El blog de Maria

Murcia Appeal Court very rightly explains that the fact that there was a change of contract object ( change of apartment unit) along the history of the contract does not involve the cancellation of the granted Guarantee.

Main reasoning being the protective character of Law 57/68 and its imperative, non renounceable rights.

Details of a Provincial Appeal Court Sentence won against Banco de Valencia S.A. (now Caixabank S.A.) just notified to a client who had reserved off-plan from Corvera Golf & Country Club S.L.  The case was won in the First Instance Court against Corvera, Banco de Santander & Banco de Valencia.  Banco de Valencia (now Caixabank) appealed.  The Provincial Appeal Court dismissed the Bank’s Appeal and upheld the First Instance Sentence in full.

Re: YOUR CASE AGAINST CORVERA GOLF & COUNTRY CLUB S.L., BANCO DE SANTANDER S.A. & BANCO DE VALENCIA S.A.

PO-xxxx/2011

Please find attached Sentence number xxxxx/2015 from the Provincial Appeal Court Section 4 in Murcia.

I am pleased to advise you that the Provincial Appeal Court has dismissed the Appeal filed by BANCO DE VALENCIA S.A. (now CAIXABANK S.A.) and upheld the First Instance Sentence dated 20 December 2013 issued by the First Instance Court No.14 in Murcia, in full.

The final paragraph of the Provincial Appeal Court Sentence delivered on 12 March 2015 and notified on 27 March 2015 states: 

“That dismissing the Appeal filed by Banco de Valencia S.A., now Caixabank S.A. against the Sentence of the First Instance Court No.14 in Ordinary Procedure  xxxx/2011, we fully confirm that Sentence and impose the costs of this Appeal on the Appellant Bank”.

So the Provincial Appeal Court has dismissed the Caixabank S.A. Appeal and upheld the First Instance Sentence in full.  Costs of the Appeal are imposed on Caixabank S.A.

In the First Instance Sentence, with regards to the pre-determined expiry dates of the Bank Guarantees the Judge stated: 

“Article 7 of LEY 57/1968 provides that the duty to guarantee the repayment of the amounts paid is compulsorily imposed and inalienable.  So the interpretation of the terms of the guarantee must always be performed for the full and complete protection of the buyer, given the protective nature of the Law.

That is why we should not consider the date of expiry of the guarantees as it cannot be fixed in this way.  Pre-determined expiry dates are not as intended within the scope of guarantees provided under LEY 57/1968 as the only limitation period provided for in this Law is in Article 4 which states that the guarantee only expires upon the issuing of the First Occupation Licence.

It is for all these reasons that Banco Santander S.A & Banco de Valencia S.A. must be condemned jointly and severally with Corvera Golf & Country Club to the limit of the amount guaranteed by each of these entities”.

Banco Santander S.A. did not Appeal, however, Caixabank S.A. based its Appeal on the fact that there was a contractual novation held between the developer and the buyer.  It stated that the novation, consisting in changing the property from No. XXX to No. XXX resulted in the Guarantee being extinguished as there was no new Guarantee issued.

The Appeal Court disagreed with Caixabank S.A. and stated that the ‘Novation did not result in the extinction of the Guarantee’.

The Court further stated:

“Considering the nature and purpose of the Guarantee initially constituted, which is a safeguard designed to protect off-plan deposit funds covered by the compulsory and irrevocable rights as per Article 7 of LEY 57/1968, the interpretation of the terms of the Guarantee are for the full and complete protection of consumers.

We are therefore in the presence of a Special Endorsement governed by that Law and not an ordinary guarantee regulated by the Civil Code.

As stated in Article 1 of LEY 57/1968 the purpose of the Guarantee is to ensure the repayment of off-plan purchasers funds should the housing not be started or completed in accordance with the purchase contract.  Under such an approach, we understand that the mere contractual novation performed; consisting of changing of the housing to an identical property type in the same property development does not determine the extinction of the Guarantee.  The document signed between buyer and developer stated that the amounts paid for the initial property were transferred to the new property.  There is, therefore, no contract termination, but merely a partial renewal of the contract which does not determine any modification of the object of the Guarantee.

