1968; the problem is that it has been conveniently ignored by the developers and financial institutions over the past decade.  The Bank of Spain and Spanish Government failed to enforce the Law and many Court Judgments over the past few years have failed to apply LEY 57/1968 correctly.  The ‘spirit’ of LEY 57/1968 and its preamble are of vital importance if one is to truly understand the purpose of the Law and the reasons for its introduction.

The Finca Parcs Judgment quoted extensively not only from the Law itself but from the preamble of LEY 57/1968 and it shows that when the Law is applied correctly the Spanish Justice System works and that fair and timely justice can be delivered.

For far too long Spain has alienated the very people who once helped the country prosper.

Now the Spanish Government must learn important lessons from this case and from the Bank Guarantees in Spain Petition (www.bankguaranteesinspain.com).  If these types of Bank Guarantee cases are dealt with in a fair and speedy manner then maybe some of those people who have been the victims of negligence and malpractice may once again have the confidence to invest in Spanish property.  After all that is what Spain wants and more importantly, desperately needs.

Right now as the Finca Parcs Action Group we are enjoying the moment and focussing on the positives.  But we are realistic and understand that although we have made a massive leap forward in our fight for justice we are not yet over the finishing line.  We will be making a preliminary enforcement of the Judgment but also preparing ourselves for any appeal that may be submitted by either defendant.

Should an appeal be forthcoming then it will be heard by the Appeal Court in Albacete and the decision of that court would then set a precedent and may be used as Case Law in other Lawsuits.



NOTE:  BANK GUARANTEES AT LAS HIGUERICAS, FINCA PARCS

Other buyers at Las Higuericas, Finca Parcs who did receive the legally required Bank Guarantees from CAM, have during the past 3 years been able to execute their Bank Guarantees and receive refunds.  However, some of these buyers also encountered problems and were forced into taking individual legal action to execute their Bank Guarantees as CAM initially refused to honour the Bank Guarantees in many cases.



_______________________

LEY 57/1968
CLICK HERE FOR THE BANK GUARANTEES IN SPAIN WEBSITE

       
      

fpag@btinternet.com




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10 Jun 2012 11:50 by jaldridge Star rating in Manilva. 144 posts Send private message

jaldridge´s avatar

Keith, potential appeals aside, this is fantastic news, for everyone concerned!!

I'm so happy for you all.

Well done to all of you.



_______________________

Justin

EOS Team




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10 Jun 2012 13:39 by mariadecastro Star rating in Algeciras (Cadiz). 8808 posts Send private message

mariadecastro´s avatar

 Determination made it!



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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11 Jun 2012 13:26 by belucky358 Star rating in North Yorkshire. 185 posts Send private message

Hi Keith and Maria,

Can either of you tell us if there is any period of time in which these people can appeal, or is it an indefinite period ??

It would be nice to know if , for example, it was within six months or twelve months, as the problem with not having a time frame is that you are just left in limbo.





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11 Jun 2012 13:32 by mariadecastro Star rating in Algeciras (Cadiz). 8808 posts Send private message

mariadecastro´s avatar

After thr reform of the Civil Procedural Law made in October 2011, Appeal needs to be presended before the Court issuing the decission within 20 days from Court decission.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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11 Jun 2012 14:10 by ads Star rating. 3021 posts Send private message

I'm confused Maria, as we are still awaiting a resolution to a developer appeal for nearly two years now, so doesn't this timescale of 20days refer to the submission of an appeal as opposed to gaining a resolution to the appeal?





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11 Jun 2012 14:11 by mariadecastro Star rating in Algeciras (Cadiz). 8808 posts Send private message

mariadecastro´s avatar

20 days for submission of appeal



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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11 Jun 2012 14:39 by ads Star rating. 3021 posts Send private message

Thank you Maria,

I suggest there needs to be reform of the Civil Procedural Law to place constraints on not only the submission of an appeal but for final appeal resolution time constraints also!

 


 


This message was last edited by ads on 11/06/2012.



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11 Jun 2012 16:35 by ads Star rating. 3021 posts Send private message

Dear Maria,

Is it correct to say that the preliminary enforcement only covers the return of original deposited amounts and excludes legal fees and interest, and that the legal fees and interest (as per the first instance ruling) only become available when any appeal is resolved in your favour?


 


This message was last edited by ads on 11/06/2012.



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11 Jun 2012 16:50 by mariadecastro Star rating in Algeciras (Cadiz). 8808 posts Send private message

mariadecastro´s avatar

Provisional enforcement is for same concepts than ordinary enforcement: principal, plus interests plus legal costs. Principal comes first becuase interests and costs need to be valuated by the Judges after proposals of the parties



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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11 Jun 2012 17:03 by ads Star rating. 3021 posts Send private message

And the final valuation of interests and legal costs can only be done after the appeal has been finally resolved by the judge.... is this correct Maria? (so grateful for this clarification! )





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11 Jun 2012 17:32 by mariadecastro Star rating in Algeciras (Cadiz). 8808 posts Send private message

mariadecastro´s avatar

Interests and costs are valuated within the provisional enforcement procedure without a need to wait to Appeal Court decission



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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