VICTORY FOR FINCA PARCS ACTION GROUP LAWSUIT 2 IN FIRST INSTANCE COURT IN HELLÍN

Hi Chris

Some of our group members live in Spain or have accounts there for other reasons - so if they take their money it would remain in Euros - no problem with exchange rates.

For those group members in the UK:

Some may open Euro accounts with their UK Banks - thereby avoiding any exchange rate 'gamble'.

For those in the UK who choose to have the money transferred from Spain to their UK Sterling account - then yes, you are correct there will be exchange rate implications - positive or negative - if they had to pay the money back.

Also I must mention that if the money had to be paid back to the Court then it would be the principal amount PLUS interest at the Spanish Statutory Legal Rate from the date Banco CAM paid the money to the Court (1 August 2012) until the date the money is returned to the court.  So it is important that whichever account the money is in it is earning interest to cover this eventuality.

There is also the possibility that even if we win the Appeal in the Albacete Appeal Court, Banco CAM may refer the case to the Supreme Court - or if we lost the Appeal we may refer the case to the Supreme Court.

The Supreme Court does not automatically agree to hear every case - but if they did agree to hear this case then their decision may take a number of years.

Therefore, we may have 'interim or provisional possession' of our money for a number of years pending the Appeal Court decison and/or Supreme Court decision.

So there is a risk with each individual taking their money - they should not spend it - especially if they do not have access to other funds should the Appeal be lost.

That is why some group members will choose to keep the money in a group account with our Lawyer in Spain.  With a large sum of money in the group account it will be easier to obtain a better rate of interest from the Bank which should cover the Statutory Legal Interest Rate if the money had to be returned to the Court at any point in the future.

I am coordinating the group and you could say leading the group, but at all stages I have done my best to ensure that wherever possible each individual group member is able to make their own decision about certain things.

It has been and still is a very complex case but as a group we are aware of all these scenarios.

But....I must reiterate that all things considered we have made great progress in this case and are in a very good position right now.

Kind regards

Keith

Thank you again Keith for your willingness to share your hard earned knowledge and the time you spend answering peoples questions in such detail. I only wish you could look after our case too.

Our lawyers have told us we were unable to have our deposit return to us, even though we have won our initial case and the money is sitting in their account while we await the banks appeal hearing (over a year now). I can understand the fear that they might have, that we might be foolish enough to spend it. But it should be our choice.

A more cynical person might suggest that the lawyers have a great deal to gain financially by not allowing their clients to look after their own money. We are not in a position to entertain these darker thoughts, our future is in our lawyers hands- we have to have complete trust in them as uncomfortable as it might sometimes be.

 Dear Ads:

In answer to this matter:

Maria, may I ask is there any way that we (lawyers and clients alike) can call for greater resource to be made available to clear the backlog of cases in those specific problem areas that continue to compromise the actual enforcement of law in Spain?  To your knowledge, have for instance complaints on behalf of clients been formally placed to the relevant Justice departments, so as to add to the statistical data reviewed by the World Justice Project, or are these realities/statistics being hidden from view?

We have been sending our claims to the Clients Servcice of the Ministry of Justice. We have always received an acknowledgement letter and in some cases, answers to them.

This is the link to the contact  form:

http://www.mjusticia.gob.es/cs/Satellite/es/1200666550254/Contacto.html

Thank you once again Maria for the information and reassurance that your law firm is following this through for clients.

Perhaps its worth suggesting that clients using other law firms who are suffering delays of this magnitude request that their lawyers do likewise on their behalf (and retain a copy for your file), to ensure that these instances are correctly logged/reported back to the Justice Department. If these instances go unreported then the statistics will be unrepresentative of the true situation in Spain.

Dear Keith,

A few last very basic, possibly stupidly obvious, questions on this. I just want to be 100% sure I understand this exactly.

1) Is the interest earnt on the deposit, while in your lawyers account, yours and would be returned, along with the deposit, when the case ends in your favour?

2) Is it the lawyers responsibility to ensure the deposit is kept in account that provides an interest rate equal, or greater, than the Spanish Statutory Legal Rate set? I understood from your post, you are hoping to get a better rate than the legal rate - given the size of your combined deposits.