On the other hand, we do not accept the arguments of the appellant Bank stating that the novation should result in the return of the Guarantee to the Bank for cancellation.  This is because the unilateral imposition of such a temporary term of the Guarantee would be contrary to LEY 57/1968, which imperatively requires that such cancellation only occurs on the date of issue of the relevant certificate of first occupation”

Alpandeire, Serranía of Ronda, Málaga, South eastern Spain, at facebook.com

Details of an excellent Sentence won against 3 banks and just notified to a client who had reserved off-plan from Peninsula Project Management SL at Residencial Granada Green.

Re: YOUR CASE AGAINST CAJAS RURALES REUNIDAS SOCIEDAD COOPERATIVA DE CREDITO (CAJAMAR), BANCO POPULAR ESPAÑOL S.A. & BANCO DE SABADELL S.A.

Please find attached Sentence number XX/2015 from the First Instance Court No.4 in Granada.

Your case against CAJAS RURALES REUNIDAS SOCIEDAD COOPERATIVA DE CREDITO (CAJAMAR), BANCO POPULAR ESPAÑOL S.A. & BANCO DE SABADELL S.A. has been won.

The final paragraph of the First Instance Sentence delivered on 23 March 2015 and notified on 27 March 2015 states: 

“Estimating the Lawsuit filed on behalf of MR XXXXXX XXXXXXX and condemn:

CAJAS RURALES REUNIDAS SOCIEDAD COOPERATIVA DE CREDITO (CAJAMAR) to pay to the plaintiff XX,XXX0€ plus legal interest according to Article 3 of LEY 57/1968 from the date of filing of the Lawsuit.

and condemn:

BANCO DE SABADELL S.A. to pay to the plaintiff X,XXX€ plus legal interest according to Article 3 of LEY 57/1968 from the date of filing of the Lawsuit.

and condemn:

BANCO POPULAR S.A. to pay to the plaintiff X,XXX€ plus legal interest according to Article 3 of LEY 57/1968 from the date of filing of the Lawsuit.

With costs imposed on the defendants”

So CAJAS RURALES REUNIDAS SOCIEDAD COOPERATIVA DE CREDITO (CAJAMAR) is liable to refund the amount of XX,XXX€ plus legal interest from the date of filing the Lawsuit, BANCO DE SABADELL S.A. the amount of X,XXX€ plus legal interest from the date of filing the Lawsuit and BANCO POPULAR S.A. the amount of X,XXX€ plus legal interest from the date of filing of the Lawsuit until full payment to the Court.  Legal costs are imposed on the defendant Banks.

In the Sentence the Judge explains:

“In this case, in the ordinary procedure it is recognised that the amounts referred to in our procedure and also by the Insolvency Procedure of the Promotor are the same.  The plaintiff has presented sufficient documentation regarding the cheques deposited, the transfers and even letters communicating to which accounts the funds were paid.  In extracts of the accounts in front of this Court regarding the amounts claimed, there is sufficient data for the banks to conclude that the payments were from foreign persons or entities and for the purpose of housing purchases, so this data together with the nature of the business of the promotor that opened the accounts, means that extreme zeal should have been exercised by the defendant banks to require the line of guarantees or the existence of the guarantees, which negligently they did not do.

The breach of contract by the developer and non-recovery of amounts paid makes the banks responsible for the absence, and failure to demand, the guarantees that are the rights of the purchaser”

Villaluenga del Rosario, Cádiz, South of Spain, at facebook.com

Spain Supreme Court  recently declared that all timeshare contracts signed after 5th of January 1999 in perpetuity needs to be considered null and void. This involves the refund of all amounts paid by the timeshare consumer plus legal interests.

Contracts signed before that date which has not complied with the adaptation request that this Law imposed  can be cancelled and likewise for refunds and interests due.

Interesting ways to exist timeshare schemes!

The port of Malaga, South eastern Spain, at facebook.com

Good number of Appeal Courts in Spain passing decisions in 2014 against both Timeshare companies and linked financial entities. 

