Rough justice yet again!

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23 Sep 2009 8:26 AM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

mariadecastro´s avatar

Magicmeg:

Did you execute your Bank Guarantee?

Best,

Maria



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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23 Sep 2009 8:50 AM by Tish Star rating in Surrey. 833 posts Send private message

Hi Magicmeg. we had exactly the same scenario,, same reasons to buy in Spain as you... BUT.... we had a good lawyer and got our deposit back (120,000 euros )+ interst + costs. We executed the BG.   What development did you buy on?





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23 Sep 2009 9:17 AM by ads Star rating. 4122 posts Send private message

Don't forget those who have been denied legal BG's and the disgraceful malpractice that has occured where purchasers thought that they had been protected under this scheme and it transpires that they weren't. ALL of these malpractice and injustices should come under this umbrella. It's not good enough to keep patching up the system with makeshift compromises. Everyone needs to recognise the injustices and mobilise for change.

It's a disgrace in this day and age and makes a mockery of all who hide from the realities. Why should the innocent victims have to wait indefinately for justice while the developer in the interim goes into administration. And then have to find yet more funds to fight their battle with no guarantees that their monies will be returned within a realistic timescale.

The EU should withold monies from Spain to establish a compensation fund and swiftly reimburse those that are at risk in this way. Only then can the Spanish legal system be made accountable for these unforgiveable malpractices, corruption, delays etc.





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23 Sep 2009 9:34 AM by goodstich44 Star rating in northampton. 1648 posts Send private message

ads

Exactly right.  If the Spanish government wont get together with their own courts and compensate those they have cheated out of justice through their own delays, corruption and lack of regulation, then the EU should indeed step in with measures to put things right.

Anything else is simply wrong and leaving decent people who acted in good faith, well and truly conned.





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23 Sep 2009 11:47 AM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

mariadecastro´s avatar

I would add that Banks would also have to be accountable for the lacks of BG´s. It is true that the legal obligation if strictly of developers but banks operating in the off-plan schemes would need to be somehow  liable too for the issuing of  these instruments.

Best regards,

Maria



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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23 Sep 2009 12:14 PM by goodstich44 Star rating in northampton. 1648 posts Send private message

Maria

yes, I agree. but doesn't that come down to regulation again?  If the banks were subject to harsh penalties if BG's were not issued, then they would have got their house in order long ago.





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23 Sep 2009 12:22 PM by ads Star rating. 4122 posts Send private message

No one seems to be mentioning the moral obligation of the lawyer to ensure developer meets his obligation to issue the BG, not to mention the legal checks required to ensure validity of the BG. Where does that come into the equation?





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23 Sep 2009 12:45 PM by goodstich44 Star rating in northampton. 1648 posts Send private message

ads

Indeed they should.  In our case the first two lawyers we used were just liars and in cahoots with the agent and in the early days the developer. In the end, the developer screwed the corrupt UK agents they were at first in cahoots with, who have since gone under !

Once again those in a position of legal trust have betrayed that trust due to poor regulation and laws to stop them cheating not being implemented. All part of the many wrongs in the system that have bought misery to so many.





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23 Sep 2009 1:36 PM by johnmfranci5 Star rating. 107 posts Send private message

23 Sep 2009 1:45 PM by ads Star rating. 4122 posts Send private message

And still the client doesn't receive return of monies from the successful judgement........





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23 Sep 2009 1:47 PM by johnmfranci5 Star rating. 107 posts Send private message

The question is why are not all judges doing this ?

AND

why are they are oit ordering the immediate seizure of all the the Company Directors personal assets ?

 





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23 Sep 2009 2:11 PM by goodstich44 Star rating in northampton. 1648 posts Send private message

johnfrancis5

great to see Lawbird winning their cases, and yes this judge made the right decision, but did the courts go far enough?.  Those who win their case should be treated as 'special' cases, and not just added on to a creditor list for the next 2-5 years if the case was delayed by the courts and the developer went in to administration in the meantime.?  

It must up to the courts/government to compensate this person clearly cheated and proved so in court if delay has ruined their chance of justice.


 



This message was last edited by goodstich44 on 23/09/2009.



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23 Sep 2009 2:12 PM by sandra Star rating in . 812 posts Send private message

sandra´s avatar

Thanks for the post johnmfranci5

I particularly liked:-

 

"The Aifos gang and it´s henchmen will long remain in memories of very many as the symbol of........putrefaction and depravity"

Strong but appropriate words by Snr Flores and a fantastic outcome for the client.

Judge Eva María Gomez Diaz' ruling has shown that a sensible and fair ruling can be acheived. It puts to shame the judges who have stalled and connived to block the dispensation of justice in order to satisfy the demands of corrupt developers. Let's hope we see more of these rulings backed up by  speedy returns of the   swindled funds .

