Rough justice yet again!

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13 May 2010 11:59 AM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

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The reform of Justice in Spain aims to the right of citizens to judicial services to be expeditious, transparent and consistent with the values proclaimed in the Constitution.The legal text of the reform is "Ley 13/2009, de 3 de noviembre, de reforma de la legislacion procesal para la implantacion de la nueva Oficina judicial". It came into force last Tuesday, the 4th in May.


 

Through this reform,  Judges are intended to work just to judge and to execute judgments,  as our Constitution proclaims, downloading all other functions that are currently developing the Courts,  and which are not strictly judicial in other officers working in Courts.


This objective entails the creation of a new work system, with the introduction of the new judicial office and adaptation to the same of the procedural laws, which provide support to the judicial function.


 

Thus, judicial clerks will be developing work on certain materials which are necessary in the judicial procedure but that are outside the scope of judicial authority.


 

The procedural law reform primary aims to regulate the distribution of powers between judges and clerks. Therefore, the initiation and conduct of the proceedings until the issuance of the ruling, except for certain cases that would be studied by the Judge,
 is attributed to the Clerk.


 

For its part, the execution of the Court Decission, except those aspects that are reserved to the judge, is also attributed to the Clerk.


 

A complementary objective of the reform is the strengthening of the guarantees of the citizens, to this respect, the recording of all hearings and trials has been extended to both labor and criminal procedures, which just used to be for the civil order before.  




Another complementary objective is to facilitate the accumulation of processes and executions, in order to avoid multiplicity of proceedings where different processes have the same object, with the pertinent economic and personal wear that are involved in these unnecessary delays. 




Another important procedural reform is about the Monitorio process (abbreviated), which will be applicable now for due and documented debts up to a hundred and fifty thousand Euros. This will mean that the declaratory process, adversarial, lengthy and expensive will be avoided in many occasions.


 


By Jesus and Maria L de Castro




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This message was last edited by mariadecastro on 13/05/2010.

_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 May 2010 1:08 PM by goodstich44 Star rating in northampton. 1648 posts Send private message

maria

thank you for that information, but what does it actually mean for those like us who have done nothing wrong, won our court cases against Aifos, and paid to have our name on the creditotors list?.  Does it offer any hope that justice will be done?, or as John says, is our only hope that Europe gets tough?





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13 May 2010 1:40 PM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

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Ask Banks for liabilities on this.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 May 2010 2:52 PM by goodstich44 Star rating in northampton. 1648 posts Send private message

maria

on this point, i'm not interested in what excuses the banks will have for not proving a guarantee, that's just part of the history of hopeless regulation. What we want to hear is what the government are doing about the situation that Aifos are even allowed to try yet another scam to get out of doing the right thing by those they have cheated?  We can spend the rest of our days, and every penny we have fighting a battle against Aifos, or the system, but if the system/courts refuse to accept any blame and see right from wrong on compensation for those wronged, what is the point?.  

The situation is so clear. Hopeless lack of regulation allowed banks to get away with not providing guarantees. It also allowed corrupt developers, planning officers, and lawyers  to flourish. Many of those cheated, have spent years getting their cases won, and thanks to unnaceptable court delays that allowed the guilty to go under, many have had to pay to join a creditor list that we now hear is being challenged by those found guilty time and time again.

I think we have to accept that the Spanish system will not accept its failings, despite all the proof provided and the petitions to confirm what we already  knew, or do right by many of those it has cheated directly or indirectly.  I fear we have reached a dead end, and intervention from outside Spain is probably the only real chance of justice??





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13 May 2010 2:54 PM by fultond Star rating in Haywards Heath & Tor.... 242 posts Send private message

Maria, isn't that what everyone is doing, but still not getting any admission of liability. In the meantime we throw a few more hundred/thousand Euros at the problem. People are cutting their losses because they cannot see an end to it, unfortunately.

By the way, welcome back Goodstitch!


 



This message was last edited by fultond on 13/05/2010.

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13 May 2010 2:59 PM by Keith110 Star rating in the UK and I am lead.... 681 posts Send private message

Coombsey, Goodstitch44, normansands & johnmfranci5

I have read your postings and it is a shocking situation.

To whom did you pay your off-plan deposits?

Did you pay to a Lawyer, Agent or direct to the bank who was funding Aifos?  If you paid to directly to the bank then which bank was it?

Kind regards

Keith
FINCA PARCS ACTION GROUP

www.fincaparcsactiongroup.com

 



_______________________

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

       
      

fpag@btinternet.com




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13 May 2010 3:09 PM by coombsey Star rating. 14 posts Send private message

Hi Keith, our money was paid direct to the banks, some to Banc Sabadell and some to Cajamar.





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13 May 2010 3:25 PM by Keith110 Star rating in the UK and I am lead.... 681 posts Send private message

Hi Coombsey

Do you know if the accounts to which you sent your money were Cuenta Especial - special accounts for the receipt of off-plan funds separate from any other account held by the developer in accordance with LEY 57/68 Article 1.1?

