El blog de Maria

We published an iddentical  case some weeks ago. That time the decission was passed by Asturias Appeal judges

Today´s post is about a Madrid Appeal Court Decission (April 2014)  which confirms nullity of loan linked to the timeshare purchase.

The key point for the declaration of nullity of the finantial contract is the clear evidence on (1)previous agreement between the Bank and the timeshare company. There was (2)no direct relationship between the lender and the consumers.

This two facts have been enough evidence for the Madrid judges to consider two contracts as linked and to declare nullity of both.

The Natural Park Cape of Gata-Nijar (Almería), South eastern Spain, at facebook.com

Reading through the glasses of Law 57/68 and corresponding  excellent Case Law being produced by Alicante Courts, the filing for liquidation of Herrada del Tollo favours claims against Banks.

Why? Well, simply as every contract can be deemed as cancelled now.

Alicante Courts have already established ( see our legal tip 1175):

- Obligation of Banks in regards to amounts deposited in their accounts is LEGAL-- so deadline to claim is 15 years

-Regardless you have or not an individual certicate, you are guaranteed if there is a guaranteeing agreement between a Bank/ Insurance Company and the developer you contracted with.

- Even if you signed the agreement in the Creditors Meeting, you can enact your rights out of Law 57/68

Keep going ahead!

Alicante/Alacant (ciudad) - Playa El Postiguet, Valencia, Eastern Spain, by Comunitat Valenciana, at flickr.com

1. Saw a house I liked

2. Bank sent HIS valuator who valuated the house

3 .Bank granted me a mortgage for buying it, knowing my economic situation

4.I paid till I was made redundant

5. As I could not keep the mortgage payments up, I asked the Bank to keep the house

6.They sent their own valuator who now valued the house at the half of original valuation

7.In short words: I have no house and I still owe the Bank 180.000€ which is what valuator overvalued and the Bank accepted: I mean: They especulate and I am guilty.

SOLUTION ADVISED:

Fight the Dation ( offer of the house to the Bank) at Courts. According to LEY 1/2013, DE 14 DE MAYO, DE MEDIDAS PARA REFORZAR LA PROTECCIÓN A LOS DEUDORES HIPOTECARIOS, REESTRUCTURACIÓN 
DE DEUDA Y ALQUILER SOCIAL, Bank will repossess the property for a value corresponding to AT LEAST 50% of auction value of the property.

AUCTION VALUE OF THE PROPERTY: It is a BIG summ included in every mortgage deed and which includes: prinicipal, interests and legal costs. 

Deffending a right valuation and supervising of the repossession and auction process is ESSENTIAL.

There is new Decission by the European Court of Justice by which, if you are acting agsinst the Bank for floor clause, they can not repossess the property

ACTION.... is the word!

Have a great weekend!

Maria

Port of Tarifa, Cadiz, Costa de la Luz, South western Spain, at facebook.com

If you have an apartment, villa, bungalow or similar in Murcia region and the company who deals with the renting of it:

- Use publicity for the marketing

- Gets to rent it in two or more occasions during a period which exceeds one month a year

The company needs to:

1.Be classified by the Murcia Tourism office and have a distinctive sign at the gate of the clients attention office.

2. Offer full and right publicity on classification of the apartment

3. Have all units registered at the tourism department of the Murcia Consumers Region under sanctions below. To communicate to this Authority any change which would make the classification to be changed

4.Have the corresponding claims book available

5. Maintain units in good conditions for their use

6. Inform users on conditions and prices of services included

7. Offer users a telephone number for the manager to be contacted

There companies can ask for a reservation deposit

Owners of apartments need to have an insurance to cover professional indemnity

Tenants will be included in a registry with specific mention of their personal identification data and dates of arrival and departure.  Owners will provide to Tourism regional authorities information by answering a questionnaire which will be periodically sent to them... This measure is just for statistics reasons.  

Schedule for occupancy will start, unless otherwise agreed, at 17:00 of the arrival day and will finish by 1200 h of the departure day. 

The units will be made available in full conditions for occupancy (maintained, operational, and clean) so that immediate use is possible. 
 
Users are obliged to the legally required prescriptions related to the correct use of the apartment. 

Fines: Infringement to what is established in this Decree

Murcia Tourism Act 11/1997 establishes fines which goes from 1000 to 150.000 and professional disqualification

"ENTRADA DEL MEDITERRANEO", Mar Menor, Cartagena, Murcia, Eastern Spain, by Alfredo Miguel Romero, at flickr.com

2014 Ranking

By IESE and EMLYON Business Schools

Spain is number 27 of 118

Good!

Enjoy it!

María

The Royal Alcázar of Sevilla, South western Spain, at facebook.com

A recent Court Decission by European Court of Justice ( July 17th) establishes that any claimer on Floor Clause in Spain can oppose the Bank trying to enforce a mortgage debt against the floored-mortgaged asset on the existence of this procedure so no embargo can be decided/ practised over it till the Floor case is finished.

This is, literally, the Decission paragraph by the European Court of Justice:

El artículo 7, apartado 1, de la Directiva 93/13/CEE del Consejo, de 5 de abril de 1993, sobre las cláusulas abusivas en los contratos celebrados con consumidores, en relación con el artículo 47 de la Carta de los Derechos Fundamentales de la Unión Europea, debe interpretase en el sentido de que se opone a un sistema de procedimientos de ejecución, como el controvertido en el litigio principal, que establece que el procedimiento de ejecución hipotecaria no podrá ser suspendido por el juez que conozca del proceso declarativo, juez que, en su resolución final, podrá acordar a lo sumo una indemnización que compense el perjuicio sufrido por el consumidor, en la media en que éste, en su condición de deudor ejecutado, no puede recurrir en apelación contra la resolución mediante la que se desestime su oposición a la ejecución, mientras que el profesional, acreedor ejecutante, sí puede interponer recurso de apelación contra la resolución que acuerde el sobreseimiento de la ejecución o declare la inaplicación de una cláusula abusiva.