 



_______________________

  

 

 

 

 




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23 Sep 2009 2:15 PM by ads Star rating. 4122 posts Send private message

So, let's ge this right, you go through the long court procedures, gain your successful judgement, effect yet more legal processes (enforcement orders and the like), and all the while the courts' delays compromise your legal position as there are no timescale limits in force, only to find that developer's' monies have been hidden away in accounts from which you can gain no legal access????

Answers please Maria or whoever.

 Sandra wrote

" fantastic outcome for the client. "

I think not!!!! (Don't mean to sound off against you Sandra, it's just that I'm totally frustrated by this ever increasing circle of corruption.)

 

 



This message was last edited by ads on 23/09/2009.



This message was last edited by ads on 23/09/2009.



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23 Sep 2009 6:26 PM by Tish Star rating in Surrey. 833 posts Send private message

Just caught up on this thread.

Maria you wrote: 

I would add that Banks would also have to be accountable for the lacks of BG´s. It is true that the legal obligation if strictly of developers but banks operating in the off-plan schemes would need to be somehow  liable too for the issuing of  these instruments.

Banco Popular did not issue us with a BG when our deposit was paid (unbeknown to us!!) because apparently they were aware of a pending revocation of the building licence for the development.  Even though we had a 100% valid case for exercising our BG, when the case went to Court and we won, the Bank appealed the decision. We then had to wait and go through another Court case.

We won that case and the money had to be paid to the Court Procurator.  During that time, the Bank were able to appeal again within so many days. They didn't and we eventiually got our money, BUT, our Lawyer contacted us one day to say he had received a beaurofax from the Court to say, ( words to the effect of.)." The bank did appeal, but their letter was "lost" and so could our Lawyer send the money back to the Court!!!!!!!!!!!!  Our lawyer responded to the Court, that unfortunately, his clients have already received the money into their accounts!!  We got our money out of our Spanish bank account within hours!!!!

There are no depths low enough to which some Judges will sink to in Spain.  IMO.


 



This message was last edited by Tish on 23/09/2009.



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23 Sep 2009 9:32 PM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

mariadecastro´s avatar

Ads:

Answering your query:

Legal tip 149. Responsibility of the administration of justice for undue delays.
22 September 2009 @ 13:23

 

 


 

It is true that the much hyped financial and real estate crisis in our country has packed the courts but.... Should we be content with things as they are? Can we, lawyers, do something about it? Should we go to liability claims against the administration for delays in the administration of justice?


 



After a moment of reflection this morning,  before our daily team breakfast with our guest these days, Rachael, the daughter of  a customer who came to see how we work for a couple of days-thanks for your visit Rachael!; and before getting into the beautiful vortex of daily work, I conclude that everyone must deal with improving what is within their professional scope and potential, being realistic and maverick at the same time ... which, hum! It is not easy at all. That is maybe why it attracts me… fatally.



To lawyers, in defending the interests of our clients, is necessary to review the functioning of the judiciary, especially in this global world we live in now, where our foreign customers encourage us to overcome the “status quo” and aim for the best.



It is a difficult subject, but that's why we can not stay idle: the responsibility of the administration of justice for undue delays.



Let’s see what our Spanish Constitution (dated 1978) states in different related articles:


 

 


 

Article 24.1:


 

 

1. All persons are entitled to effective protection of judges and courts in the exercise of their rights and interests, without, in any case being victim of a lack of defence




 

Article 106.2:


 

 

Individuals, on the terms established by law, shall be entitled to compensation for any damage they suffer in any of their property and rights, except in cases of force majeure, whenever such damage is the result of the operation of public services.



And Article 121 states:



Damages caused by judicial error as well as those arising from irregularities in the administration of justice, shall be entitled to compensation from the State, according to law.


 

 

The high points of the entire task of requesting accountability to the judiciary by undue delays are four:


 

 

1* The determination of what constitutes "abnormal functioning" this has not been clarified by the Act and therefore must go to the specific case, its complexity, the performance of the parties ... and Case Law applicable.


 

 

2* The damage can be inflicted upon any type of property and rights, comprising also the moral damage.


 

 

3* There must be a clear cause-effect relationship between the activity of dispensing justice and the damage suffered by the litigant.


 

 

4* And the million-euros question:  When is there a “ material impossibility” to act more effectively and expeditiously?


 

 


 

The best legal doctrine about the just-mentioned point (number 4) says that although it is true that in some cases there is an overwhelming overwork in court, this can not deprive the citizen's right to compensation if it causes damages.


 

 


 

We must not forget that the legal order assigns to the judiciary the duty to "promote all the necessary means" to exercise its function.