Main vice of contracts: Nullity;  mainly derived from the breach of law 42/98 which established a very clear legal regime for timeshare businesses

The best aspect of all these 2014 Court Decisions is that, together with an action against the timeshare company, same action ( jointly a severally) can be successfully brought against related financial institution ( cases where a loan was granted to afford this touristic product) for the refund of all amounts paid plus legal interests.

Some of the 2014 Court Sentences:

AP Madrid, sec. 12ª, S 25-11-2014, nº 551/2014, rec. 690/2013
Pte: Torres Fernández de Sevilla, José María

AP Madrid, sec. 25ª, S 30-10-2014, nº 406/2014, rec. 136/2014
Pte: Delgado Rodríguez, Fernando

AP Las Palmas, sec. 3ª, S 25-9-2014, nº 592/2014, rec. 464/2012
Pte: Moyano García, Ricardo

AP Madrid, sec. 21ª, S 17-9-2014, nº 413/2014, rec. 163/2013
Pte: Cánovas del Castillo Pascual, Mª Almudena

AP Las Palmas, sec. 5ª, S 12-9-2014, nº 375/2014, rec. 725/2012
Pte: Caba Villarejo, Víctor

AP Barcelona, sec. 1ª, S 30-9-2014, nº 420/2014, rec. 719/2012
Pte: Recio Córdova, Antonio Ramón

AP Granada, sec. 5ª, S 18-7-2014, nº 293/2014, rec. 164/2014
Pte: Mascaró Lazcano, Antonio

AP Barcelona, sec. 14ª, S 17-7-2014, nº 285/2014, rec. 127/2013
Pte: Domínguez Naranjo, María Carmen

AP Madrid, sec. 20ª, S 1-7-2014, nº 333/2014, rec. 148/2013
Pte: Gómez Salcedo, Agustín Manuel

AP Barcelona, sec. 14ª, S 5-6-2014, nº 203/2014, rec. 12/2013
Pte: Figueras Izquierdo, Aurora

AP Jaén, sec. 1ª, S 29-5-2014, nº 226/2014, rec. 404/2014
Pte: Arias-Salgado Robsy, Elena

AP Madrid, sec. 19ª, S 9-4-2014, nº 125/2014, rec. 528/2013
Pte: Salcedo Ruiz, Mª Victoria

AP Madrid, sec. 28ª, S 21-2-2014, nº 62/2014, rec. 564/2012
Pte: Galgo Peco, Angel

AP Barcelona, sec. 4ª, S 23-1-2014, nº 32/2014, rec. 720/2012
Pte: Riera Fiol, Amparo

AP A Coruña, sec. 3ª, S 17-1-2014, nº 10/2014, rec. 353/2013
Pte: Fernández-Porto García, Rafael Jesús

El Burgo, Malaga, South eastern Spain, at facebook.com

Our answer today on EOS forums to your legitimate desires to campaign against Bank Guarantee abuse:

Dear xxx:

In regards for campaigning, lobbying regarding the Bank Guarantee abuse, my suggestion is that you, citizens, promote the petition that Keith started once. We will support you but, I do not see very clear that me as a professional who is also getting clients and fees by assisting clients with these problems should be actively involved on this.

We have, in the past, communicated this to General Council of Lawyers, as part of the professional duties that we, as lawyers have for the care of ethics in the profession but.... honestly, I do not see we can do more apart from this and the corresponding study, writings... that we have been offering to people ( clients and non clients) along the years.

We brought arguments and Judges arguments and law interpretation proposals which produced milestone cases on this problem and have been writing on this for legal education of both English and Spanish speaking relevant audiences for years now.

Good sign is that Supreme Court is passing beautiful pro-buyer, rightly on the spirit and letter of Law 57/68, decision against Banks now.

We will be very pleased to support and advice anyhow, as we did with the Keith Rule petition, but that, again, needs to be a citizenship Endeavour.

Best wishes

María   

Alcazaba of Malaga, South eastern Spain, at facebook.com

Commenting today at the office on all cases won against Eurohouse and respective banks. Good that Law 57/68 is being so clearly interpreted now by Supreme Court !