3) What was the Spanish Statutory Legal Rate set for your case? Is there any way to find out what this has been in the past?

Thank you for patients and your help,

Chris

Hi Chris

I am pleased to answer your questions.  I think it is good to share knowlege so others can benefit.  I know first hand what it is like to be a 'victim' of the Spanish Real Estate sector so I am happy to help others if I can.  I share and understand the pain and frustration of being in this kind of situation - where your money is at serious risk.

That is why in 2010 I started the Bank Guarantees website and Petition.  I wanted to create an awareness of LEY 57/1968 and hopefully allow others in a similar position as me to utilize the best possible legal methods in an attempt to recover their hard earned money.

To answer your questions:

1.  Yes, of course if the case ends in our favour then the interest earned on the funds held in the Lawyers Group Account will be shared pro-rata by each group member based on the value of their original deposit.  Those group members who choose to take the money in their own accounts will have whatever interest their own account pays them.

2.  I have worked very closely with both María de Castro and our litigator Jaime de Castro throughout the past 4 years.  I formed the group and have coordinated it on a voluntary basis right from the start, hence my very close 'working relationship' with the legal team.  I must say, I could not have hoped for a better relationship with our Lawyers.  Teamwork has been a great asset for us in this case and one of the reasons why so far we have been successful.

But even as an individual you should have a close relationship with your Lawyer.  At the end of the day you appoint the Lawyer and they act upon your instructions.  Of course they will advise you regarding the legal aspects - but they should be ready and willing to answer your questions and give you a clear explanation of how things will progress in your individual case.

I know that as a victim (like me) you sometimes want news from your Lawyer everyday.  You feel stressed, angry and worried and seek reassurance from your Lawyer.  But due to my intense involvement in our case I have also seen things from the 'other side of the fence' and I know that for months there maybe no new information for the Lawyer to give.  This is where the frustration comes in - but that is only natural - after suffering at the hands of a corrupt developer and/or negligent Bank we tend to struggle to trust even our Spanish Lawyers - we feel everyone is out to cheat us.  Again this is only natural and it is why an honest, open and transparent relationship with your Lawyer is vital.

When it comes to a situation where the Lawyer is 'holding' your money pending the outcome of an appeal, they don't have an absolute responsibility to ensure it is in a high interest account.  However, they do have a legal responsibility to protect the money.  You should be able to communicate with your Lawyer and ask what rate of interest your money that they are holding on your behalf is earning.

Yes, we are hoping to get a better rate of interest in the group joint account than the Statutory Legal Rate.  This is a prudent thing to do as the interest earned will cover any interest that will be due should the worst happen and we lost the appeal.

3.  The Statutory Legal Rate of interest in Spain changes on an annual basis.  I think the rate for this year is around 2%.  Maybe María can reply with the current rate and the historical rates over the past few years.

Remember, your Lawyer should be working in your best interest at all times. You should have an open and transparent relationship with your Lawyer.

Please let me know if you have any other questions.

Kind regards

Keith
   

Dear Keith and all

If we stand outside the box and review what is happening here, review the consequences of the Spanish Justice system as it currently stands when taking action against the Banks, and what it provides us with, it leaves some uncomfortable conclusions that we all need to reflect upon. And it all comes down to the lack of time constraints upon the various procedures..

What is the use of case wins without consistent timely enforcement?

What is the use of returned monies if you are inhibited from using them for indefinite periods?

What is the use of statistics if they are left unmonitored, of complaints procedures if they are not adequately responded to in a timely fashion via corrective procedures?

Lawyers and clients alike should be lobbying, and lobbying hard for reasonable time constraints to ALL of these procedures alongside the submission of lawsuits against the Banks/developers if we are ever to achieve effective justice.

This was part of Keith’s initial remit within his petition and we should not lose sight of the importance of this aspect when reviewing where things stand as we speak.

Keith and Maria (and other law firms who have achieved success relating to Bank Guarantees), you have done a remarkable job to date and I do not wish to underestimate the significance of what has been achieved, but please don’t lose sight of the impact that the lack of time constraints place upon the eventual outcome for those cases where Banks proceed to appeal/Supreme Court.

