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Soy... un hombre

Vivo en... the UK and I am leading the FINCA PARCS ACTION GROUP in legal action against Cleyton GES SL and Caja de Ahorros del Mediterráneo (Banco CAM) for the return of our off plan deposit payments as we never received the legally required Bank Guarantees.


Mi firma en el foro es...

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

       
      

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05 Jan 2017 22:49:

CORVERA GOLF & COUNTRY CLUB GOES INTO ADMINISTRATION

LEY 57/1968 – RESPONSIBILITY OF THE FINANCIAL INSTITUTION – BANK OR INSURER


On 16 December, the Mercantile Court Number One of Murcia declared, at the request of creditors represented by the Costaluz Lawyers & DeCastro legal teams, the insolvency and administration of Corvera Golf & Country Club SL, and the assets of this company are now suspended.

The administration of Corvera will give greater clarity for claims against banks that accepted buyer’s off-plan deposit amounts for properties at Corvera and also against the guarantor banks or insurance companies.  

Claims due to delay in delivery of the properties can be directed against the Banks in the light of recent important Supreme Court Sentences that are declaring, with forcefulness, the responsibility of the developer’s Banks as guardians of the security of those deposits in off-plan purchases.

This responsibility is given in two different scenarios, both confirmed by the jurisprudence of the Supreme Court according to Spanish Law, LEY 57/68: 

(1) Liability of the financial institution that receives amounts paid by off-plan buyers into an account opened by the real estate developer, if the property is not completed on time.  These banks are responsible, for the return of the off-plan deposits plus interest.

(2) Liability of the guarantors, even though individual guarantee documents have not been given to purchasers: the understanding of General Guarantee agreements signed between developers and insurers or banks has always been interpreted by the Supreme Court in favour of the buyer for the full amount paid to the developers bank account by the buyer irrespective of any arbitrary limit included in the General Guarantee.

Banks also responsible if there were urban irregularities

A recent Supreme Court ruling also holds off-plan property developer banks liable if the development is not completed due to urban irregularities. The reason for this strong protection to the purchaser of first and second residences is in the eminently protective nature of LEY 57/68, which gives rights to the buyer which are of an inalienable nature.

This jurisprudence contributes to the regeneration of the trust in second homes in Spain that was sadly eroded due to the unscrupulous behaviour of many of those involved in the last real estate and financial bubble.



Thread: Corvera entered receivership

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21 Dec 2016 16:40:

COURT OF JUSTICE OF THE EUROPEAN UNION

PRESS RELEASE No. 144/16 - Luxembourg, 21 Dec 2016

CLAUSULA SUELO - MORTGAGE FLOOR CLAUSES

Spanish case-law placing a temporal limitation on the effects of the invalidity of ‘floor clauses’ included in mortgage loan contracts in Spain is incompatible with EU law

Such a limitation makes consumer protection incomplete and insufficient and is not an adequate and effective means for preventing the use of unfair terms

In Spain, many individuals have initiated judicial proceedings against financial institutions seeking a declaration that the ‘floor clauses’ inserted in mortgage loan agreements concluded with consumers are unfair and that, consequently, they are not binding on the consumers. The clauses in question provide that, even if the interest rate falls below a certain threshold (or ‘floor’) defined in the agreement, the consumer must continue to pay minimum interest equivalent to that threshold, without being able to benefit from a lower rate.

By judgment of 9 May 2013, the Tribunal Supremo (Supreme Court, Spain) held the ‘floor clauses’ to be unfair, given that the consumers had not been informed properly about the economic and legal burden which the contract would place upon them. Nevertheless, the Tribunal Supremo decided to limit the temporal effects of the declaration of invalidity of those clauses, so that they would have effect only for the future, as from the date of delivery of the abovementioned judgment.

Some of the consumers affected by the application of those clauses are asking for repayment of the sums they claim have been unduly paid to the financial institutions from the date on which their loan agreements were concluded. The matter having been brought before them, the Juzgado de lo Mercantil no 1 Granada (Commercial Court No 1, Granada, Spain) and the Audiencia Provincial de Alicante (Provincial High Court, Alicante, Spain) ask the Court of Justice whether the limitation of the effects of the declaration of invalidity from the date of delivery of the judgment of the Tribunal Supremo is compatible with the Directive on unfair terms, 1 given that, according to that directive, such clauses are not binding on consumers.

In today’s judgment, the Court holds that EU law precludes national case-law in accordance with which the restitutory effects connected with the invalidity of an unfair term are restricted to the amounts overpaid after the delivery of the decision holding that the term is unfair.

