Finca Parcs Action Group win second group claim against developer, Cleyton GES S.L. & Banco CAM in the First Instance Court in Hellín.

The 13 claimants were included in Finca Parcs Action Group Lawsuit 2 which was submitted to the Court in December 2012. The Trial was held in the First Instance Court in Hellín on 28 September 2015.

Just as in Finca Parcs Action Group Lawsuit 1, which was won in the First Instance Court in 2012 and in the Provincial Appeal Court in 2013, the 13 group members in Lawsuit 2 did not receive Individual Guarantees from the developer, Cleyton GES S.L. or from Banco CAM (Caja de Ahorros del Mediterráneo), the Bank to which their off-plan deposit was paid.

The final paragraphs of the First Instance Sentence delivered on 28 January 2016 and notified on 29 January 2016 state:

“Fully upholding the Lawsuit filed on behalf of 13 INDIVIDUAL CLAIMANTS against CLEYTON GES S.L. & BANCO CAM S.A.U., on its merit,

a) I must declare cancelled the Purchase Contracts concerning the housing promotion called Finca Parcs Las Higuericas, signed by the claimants and the entity Cleyton Ges S.L. between 14 April 2005 & 21 April 2008.

b) I must condemn jointly CLEYTON GES S.L. to refund to each of the claimants the amounts paid in advance by each one, totalling 449,000 Euro according to the schedule in clause 3 of the Lawsuit plus legal interest on each amount accrued from the date on which the buyers paid to the accounts of Banco CAM until full repayment, subject to the mandatory implementation of interest in Article 576 of the LEC.

c) I must condemn jointly BANCO CAM S.A.U. (formerly Caja del Mediterráneo) to refund to each of the claimants the amounts paid in advance by each one, totalling 449,000 Euro according to the schedule in clause 3 of the Lawsuit plus legal interest on each amount accrued from the date on which the buyers paid to the accounts of Banco CAM until full repayment, subject to the mandatory implementation of interest in Article 576 of the LEC.

d) I must condemn CLEYTON GES S.L. & BANCO CAM S.A.U. to pay the legal costs”

So CLEYTON GES S.L. & BANCO CAM S.A.U. are jointly & severally liable to refund the total amount claimed which is 449,000€ plus legal interest from the date each amount was paid to the developer’s bank accounts opened at Banco CAM.

Legal costs are imposed on Cleyton Ges S.L. & Banco CAM.

Interesting statements by the Judge in the Sentence are:

“With regards to the action against BANCO CAM S.A.U., the dispute is limited to the extent of the obligation of the bank to issue Individual Guarantees according to Article 1 of LEY 57/1968.

From the documentary evidence in the Lawsuit it is established that a Special Account was opened in Banco CAM in addition to 2 other accounts in which the developer, Cleyton GES, deposited amounts paid by the buyers. The bank manager when questioned in Court at the Trial said that the developer was not diligent when using the 3 accounts. He said he should have been more careful but admitted that he did not control the concepts of the income and outgoings of the 3 accounts.

In the absence of the Individual Guarantees to secure the buyers amounts deposited, whose delivery has not been contested, the controversy is limited to whether the financial institution is responsible for the failure of the developer to issue the Guarantees.

Sentences issued by the Supreme Court on 16 January 2015, 13 January 2015 & 30 April 2015 confirm the responsibilities of the financial institution including the fact that the obligation to pay the amounts in the special account lies with the seller and not the buyer.

This line of Buyer Protection jurisprudence culminates with the recent Sentence 733/2015 of 21 December 2015 in which the doctrine is set as follows: ‘In off-plan house sales governed by LEY 57/1968 financial institutions that accept income from buyers in an account opened by the developer, without opening a Special Account and requiring the relevant security, must be responsible to the buyers for the total amounts paid into accounts in the financial entity’

This recent doctrine of the Supreme Court not only states that the bank has to require the opening of the Special Account but should also be responsible to the buyers if the corresponding Guarantees are not issued. So in this case Banco CAM, by not issuing or verifying the existence of the individual guarantees, has incurred responsibility towards the buyers who paid off-plan deposits to the developer accounts opened at its branches.

It has not been established if the bank directed the developer to proceed with the issuing of the Guarantees as required by law or any other security requirement regarding the amounts entered, even though the bank manager when questioned as a witness admitted that there were irregularities in the fate of the money deposited by buyers. He said I do not know if the developer claimed to have acted according to the law, even though no guarantees were issued by the bank, despite receiving the money into the accounts.

The failure of the entity Banco CAM in its legal obligation to issue the Guarantee/corresponding endorsement, does not exempt it from responding in solidarity together with the developer to pay the amounts delivered under the purchase contracts that have now been resolved”

BANCO CAM S.A.U. has 20 working days from the date of notification of the Sentence, which was 29 January 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Albacete.

If an Appeal is filed by BANCO CAM S.A.U. it will be necessary for us to file an Opposition to the Appeal on behalf of the group.

If the defendants fail to comply with the sentence we will enforce the sentence against them.

Even if Banco CAM files an Appeal we will provisionally enforce the First Instance Sentence against it.

FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH PROPERTY DEVELOPER, CLEYTON GES SL

FINCA PARCS ACTION GROUP – LAWSUIT 2

TRIAL TO TAKE PLACE IN THE FIRST INSTANCE COURT IN HELLÍN ON MONDAY 28 SEPTEMBER 2015 AT 10AM

FINCA PARCS ACTION GROUP – LAWSUIT 2 TRIAL

Disgraced CAM Bank, once described by the Governor of the Bank of Spain as the ‘worst of the worst’ is back in Court again.  On Monday 28 September at 10am the Trial will take place for 13 members of Finca Parcs Action Group Lawsuit 2 against the off-plan property developer, Cleyton GES SL & the financing bank, Banco CAM, which was purchased by Banco Sabadell.

The group members in Finca Parcs Lawsuit 2, which was submitted to the Court in December 2012, are claiming a refund of almost half a million Euros that they paid between 2005 & 2008 to the developer’s accounts opened at Banco CAM for off-plan properties that were never built.  According to Spanish Law, LEY 57/1968 the Bank, under its responsibility, should demand that the corresponding individual Guarantees are issued for off-plan buyers funds held in the developer’s accounts at its branches.  The Bank failed in this legal obligation.

The off-plan project, Las Higuericas Finca Parcs, which is close to the village of Argramón in Albacete, has been abandoned since 2009 when the bank withdrew funding and the developer ran out of money.  Only 10% of the 617 luxury detached villas were completed, but not even these were issued with the First Occupation Licence by the local Town Hall.

FINCA PARCS ACTION GROUP LAWSUIT 1

Banco CAM has already lost one landmark legal case on this development to the 47 buyers in Finca Parcs Action Group Lawsuit 1.

In that case the First Instance Sentence issued in June 2012 which was then ratified by the Provincial Appeal Court in April 2013 concluded that both the developer and Bank failed to fulfil their legal obligations according to Spanish Law, LEY 57/1968 and that CAM Bank was guilty of malpractice and a complete dereliction of its duties.

The Bank & developer were convicted jointly and severally to return off-plan deposits paid by the 47 buyers totalling almost 1.5 million Euros.  Banco CAM paid and all the group members received a full refund of their off-plan deposit plus interest & costs.

LAWSUIT 2 CLAIMANTS CALLED TO APPEAR IN COURT BY BANCO CAM

In May 2012 Banco CAM called all 47 group members of Lawsuit 1 to the Court in Hellín for questioning at the Trial.  Despite the fact that all 13 claimants in Lawsuit 2 are in exactly the same situation as the successful claimants in Lawsuit 1, the Bank has still called 3 of the Lawsuit 2 claimants to appear in person at the Trial for questioning.

The trial will take place in the First Instance Court in Hellín on Monday 28 September and the Judge is expected to issue her Sentence a few weeks after that.

Finca Parcs Action Group Leader, Keith Rule says:

“It was hugely significant when we beat CAM Bank in Lawsuit 1 in 2012 and even more so when the First Instance Sentence was then confirmed by the Provincial Appeal Court in April 2013.

But here we go again with the Trial for Lawsuit 2 and the Bank has yet again called claimants to appear for questioning in Court.  Let us hope that the outcome will be the same as in Lawsuit 1.

In 2008 & 2009 when I formed the Finca Parcs Action Group I was of the opinion that developer’s banks had liabilities and obligations according to Spanish Law, LEY 57/1968, regarding off-plan deposit funds, but one of my biggest hurdles back then was to find a Lawyer who also shared my view. 

Fortunately I found Costaluz Lawyers, who since winning the first Finca Parcs case have now won similar cases for many other clients on failed off-plan property projects all over Spain.

We have worked tirelessly since 2008 to highlight this issue in the media and to the Spanish & British Governments.  The Finca Parcs case has no doubt helped to strengthen the cases of other off-plan buyers who did not receive the legally required Bank Guarantees, but there are still many people who paid off-plan deposits between 2002 & 2009 who have not yet started legal action against the developer’s bank.

To those off-plan buyers I would say, never give up.  Focus on recovering your money from the developer’s bank, the bank that received your off-plan deposit and failed in its obligations under Spanish Law.  A significant amount of Case Law is now on your side”

María de Castro, Director of Costaluz Lawyers comments:

“Finca Parcs Lawsuit 1 was a magnificent result in favour of the consumer, but it was just the start.  Over the past 3 years we have won many other cases against Banks and we look forward to another successful result in Finca Parcs Action Group Lawsuit 2”

Group Lawyer, Jaime de Castro comments:

“Over the past few years it has become clear that Spanish legislation protects off-plan house buyers with protective rules that do not exist in other European countries.  The Spanish Courts have been applying this Law strictly and categorically and I am confident this will also be the case in Finca Parcs Lawsuit 2”


FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION – LAWSUIT 2

● 2005 to 2008 - No legally required Bank Guarantees for Off-Plan deposits totalling almost half
   a million Euros
● December 2012 – Lawsuit 2 against CAM Bank & developer Cleyton GES SL filed to the Court
● 28 October 2014 - First Instance Court Preliminary Hearing
● 28 September 2015 - Trial to be held in First Instance Court - Hellín

FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION – LAWSUIT 1

● 2006 - No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million
   Euros
● February 2011 – Lawsuit 1 against CAM Bank & developer Cleyton GES SL filed to Court

● 12 January 2012 - First Instance Court Preliminary Hearing
● 21 & 22 May 2012 - Trial held in First Instance Court - Hellín