Dear All,

Sorry about that, it was the optimist in me, ever hopeful, can I please withdraw the yipee.

I forgot what Michael Joseph has told us in his books - lawyers can SERIOUSLY DAMAGE YOUR HEALTH.

Still I have recovered my senses and cannot join Ads in expecting these leeches to give up their voracious appetites for our money and shortcut any procedures, that is the exact opposite of what they seek - the goal of everlasting delay and everlasting fees.

They are very happy with their lifestyle and desire only to prolong it, sorry Ads you will not make any progress in that regard until post revolution, when NO ONE WILL HAVE LEAVE TO APPEAL ANYTHING WITHOUT THE MOST COMPELLING TESTED REASON. WHEN I SAY TESTED I MEAN OBVIOUSLY TESTED BY THE REASONABLE MAN - THE CITIZEN NOT ANY LAWYER OR LEGAL ARGUMENT.

One year for this, five years for that - all baloney.

At my age I really must face facts as should Ads and Keith, Spain should certainly not be in the EU, nor many others.

Mr Hester told us this morning that he had sacked many wrongdoers on our behalf - not a single one has been prosecuted.

But hopefully they wont be re-appointed and re-elected as in Spain.

We are still a very long way from the meek inheriting anything but abuse in this wonderful world.

Regards

Norman

PS will all professional criminals be re-classified as "wrongdoers" and will they have special prisons or just special comfy cells???

My intention was not to instill pessimism, nor to undo the good work that Keith and Maria are achieving, in fact I have faith in their endeavours, but we must not lose sight of  Banks manipulating time factors in this scenario and allow a repetition of timescale abuse to their benefit..... we need to be prepared to counter these measures by all means at our disposal.  

Hi Keith,

Thank you again for your detailed answer, it is greatly appreciated!

I totally agree about having a good, open relationship with your lawyer is important, but it is sometimes hard not to let the frustration turn into suspicion. Communication is key. While it can be difficult when things are busy, those long periods of quiet could be used to ensure a client is fully aware of what has happened, and what is to come. It is the fear of the unknown that causes such anxiety. A well informed client is undoubtly a happier client. I hope our relationship with our lawyer will become as open as yours is.

Many thanks again!

Chris

Hi Chris

I understand the frustration that you feel and yes I agree, communication is the key.  Sometimes during a long period of quiet all the client needs is an email from the Lawyer just to confirm that everything is still moving in the right direction.  The Lawyer may not be able to give any new information but a simple email 'just to keep in contact' will reassure the client.  I think, understandably, it maybe difficult for a Lawyer to appreciate that it is still important to communicate even if there is no new information to give.  For us as victims we can see things from a different perspective.

With regards to having access to your money pending the result of the appeal:

As discussed in a previous answer below there are risks with taking the money yourself, so I would imagine that most Lawyers would quite rightly advise the clients to leave the funds with them in a secure account.  This would avoid any potential problems in the future should the appeal be lost.

It will be interesting to see how many of our group members choose to take the money themselves and how many will leave it in the group account.

When you say you are waiting for the result of the Banks appeal - did you have a Bank Guarantee?

Kind regards

Keith

Hi Keith,

Yes, we were fortunate enough to be given a full bank guarantee. However, it had an expiry date on it, which just happened to coincide with the purchase contract's expiry date; thus, exactly when the BG should kick in it was in valid (according to the bank). I believe this is what the bank is appealing against, although I am still waiting for our lawyer to confirm this.

I think as Ads has said, everyone would benefit from a speedier processing of cases - even the banks. Our lawyer would earn the same if it had all been sorted out in a few weeks as they do now with it dragging on, the bank has paid the deposit to the court so they gain nothing from the delays, and courts themselves gain nothing. All the delays do is introduce instability into an already rocky economy and everyone involved suffers.

cheers,

Chris

Dear All,

"kicking the can down the road" is a current term much used in the euro crisis.

now the judge is just another lawyer - same club - same objectives, is that what has been done here?

was leave to appeal sought and in what terms?

could it have been refused?

what has happened to the Priors?

are they still being kicked down the road by the real criminals - the lawyers.

the bank is only doing the same as the lawyers - determined to avoid justice and have no doubt been advised so by the lawyers.

it is indeed a hard road - because that is what we allow.