Eurohouse is being liquidated. Strange as it is sounds to the layman, this is benefitial for the action of Law 57/68 rights

http://www.eyeonspain.com/blogs/costaluz/13441/Legal-tip-1179-NEW-WON-CASE-AGAINST-BANCO-CAM-%28now-BANCO-SABADELL%29-FOR-PROMOCIONES-EUROHOUSE-FORTUNA-HILLS-DEVELOPMENT.aspx

http://www.eyeonspain.com/blogs/costaluz/14241/legal-tip-1243-new-case-won-against-eurohouse-and-caja-rural.aspx

http://www.eyeonspain.com/blogs/costaluz/14495/legal-tip-1263-new-case-won-against-sabadell-and-promociones-eurohouse-again.aspx

An alley in Alcaucin, Málaga, South eastern Spain, at facebook.com

Spain’s Tax Office will focus its actions this year on the services and tourism sectors and‘ dual-use software’ used by certain businesses to hide sales and manipulate accounting for lower tax liabilities.

 Hacienda will increase their presential interventions in companies and will act through a nationally coordinated plan, which will be specially focused on those economic sectors with direct sales to final consumers.

"Te Melillero" (ship that goes to Melilla, South Eastern Spain, at facebook.com

Wanted to share this video with you EOS friends!

http://www.ieseinsight.com/fichaMaterial.aspx?pk=121148&idi=2&origen=1&ar=20&

What do you think? Comments....

Cheers+

María

A field, near Zahara de la Sierra, Cádiz, South of Spain, at facebook.com

Supreme Court has recently stated that commercial premises can be turned into a home: with the limitation of obtaining the corresponding license of habitation.

Main reasons for this allowance is that this change:  

(1) does not alter the community of owners’ shares 

(2) does not alter common elements.

Prohibition to this need to be registered in the Land Registry so that it is effective against  third parties

Always important to take into account that:

1) License of habitation is always required.

2) Does not apply for transformation of storage into a home ( this involves changes in participation fees) not to any change that requires altering the common elements of the building or expand the volume

3) Change can never produce alteration in determining the participation shares of each owner

4) If there is collective energy expenditure, the change use should not alter volume of use either. 

Atajate, Malaga, South eastern Spain, at facebook.com

k.com

Excellent rulings by the Supreme Court. Hopes higher than ever before!

SUPREME COURT RULINGS – LEY 57/1968

13 January 2015

The obligation to pay the off-plan funds into the Special Account is that of the seller (developer) and not of buyer. This obligation can never be imposed on the buyer and can never be an obstacle against his/her rights granted by LEY 57/1968.

16 January 2015

Initiation of action related to Article 1.2 of Law 57/68 is of 15 years.

Type of liability is LEGAL. Law is its source (no contract source, no negligence source)

Dies a quo: From the moment you cannot get your refund due to lack of Guarantee.

Interpretation of dies a quo always in favour of the party which is defending the existence of the right. Is the party which is trying to prove its extinction which has the weight of proving this.

Article 1.2 of Law 57/68 establishes a legal obligation on the Bank to which the off-plan payments are made, not to the financing Bank.

20 January 2015

The Supreme Court is changing its doctrine on Article 3 of Law 57/68.

Reasons:

Supreme Court is enhancing the virtues of a very advanced Law 57/68 for housing rights protection.

Full civil effects against past mere administrative (sanctions) of this Law.

Essential character of rights related to guarantees in off plan developments. (SSTS de 25 de octubre de 2011, rec. 588/2008, 10 de diciembre de 2012, rec. 1044/2010, 11 de abril de 2013, rec.1637/2010, y 7 de mayo de 2014, rec. 828/2012).

In cooperatives, it includes both land buying and whole building process till hand over of properties. 

Off-plan deposit amounts protected are the full amount which has been paid in the developer’s bank account, despite the fact that an Insurance policy or Bank Guarantee maybe issued for a lesser amount. (STS de 3 de julio de 2013, rec. 254/2011).

The Buyer can claim against both seller and insurer jointly and severally. Or even against Insurer without taking action against the seller (developer). (SSTS de 3 de julio de 2013, rec. 254/2011, y 7 de mayo de 2014, rec. 828/2012).

Company administrators are jointly liable for the lack of the legally required guarantee (STS de 23 de mayo de 2014, rec. 1423/2012).