 

 

What is the procedure for these claims?



The request for compensation needs to be done before the Ministry of Justice under the regulations established in  Articles 139 and following of the Law 30/1992 of November 26, amended by Law 4 / 1999 of 13 January, and Real Decree 429/93 of 26 March).



The claim deadline expires one year after the date the damaging event occurred or caused its negative effects.



Appeal against the decision of the Administration of Justice can be done before the Administration itself, if decided, and of course before Courts that prosecute the action of the government: the Contentious- Administrative Courts.



Applicable regulations



*Spanish Constitution, articles 24, 106.2 and 121.


 

 

* Law 6 / 1985 of 1 July, on the Judiciary: articles 292 to 297.


 

 

*Law 30/1992 of 26th of November on the Legal Regime of Public Administrations and Common Administrative Procedure, as amended by Law 4 / 1999 of 13 January.


 

 

*Royal Decree 429/1993 of 26 March, approving the Regulations of the Procedures for Public Administrations in terms of financial liability.


 

 


 


 

Hojas de liquidámbar by Martius at Flickr.com


 



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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23 Sep 2009 10:31 PM by ads Star rating. 4122 posts Send private message

Thanks Maria, but how realistic is this scenario, and has anyone ever succeeded in regaining all their monies via this legal route? If so under what circumstances did they gain success?

All of this is legal speak, which is very difficult for the average person to comprehend, so could you give examples demonstrating where you see this might benefit those suffering the consequences of court delays.

May I query, doesn't the purchaser require a precedent to have been set  in this regard before daring to provide yet more legal fees and follow yet another legal route that may lead to nowhere? No-one wants to be a scapegoat in this regard so how can we know that this will work? Would you not think it necessary to check if this legal route is a feasible solution before advocating its effectiveness? And how much additional cost would be incurred in this process?

Does the purchaser regain the original court judgement's ruling to include interests, costs and the like, or would this just be a means of gaining a small nominal amount of compensation?

" The claim deadline expires one year after the date the damaging event occurred or caused its negative effects. " so what is deemed a damaging event/negative effect? Is it court delays that impact the return of monies via the inability to issue an enforcement order, or court delays that impact the return of monies due to a developer going into administration in the interim etc etc?

Couldn't the courts just claim force majeure by suggesting that they were overloaded and were not provided with the necessary resources from government? And so it goes on.....

So many questions, and I'm confused by this to be honest.........





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24 Sep 2009 9:03 AM by goodstich44 Star rating in northampton. 1648 posts Send private message

ads

I also wonder how realistic is the scenario. The laws might well be there, but just how much use are they if ignored by the justice system itself?   Without spending heaven knows how much more time and money on lawyers,  who is there to regulate the judges behaviour on delay or possible corruption?

I feel there can be no excuse for a persons chance of justice being ruined by a court delay or any other incompetence. In a fair system,  those who do wrong are punished and their victims compensated. I don't why this should be any different. If the courts are snowed under then it's up to them to insist the government put right the situation so that those cheated by agent/developer/lawyer are not then cheated again by the (so called) justice system.


 



This message was last edited by goodstich44 on 24/09/2009.



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24 Sep 2009 9:50 AM by Tish Star rating in Surrey. 833 posts Send private message

The one thing that should be closely looked at is the "APPEAL" situation. I know it works both ways, but in the instances that we are talking about, crooked developers, they appeal regardless. Each case should be looked at closely to see if an appeal is allowed or admissable. Our case is a prime example of how an appeal by the bank should not have been allowed.

There are waaaay too many flaws in the Spanish Court system





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24 Sep 2009 11:03 AM by ads Star rating. 4122 posts Send private message

Let's hear some possible solutions to eradiate those flaws in the system from the lawyers themselves......... WORKABLE legal solutions that will preferably not incur yet more expense and even more delays for the client please!!!

p.s.

I have just read your interesting thread on Spanish Banks on the Ropes, Maria, where you quoted:

 Well, it seems the culture is actually starting to react,  the news comes to me as a  sign of  how civil society, associations of consumers and users can influence politicians to change Law and culture as this has been a claim of important associations of Consumers and Users in the financial sector for a while. It seems politicians are starting to be aware of Consumers´Law being the solution to many of our past, present and future problems.

 

The full Senate has unanimously approved yesterday a motion by the PP, agreed with CiU, which urges the government to take action against "unfair practices" of some credit institutions in relation to the revision of the mortgages,”

 

Whilst this is obviously welcome news for some (and thanks for keeping us all informed), may I suggest that  they also look to their own unfair practices within the legal system and their effect on us consumers as a matter of urgency.

 



This message was last edited by ads on 24/09/2009.



This message was last edited by ads on 24/09/2009.



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