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

I've had everything crossed for weeks Keith, not long to go now!

Best wishes for your appointment with Costaluz Lawyers,. You are just the kind of liason that has been needed to help clarify the various stages of a Spanish Court Case and the costs and timescale involved. 

Your expertise in suing Spanish Banks must now be unrivalled. 

 

 

This message was last edited by sandra on 07/03/2013.

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Hi Sandra

Thanks for your kind words.  Yes, not long to go now..........I am nervous.  I feel a lot of pressure as it is not just me.........whatever decision comes from the Appeal Court will also affect 46 other people in the group.  And.....the 13 people in Lawsuit 2 and the also the ones pending for Lawsuit 3............It's never ending - and that's just at Finca Parcs!

But whatever the result of the CAM Bank Appeal I know, hand on heart that there was NOTHING more we could have done.  The evidence against the Bank is overwhelming.

It is a very strong First Instance Sentence against both the Bank and Developer.  Just to give myself added confidence to get through this weekend, I have just re-read every word of the First Instance Judgment!!

It is so clear - we gathered a huge amount of evidence over a 5 year period and the evidence was tremendously strong and all accepted by the Judge.  The Bank Manager and developer had no answers when cross-questioned in the Court.  Jaime, our litigator, did a fantastic job especially when interrogating the Bank Manager - he was shaking at the microphone stand!!

CAM tried to argue that it was oblivious to the transactions going through the developers account at its branches.

However, in her sentence the Judge said CAM Bank knew without any doubt that the funds paid into the developers accounts opened in their branches was from buyers of off-plan properties and that CAM had even issued receipts for the funds detailing the plot numbers, development name etc.  Therefore CAM had performed an 'ABOSLUTE DERELICTION OF ITS DUTY ACCORDING TO THE OBLIGATIONS IMPOSED ON FINANCIAL INSTITUTIONS BY LEY 57/1968' and that the actions of CAM Bank are 'BANKING MALPRACTICE'.

She said that on one hand CAM tried to use the excuse that the accounts where the buyers, subject to this action, paid their deposits according to the Purchase Contracts were simple current accounts.  However, some other buyers on the development who paid their deposits to exactly the same CAM accounts did receive Bank Guarantees from CAM and on all those guarantees CAM described the very same accounts as CUENTA ESPECIAL.

The evidence and facts of the case have all been established by the First Instance Court and the Sentence was damning against both defendants and backed up by Case Law - including Supreme Court Case Law.

CAM presented nothing new in its appeal - the same old arguments and excuses that had been dismissed by the First Instance Judge.  They tried to use some very weak Case Law in favour of a Bank - but that case was totally different to ours.

The Appeal Court's job was not to re-evaluate and re-establish all the facts and evidence. That is fixed.  They must just decide whether the First Instance Sentence was legally sound and whether the decision was reached based on the correct interpretation of available Case Law and Jurisprudence.

In my opinion, it will be a travesty of justice if the Appeal Court has upheld the CAM appeal.  And.....our litigator, Jaime, has always said that it will be very difficult for CAM to overturn the First Instance Sentence - so it is not just me.

The Appeal Court already knows its decision, but it has not yet been notified to the parties.

All we can do is wait and try to relax for another week or so.

I too am keeping everything crossed..........

Have a good weekend.

Kind regards

Keith

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 Hi Keith,

 

Good luck!

I and others are waiting to see what occurs because Casares del Sol had a generic bank guarantee in place when Interlaken 2003 SL (now liquidated) sold units to Med Luxury Homes/Ocean View to sell on (unwitting purchasers didn't know that MLH weren't the builders). I won another development court case against Banco Pastor on December 18th (after two previous cases against the developer)...but unlike your case no funds were demanded to be paid into the court....my initial feeling of success has been replaced by a feeling Spanish banks don't do as their legal system directs....so how can Spain ever improve? Right now I am in a real quandry about what to do as I have NO income to speak of and dearly want to start a new chapter!   

I am depleated of funds mainly due to my first solicitor (everyone avoid Don Colombo) and now I wonder what I fought for for seven long years

 

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Keith, were all keeping everyting crossed for you and the group.

It's a funny situation to be in - you've been waiting for several years for your money back and you've spent most of those working against the tide of common and legal  opinion, and now you are so close to getting it all back, yet you might not!

I seriously can't see it going in the bank's favour, however.

Btw, under what grounds was the bank granted an appeal? Is it mandatory that they have that chance, no matter how small or unlikely the defence's chance? I mean, what new angle can they pursuade a court/appeal panel?

Is the damning evidence the fact that they DID issue some bank guarantees but not to others, using the same bank account types?

