El blog de Maria

In a recent conference held at the Notary Society in Cataluña.

Some good measures proposed by them:

1.- Bank to repossess houses to the level of 80% of the debt against the current 50%.

2.- Delay interests to be in balance with market interests against the current 20%.

3.- A better regulation of property valuations system is also seen as very necessary as this has been on of the main source of problems of the current system.

4.- To promote notary sales of repossesed houses against costly and slow  judicial processes. This needs to be expressly agreed on the mortgage deed.

The dean of Cataluña Notaries stressed that the role of legal proffessionals is to propose balanced visions of problems and to propose fair solutions in order to impede abuses against individual people at the same time as protecting lenders

He added that we need to learn from the current crisis and to introduce those modifications which will improve the system and which respond to an increasing and justified social alarm. 

"Golf Club La Alcaidesa", by Luis López-Cortijo

 Valencian Judges Association  Jueces para la Democracia considers that it is needed a reform with retroactive effects: Banks cannot be benefitted at the expense of lifelong debts for citizens.

Banks need to acknowledge their liabilities regarding the financial and economic crisis and therefore the closure of the debt through the dation in payment process (giving houses to the Bank) is a matter of Justice.

Social circumstances and consideration to individual people have made Judges start passing new decisions in Spain by which giving the house to the Bank extinguishes the debt. First Court decision was passed by Navarre Court in January.

ADICAE, the association of users of Banks, Saving Banks and Insurance Companies is fighting hard for Users rights to be heard. They are setting forty informative tables in 28 provinces of 15 autonomous communities for the support of citizenship.

Just in Valencia region more than 50.000 people have lost their homes during the last four years due to the impossibility of meeting the mortgage loan.

Lawyers, Economists and Judges have a beautiful role to play in this battle: good lawsuits well argumented and defended, probably with econometrics studies attached will make Judges to see clear how the whole burden of irresponsible credit activities and obscene past and present benefits by Banks cannot become the way to kill the life or families and people by devastating their economies.

In this sense it is good that Consumers Law is a consolidated discipline in our modern legal orders by which the weak party within a commercial transaction have a set of assumptions and privileges on his favor. A market which is respectful towards consumers rights become humanized and balanced for the benefit of all, for the benefit of the market itself too. It is a win-win discipline.

In equity and justice I can see someone being liable before his creditor with all his goods (present and future) if the creditor was completely foreign to the creation and promotion of an irresponsible credit object and the debtor was fully aware of all the risks and consequences.

But….if the creditor, being the professional party lent without the required responsibility (without paying attention to risks, making the credit object something intrinsically and potentially impossible, without meeting the required standards of professional diligence and serious balance of benefits/risk), the consumer, who is the weak, non-professional and inexperienced part needs to be covered by the standards of Consumers Law and protection.

New Laws on financial consumer protection should also include some retroactive measures for past irresponsible credits (for instance mortgages of more than the 60-70% of the value) inspired by principles of Consumers Law and classic legal categories such as equity, proportionality, ad impossibilia nemo tenetur…. At the end of the day, the Sources of the Spanish Law order are Law, Uses and General Principles of Law.

Vejer General View by elarequi61 at Flickr.com

Women Bosses Get Higher Marks

Edenred; IESE

Original document: Endenred/IESE Conciliation Barometer

 It is intersting as we discussed on the future of cultural tourism in Spain with clients who came to have lunch with us yesterday.

Very Cheers!

Maria

http://insight.iese.edu/fichaMaterial.aspx?pk=7283&idi=2&origen=1&idioma=2

"Golf Club La Alcaidesa", by Luis López-Cortijo

Limited- liability companies with share capital inferior to 3.100 € under any of the models published by the Justice department, will be under special deadlines:

Notary deed will be authorized by the Notary same day of receiving the Negative Denomination Certificate ( which certifies no other company has same name) issued by the Central Commercial Registry.

The Commercial Registrar will calify and register the company within 7 working hours after the telematic reception of the deed

Fees will be of 60 Euros for Notaries and 40 Euros for the Registrar.

For other companies which are not limite- liability, or being limited liabilitiy has a company as one of the partners or the  share capital is over 30.000 €,  the incorporation is a bit more complex than the one described above, but still more simplified than the old process.

Tarifa beach!! by DarkBkade at Flickr.com

Not that easy, not to panick! These are our two most repeated pieces of advise when talking about the European Enforcement Order.

The Spanish Bank who would be looking to use the EEO for the seizure of UK assets ( I have not read of any real one), need of course to follow the procedural rules in Spain first as if not, there will  be no debt to be certified by the said order.