Provision 7, paragraph 1, of Directive 93/13/CEE of the Council, dated 5th of April 1993, on abusive clauses in contracts with consumers, in relation to provision 47 of Chart of Fundamental Rights of the European Union, must be interpreted as against system of enforcement of procedures, as the one which is decided in this case, which affirms that the mortgage enforcement procedure cannot be suspended by the Judge deciding on the declarative procedure, Judge who, in its final decission might be set a  damages compensation as the most. 

The consumer, as enforced debtor cannot appeal against the decission rejecting its opposition to the enforcement, opposedly, the enforcer, a professional, can appeal the decission which declares abusive character of clauses or dismiss the enforcement.

Santa Pola, Alicante, Eastern Spain, at facebook.com

NEW WON CASE AGAINST BANCO CAM (now BANCO SABADELL) FOR PROMOCIONES EUROHOUSE FORTUNA HILLS DEVELOPMENT:

The Orihuela First Instance Court Sentence explains in great detail the liability of Banco CAM according to its obligations under LEY 57/1968 for the off-plan deposits paid accounts opened by the developer in Banco CAM.

Importantly the Sentence states that even if a buyer signed the agreement to accept partial future payments from the bankrupt developer, the inalienable rights granted to the buyer by LEY 57/1968 are not affected.

Also the Sentence quotes several examples of Case Law in favour of buyers from the Provincial Appeal Court of Alicante.

Particular points of interest stated by the Judge in the First Instance Sentence are:


“The truth is that an account was opened in which the amounts were paid by purchasers for the purchase of homes and it has not been explained clearly what was done with the amounts paid into the said account.

As CAM opened accounts and received the amounts paid by the purchasers there arises a legal duty to ensure that these amounts were guaranteed by an insurance policy or bank guarantee.  Having breached this legal duty the legal liability of the entity is generated.

However in this case its liability may only be extended to the amounts actually entered into accounts at its branches.

It should be noted that Article 1 of Law 57/1968 in an effort to protect purchasers of homes, also involved financial institutions in which those accounts are opened, establishing an obligation for them, which is to require UNDER ITS RESPONSIBILITY (bajo su responsabilidad) that the developer has guaranteed the repayment of the amounts paid in advance to its accounts.

This does not mean that it has to be the account holding banks liability to issue the Guarantees itself, as the guarantor may be another entity.  But the term ‘under its responsibility’ makes it liable to buyers where no security has been provided.

In other words, the bank should not allow the opening of Special Accounts or accepting the deposits without first ensuring that the developer has assumed a legal obligation to ensure repayment of the amounts paid in advance by buyers.  If the Bank fails in its legal duty then it is liable for the damages that failure causes to the buyers who may otherwise not be able to obtain repayment of the amounts advanced.

In conclusion I wish to address the potential impact of the bankruptcy proceedings of the corporation PROMOCIONES EUROHOUSE and the existence of a recognised credit for the plaintiffs in the Commercial Court.  In this regard, the jurisprudence of our Provincial Court understands that the agreement by the buyer to any repayment proposals offered by a bankrupt developer does not extinguish the Guarantee and the obligations therein.

In this case, it has not been proven in any way that the homes are constructed, so the frustration of the purpose of the Purchase Contract is clear.

In response to the arguments put forward we partially estimate this Lawsuit in its alternative claim, ordering the defendant company, Banco CAM, to refund the amounts paid on account of the purchase price of housing and entered into the accounts of the entity to the sum of XXX,XXX Euro”

Beach of Aguilas, Murcia, Eastern Spain, at facebook.com

After my 15 days break in Zahara de los Atunes:

Case won in Corvera ( Phase I-II) where we based our arguments on delay! So good news after my vacations.

Judge has rejected other claims where a " Loyalty document" was signed by the buyers/claimers. We are appealing those Decissions as, Law 57/68 and its strongly protective spirit stablishes that any time extension needs to be express and written, with a new specific deadline, as a clear new clause of the contract.

Advancing!

Maria

"la-manga-del-mar-menor", Cartagena, Murcia, East of Spain, by Avelino Fernandez, at flickr.com

Despite we need to spend time and energies now in new marketing ways and therefore are giving way and welcome ABACO advisers in our place as EOS/ThinkSPain sponsors, we will keep our presence here in blogs and forums. No worries

We are EOS/ ThinkSpain friends and we care for you, members. That is most than a commercial relationship, even when yes, we made our first steps as a company in this home and made puir business throuigh this relationship.

We are very grateful to EOS along the whole history of it. We are very grateful to you too for all you contributed to our growth and the challenge you have been presenting to us every day.

As said, we will keep our legal advise in forums and blogs and will welcome any question/doubt as always.

EOS/ ThinkSpain are  great places to be. NO DOUBT.

I am leaving for a vacation now and will return will full energies on after middle July

Again, thanks a lot to EVERYONE!

Zahara de los Atunes, Cádiz, Costa de la Luz, South western Spain, by Vicente Alfonso, at flickr.com