Respect of inalienable rights and Ley 57/68

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11 Jun 2014 12:40 by ads Star rating. 3092 posts Send private message

 

When a buyer starts cancellation many years after a default, with no previous cancellation activity in between, it can be understood, as the Supreme Court is saying here that the business has been of no interest for a long period and therefore rights can somehow " fall"

 

Given the above how can the business be deemed to have been of no interest to the buyer when through no fault of their own they neither had detailed knowledge of BG law, nor of the fact that their legal conveyancer was purposefully (due to their failures) denying them this knowledge and ability to act within what now appears to be retrospective time constraints applied by the Supreme Court? Surely the conveyancer’s failures to act should not override buyer’s independent inalienable rights, as stipulated within Ley 57/68, the ability to recoup their monies from the developer/Bank.

 

Why is this fact not being recognised by the Supreme Court? The SC’s interpretation “of no interest for a long period” on the part of the buyer is completely wrong, is it not Maria?

 

It seems abhorrent to place burden on the innocent buyer to have to take action against developer/Bank in full knowledge that this will fail (due to time constraints now applied by the SC) in order that a last resort claim can be placed against the lawyer’s legal indemnity.

 

Is there no way that this interpretation by the SC of “no interest” to the buyer can be challenged Maria?

 

What happens for instance if during the interim lengthy litigation process following a legal action against developer/Bank, which is doomed to fail given the above, the conveyancing law firm was to go into administration (just as developer’s have done so) which would again compromise their recovery of monies?….. this SC interpretation that denies the buyer their inalienable rights to recoup monies from the developer/Bank appears to place them at great risk, not to mention further financial hardship due to extended litigation in the interim.

 

How can this be deemed morally acceptable or demonstrating moral authority? Surely a law which stipulates inalienable rights to recoup monies from the developer/Bank should be fully respected and not be over-ridden by retrospective time constraints that take no account of the full circumstance that buyers have been subjected to and that “no interest” does not apply in their circumstance?

 

Banks who failed to follow their responsibilities to protect monies relating to offplan purchase should be made accountable, especially when it has taken so long to gain consistent recognition through the Spanish legal system. The injustice of it all appears overwhelming when you consider that no time constraints have existed for judicial and administrative processes which in itself has compromised many innocent citizens, allowing developers time to asset strip or go into administration in the interim lengthy periods.

Surely all of these facts need to be reviewed and assessed by the Supreme Court if moral authority in relation to adherence to existing law ley 57/68 is to be demonstrated?

How many thousands who thought they were protected in law (without intimate knowledge of BG law nor detailed knowledge of how they have been legally compromised) will be subjected to this latest SC ruling as Banks use it to their advantage?

Banks in effect will be allowed to retain these deposited monies......monies that do not belong to them!!!

 





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11 Jun 2014 15:56 by belucky358 Star rating in North Yorkshire. 185 posts Send private message

Yes ads, I whole heartedly agree that the banks should be made to return the deposits to their rightful owners, immaterial of time delays.

In my particular case I had never heard of a Bank Guarantee and in 2004 our English Agent never found the need to explain how important this document was, then my first "in house" Spanish Lawyer who was worse than useless, and I'm sure in the pocket of AIFOS, also never informed us about a Bank Guarantee.

So from 2004 to 2008 which was when AIFOS informed us that our apartment was never going to be built, we had done nothing but rely on the lies and misinformation regarding the delays, so for 4 years, according to the Supreme Court, we had " done nothing " 

In 2008 we swapped law firms and the Spanish lawyer kept impressing on us on how different it would have been if we had a Bank Guarantee ???   ( If only he had been more professional and investigated the matter )   Anyway in 2009 this law firm took Aifos to Court and although we "won" we never received a penny as AIFOS went into Receivership and in 2010 we were put on the Creditors list and told that this was our only option, so from 2010 till now we can again be accused of  "doing nothing"

Why does the onus have to be on the buyer who they say, has done nothing what about the lawyer and the bank ? We paid the lawyer to look after our interests and it would appear the banks "hid" these bank guarantees from the buyers !!

 





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11 Jun 2014 22:00 by fazarelli Star rating. 216 posts Send private message

Yes, Ads and Belucky, there are seemingly many ways in which to wriggle out of the law process by the banks.

 

I'm becoming extremely wary of paying another solicitor when there are abusive clauses like these in existence. 20 or 30 won cases in past 2 or 3 years is a pretty pathetic number considering there are probably around 500,000 people affected. It's a massive gamble. No Win No Fee is the only way i'm willing to go after the banks. Can't afford to lose another 10-15k (which is what it will cost).





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13 Jun 2014 09:05 by ads Star rating. 3092 posts Send private message

Ironically I doubt if no win no fee will apply to cases such as this where cancellation rights have not been followed through, as the risks now attached to this scenario given the Supreme Court ruling (if we have understood this correctly) imply that Bank claims will fail (using the legal argument of "no interest for a long period"). Further action will then be needed to make the conveyancing law firms liable for return of monies which will have to be further accounted for (and incur their own risks).