Did Banco Sabadell and Cajamar issue Bank Guarantees to any purchasers on your development?

Kind regards

Keith



_______________________

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

       
      

fpag@btinternet.com




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13 May 2010 3:40 PM by coombsey Star rating. 14 posts Send private message

Hi Keith,

I don't know if they were special accounts, is there any way to tell?  We certainly weren't given a bank guarantee and I think that's fairly standard practice for purchasers with Aifos so I don't imagine anyone got a guarantee but I can't be sure.

Justin

 





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13 May 2010 3:54 PM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

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Goodstick: Due to the ultra protective character of the Law as per described in the foreword of the said Law ( I am doing a translation and posting it here and on my blog), Banks will have the burden of proof of their diligence. So no excuses can work: if they cannot prove they did everything possible to secure that the Bank Guarantees/ Insurance policies existed, they will be, according to 1.2 of the said Law, LIABLE.

Fultfond: No, it is not what everyone is doing. As far as we know, no one has tried this action before. If you heard of someone whose lawyer has or is trying, please refer it to us.

Keith and Coombsey: Even if the accounts were not namely " special" if they were on a developers´name and more even if the Bank holding those deposits was also financing the development, the action is available.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 May 2010 4:06 PM by belucky358 Star rating in North Yorkshire. 197 posts Send private message

Hi everyone,    

We too have been robbed by AIFOS.     Our deposit and payments were  originally handed to our English Estate Agent who in turn forwarded them to our "provided in house lawyer" in Spain ,who then, I believe forwarded them to Aifos.

I am unaware of which Bank or Banks were used to hold the money, let alone if they were put into a "special account".

None of the people involved  ie English Estate Agent, Spanish Lawyer, or Aifos made any mention of a Bankers Guarantee, consequently we do not have such a thing.

 

Just for your information this has been going on since June 2004......          Norman





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13 May 2010 4:17 PM by Keith110 Star rating in the UK and I am lead.... 681 posts Send private message

It does not matter whether the agent, Lawyer or developer ever mentioned Bank Guarantees.  The fact is that in accordance with LEY 57/68 Article 1.1 and 1.2 the Bank Guarantee MUST be provided for all off-plan deposits.  The Bank who received the deposit funds MUST ensure the funds are held in a Cuenta Especial separate from any other funds held by the developer.  These accounts MUST only be for the receipt of off-plan deposits.

The Bank who received the off-plan deposit MUST demand that the Bank Guarantee is issued.  If the Bank do not demand that the Bank Guarantee is issued and if they fail with minimum due dilligence to ENSURE that the Bank Guarantee is issued then they are liable under LEY 57/68 Article 1.1 and 1.2

See below:

LEY 57/68

Article One
- The legal and natural persons who promote the construction of homes, that are not of official protection, designed as a home for domicile or family residence with a permanent character or a seasonal residence, accidental or incidental and which seek to obtain deliveries of purchasers money before starting or during construction, must meet the following conditions:

First - To ensure the return of the payments made plus six percent annual interest, by means of Contract of Insurance granted with an Insurance Entity inscribed and authorized in the Record of the General Sub-department of Insurers or by means of a Bank Guarantee issued by an Entity inscribed in the Record of Banks and Bankers or Savings Banks, if the construction does not commence or complete for any reason by the agreed deadline.

Second - Depositing the sums advanced by purchasers through a Bank or Savings Bank, which must be deposited in Special Account, with separation from any other funds belonging to the promoter, which may only contain funds deposited for the construction of dwellings. For the opening of these accounts or deposits the Banking institution or Savings bank, under its responsibility, will demand the guarantee to which the previous condition refers.

Kind regards

Keith



_______________________

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

       
      

fpag@btinternet.com




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13 May 2010 4:39 PM by coombsey Star rating. 14 posts Send private message

Certainly sounds like we have a case then but does anybody have any experience of actual success in pursuing a case like this in Spain?  Being on the right side of the law means very little in Spain as I have found out to significant expense with legal fees etc.  As Goodstitch and others are saying, I don't want to throw more money at legal fees to enforce a law that the Spanish legal system does not have the power or time to enforce!  Have you had any success here Keith?  Maria?





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13 May 2010 4:48 PM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

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The promised translation of the Foreword of Law 57/68:

"It is common, in contracts for the sale of housing, which these are made under special conditions, forcing the buyers, due to the state of family housing needs, to the delivery of quantities before commencement of construction or during it. 

This has produces a justified alarm among the public opinion  due to the repeated commission of abuses which are on one hand a serious disruption of social life, and on the  other obvious criminal acts. All the before mentioned,   which has caused irreparable damage to those who basing their decisions on trust and good faith bought handed money in advance, makes necessary to create general preventive measures that will ensure both the real and effective application of money handed in advance by the prospective purchasers and users to the building of their  houses as well as the refunds when houses are not started or finished. 