● 8 June 2012 - Judgment released in favour of Finca Parcs Action Group
● CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5  
   million Euros to the buyers with the addition of legal interest and costs
● July 2012 - CAM Bank appeals the First Instance Court Judgment
● July 2012 - Finca Parcs Action Group submits Opposition to the CAM Appeal
● July 2012 - Finca Parcs Action Group file Provisional Enforcement Order to the Court
● August 2012 – CAM Bank pays full amount of deposits plus legal interest and costs
    to the Court
● Appeal to be heard by the Albacete Appeal Court
● 4 March 2013 - Appeal Magistrates to meet for deliberation & voting on the CAM Bank Appeal
● 11 April 2013 – Appeal court dismisses the CAM Bank Appeal and confirms First Instance   
   Sentence in full and imposes costs of Appeal on CAM Bank

● 14 May 2013 - CAM Bank does NOT appeal to the Supreme Court
● 14 May 2013 - FIRST INSTANCE & APPEAL COURT SENTENCE NOW FIRM AND FINAL
● June 2013 - Court releases Principal Amount of buyers off-plan deposits amounting to almost    
   1.5 million Euros to the Finca Parcs Action Group Legal Team
● July 2014 – Court releases Interest & Costs to the Finca Parcs Action Group Legal Team
● ALL 47 BUYERS RECEIVED A FULL REFUND OF PRINCIPAL, INTEREST & COSTS

~~The Supreme Court cancels eight Ground Clauses in Mortgages (Cláusula Suelo) for lack of transparency

The First Chamber of the Supreme Court rejects the argument of the bank that the contracts were read by notaries and customers were advised of the possibility of reading, as this does not replace the duty to explain to users.

The Civil Chamber of the Supreme Court has annulled eight Ground Clauses (Cláusula Suelo) in mortgage contracts of the bank Caja Segovia (now part of Bankia) because the entity breached a special duty of transparency regarding these clauses it had with customers who signed mortgage contracts.

The high court rejected the argument of the case that the contracts were read by notaries and customers were advised of the possibility of reading, as this does not replace the duty of explanation and transparency by the Banks to users.

The Supreme Court is unable to examine the consequences of the declaration of nullity of the Ground Clauses relating to whether the amounts charged by the bank under this clause would be returned to consumers, because that question was rejected in the first instance and was not challenged on appeal by the aggrieved party.

The statement reaffirms the criteria established by the Supreme Court in its first judgment on ground clauses, of May 9, 2013 - which annulled ground clauses of three other entities - in a more detailed explanation of Banks special duty of transparency and the real understandability of such clauses to clients.

 UK man beats Spain's banks on home ground

Thanks to an all but forgotten 45-year-old property law he found with the help of Google Translate, Englishman Keith Rule has provided hope to thousands of expats who lost money in failed Spanish property ventures during the credit crunch.

Published: 17 Jul 2013 14:23 GMT+02:00 
Updated: 17 Jul 2013 14:23 GMT+02:00

The Local – Spain´s news in English

In 2006, Keith Rule bought two houses off the plan in Albacete province in the south-eastern Spanish region near Murcia.

The high-end Finca Parcs development had everything he was looking for. It was located in inland Spain, the town was nice and there was a good school for his young children.

"But then Spain's housing bubble burst and our house was never built," Rule told The Local by telephone from the southern Spanish city of Algeciras.

Like many other investors, Rule saw initial attempts to reclaim his deposit thwarted. The bank he had paid his money to — then CAM, now Sabadell — refused to return his outlay of £45,983 (€53,000, $70,000).

Unlike many investors in his position, though, Rule refused to give up the fight for the money he'd lost in the property deal.

While trawling the internet with the help of Google translate, this Englishman based in Milton Keynes came across a law which dated back nearly 50 years.

"Law 57/68 (from 1968) was designed exactly to protect people in my situation," Rule told The Local.

"It made banks liable for all kinds of cases where developers didn't meet their end of the bargain."

Armed with this law, Rule eventually went on to win back his deposit with judges ruling in his favour.

Thanks to his hard work, 46 other buyers at the development also had their down payments reimbursed.

The process was far from easy though. Rule had to do some serious lawyer shopping before he found a firm prepared to take on his case.

"It was his persistence that won me over eventually," Maria L. de Castro, Director of Costaluz Lawyers said to The Local, explaining why she had accepted the case.

The lawyer explained that she had come across a relevant ruling in the high court of the Spanish region of Navarre.

There, judges found banks could be liable in certain cases where property developers failed to deliver their products.   

The opinion of a lawyer in Seville also helped persuade de Castro to take on Rule's case.

"But mostly it was the fact that Keith clearly saw that the bank was liable in his case, and that we had to find a way to enforce that liability.

"At the beginning they called us crazy," the lawyer freely admits of her firm's fight to see banks cough up deposits.

"One lawyer criticized Keith very harshly online, saying that he was a cheat and that he was trying to steal clients," de Castro told The Local.

Being a woman didn't help either, she explained. "I think the legal profession thought we were dreamers." 

There were also issues with Law 57/68 which mentioned bank liability without specifying how this would be enforced.

"We had to change people's thinking," said the lawyer.

"Luckily the law came to light at the same time as society was changing as a result of the crisis. There was more acceptance among judges that you can fight the banks".

Given the results of Rule's case, de Castro is now optimistic about similar cases in future.

"A lot of people had given up on getting their money back but this decision has reignited their motivation." 

But de Castro sounded a note of warning for people who may be looking to see their deposits again. "We need to have data," she said.

"You need to be able to show that you cancelled your contract with the developer, and you also need to see if a bank guarantee existed on the property.

"You will also need to be able to show that you made payments to a bank account held by a developer."

Some clients were also lacking a certificate of guarantee (certicado bancario), she added.