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Stay strong Keith, and here's hoping that off the back of your remarkable endeavours to gain justice for your group that the Bank Guarantee petition receives the recognition it so deserves (an educational tool at the very least) and that the recommendation for a fast track solution together with consistent judicial rulings are effected for all those still striving for justice.

Good luck to your group and to Maria and the Costa Luz litigation team.

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Hi All

With the positive results/comments coming out of Spain on Generic BG claims, I found this response bemusing

Response from my MEP

Thank you for bringing this petition to my attention. Unfortunately I am aware of the many problems UK citizens experience purchasing property abroad, including the disregard given to Bank Guarantees in Spain and the frustration felt by many at the failure of the Spanish justice systems to deliver redress.

As you correctly state the EU has very limited scope for intervention; property or planning issues stem from national law and therefore the remedy has to be sought in national courts. The attached response to a petition submitted to the European Parliament on this issue details this. Many of us in the European Parliament share your frustration with the inability of the EU to legislate or intervene in these areas. However the current political climate, particularly here in the UK, makes it very difficult to see how we could win the argument for extending the scope of EU legislation into property rights any time soon.

 

There are some initiatives that it is hoped might improve matters for the future. In 2004 the European Land Registries Association (ELRA) was formed supported by the European Commission. Cross Border Electronic Conveyancing (CROBECO) is a project delivered by ELRA which aims to establish simpler and more confidence inspiring processes for purchasing property abroad. It is envisaged that the purchasing procedure will be conducted electronically and settled in the buyer's home country and in their own language. The project tests the possibility of using the rules of the Rome I Regulation to enable the parties to exercise their right to choose the applicable law as concerning the obligations of the buyer and seller. This does not extend to the acquiring of property rights themselves which remains governed by national law in the country of the property.

I hope you find the above of some interest, I am sorry not to be able to provide a more positive response or practical suggestions. Please be assured that my Liberal Democrat colleagues and I will continue to highlight these difficulties and push for action.

 

Regards,

 

Rebecca Taylor MEP

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Hello Keith,

I write to sincerely congratulate you on the huge amount of hard work you have put in on the Finca Parc case which I have been following for the last few years. I am waiting also with bated breath to hear the decision of the Appeal Court which has now of course been made, but which you won’t hear, until later this month. It affects me greatly as I, through Maria and CostaLuz Lawyers, have a lawsuit against CAM for the return of deposits for which they did not issue a guarantee. The First Instance Court case is in May of this year.

My case is slightly different from yours and to go into all the details here would take far too long and too much space. But you may be interested in a very brief outline. I have been pursuing legal action against CAM since December 2007 for the return of what for me was a truly massive amount of my savings totalling over 76000 euros. I had started paying off-plan payments on a property in May 2005. I have spent literally thousands of pounds of my money in legal fees and undergone what I can only describe as a nightmare which has caused me an enormous amount of stress and time and which has I believe been seriously detrimental to my health. I had the misfortune to use two incredibly incompetent solicitors in Spain and through my attempts to buy the property in Spain I have witnessed and experienced corruption and professional negligence on a scale that I would have previously found hard to believe. I then used a solicitor in England for a couple of years. This solicitor I think tried hard and may have done some good preliminary work, but in frustration at a lack of any tangible progress I switched solicitors to Maria and Costa Luz Lawyers in 2010. I do not know how much of the work that the solicitor in England did may have contributed to the result, but I managed through Costa Luz Lawyers to get some of my deposit back based on having a photocopy of a guarantee document issued by CAM for that part of the deposit I had paid up until the issue date of that guarantee document. The twists and turns were incredible and I could write a book on it!

I was and am extremely grateful for the representation I received through Costa Luz Lawyers. CAM paid that part of the deposit back and settled out of court. However, CAM have absolutely refused to pay the balance of the deposit money I paid into that ‘special account’ required to protect the deposits of off-plan purchasers under Ley 57/1968 and which totals some 31000 euros and for which they issued no guarantee, even though they had issued a guarantee for the amount of money which I had previously paid into that exact same account. With the help of Maria and Costa Luz Lawyers I have issued a law suit which is to be heard in the Court of First Instance in May. I have noted your important point about bringing the lawsuit against both the developer and the bank which is what we are doing.

Your case and the Appeal Court result is therefore of enormous interest to me and I am sure many, many other people as well. I desperately hope that justice is done and that you will hear that the Appeal Court has found in your favour and upheld the First Instance judgement, as apart from the rightful and long overdue return of money to you and the other 47 members of your group, it will hopefully create a precedent in case law and give hope to hundreds more people who are fighting to recover their money and obtain justice.

My fingers are truly crossed for you.

Malcolm Bray

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It's 3 weeks tomorrow since the appeal hearing.

The result must be this week, surely? I'm expecting it tomorrow.

