Can anyone recommend a local lawyer (Almería) experienced in dealing with Dación en pago? Advice?

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14 Jan 2009 12:00 AM by RinTinTin Star rating. 7 posts Send private message

I posted this on the living in Spain section. I think it would be better here!!

 

Hi everyone,

I would really appreciate it if anyone knows a lawyer with experience of dación en pago. I think my chances of success would be much greater with some legal backing.

Thanks

RinTinTin

 

For any who wish to give advice. I bought an apartment 3 years ago, valued at the time at 192,000€, paid 150,000€ all on mortgage and have about 146,000€ left to pay off (early period of interest only etc) and I really can't see a way out of this other than bank reposession or dación en pago with the latter being preferable as it will relieve me of 100% of the debt, whereas repossesion may not. I am still young enough to benefit from the rentals scheme of the Spanish government and could go from paying out 8/900€ a month to 250€ a month. Some difference!





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14 Jan 2009 10:08 AM by RinTinTin Star rating. 7 posts Send private message

Also does anyone know if it's possible to do partial dación en pago? So give the apartment to the bank and keep a loan of a certain amount (what they may potentially view as the difference between accepting or not).





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14 Jan 2009 10:40 AM by pmsabogada Star rating. 47 posts Send private message

Dear Rin tin tin:

The last decision is in your bank. I do recommend you to claim (in written) for this option (DACION DE PAGO), keeping a copy of your application; they will study your case (checking the remaining debt and the current value of the house) and will consider if they are interested or not in receiving the house as a payment  of the debt you hold with them (or part of the payment, partial dación de pago is possible).

However, you must know that the decision, as I said, depends on them. Some bank are reasonable happy (...) to carry out this business, other are not so glad to do it.

It depends on the bank and the case, I repeat.

Kind regards,

Patricia Morales Sevillano

Lawyer

http://pmsabogada.blogspot.com

 





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14 Jan 2009 12:24 PM by RinTinTin Star rating. 7 posts Send private message

Thanks pmsabogada,

 

I understood that the bank also had to justify it's reason for not accepting the property as dación de pago, and had 'to have a very good reason' for this...

 

I think it is in one of mariadelcastro's posts, but I may have misread.





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14 Jan 2009 12:27 PM by pmsabogada Star rating. 47 posts Send private message

Maybe, the best would be getting a reason from the bank about their negative answer; however, not all banks are so nice to do it, I fear.

Regards,





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14 Jan 2009 1:50 PM by Smiley Star rating in San Pedro de Alcanta.... 2502 posts Send private message

Smiley´s avatar

It most certainly does depend on the bank. I know of one instance where a borrower is trying to invoke Dación en pago with Barclays and they are refusing to accept it. I do not know the reason they have given for refusal but the borrower has tried on several occasions to activate this without success.



_______________________

Smiley - patrick@marbellamortgages.com  www.marbellamortgages.com   www.comparetravelcash.co.uk




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14 Jan 2009 1:57 PM by RinTinTin Star rating. 7 posts Send private message

Smiley the mortgage expert. I've seen posts abotu and from you here. Is it usually a centralised bank thing or branch level precedent? I'm with BBVA.





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14 Jan 2009 2:05 PM by Smiley Star rating in San Pedro de Alcanta.... 2502 posts Send private message

Smiley´s avatar

Personally I dont have any experience with Dacion en Pago (thankfully) so its hard to tell you exactly. However in the instance I mention below the local branch director was obstructive (continually) and when the guy asked me what to do I suggested taking it further at a head office level in Madrid and to get his lawyer involved - he kept phoning me during the time he was getting no response asking for advice as to what he should do (from day 1 I suggested getting his lawyer involved but I think he was trying to avoid cost - although he didnt seem to have problems buying a beer or three) - he has stopped calling me now so I assume that he has ultimately had some success although I dont know for sure - whether he used a lawyer or not again I cannot say.

It could be a problem you are experiencing at branch level rather than the bank itself so it might be worth taking the request to head office.



_______________________

Smiley - patrick@marbellamortgages.com  www.marbellamortgages.com   www.comparetravelcash.co.uk




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14 Jan 2009 2:28 PM by RinTinTin Star rating. 7 posts Send private message

Thanks Smiley,

 

Just to clarify, I have not approached the bank yet. I'm doing the ground work so that I can approach them in the best way possible and increase my chances of success.

 

As I have mentioned, I'm still young and don't see myself as likely to make any profit within the next 5 years on the property by selling it and the repayments are crippling me financially to the extent that reposession will probably happen sooner rather than later although I am only 1 month in arrears now but the idea of being left with the shortfall from the auctioned property by reposession (which it seems is likely to be much higher) doesn't really fill me with joy, and dación en pago would appear to be the next best option to free myself from this debt without being financially crippled and/or living in fear for years to come.

 

The way I see it, even partial dación en pago would be preferable to forced reposession. as I may achieve say 120,000€ from the bank and still owe them 25/30k, but with forced reposession and auction they may only clear 60k of the debt and I'll owe 60k with no property to show for it. Bankruptcy would follow I expect! Not a road I want to go down so I would rather be proactive now.





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14 Jan 2009 5:54 PM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

mariadecastro´s avatar

Dación en pago ( dation in payment) is not something that you  will luckily and graciously obtain by the "wonderful mercy of the Bank"  BUT A RIGHT, out of provisions 1175 et seq of our Civil Code:

Article 1175.

The debtor is entitled to transfer their assets to creditors in payment of its debts. This dation, unless otherwise agreed,  will only  release him from liability for the  liquid amount of  the value of  transfered assets. Any agreement on the effect of these dations  concluded between the debtor and its creditors will be done according to provisions of Title XVII of this book,  and according to what is stated in the Code of Civil Procedure.

The offer of payment and the assignemt for collection

Article 1176.

If the creditor to whom the offer was made  refuses to admit it with no reason given, the debtor will be free of responsibility by the assignment of the good.

(...)

Article 1177.

For the assignment of the good to be effective, the debtor must  firstly announce it to those people interested in the obligation.

The assignment will be uneffective if it does not strictly conform  to the rules governing the payment.

Article 1178.

The appropriation will be made by depositing the goods before the judicial authority, to whom the offer will be credited in some cases, and /or the announcement of the assignment in others.  Once the assignment is made, it will have to be announced to interested parties.
 
Article 1179.

The costs of the assignment ,  where appropriate, will be paid by  the creditor.

Article 1180.

 Once the assignment has been duly made, the debtor may request the court  to cancel the obligation.

While the creditor has not accepted the assignemt or the approval of the Judge has not been made,the debtor may withdraw the assigned good or amount,  leaving the  obliagtion remaining.

Article 1181.

Once the assignment is made and the creditor allows  the debtor to withdraw the good or amount,  the debtor will lose any preference on the good. The co-debtors and guarantoors will also be  free of debt.


_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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