"What we have done now (with Law 57/68) is provide a new way to look at these cases," Rule told The Local.

"Of course the judges have to choose on a case-by-case basis. Now, though, we have seen some 35 to 40 similar decisions around Spain."

And despite everything, Rule still feels he has been fortunate.

"We were lucky we bought off the plan in Spain where there is a law. If we had bought in Bulgaria, for example, it would be quite different.

"There was a lot of corruption and greed in Spain during the building boom," Rule says.

"But Spain is slowly rebuilding the confidence people had."   

George Mills (george.mills@thelocal.com)

http://www.dailymail.co.uk/news/article-2359550/Hope-thousands-Britons-lost-fortunes-Spanish-property-ventures-ex-pats-win-legal-battle-bank-return-1-3million.html

ARTICLE IN DAILY MAIL – 11 JULY 2013

Hope for thousands of Britons who lost fortunes in Spanish property ventures after ex-pats win legal battle with bank to return £1.3million

• Keith Rule spent hours trawling the Internet for help after a bank refused to return his £45,983 deposit on a villa which was never built
• He took on bank bosses after discovering a 45-year-old property law
• Not only has he got his money but he has helped win back nearly £1.3million for 46 other buyers
• The 46-year-old impressed lawyers so much he has been asked to work with them on a part-time basis

By Gerard Couzens

PUBLISHED: 20:48, 10 July 2013 | UPDATED: 21:23, 10 July 2013

A laundry owner who feared losing life savings in a Spanish property scandal is celebrating after helping lawyers win a landmark legal case which has given hope to thousands of wronged Brits.

Father-of-two Keith Rule, 46, spent hours trawling the Internet with the help of Google translator after a bank refused to return his £45,983 deposit on an off-plan villa never built because of the economic crisis.

He took on bank bosses after discovering a 45-year-old property law making them jointly responsible with promoters for returning guaranteed deposits on failed developments.

Now the businessman has not only got his money back - but helped win back nearly £1.3 million for 46 mostly British buyers whose dreams of villas on the same development in south east Spain were scuppered.

Mr Rule, from Milton Keynes, Buckinghamshire, impressed the Costa lawyers he instructed to take their case on so much, they asked him to work for them on a part-time basis.

He now combines the day-to-day running of his firm on an industrial estate in his home town with his new job preparing case files for other Brits engulfed in the drama that swept him up when Spanish savings bank CAM washed its hands of buyers after an initial promise of a bank guarantee seven years ago.

Last night Mr Rule, described as a 'dog with a bone' by one of the lawyers who agreed to fight his case through the 1968 law he found on the Internet, urged others in the same situation not to give up.

The 47 buyers involved in the landmark trial at a court in Albacete province near Murcia, south east Spain, have just received all the money back they put down.

Only some of the 617 three and four-bed homes with pools on the luxury Finca Parcs development in Hellin on the Albacete-Murcia border were ever partially finished.

The group are now also applying to the court for case costs and interest on their deposits to be paid.

Only some of the 617 three and four-bed homes with pools on the luxury Finca Parcs development in Hellin on the Albacete-Murcia border were ever partially finished

Mr Rule, who handed over deposits on two villas in November 2006, said: 'At the start of this fight people called me crazy but they don’t now and I’m delighted to have given hope to other Brits.

'There was no concept five years ago in Spain banks could be liable in these sorts of situations.

'We’ve created case law here. 

'I haven’t got a magic wand I can wave for everything but my message to people in the situation I was in is "Don’t give up."

'I’m living proof you can take on powerful institutions and beat them when they’re wrong and you’re right.'

A Spanish judge ruled CAM - now taken over by Sabadell - was guilty of malpractice for failing to ensure deposits were spent only on building the villas and never collecting an equivalent cash safeguard from the promoters.

The holiday home buyers won an initial trial against the bank and Spanish promoters Cleyton Ges in May 2012 - and an appeal in March this year.

A Spanish judge ruled CAM - now taken over by Sabadell - was guilty of malpractice

A second lawsuit on behalf of 13 more Finca Parcs buyers has already been filed - and Mr Rule is working on a third lawsuit with Algeciras, Cadiz-based lawyer Maria de Castro and her brother Jaime who took the first case to court.

Theirs and other Spanish legal firms around Spain are also winning cases based on law 57/1968 - the law Keith uncovered on Google which has spared Brits the nightmare scenario of exhausting court battles against promoters with no money.

He said last night: 'I bet the CAM executives I demanded my money back from five years ago wished they had given me a cheque that day.

'The court case set a legal precedent and is being used by other law firms around Spain.'

Jamie de Castro, of  De Castro lawyers, added: 'It’s amazing that a non-Spaniard who didn’t even speak Spanish and was using Google translator helped get us this far.

'I have no problem in admitting I wasn’t confident at the start this would work and feared Keith might be wasting time and money.

'But he insisted and insisted and began to make us believe it could.

'My sister described him once as a dog with a bone which I hope he takes now as a compliment.'

Pensioner Reg Matthews, a friend of Mr Rule's who has had his £22,980 deposit returned, added: 'It’s a great relief to have my money back although I was keen on having a place in the sun like thousands of other Brits.

'Without Keith’s help I and many others would have lost everything.'

Article in THE TIMES - WEDNESDAY 10 JULY 2013

 

Spanish bank forced to pay back €1.5m deposit

Graham Keeley – Madrid – 10 July 2013

A British businessman has won a landmark legal victory against a Spanish bank that was refusing to return €1.5 million in deposits that he and other buyers had paid for 47 villas.