Regards

Norman

Hi Chris

Article 4 of LEY 57/1968 states:

Article Four – Once the Certificate of Occupancy is issued by the Provincial Delegation of the Ministry of Housing and given by the promoter of the housing to the buyer the rights guaranteed by the insurer or guarantor will be cancelled.

A Bank Guarantee must not have a pre-determined expiry date. A Bank Guarantee only expires when the First Occupation Licence is issued and given by the builder to the buyer.

Was the property you were buying ever completed? Was the First Occupation Licence issued?

With regards to the speedier processing of Bank Guarantee claims:

Our Bank Guarantees In Spain Petition which was launched in 2010 stated among many other things:

'Fast Track' specialised courts and an official Ombudsman be established to deal with cases specifically involving Off-Plan Deposits, Bank Guarantees and the implementation of LEY 57/68. Initially all cases must be referred to the Ombudsman who would, where possible, provide a definitive decision. Any case that still requires litigation proceedings must then be submitted to the 'Fast Track' specialised courts. These courts must have judges experienced in cases involving Bank Guarantees & LEY 57/68. These 'fast track' courts must guarantee that any case is heard within 3 months.

I presented the full petition to the previous Spanish Government on 2 occasions during 2011 and discussed this issue with them at 2 meetings; however they failed to acknowledge the scale of the problem.

Kind regards

Keith

Thank you Keith for confirming those facts relating to the BG petition.

Given the lack of acknowledgement by the Government as to the scale of the problem relating to Bank Guarantees, how do you see this progressing in terms of consumer protection if indefinite delays to the enforcement of justice ensue? Is there any legal means at our disposal to ensure that appeals cannot be left unresolved for an indefinite period? Are there any enforceable procedures that can be evoked to prevent this from occurring? Or is this just left to the discretion of the Justice department to expedite a resolution if a complaint was submitted? 

I wonder if there is a cut-off time period where a delay would be deemed unacceptable by the department of Justice, or is this completely arbitary? Perhaps Maria could confirm if there are any enforceable regulations in place to protect us under these circumstances?  

Likewise does the Supreme  Court have to resolve cases within a set timeframe?

Sorry to add to your workload with all these questions!

Dear All,

I suppose my congratulations were somewhat too ready, on reflection does this seem more than it is, to quote from earlier.......

"Good for the image of Spain, its Justice System and even the financial system. Given the sensitivity of this type of issue in the United Kingdom, and the situation we are currently facing in Spain, it is good to convey the message that the system works and solves these issues fairly and expeditiously”.

KEITH RULE – COORDINATOR – FINCA PARCS ACTION GROUP

After the group coordinator, Keith Rule was informed of the decision, he said the group members were elated, but commented that "it has been a very stressful process and we have endured many years of struggle and effort to defend our rights"

Keith continues: “For us this is a great judgment. It is a credit to the work and determination of all those involved. This is an important judgment as none of the buyers received the Bank Guarantees as required by Spanish Law, LEY 57/1968. The wider significance of this judgment should not be underestimated.

I really think this case and Judgment will be studied far and wide. As the news spreads there will be many very interested observers.

Unfortunately it does not mean that every other buyer of off-plan property in Spain without the legally required Bank Guarantees will be able to follow the same course of action against the Bank. There were several specifics in this case and the volume of evidence gathered, in our opinion, is probably unprecedented. However, parallels can be drawn between this case and similar cases on other developments and undoubtedly this First Instance Court Judgment will be used, not as a precedent, as Case Law is only established by an Appeal Court or Higher Court, but as an argument in many other future Lawsuits.

" it is good to convey the message that the system works and solves these issues fairly and expeditiously”.

" it is good to convey the message that the system works and solves these issues fairly and expeditiously”.

I wonder whether it is reasonable to use such language if the can has only been kicked down the road for many more years and directly into the lawyers honey trap?????????????????????

What do the Priors think I wonder?