If a Bank obtained an EEO without serving legal notice of repossession to the debtor and/or without giving to the debtor the legally required possiblities for contest and defence ( which I see as not likely as Courts are monitoring and issuing these Orders), you, the debtor, in the UK, who would see your UK goods " at risk" will have rights to contest the issuing and the enforcing of the EEO as null and void.

Rights to defence is one of the most important rights of our Constitution and every State of Law and it has of course been fully covered when the EU created the EEO.

Maybe you can take a view on these links:

http://www.eyeonspain.com/blogs/costaluz/4600/legal-tip-404-basics-on-the-european-enforcement-order.aspx

http://www.eyeonspain.com/blogs/costaluz/4967/legal-tip-449-important-points-on-the-european-enforcement-order-not-to-panick.aspx

Have always a good lawyer by your side, these are not complicated matters but have their procedural tricks to pay attention to.

Cheers,

Maria

 Calle Pureza, Plaza Altozano, Sevilla by Von_Boot at Flickr.com

By virtue of recent Royal Decree-Law 13/2010 for investment and employment fostering:  

-        Faster Companies incorporations: Online incorporations:

• +1 day. First required document: the “ negative denomination certificate” ( NDC) , which states that the name chosen for the company is not already being used will have to be issued within 24 hours from application.
• +2 days. Notary deeds for incorporation will be issued within 24 hours from reception of the  NDC.
• +2 days. Same day of deeds signing, the Notary will send by telematic mean the deed to the Commercial registry and will be able to apply for a provisional Tax identification Number to the Treasure.
• The Commercial Registrar will have to decide and practice registration within 3 working days.
• +5 days. No fees for the publication of the new company in the Commercial Registry Gazette and fees for the full incorporation are of 250 €: 100 € for registrar and 150 € for Notary.

Total:  5 days and 250 euros for a company in Spain

Who is up? Lots to be done in Andalucia. We have an ideas trunk  here at the Law Firm. Please come and pick yours.

San Mateo Church in Tarifa, Cadiz, Costa de la Luz, Spain by Von_Boot at Flickr.com 

 A green post in Saint Patrick´s day:

For Valencia region ( Alicante, Castellón and Valencia) , there is a need of renewal of the initial habitation license:

-Once ten years have passed since the obtention of the First Occupation License, and there is a transmission or new supplies( water, was or electricity) contracts are needed. In these events, if there is not intial Occupation License, for all or part of the building/house, a new one will have to be obtained.

-Always, if new works are carried out in the house which because of importance or dimensions require a project, regardless the time since First Occupation license.

The purpose of the renewal is to check and revise that the house keeps having habitability conditions.

Today on the forum:

Law 57/68 has not been fully invoked by Lawyers in Spanish Courts till very recently, that´s why it has not been fully enforced.

This lack of invoking/enforcing has been due, in our opinion, to several different reasons:

1) Lack of proper understanding of the Law, somehow motivated by its lack of clearity and precision, or due to a poor posterior development of the same.

2) Lack of the circumnstances that made it invokable.

3) Lack of  serious understanding of the need for putting external, pro-consumers limits to Banks´ acts and decissions. An oversupremacy of financial markets.

Boat in Tarifa Port, Cadiz, Costa de la Luz, Spain by Gmonterofv at Flickr.com 

Yes, that is what, according to European Directives and National legislation on Consumers Law,  adhesion or boilerplate contracts drafted by  developers companies need to keep  ( among other features)  for the protection of consumers.

This is exactly what this good Judge in Murcia ( see post dated the 7th of December below) applied, when he integrated the abusive clause which established a 100% penalty  when the buyer breaches the contract. 

If the buyer gets legal interests ( out of law 57/68)  when the developer breaches the contract,  being this 4% or 5% the vendor should have, no more, no less, rights for an equivalent amount.

It is very simple

Maria                                                                                                                                                                                                                                                                                                                                                                                                                                                       Legal tip 409. Good for Murcia Appeals Court in favour of consumers! 
07 December 2010 @ 16:35 

All political parties in the spanish Senate gave green light to the Social economy Act. Now it is being forward to the Congress for definitive approval.  The Council of Ministers approved this act last July with the aim of acknowledging several entities and organisation as of general interest and tp foster their promotion and development. It will simply give more legal coberture to institutions of social aid.

 Instead of classifying some few entities as social against the rest, I think that all fields of economy (financial, services, market, health, education, sales…) need to be social oriented for them to be sustainable. I am not a socialist. Believe me. My orientation is always pro-person, personalist.