(The third paragraph is about the type of crime that the lack of Bank Guarantees/ Insurance policies used to be for developers, now: just an administrative sanction.The said paragraph justified how those crimes which are against community and social interests and public order are worthy of  the greatest protection)


Nevertheless, there is a range of developers, which due to their special characters on establishment, organization, functioning and aims can provide reasonable guarantees to be exempted from the application of these measures. To these effects, the Government must authorize it at the proposal of the Minister for Housing."




 

 



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 May 2010 4:50 PM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

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No success yet. We are starting to try. Backed by the opinion of top Law proffessional such as a Top Proffessor in University of Seville  and a Notary.

I am very confident we will end upa making judges understand what we are asking for and about.



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 May 2010 5:11 PM by belucky358 Star rating in North Yorkshire. 197 posts Send private message

Hi Keith,

Thanx for the full explanation of LEY 57/68, and it looks so straight forward, could it be too good to be true??

My only question is...... Why are we all paying our lawyers thousands and thousands of euros to take Aifos to Court when it's down in black and white, that it's the Banks we should be chasing?

Who do we believe???        Where do we go from here???         Norman.

 





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13 May 2010 5:40 PM by mariadecastro Star rating in Algeciras (Cadiz). 9402 posts Send private message

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Belucky 358:

It is advisable to do both actions at the same time ( contract cancellation against the developer) and tort action against the Bank.

So, you are not throwing euros away but acting against the developer.

Thanks,

Maria



_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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13 May 2010 5:49 PM by goodstich44 Star rating in northampton. 1648 posts Send private message

Keith

whilst I fully  agree that the banks should indeed be held to account, what chance of justice going down this road, without spending years and a load more cash, only to find that despite being as guilty as hell, the banks like many developers and lawyers, are just not recognised by the courts as the crooks they are, and appropriate action not taken to compensate those cheated by them even when your case is won??   How many have taken the 'right route to justice' only to find it a hopeless case?

I feel very strongly that those who have evidence of wrong doing, either by clearly not having a BG, or winning their case against crooks, should be treated as special cases, and not subjected to the injustice, time and expense of having to take clear cut cases through the court system, with often little hope of real justice when it comes to getting stolen money returned.

As I despair of the Spanish government doing the right thing , I feel the only fair solution is an ongoing fund set up for those clearly cheated, and paid for by the Spanish government, (or subsidies to Spain). They in turn could then recover their  money from the guilty parties in their own time. I suspect something like this this might well clean up the system pretty quickly, and do everyone a favour in the long run?.





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13 May 2010 7:12 PM by Keith110 Star rating in the UK and I am lead.... 681 posts Send private message

Goodstitch

I agree with you that a system as you suggested would clean up the industry, but I cannot see that happening.  However, there is a system in place that protects the funds paid by off-plan purchasers - it is called LEY 57/68 !!!  The problem is the Spanish legal system, until very recently, has failed to take action based upon the true meaning of the Law.

For years Lawyers have advised clients to take legal action only against the 'bankrupt' developers.  Of course the Lawyer wins the case and gets a very nice fee - but the client ends up with nothing - just the legal bill.

The banks are also liable - they have the money - it is time for all purchasers who were not provided with the legally required Bank Guarantees to take legal action under LEY 57/68 Article 1.2 against the Banks to which their deposit funds were paid.  (Simulataneous action must also be taken against the developer).

Pressure needs to be put on the negligent Banks who funded the developers, accepted the off-plan deposits and failed to ensure the Bank Guarantees were issued.  Pressure also needs to be put on the Banco de Espana and the Spanish Government.

Now is the time for action.

Norman (belucky358)

The best advice I can give you is that you should try if possible to form an Aifos Action Group of all (or as many as possible) purchasers who were not given the legally required Bank Guarantees.  Then get a Lawyer to take on your case against the funding banks who accepted your off plan deposits under LEY 57/68 article 1.2.  With a group action you will have more 'power' and you may be able to negotiate a reduced group legal fee from the Lawyer.  But.....it will take a lot of work from somebody to organise the group................I speak from experience!!  Also from reading your posts, it would also seem that in your case the Agents and 'in house Lawyers' also have a liability.

Coombsey

We have not had success yet...............as a large group of purchasers on a development called FINCA PARCS we are currently taking this course of action based upon LEY 57/68.

The more pressure we put on the Banks, Bank of Spain and Spanish Government then we may get the justice we all deserve.

Kind regards

Keith
FINCA PARCS ACTION GROUP

www.fincaparcsactiongroup.com





_______________________

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

       
      

fpag@btinternet.com




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13 May 2010 7:35 PM by coombsey Star rating. 14 posts Send private message

Thanks for your input Keith, food for thought at least.





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