Keith Rule, 46, led a group of British and Irish people who had invested off plan in a luxury development near Murcia, southeastern Spain, marketed as the “real Spain”.

They paid their deposits in 2006 but when the property bubble burst in 2008 the developer collapsed, and the Spanish bank, Caja de Ahorros del Mediterráneo, refused to return their money.

Faced with losing €53,000 (£46,000) of his own money, Mr Rule researched a 1968 property law and used Google translator and a basic knowledge of Spanish to fight back. Spanish lawyers told him that he was unwise to take on a bank and would lose but he convinced one lawyer to take up his case.

When the case came to court, the bank demanded that all 47 buyers attend. Mr Rule organised their journey.

A judge sitting in Albacete ruled against the bank and ordered it to pay back €1.5 million in deposits to Mr Rule and the 46 other buyers.

The judge ruled that the bank was guilty of malpractice by failing to safeguard deposits. The same court dismissed an appeal by the bank, which must also pay costs and interest.

“This could have implications for many more British people who have bought properties in Spain but have lost out,” Mr Rule, who runs a laundry in Milton Keynes, said. “It proves that if you persevere then you can get justice in Spain but it is a bit of a lottery depending on whether you get the right judge.”

Caja de Ahorros del Mediterráneo, which was later taken over by Banco Sabadell, claimed that Mr Rule and other buyers were not entitled to their money back because they had no bank guarantees. It said the developer, Cleyton Ges SL, should have guaranteed the deposit money, not the bank. However, Mr Rule argued that the bank had a duty to guarantee deposits in case the developer went bust.

The case revolved around Finca Parcs, a luxury development of 617 villas. Today, seven years after hundreds of Britons were lured into spending millions on the home of their dreams, the development is a ghost town. Mr Rule has become a part-time adviser on the issue to a Spanish law firm. Another 53 buyers are still out of pocket and thousands more British expatriates in Spain face similar battles after the collapse of the property market.

Giles Paxman, the British Ambassador in Madrid, wrote to Mr Rule to congratulate him on his victory. A spokesman for the bank said that it would not appeal.

http://www.thetimes.co.uk/tto/news/uk/article3812399.ece?CMP=OTH-gnws-standard-2013_07_09

Financial Justice

http://elpais.com/elpais/2013/07/09/inenglish/1373371128_743177.html

The British buyers fight back

Foreign property investors are battling to recover money lost in deals gone bad

Rafael Méndez – El País English Edition - 9 JUL 2013 - 14:20 CET

Keith Rule says that he first thought about buying a house in Spain after a friend told him about an advertisement he had seen in an easyJet in-flight magazine for a property development in Hellín, called Finca Parcs-Las Higuericas, in Albacete province. The year was 2006, the height of the country's property boom.

"It was being sold as 'the real Spain'," says Rule. The development was not on the coast, but inland, in a lovely place," explains Rule on the phone from the UK.

Finca Parcs-Las Higuericas was going to consist of 617 chalets with their own swimming pools. Few of the 300 or so British or Irish investors who put down a deposit knew the area, but the layout plans and artist's impressions looked good, the price was right... what could go wrong?

Spain's property market collapsed in early 2008, taking with it hopes that Finca Parcs-Las Higuericas would ever materialize. The company behind the project, Cleyton Ges, went bankrupt, and Keith Rule began to worry that he would never get back the 53,434 euros he had put down, much less get his Spanish vacation home. The bank that had acted as intermediary in the promotion, CAM, was in serious financial difficulties of its own: it was unable to finance the operation, and would not return the money it had taken. He contacted a lawyer, who told him to sue Cleyton Ges. "But I knew that this wouldn't get me my money back. I looked on the internet and using the little Spanish I have, discovered that there was a law from 1968 stating that the bank was also responsible."

Using my Spanish, I found a 1968 law saying that the bank was responsible"

The little-known legislation that Rule uncovered details procedures in the case of deposits put down on the construction and sale of dwellings, and outlines in clear terms the guarantees that a home buyer is entitled to. The preamble states that the law was passed in response to "the justified alarm among the public caused by repeated abuses, which on the one hand, are a threat to social stability, and on the other, are clear breaches of the law."

The law was designed to avoid the repetition of cases such as Nueva Esperanza, a property developer that took money from more than 10,000 savers without ever building a single home. "The measures we are taking are meant to resolve an indignant problem, because people that had spent a lifetime saving to buy an apartment saw their money disappear overnight, and were left with no home," said the then-housing minister, according to the newspaper Abc . The law not only required the property developer to return buyers' money, but required the bank to guarantee that any amounts it received were spent on construction. The bank would, from now on, have to supervise the money and provide a guarantee "under its own responsibility." In other words, if a bank takes your money as a deposit on a property, if that property is not built, it is responsible for returning your money.

When the property market collapsed, lawyer Javier Domínguez Romero was contacted by people who, like Keith Rule, were in danger of losing their deposits, and who had also looked at the 1968 law. "The law had been forgotten about for years during the economic boom. Few lawyers even knew about it," says Domínguez, who later published a book on the subject.