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Gill - thanks for wishing us luck.  I am pleased you have won against Banco Pastor.  I am sure that with a firm judgment against a bank you will ultimately get your money.

Ads - thanks for your kind words of support and encouragement.  You have kept me going in some of my weakest moments in the last 3 years!

Trowell1 - A standard response from MP's & MEP's I am afraid.  This is the same thing they have been saying for the past 5 years.  They maintain that they cannot interfere in Bank Guarantee issues in a European State.  The only thing the Politicians (including David Lidington when we met him in 2011) promise to do is to raise the issue with their Spanish counterparts........  And those Spanish Counterparts some of whom I met on 2 occasions in 2011 assured me that Spain is not a 'Banana Republic' (their words not mine) and that they do have Laws.  They also told me that cases such as mine should go through the legal system and that the Spanish Politicians have FULL TRUST in the Spanish Legal System to deliver true justice.

Piaggio (Malcolm Bray) - Thank you so much for your kind words and support.  We are all waiting with bated breath now!  Your case is similar to a few members of the Finca Parcs Action Group who did get Bank Guarantees from CAM for the first part of their deposit but not for the second payment which was made to exactly the same account as the first payment for which they did get a Guarantee.  There is plenty of Case Law that supports a case such as yours, however as you rightly say a positive result for Finca Parcs Action Group in the Albacete Appeal Court will help your case tremendously.  Your joint Lawsuit against the developer and Bank was exactly the right thing to do.  You want them to be condemned 'jointly and severally' liable.  Is it your Preliminary Hearing or Full Trial that is being heard in May?  I wish you the very best of luck with your case.  I am pleased that CAM settled out of Court for the part of your deposit covered by their Guarantee.  They have absolutely no defence for failing to issue you with a Guarantee for the second part of your deposit paid to exactly the same account.

Fazarelli - Correct - 3 weeks on Monday and I have been counting every hour and every minute of every day!  To be honest I had expected to have the result earlier as Albacete in the grand scheme of things is not such a busy Appeal Court and they normally issue the Appeal decisions within 10-14 days from the date set for deliberation and voting by the Magistrates.

Absolutely, it is a strange situation.  I don't know why they are taking so long to release their decision.  I hope that there is no 'political influence' at work behind the scenes!

Yes, I have spent most of the past 6 years working against the tide of common and legal opinion trying to get the powers that be to accept that Banks do have obligations and liabilities according to LEY 57/1968.  I think my initial thoughts back in 2008 regarding the liability of the Banks was justified as there are now around 35 examples of Case Law from various Appeal Courts in Spain that all confirm the liability of the Banks.

It is strange that at Finca Parcs we are so close - but with the decision taking so long to be released nothing can be taken for granted.  With the overwhelming and damning evidence against CAM together with the very strong First Instance Sentence and other very good Case Law over the past 2 or 3 years it really will be a travesty of justice if CAM is absolved of all responsibility at Finca Parcs.

At this point we must also bear in mind the possibility that if the Appeal Court dismisses the CAM appeal and upholds the First Instance Sentence then CAM may Appeal again to the Supreme Court.  We would also have the opportunity to Appeal to the Supreme Court if the Albacete Appeal Court upholds the CAM appeal and revokes the First Instance Sentence.

CAM's appeal was accepted into procedure because it complied with all the requirements of the LEC - the Spanish Civil Procedure Act (Ley de Enjuiciamiento Civil).  The facts and evidence of the case are fixed by the First Instance Court.  The Appeal can only be on the grounds of the misinterpretation of the facts, the wrong evaluation of the evidence, contradictory jurisprudence, wrong application of Case Law - or something like that.  CAM's appeal was really made up of the same arguments that it used in the original trial - that all the illegalities were committed only by the developer and that CAM played no part in it.

The damning evidence is extensive, but yes the fact that they issued Bank Guarantees to some buyers but not to others for money paid into exactly the same accounts is part of it.  Also we proved beyond any doubt, including from the Banks own receipts, that it knew exactly what the funds were for.  Yet it failed to protect those funds in accordance with LEY 57/1968.  The Bank allowed the developer to spend the funds for purposes contrary to LEY 57/1968 including Car Lease Payments, Vodafone, MasterCard bills, Satellite TV Subscriptions, Parking Charges, Car rental payments etc etc.  The Bank also authorised and signed documentation that was shown in Court, that allowed the developer to make cash withdrawals from the Special Account.  One of these cash withdrawals was for in excess of 80,000€ in one transaction.  Furthermore the Bank themselves debited the accounts in which they had knowingly accepted our off-plan deposits, with mortgage payments, loan interest and commissions, bank charges etc....

The list goes on.............

But still...........despite this I am at present a nervous wreck!!

Kind regards

Keith
FINCA PARCS ACTION GROUP

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Brilliant post Keith! Thanks very much for taking the time to return our queries.