Guarantees that limit amounts between Guarantor and buyer are null and void (STS de 25 de noviembre de 2014, rec.1176/2013).

Moving forward the Supreme Court is now stating that Article 3 of Law 57/68 brings contract cancellation rights to the buyer immediately the developer has failed to deliver the completed property in the time allowed by the contract (no time waiting after breach) always provided that the buyer sends an official cancellation notice to the developer (seller) before the buyer is called to complete the purchase.

Law 57/68 is special and therefore provision 1124 of Civil Code does not apply to cancellation of contracts which fall into the sphere of Law 57/68.

Some reasons for the above:

Inalienable, non renounceable character of rights included in Law 57/68 (article 7)

Article 3 sets automatic cancellation rights very seriously. If the buyer opts for an extension to the time allowed in the purchase contract, this needs to be expressly written in an additional clause of the contract (annex), specifying the new deadline and with the granting of a new guarantee.

Developer also has same rights – one payment default by the buyer gives the developer cancellation rights.

Prevention against contract imbalances.

Risk of developer’s insolvency and the low possibilities for the buyer in an insolvency procedure.

As an additional note, it will always be considered by Judges whether the cancellation rights are used by the buyer with ‘good faith’.

Real Estate company Martinsa-Fadesa, presided over by its largest shareholder, Fernando Martín, presented last December a new proposal for debt payments.

However, its proposal, which included a rebate of slightly less than 70 % of the debt, and Martin´s refusal to cede control of the company, has not gained the necessary support of Banks, which will now be able to collect part of the debt through an orderly liquidation process.

How many anti-consumers practise we have seen of this company along the years!

Times moving ahead!

María

Saint Cristóbal, Natural Park Sierra of Grazalema, Cadiz, Southern Spain, at facebook.com

Recently approved Decree “Second Chance” for mortgage debtors:

– The Cabinet approves  extension until  until 2017, of the period banning Bank evictions of people living in primary residences .

Collectives that are object of special protection, is broaden:

– Annual family income limit is increased to three times the Public Indicator of Multiple Income (IPREM). 

– It includes people over 60 years.

– It includes properties up to 300 thousand Euros. 250 thousands for dation (property back to the Bank).

– It eliminates the application of ground clauses for debtors included in this group

In addition, last February 25th the Supreme Court agreed that banks should repay the extra charged amounts for ground clauses since May 9th, 2013.

In our office we also offer support for mortgage deals to those mortgagors whose outstanding principal amount is inferior to a certain limit. This limit is imposed to Banks for not to repossess properties at lower price than it. So Banks are in many occasions interested on the deal.

Read this section of our website and let us know if you want to know more on this service

Ubrique, Cádiz, Southern Spain, at facebook.com

Very surprised as many of the clients that contact us for Mortgage legal help, do not even have a copy of their  own mortgage deeds. Very frequently just with the Bank ( right where they should not be alone) or with their lawyers...

Request your mortgage deed and check it out in depth

If you need help with that you can let us know

Alcazaba (Citadel) of Almería, South eastern Spain

Some tips, if you are experiencing difficulties with the payment of your mortgage instalments:

1. Renegotiate the interest rate: specially if you have a floor clause (cláusula suelo) or any other abusive clause contained in the mortgage deed: anticipated cancellation, abusive delay interests…

2. To start a subrogation process: start by obtaining binding offers by one or more banks and have an appointment with your bank with these offers as a negotiation tool.

3. Subrogation. In many cases, mortgage subrogation results in very advantageous conditions. Current law limits the commission by subrogation to 0.50% and some entities bear all expenses of subrogation thus facilitating the operation.

Take into account Bank fees releted to subrogation or novation ( modifying of conditions).

If you need our assistance with this service, you can find a form in our website

Metropol Sunshade, Seville, South of Spain

Spanish Cabinet approved last week a Royal Decree – Law on amending of court fees, whereby individuals are exempted from paying these fees at all levels and instances.

This suppression is part of a “Decree on Urgent measures to reduce the financial and social burdens”. Work is being performed for  Justice to be available to everyone

The Alhambra, Granada, South eastern Spain

The Alhambra, Granada, South eastern Spain