It is simple and at the same time it seems so difficult for human beings to understand that we are co-beings and that our existence turns better as far as we look for common goods, general interests… in every aspect of our social, professional and economic life. The contrary, how we generally understand the proffesional and ecionomy life is a dichotomy between what we are ( co-beings) and how we do ( individualism).

 So, no just institutions such as ONCE or CRUZ ROJA should receive awards due to social contribution but every single company (Banks included :) should be meriting for a social- oriented, person-oriented behavior. Going the opposite ways drives us to tremendous crisis like our days´. The benefit-only approach is a self-destructive spiral for any economic body.

And far beyond the  nominal attributes or website tabs on “ social responsibility” every company ( Banks included again :) would need to have a body of philosophers to orientate its values, missions and ways in a sense which is social-person respectful at every level without leaving the benefits. Just a matter of wise reflection and balance, nothing else, quite simple.

 Strong and truthful clients services make a distinctive impact for companies to shape themselves properly towards the right orientation.

Consumers rights and protection is always a very civilized attempt to restrict possible excessive forces of the market.

 Let´s not just leave the adjective social for aid stuff , we all are social beings and all we do needs to be social oriented, which is as simple as taking persons and their common good into account.

Personalist Philosopheeeeeeeeeeeeeeeeeeeeeeeeeeeeeers!!!! where are you?

Maria

Door in Tarifa, Cadiz, Costa de la Luz, Spain by Libargutxi at Flickr.com 

Spanish Congress has just approved the project for  the reform of the Arbitration Act.

Judge of Commercial Court in Coruña has passed a decission  where he approves the agreement reached by its creditors. This agreement establishes the calendar and conditions for the payment of its debts.

The Company is committed to pay its entire debt within 8 years, starting in 2012. Debt repayments from 2012 to 2014 will be of just 0,25% and 0.50%

Banks will be able to cash debts for shares if they get not paid.

Off plan purchasers?: Best option again, to use action 1.2 against Banks which receiced deposits and did ot secure on the existence of Bank Guarantees. Nothing to be expexted from Creditor´s meeting in favour of off-plan purchasers.

Tarifa by DarkBlade at Flickr.com

Top Judges in Spain: Supreme Court, General Council of Judicial Power, the President of the National Audience and 17 presidents of Regional High Courts have recently met for the " urgent" processing of two key reforms for Justice administration: judicial procedures speeding up and technological modernization. 

El rincón de Juan, Tarifa, Costa de la Luz, Cádiz, Spain elarequi at Flickr.com

A question and an answer on the blog today:

Heather said:

 

10 March 2011 @ 15:58

Maria if only a small percentage get their money back how can lawyers survive, surely they need to get their fees and legal costs especially when cases have been going on for years?

Maria said:
10 March 2011 @ 16:22

Dear Heather:
I am so glad you made that question as ..... it is interesting how sometimes people think that we are becoming rich out of this battle.

I do not know how other lawyers survive, we survive out of great efforts, constant process revisions to maximize our resources and sober life.

And we are happy people!

Maria

 

Ps.- Of course we are expecting Banks to honour liabilities so we can increase the reserve funds of the company to make it the most solid and stable. We are sure those fees will  come! 

 

"Golf Club La alcaidesa", by Luis López-Cortijo

 Amounts covered by Bank Guarantees or out of  their liabilities as depositers ex provision 1.2 of Law 57/68....

 How  many of you would  buy in Spain again?

Now that it is the day were Banks grades are being published...

A former post on this topic  

 Spanish financial system under final tests today.  

Bank of Spain will publish today the list of financial entities which need capitalization and how much they need to meet the minimum ratios. Those below the ratio will present within 15 days a plan for recapitalization. If they need the aid of the Restructuration Fund (FROB) they will have two weeks more for the presentation of the plan. If the plan is not meet by September 30th, they will receive public funds.

Council of Ministers have just approved the proyect of the Technological Justice Act, the aim is the processing of judicial procedures through electronic ways in its entirety.

The project has been enriched by the contributions of the General Council of Judicial Power, The General Attorney, the General Council of Lawyers and the General Council of Procurators.

This Act is a result of the e-Justice plan of the European Union and facilitates relationships of citizens and professionals with the Justice Administration. The Justice Minister assures that a more accessible, transparent and dynamic Justice will be achieved with the introduction of this Act.

Electronic data transmissions and database keeping of the same will take the place of the old paper notices and archives.

Citizens will have the right to choose the electronic way and professionals will be under obligation to the use of the same which will drive to the fully electronic management of judicial claims and therefore more efficient and dynamic processes.