Regards

Norman

Dear All,

I do not seek to decry what has been achieved but I do realise that it will need to be accepted, adopted and expanded expotentially before it is of any real benefit to me.

sorry but we must all face the facts.

we cannot do it in US and UK and the odds in Spain are immensely greater I fear.

men who know tell us..............

  A: Cory, all the regs I would write would be one-liners. That's  no joke.

Q: What we need is a hammer. Not the kind carpenters use,  but a judicial hammer which treats serious crime seriously. No more civil  trials for criminal offenses, such as the debacle surrounding Richard Fuld.  These thugs know how to weigh odds, and most of them will gladly risk 15 months  in a white-collar prison at hard tennis for, say, a few million in ill-gotten  gains. You can't fix fraud, but you should be able to make the punishment so  severe that only the dumbest of the dumb would give it a try. ~ Ron S.

  A: That's what I've  been saying. How come so many of you say it so much better than me? I'm always  learning from you all.

Q: To put faith in  regulation and the regulators is to assume they can't be bought. They can  always be bought. Whaddya gonna do? Reform the existing corrupted agencies? Get  rid of the Gensler/Goldman-run CFTC and replace it with something else? And who  would run that? Somebody from JPMorgan? ~ fallingman

  A: I want teachers (grade school and junior and senior high  school teachers) to be our regulators. They obviously aren't about the money  and they obviously are civic and civil minded. Why not?

Q: Who is going to put the "black and white" rules in  place, the regulators? lol! Regulators are currently paid by the banks they  regulate, umm, but, isn't that a conflict of interest, or, am I just stupid?~  Domina L.

  A: Stupid is as  stupid does. If we go back to the way regulators regulate, we're all stupid. We  need a new breed of regulators. Expecting that we'll ever get them to come down  from Olympus is proof that I am stupid. But a boy can dream, can't he?

I think what he is saying is that we need honesty and integrity from all.

what hope have we for getting it without the revolution?

Regards

Norman

This remarkable high profile case provides the best opportunity to focus attention on the actual enforcement of law in Spain and  as Keith has identified it will also establish case law, but I hope and trust that this focus will remain high profile so long as there are continuing qualifying cases that also require and depend upon timely enforcement.

I repeat however that timely enforcement is one basis upon which a justice system is evaluated and demonstrates it is fit for purpose and to quote the European Commission is "competent". We need to use this opportunity to bring attention not only to the enforcement of this law but also to the "competence" of how it is implemented for all those who qualify according to the rule of law.

Hi Keith,

No our apartment was never completed and, therefore, no license of 1st first occupation was ever issued. Our lawyer and we, both believe we have a very strong case – it makes me very curious to know on what grounds the bank is appealing on. Unless they are appealing against a technicality (i.e. our lawyer has made a mistake filing the case), I can't see how they think they can get out of paying our deposit back. My guess/hope is they are just delaying and hoping something will turn up that swings things back into their favour. But as far as I am aware, judges are not ruling in the favour of the banks, and high profile cases, such as yours, only put more weight on our side.

As Ads highlights, the time delays are incredible, and not a good reflection on the competency of the judicial system. However, I really don't see how outsiders will ever be able to change an entire national system, no matter how loudly we shout, the change needs to come from within.

Norman, I really wish I understood what you are talking about - are you suggesting we should just give up and walk away? If so, do you work for the banks? ;-)

Chris

Hi Chris

It does appear you have a strong case, given that you have a Bank Guarantee and that there is no licence of first occupation as the apartment was never completed.

It seems that the Bank may just be excercising their legal right to appeal in an attempt to delay the due process.  However as in our Case, because you gained a judgment against a Bank and not against a Bankrupt or Missing Developer you were able to enforce the Judgment which forced the Bank to pay provisionally.

Yes, maybe due to the awareness campaign surrounding Bank Guarantees and LEY 57/1968 Judges are now tending to favour buyers a lot more.  High profile cases such as Finca Parcs can only be of benefit to all.

I agree we will never change the entire system.  All we can do is keep focusing on LEY 57/1968 and Bank Guarantee issues in general.

I am sure if there had been a mistake in filing the case then you would not have gained a successful judgment in the first instance.  The answer may be a little technical or complex but you can ask your Lawyer on which grounds did the Bank base its appeal.

Kind regards

Keith