Around the same time, Keith Rule had begun looking for a Spanish lawyer who would handle his lawsuit, as well as those of 46 other would-be home owners. Eventually he met with Jaime de Castro, a Gibraltar-based lawyer used to representing British clients within the Spanish legal system. The trial was held in May 2012. CAM tried delaying tactics by saying that all those bringing charges must appear in person in court. All 47 made the trip to Albacete provincial court, although none of them were questioned by CAM's legal team. CAM's argument was simple. It had no "legal relationship" with the 47, and said they would have to pursue their case against the property developer. The bank did not have guarantees for each depositor, as it was required to do so by law, should there be any problem with the construction.

The judge hearing the case agreed that CAM was indeed responsible and ordered it to return the 1.5 million euros that the British had paid to the developer: "CAM knew that the deposits placed in accounts in its branches were from the buyers of a property development and completely abandoned its responsibilities to them under the 1968 legislation, and as such committed bad banking practices." The sentence has since been ratified, and the British investors are getting their money back, with interest and costs. CAM, which has been taken over by Banco Sabadell, has not appealed against the ruling. The bank says that it inherited the problem. The British embassy says that it will use the ruling for future cases.

Rule, who is now working with the legal team that won the case, says that the ruling should give hope to anybody who has lost money to a property developer. "This law, after 45 years, is more necessary than ever," he says. He has set a precedent that in general terms provides much greater protection to consumers, because the bank has to pay, even if there is no guarantee.

Similar cases have emerged in recent months of foreign investors getting their money back from bankrupt property developers. Alec Edwards works for the Liverpool fire brigade. In 2009, he put down 150,000 euros as a deposit on a property in Trampolin Hills, in Murcia. "We could see that there was no building work, so we asked the bank to execute the guarantee, which it refused to do." Two months ago, after bringing legal action, he got all of his money back. His lawyer, Guadalupe Sánchez, says that British people are more inclined to take legal action. "Spaniards do not like taking on the banks, but the British seem to have no fear," she explains. Antonio Flores, a Malaga-based lawyer who specializes in construction disputes involving non-Spaniards, agrees: "These people really put their foot down, and demanded a response from the system."

Spanish judges are at last beginning to do something to improve the country's poor reputation in Europe. In March, the Supreme Court demanded that foreigners buying here be given special protection. Rule says that he is happy, not just for himself: "Spain has shown that it is a serious country, and that if you insist, the justice system works."

FINCA PARCS - BBC RADIO INTERVIEWS

BBC Radio 4 Interview with Keith Rule (Finca Parcs Action Group) & Jaime de Castro (Costa Luz/De Castro) first broadcast on 27 May 2013 after the Sentence against Banco CAM was definitive and final:

http://www.bbc.co.uk/programmes/p01b1tft


BBC Radio 4 Interview with Keith Rule (Finca Parcs Action Group) & Gerard M Vazquez (Lawyer from VAZQUEZ ESTUDIO JURIDICO) first broadcast 11 July 2012 following the victory in the First Instance Court – June 2012:

http://www.bbc.co.uk/programmes/p00vymv3

ARTICLE IN EL PAÍS - SUNDAY 7 JULY 2013

http://politica.elpais.com/politica/2013/07/05/actualidad/1373051752_595536.html
 

Compradores de promociones fantasma recuperan el dinero por una ley de 1968

Los jueces culpan a la banca de incumplir la normativa, que les hace también responsables

El banco debe garantizar que las cantidades que recibe el promotor van a la construcción

Rafael Méndez – El País - Madrid - 7 JUL 2013 - 00:00 CET

Keith Rule recuerda que un amigo le pasó un anuncio que había visto en una revista de Easyjet sobre unas casas en Hellín (Albacete). Era 2006 y no había posibilidad de equivocarse al comprar casa en España. “Lo vendían como ‘la verdadera España’. No era un resort en la costa, sino en el interior, en Albacete, en un sitio muy bonito”, recuerda hoy por teléfono desde Londres. “Finca Parcs-Las Higuericas” se llamaba la promoción. Iban a ser 617 chalés con piscina en el campo. No era el destino habitual y a pesar de eso atrajo a unos 300 británicos e irlandeses que dieron un anticipo por la vivienda. Compraron sobre plano, cuando aún no había nada. Keith, que tiene una lavandería, pensaba pasar temporadas en España.

Pero pronto vio que algo se había torcido. De arriba abajo, la explosión de la burbuja inmobiliaria llegó inexorable a Hellín. Y la promotora, Cleyton Ges, se quedó sin dinero para las cinco fases. Era 2008 y Keith vio que los 53.434 euros que había dado como anticipo estaban en serio riesgo. Ni la CAM, la caja que había recogido todos los ingresos, podía financiar la obra ni devolvía el dinero. Keith comenzó a consultar a abogados. “Me decían que demandara al promotor, pero sabía que así no recuperaría mi dinero. Busqué en Internet con el poco español que sabía y vi que había una ley de 1968. La traduje con Google y leí que el banco también era responsable”.

La ley es la 57/1968 “sobre percibo de cantidades anticipadas en la construcción y venta de viviendas”. Se trata de una concisa norma, dos folios y siete artículos, que da todo tipo de garantías al comprador de viviendas. La ley explica que surge por “la justificada alarma que en la opinión pública ha producido la reiterada comisión de abusos, que, de una parte, constituyen grave alteración de la convivencia social y, de otra, evidentes hechos delictivos”.