The court notes first that, according to the directive, unfair terms must not bind consumers as provided for under the national law of the Member States, with the obligation being on those States to provide adequate and effective means to prevent the use of unfair terms. The Court explains that the national court must purely and simply exclude the application of an unfair contract term in such a way that it is deemed never to have existed and so that it does not bind the consumer. The finding of unfairness must have the effect of restoring the consumer to the situation that consumer would have been in if that term had not existed. Consequently, the finding that ‘floor clauses’ are unfair must allow the restitution of advantages wrongly obtained by the seller or supplier to the consumer’s detriment.

According to the Court, the Tribunal Supremo was entitled to hold that its judgment was not, in the interests of legal certainty, to affect situations in which judgments with the force of res judicata had been given. EU law cannot require national courts to disapply domestic rules of procedure.

However, in the light of the fundamental requirement of a general and uniform application of EU law, it is for the Court and the Court alone to decide upon the temporal limitations to be placed on the interpretation it lays down in respect of an EU rule. In that context, the Court makes it clear that the provisions of national law must not adversely affect the consumer protection guaranteed by the directive.

As it is, the temporal limitation of the effects of the declaration of nullity in respect of ‘floor clauses’ deprives Spanish consumers who have concluded a mortgage loan contract before the date on which the judgment of the Tribunal Supremo is given of the right to obtain repayment in full of the amounts overpaid to the banks. Therefore, the effect of that temporal limitation is an incomplete and insufficient protection that cannot constitute an adequate or effective means of preventing the use of unfair terms, as required by the directive.



Thread: Your refund linked to Floor Clause in your spanish mortgage

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21 Dec 2016 16:38:

Spain's banking sector was hammered on Wednesday after the European Court of Justice ruled that lenders will need to reimburse mortgage customers who were overcharged on interest payments.

The Spanish Supreme Court had previously ruled that the refunds should only apply from May 2013, however the ECJ has now ruled that all overcharged interest should be repaid, which in most cases will be from around 2009 when the Euribor began to fall.

The Court said lenders had incorrectly applied a 'floor' (Clausula Suelo) to mortgage rates, even as inter-banking lending costs fell to a record low of nearly zero percent in the wake of policy easing from the European Central Bank. The 'floor', which was ruled illegal by Spain's highest court in 2013, essentially meant that retail customers paid higher-than-necessary rates on their mortgages, potentially amounting to billions of euros, that lenders will now need to reimburse as a result of the ECJ ruling.

"The situation of unfairness must have the effect of restoring the consumer to the situation that consumer(s) would have been in if that term had not existed," the ECJ said "Consequently, the finding that 'floor clauses' are unfair must allow the restitution of advantages wrongly obtained by the seller or supplier to the consumer's detriment."



Thread: Your refund linked to Floor Clause in your spanish mortgage

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13 Sep 2016 11:43:

Ads

To answer your question:

"Is it also safe to assume that according to the SC jurisprudence that you identified with regard to article 1.2 that any Bank now filing an appeal after Dec 21st 2015 (in their attempt to gain an overruling following a successful first instance ruling in favour of the client) should, according to SC jurisprudence, now lose their appeal and appeal costs should be imposed on the Bank, as the issue of doubt no longer exists?"

Yes.  Appeals relating to banks liabilites according to Article 1.2 of LEY 57/1968 should now be lost if the matter to be judged is as per the 21 Dec 2015 and 9 & 17 March 2016 Supreme Court rulings.  When an Appeal is lost the costs of the appeal procedure are normally imposed on the losing party.
 



Thread: An Orihuela Townhall Scandal

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13 Sep 2016 11:21:

Sandra - LEY 57/1968 stated 6% annual interest, but this was amended to the legal rate by the Building Act of 1999 - LEY 38/1999.  So normally the legal rate is now applied by Judges & Magistrates.  However, if there is an Individual Guarantee or General Guarantee that states 6% interest then some Judges will award the interest at 6% as per the Guarantee.



Thread: An Orihuela Townhall Scandal

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Spanish Off-Plan Property - Bank Guarantees - LEY 57/68
"This blog is for all those Off-Plan property purchasers in Spain who have not received Bank Guarantees for their deposit funds as required by Spanish Law, in particular LEY 57/68 Article 1.1 and 1.2 and are now at risk of losing their money. In addition many purchasers who did receive Bank Guarantees are now finding that the Spanish Banks are refusing to honour them without legal action being taken by the purchaser. "
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