This is why I was hoping that Maria may be able to advise how "no interest for a long period" can be defended in terms of legal interpretation, given the fact that inalienable rights appertaining to ley 57/68 should be fully respected in the eyes of the law, and should not be able to be overruled by a retrospective time constraint.

The query remains, doesn't this in effect work against the principle of ensuring that a member state has to comply with its own laws and does not act OUTSIDE the rule of law and adheres to the principal of legal certainty? Doesn't this also work against the observation “The existence of Law 57/68 provides obligations established not by the will of parties but by the Law itself. As a matter of public order, with an imperative character ( nothing different can be agreed by parties) and with inalienable strength. “? .

Much depends on how this ruling (and presumably its impact on those who have not followed through on cancellation rights, THROUGH NO FAULT OF THEIR OWN AND HAVE NOT DEMONSTRATED NO INTEREST but have relied upon legal council) can be defended in the eyes of the law, with INALIENABLE rights fully respected and adherence to the principal of legal certainty.

I'm hoping that Maria and her litigators will be able to advise on this as it has the potential to impact thousands of innocent offplan buyers whose inalienable rights are at risk.

I would have thought that all those seeking no win no fee should proceed with extreme caution and be asking their legal council specific questions in relation to this scenario, and for that matter asking lawfirms to be more specific as to  the timeframes associated with ALL stages of the litigation process (preliminary hearing/first instance court/Appeal Court etc) depending on the area/region where the claim will be administered. Sadly there appears to be much ignorance with regard to the offers and references to timeframes by some that are being made at this present time.

 


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This message was last edited by ads on 13/06/2014.



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15 Jun 2014 02:43 by fazarelli Star rating. 216 posts Send private message

Ads,

 

Yes, I can see where you are coming from about the 'lack of interest' situation.

In my case that probably doesn't apply due to a prolonged litigation against the developer. I would imagine that no more than an 18month to 2 year period was dormant in this respect. 'No interest for a long period' I would imagine is either a 3 year or 6 year period, although it could be longer, maybe 10 years (like in the case of bank property reposessions).

My purchase contract was cancelled a few years ago, so I would imagine that the case is pretty clear (i.e bank only).





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17 Jun 2014 08:40 by ads Star rating. 3092 posts Send private message

 My concerns are for those who, through no fault of their own, have been exposed to a myriad of compromising circumstances during this past decade as identified below (and for that matter concern for the "good" law firms striving for consistent recognition of inalienable rights):-

  • Unrestrained delays (no time constraints) within the Spanish court and judicial system placing buyers at further risk of developer asset stripping/insolvency in the interim period whilst awaiting the judicial processes (preliminary hearing/1st instance court/appeal court and final rulings).
  • Failure by the CGPJ to recognise and log complaints relating to court and judicial delays and their compromising effects on the enforcement of law for statistical analysis.
  • Malpractice (and/or mal intent to delay provision of essential evidence/files) by law firms whose conveyancing failures to act with timely due diligence and full knowledge of Ley 57/68, and all that implies, has compromised buyer’s cancellation and inalienable rights for return of monies according to existing law.
  • Banks refusal to acknowledge responsibility for protection of deposited monies into identified developer secure accounts with adequate controls in place to ensure provision of LEGAL BG’s
  • Failures by the Bar Associations (until more recently) to ensure evidence by their members was provided in a timely fashion.
  • Judicial interpretations of Ley 57/68 which have failed to recognise manipulative behaviour and legal malpractice, illegal and non provision of BG’s (illegal in all their manipulative forms whether this be unrecognised guarantors, illegal effective-from dates, BG’s not annexed to the contract etc)

 

Given all of the above, innocent buyers now increasingly rely upon firm rulings and moral authority to be demonstrated by the Supreme Court to protect their inalienable rights and make guarantors (Banks) who took possession of their deposited monies or provided generic guarantees, responsible according to the law, rather than place them at further risk and financial hardship, which accrues from being exposed to ever-increasing and time consuming alternative routes to justice to regain their rightful return of monies.

 

The last thing innocent buyers need is for the Supreme Court to further deny inalienable rights according to an existing law, when the fight for consistent recognition of these rights has been ongoing for nearly a decade. Any attempts to cherry pick the law and not recognise the law in its entirety, placing time constraints on their rights when they have no similar protection is discriminatory and morally reprehensible.

 

What’s more, this failure to consistently recognise inalienable rights and review the circumstance “as a whole” also does a grave disservice to those good law firms whose pioneering endeavours to rightly make the Banks accountable (where developer action has failed) during this last decade are being equally compromised as they fail to gain successful rulings.

 

It’s time that moral authority was demonstrated from within the Spanish justice system and inalienable rights as defined within Ley 57/68 be consistently recognised and enforced.

 

 

 


This message was last edited by ads on 17/06/2014.



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