La norma pretendía evitar casos como el de la sociedad Nueva Esperanza, que en los años sesenta se llevó el dinero de más de 10.000 ahorradores sin levantar los pisos prometidos. “Las medidas tomadas vienen a resolver un problema indignante, ya que gente que estaba ahorrando toda su vida para hacerse con un piso se veía de la noche a la mañana con el dinero perdido y sin vivienda”, declaró entonces un portavoz del Ministerio de Vivienda, según recogió el diario Abc. La ley no solo exige al promotor la devolución del dinero, sino que dice que el banco debe garantizar que las cantidades que este recibe deben ir a la construcción. El banco debe fiscalizar el destino del dinero y exigir un aval “bajo su responsabilidad”. Esos derechos, según la norma, son “irrenunciables”.

Con el desplome de la burbuja, el abogado Javier Domínguez Romero comenzó a recibir consultas de gente que se había quedado pillada en promociones a medias y se estudió la ley de 1968. “La norma había dormido el sueño de los justos durante los tiempos de bonanza económica. Los abogados apenas recurríamos a ella”. Publicó un libro sobre la ley y desde entonces ha perdido la cuenta del número de ejecuciones de avales que ha llevado.

Por esa época, Keith Rule comienza su lucha. Quiere ir más allá. Recuperar el dinero aunque el promotor ni había depositado los avales para 100 de los compradores. No llega a encontrar a Domínguez. De hecho, le costó dar con un abogado dispuesto a ir contra la CAM —“me llamaban loco”—, hasta que con 46 compradores convenció a Jaime de Castro, de un bufete de Algeciras especializado en clientes británicos. El juicio se celebró en mayo de 2012 y fue un espectáculo. La CAM pidió que fueran todos los demandantes, con lo que 47 familias británicas e irlandesas se desplazaron hasta Hellín, aunque luego su representante no les hizo preguntas. El argumento de la caja era que no tenía “ninguna relación jurídica” con los británicos, que estos debían reclamar al promotor, que no tenía los avales a los que le obligaba la ley por si no finalizaba las casas. Sin embargo, la juez consideró que el banco también era responsable. Hace un año, les dio la razón y ordenó a la CAM que devolviera 1.494.710 euros que los británicos habían dado a la inmobiliaria. Argumentó que “la CAM conocía que los anticipos ingresados en cuentas abiertas en sus sucursales se trataban de ingresos a cuenta de compradores de una promoción inmobiliaria e hicieron dejación absoluta de sus obligaciones que como entidad financiera le impone la ley 57/68 incurriendo su conducta en una mala praxis bancaria”.

La Audiencia Provincial ratificó la sentencia hace un mes y los británicos ya están cobrando, y con intereses y costas, lo pagado. La CAM, hoy parte del Sabadell, ni recurrió al Supremo, como confirma un portavoz. El banco considera este caso uno más de la herencia envenenada que dejó la caja. La Embajada británica afirma en una carta que lo usará como guía para casos similares. Keith, que ahora colabora con el bufete que llevó el caso, sostiene que su sentencia da una nueva esperanza a quienes han enterrado dinero en la burbuja inmobiliaria: “Esta ley es, 45 años después, más necesaria que nunca”. Domínguez sienta un precedente que, de generalizarse, daría mucha más protección al consumidor, ya que el banco paga incluso si no hay aval. Y podría abrir otra vía de agua en el sistema bancario.

Aunque los detalles cambian, hay muchos más clientes que, contra pronóstico, están recuperando el dinero que dieron para promociones fantasma. Alec John Edwards es un técnico del servicio de bomberos de Liverpool que en 2009 dio 150.000 euros como anticipo por una casa en el Trampolin Hills, en un diminuto pueblo de Murcia: “Como vimos que no se construía pedimos ejecutar el aval, pero el banco se negaba”. Hace dos meses, tras un pleito, recobró los 150.000 euros, y aún no da crédito. Su abogada, Guadalupe Sánchez, opina que los británicos tienen más costumbre de pleitear: “A los españoles les cuesta más ir contra la banca. Los anglosajones lo tienen más interiorizado”. Antonio Flores, abogado de Málaga especializado en atender a clientes extranjeros en temas inmobiliarios, coincide: “Estos insistieron mucho más y exigieron una respuesta del sistema”.

Los jueces empiezan a paliar la mala fama del urbanismo español en Europa. El Supremo exigió en marzo pasado especial protección para los extranjeros que compren una vivienda. Keith resume: “España ha demostrado ser un país serio, en el que si perseveras, la justicia funciona”.

PRESS / MEDIA RELEASE - FOR IMMEDIATE RELEASE – 15 MAY 2013

FINCA PARCS ACTION GROUP vs CAJA DE AHORROS DEL MEDITERRÁNEO (CAM BANK) & SPANISH PROPERTY DEVELOPER, CLEYTON GES SL

FINCA PARCS - CASE CLOSED

FIRST INSTANCE & APPEAL COURT SENTENCES NOW FIRM AGAINST CAM BANK & CLEYTON GES

NO SUPREME COURT APPEAL FROM CAM BANK – CASE CLOSED

Disgraced CAM Bank once described by the Governor of the Bank of Spain as the ‘worst of the worst’ has not filed an Appeal to the Supreme Court in the Finca Parcs case.  Therefore, the Sentence issued by the First Instance Court in Hellín on 8 June 2012 and confirmed by the Albacete Provincial Appeal Court on 11 April 2013 is now FIRM and FINAL against both CAM Bank (now SabadellCAM) & the property developer, Cleyton GES SL.

The First Instance Sentence that was ratified by the Provincial Appeal Court concluded that both the developer and Bank failed to fulfil their legal obligations according to Spanish Law, LEY 57/1968 and that CAM Bank was guilty of malpractice and a complete dereliction of its duties.