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Yes, thank you Keith for responding individually to us all! I know how it feels to wait...I paid my deposit over in 2004, and my most recent move was to approach my MP (Ann Coffey - who I think is hanging in until she retires) and asking her to write to the London branch of Banco Pastor as it is also bound by FSA and the British Bankers Association. My life has been on hold for several years and now I feel I need to move on from the rut I find myself in.

 

I want to have a life where I am not thinking about a major outlay and the hassle it's been to have my funds back in my account! I suppose though there are many out there who have given up, not necessarily because they can afford to give up, just that the process winds us down, and even if we don't acknowledge it, our health takes a beating.

I'll be counting the days off with you Keith, and if the decision isn't in your favour it'll be a traversety - given everything the group has done to get justice...but in my heart I believe you'll win!

I wish that we could set up a fund for individuals to fight for their deposit back if there is a strong possiblity of winning -and if that does happen the individuals can refund the 'loan'...so many people can't go to court because they lack the finances...I had to take a bank loan out for my greedy first solicitor....I still have to address that.

I am hoping we can all lead a less stressful existence in a few weeks.

 

Warmest Wishes

 Gill

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Great posts from all supporters much endorsed but Gill is right, the corruption eats away at your health and resolve.

The night time is the worst time, if you go to bed thinking about the loss of your life's savings, you are in for a bad night and the nightmare Spanish legal decisions make you want to give uo.

Never mind viva espana VIVA KEITH

Norman

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This message was last edited by ads on 25/03/2013.

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Ads,

when does despair set in?????

6, 8 or 10 years of misery and nerves???

all whilst more and ever more, ever higher corruption is revealed.

I wasn't once but I am now a weakling in the face of it all.

Regards

Norman

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Ads, how sad has all this experience been

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Dear all, I just want to comment on these last threads. How sad that we talk of despair and losing faith and trust. How sad that for many of us our love and dream of Spain has become so soured, our trust in justice and fairness has died with the experiences of the last 10 years. I for one know how Norman feels and Ads and all the other victims named and unnamed as we have been victims for the past 7 years. We have worked hard all our lives to bring up a large family we were never well off but struggled to give our children a good start, then when the opportunity arose we took the opportunity to buy in Spain, seduced by the promise of warmer climate to promote our health in retirement and a slower pace of life to enjoy our retirement years together. But dreams fade, over time, faith in people and systems goes, and eventually hope dies. Despair, however, is final and is not an option.

Daily we wonder how such corruption can carry on, when we finally won our case in 2010, our hopes and faith were lifted and news for others seemed to lift our spirits, but these highs and peaks are even more cruel, because when you come down again the fall is even harder, when you suddenly realise that the banks are so so corrupt and believe themselves to be above the law, so much so that they can simply refuse to acknowledge court judgements against them and even writs served directly.

Each day we wait to hear of not only news of our case, but that of anyone in our situation, especially the Finca Park group, I pray that you will all win your case, and soon, and that the judgement means you actually GET your money and not just a promise of something in the future. Keith you are an example to many of determination and trust that things can change, some of your main assets are your energy, your youth and the promise of time, so I hope and pray that all goes well for you and your large group of people, as to see them finally compensated would boost everyone and perhaps inject some much needed hope in the future, especially to those of us for whom justice and fairness seems unachievable.

However, to those of us oldies in this situation, remember despair is not an option.

Rosemary

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 Confidence. It is going to be allright for PEOPLE. 

It is the era of human dignity!

Maria

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Dear Maria,

I desperately want to believe that.............. but the truth is I do not have another 10 years to wait for the world to reform and I suspect 20 years for Spain to follow suite.

Sorry, but I have to make practical choices now as never before.

Regards

Norman

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 I understand fully the stress of waiting for a decison , when our group was waiting to find out if we could remain in the homes we had paid for and lived in for 6 years  I dont think I slept or ate properly for weeks .

Finally though our legal team obtained us the right to remain  here , first we felt relife , then fear that the bank would appeal again  and we would be back in the fight , then delight when they didnt and finally we felt anger that we had ever got into this situation .

Our legal team Tomas , Jose and Nikki worked wonders to help us when we where days from eviction and for that they have our full gratitude however we as purchasers through one of the largest agents operating in Spain and the U.K SHOULD NEVER HAVE BEEN PUT IN THE SITUATION WE WERE , The law firm who we originally had to do the purchase transaction did not protect our interests and attemp-ted to "run us out of time ".

Keep strong, have faith  and remember even if you loose you win because you had the cojones to fight !!!

Mucho suerte 

 

 

 

 

 

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Norman:

Changes are already here. Many Judges are passing decissions against Banks and proconsumers.

You can have the rest of your life to enjoy the change

Maria

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