The new Act also includes a set of information about criteria and recommendations on safety, keeping, normalization, formats etc..., and a minimum common ground for different computer systems to be compatible and fully functional. These criteria will be managed by a National Public Committee on Electronic Justice formed by members of the Justice Department, Regional Justice Authorities, General Counsel of Judges and General Attorney Office.

Yes, a new reason to look into the future and recover trust in Spain

Natural Park in Tarifa by Franci Esteban at Flickr.com

According to the papers today housing cooperatives are increasing in Spain. :)

Residents have to pay a small deposit at the beginning of the living  and then a small monthly quota, lower than rents and of course lower than mortgages. Involvement of local Councils is desired...

Looks like natural vitamins for the real estate market, maybe strange or difficult to swallow at the beginning but most healthy for the whole social body.

We made two posts on this a while ago:

Northern europeans, sun and cooperatives in Spain 

Northern europeans, sun and cooperatives in Spain II

Cheers,

Maria

Spanish sun by positivelypurple at Flickr.com

Depending on Banks ( and also on the quality of your legal representation) the dation in payment process can be more or less difficult or lenghty. That is our experience in the law firm.

If you cannot keep the payments. It is always good to send a dation in payment notice to the Bank before they start the repossession. It adds if you also send proof of your financial status.

Dation as payment is actually a right  (http://www.eyeonspain.com/blogs/costaluz/1094/legal-tip-27-dation-in-payment-a-right.aspx . I would say that it is a fair play specially if you bought a product whose price was irrsponsably inflated by the money-lender for its own benefit.

In my opinion it is in some extent, a good way to somehow " punish" the excesses of Banks during the boom. We, as plain citizens, need to play the arms we have, and this is, in my opinion, a good one. 

Regarding chasing the debt against Uk assets, I think I have heard this happening in one just occassion, in the media, and the legal information contained there did not seem too accurate to me.

For the seizing of UK assets to happen, a repossession judicial procedure needs to be followed up in Spain first and then the Bank needs to enforce the Court decission against UK assets. This has a cost for the Bank that they will put into consideration first, obviously, specially as  Uk Courts are quite reluctant to authorise this type of enforcements and of course will pay a good attention to the defense you have displayed, the procedure being correct and your rights in the UK.

It is important though that you attend any notification being sent to the address the Bank have for you as if not, the Bank could try to use the European Enforcement Order for unconstested claims. Again, this one is not either a one-shot-procedure and requires respect to procedural and substantive Law both in Spain and in the UK. ( 

related post here)

As a golden rule, before the Bank starts repossession, I would encourage you to send a good notification for dation in payment to the Bank with accurate legal grounds and a show of your financial conditions. A good specialist lawyer is recommended: of course it does not need to be us ;)

Cheers,

Maria

Vejer, Costa de la Luz, Cadiz, Spain by Landahlautus at Flickr.com

 Out of same thread as previous post:

Faro:

I totally agree with you. Best option is for communities of owners  to work together for fixing their legal and technical problems. We are in times of co-work and co-llabor-ation. 

Yes, let´s make the dream come true for the benefit of all. Again, for a co-mmun good. It is much more fun!

Maria

Vejer, Cadiz, Costa de la Luz, Spain by Oliverlauman at Flickr.com

Out of a thread on the forums today: 

Why is it illegal for a builder to charge for electricity´s supplies?

Obvious answer: because that should never have happened according to Law. 

The same fact of living in a house without proper habitation license ( whatever the reason for this is: most likely lack of the correponding licenses) is illegal and can actually bring a fine by the administration to the habitant.

You may find this article interesting reading: http://www.eyeonspain.com/spain-magazine/licence-first-occupation.aspx

So charging for an illegal activity provoked by your own illegal acts is obviously illegal, even criminally illegal.

What is the best option then? Never to habitate a house without FOL AND make the corresponding claims against developer/bank involved.

Sindhura Hotel, Vejer, Cadiz, Costa de la Luz by TopRural at Flickr.com

For facilitating commerce among European countries:

http://ec.europa.eu/civiljustice/publications/docs/guide_litiges_civils_transfrontaliers_en.pdf

I am sure it is useful!

Maria

Vejer de la Frontera, Cádiz by Pablo G. Pando at flickr.com

 We have received today notice by the  Malaga Appeal Court by which our win against Sungolf in Estepona Beach and Country Club is now definitive and unappealable.

This is a formal and judicial confirmation of:

1.- Rights for refund of our clients

2.- Exact relationship between Sungolf and Ocean View

Enforcement procedure is being started now!

Good for Fernando Alberich ( the litigation lawyer) and the whole Costaluz-De Castro team.

Maria

Vejer de la Frontera, Cadiz, by Landahlauts at Flickr.com