The Court convicted jointly and severally both defendants to return off-plan deposits paid by the 47 buyers totalling almost 1.5 million Euros for houses that were never built at the abandoned Las Higuericas, Finca Parcs development close to Agramón, Albacete.

BUYER’S REFUNDS

As the Sentence is now firm the Court has released the principal amount of the group member’s deposits which was paid by CAM Bank to the Court following the provisional enforcement of the First Instance Sentence in July 2012.

In due course the 47 group members will each receive a refund of their off-plan deposits less costs.

Interest and Costs will be calculated, agreed by the Court, and then paid to group members in approximately 2 to 3 months.

Finca Parcs Action Group Co-ordinator, Keith Rule says:

“This is a momentous day, one that many of the group members thought they would never see.  We were elated in June 2012 when we won in the First Instance Court and again in April 2013 when we won in the Appeal Court.  However, today is probably more significant as it marks the end of the case with a firm and final Sentence against both the Bank & Developer.

We provisionally enforced the First Instance Sentence in July 2012 and this resulted in CAM Bank paying the principal amount of the deposits to the Court.  As the decision is now final the Court has released the funds payment to each group member.  

Since paying my off-plan deposit in 2006 I always believed that the banks have liabilities and obligations according to Spanish Law, LEY 57/1968.  One of my biggest hurdles in 2008 and 2009 was finding a Lawyer who also shared my view. 

The fact that we now have a firm and final decision in this case is evidence that there has always been substance to my views and opinions in cases such as this.

The true measure of success in the legal process is to obtain the refund of the off-plan deposits.  We have now achieved that.

I would like to thank María de Castro, director of Costa Luz Lawyers, for trusting my views back in 2008 and having the confidence to support and assist me in building such a strong case against both the developer and bank.  Also we are truly grateful to Jaime de Castro, our litigator who at all times worked in such a professional, efficient and determined manner on behalf of the whole group.

Thanks also the group members for believing and joining me on this momentous journey.  Final success has been a long time coming but all concerned can be rightfully very proud of what we have achieved.

One thing is for sure, LEY 57/1968 may have been introduced 45 years ago but never before has it been the centre of so much public and legal attention”

María de Castro, Director of Costa Luz Lawyers comments:

“This case is an excellent example of how Judges in Spain are teaching Banks to treat people.

It is a magnificent result in favour of the consumer”

Group Lawyer, Jaime de Castro comments:

“Spanish legislation protects off-plan house buyers with protective rules that do not exist in other European countries.  LEY 57/1968 is an old Law that is still in force and makes the banks and developers jointly responsible for the amounts paid in advance by buyers when the housing is not delivered or is completed after the deadline agreed in the contract.  The Spanish Courts are applying this Law strictly and categorically”

LANDMARK CASE LAW

Lawyers representing other buyers of off-plan property in Spain who were not issued with the legally required Bank Guarantees to protect their deposits can now use the Finca Parcs decision as Case Law to strengthen legal arguments in their own cases.

Keith says;

“The Finca Parcs case will no doubt help to strengthen the Lawsuits of other off-plan buyers who did not receive the legally required Bank Guarantees, many of whom still have their life savings at risk.

Together with our legal team at Costa Luz / De Castro we have worked tirelessly since 2008 to highlight this issue in the media and to the Spanish & British Governments.  That belief and hard work is now backed up by two very strong sentences from the Hellín First Instance Court and the Albacete Appeal Court that are now firm and final.

To those off-plan buyers still affected by these issues I would say, never give up.  Stay strong, keep believing and always focus on getting your money back.  Much against the odds, we in the Finca Parcs Action Group have succeeded in winning against a big financial entity and I am sure others will now achieve similar success in the future.  We have proved that it is possible”

FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION – LAWSUIT 1

●  2006 - No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million
    Euros
●  February 2011 – Lawsuit 1 against CAM Bank & developer Cleyton GES SL filed to Court

●  12 January 2012 - First Instance Court Preliminary Hearing
●  21 & 22 May 2012 - Trial held in First Instance Court - Hellín

●  8 June 2012 - Judgment released in favour of Finca Parcs Action Group
●  CAM Bank and Cleyton GES SL sentenced to return deposits amounting to almost 1.5  
    million Euros to the buyers with the addition of legal interest and costs
●  July 2012 - CAM Bank appeals the First Instance Court Judgment
●  July 2012 - Finca Parcs Action Group submits Opposition to the CAM Appeal
●  July 2012 - Finca Parcs Action Group file Provisional Enforcement Order to the Court
●  August 2012 – CAM Bank pays full amount of deposits plus legal interest and costs
    to the Court
●  Appeal to be heard by the Albacete Appeal Court
●  4 March 2013 - Appeal Magistrates to meet for deliberation & voting on the CAM Bank Appeal
●  11 April 2013 – Appeal court dismisses the CAM Bank Appeal and confirms First Instance   
    Sentence in full and imposes costs of Appeal on CAM Bank

●  14 May 2013 - CAM Bank do NOT appeal to the Supreme Court
●  14 May 2013 - FIRST INSTANCE & APPEAL COURT SENTENCE NOW FIRM AND FINAL
●  Court releases Principal Amount of buyers off-plan deposits amounting to almost 1.5 million   
    Euros to the Finca Parcs Action Group Legal Team
●  As per the Sentence, interest and legal costs will now be calculated and paid to the buyers in  
    due course