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

I started this thread with the intention of it being a positive thread with news and updates on the Finca Parcs case and as a platform for others in a similar situation with or without Bank Guarantees to discuss the various issues and see if their cases could be helped or encouraged by the progress made so far in the Finca Parcs case – just like Chris is doing.

Norman - I feel desperately for the Priors and as such I discussed their issue at some length in one of my meetings with the Spanish Government last year when we were protesting about the Property Road Show.

But my main focus is on the issue of Bank Guarantees in Spain for Off-Plan Property. Since 2008 I have been trying to raise awareness of LEY 57/1968 and trying to get Bank Guarantee issues discussed in the public domain.

For years buyers without Bank Guarantees were advised to take legal action just against the developer - that's all very well - win the case - but attempting to enforce a judgment against a Bankrupt or missing developer is all but impossible. Many other buyers have a 'won case' against the developer only to find that the developer is then in Administration and so they are part of a long administration procedure/creditors meeting which again will probably never result in the return of their deposit.

So the Bank Guarantees Website and Petition launched in 2010 together with the Bank Guarantees Facebook Page were just 2 of the ways in which I was attempting to bring the Bank Guarantees issue to the top of the agenda.

The Spanish Judicial System, like that of most countries is overloaded with a whole range of cases such as Divorce, Separation, Bankruptcy proceedings, Theft, Motoring Offences etc etc. We know that Property related issues are also dealt with by the Courts and of all the Property issues, Bank Guarantees is just one of those.

There were 9,355,000 cases admitted to the Spanish Courts in 2010 and a slight drop to 9,041,442 in 2011. This is a huge number of cases for a system that is also greatly affected by the spending cuts and austerity measures currently being experienced in Spain.

So it is not only the property issues and in particular the Bank Guarantee cases that are experiencing the delays in the judicial system - every single case admitted to court experiences the same delays. That is why I have always been calling for an Ombudsman and Fast Track Courts to deal with the relatively simple Bank Guarantee cases. Some very complex cases would still have to go through the main judicial system but the vast majority, especially those where the buyer has a Bank Guarantee could be resolved far quicker via an Ombudsman or Fast Track Court.

With regards to timely enforcement of Judgments - it is not the fault of the Judicial System if a case is won against a Bankrupt or missing developer and as a result the buyer is unable to enforce the Judgment.

As we have shown in the Finca Parcs case if you include the Bank in your Lawsuit and gain a 'joint and several' judgment against the Developer and Bank then it is possible to have a very swift and timely enforcement of the Judgment. We filed our Preliminary Enforcement Procedure with the Court on 18 July, it was admitted and enforced by the Court against both defendants on 19 July and on 1 August Banco CAM paid the full amount due to the Court.

Rome was not built in a day. Just 2 or 3 years ago it was unheard of for buyers without a Bank Guarantee to include the Bank to whom they paid their deposit in the Lawsuit. In Feb 2011 the 47 buyers in our group - all without Bank Guarantees - did just that; file a joint Lawsuit against the Developer and Bank. We took a calculated but big risk and just 16 months later we gained a First Instance Judgment against the Bank and Developer - jointly and severally. And within 7 weeks from the date of Judgment we have enforced the Judgment and the Bank has paid the full amount of the claim to the Court.

Of course, the Bank has appealed and our case is now in the Appeal Court - but that is the right of the loser in any First Instance Court - to Appeal the Judgment. We cannot change that. Just as it is the right of the one who loses the Appeal to refer the Case to the Supreme Court.

It is frustrating but we cannot change the complete legal system. But what we can do and are doing is bringing the whole issue of Bank Guarantees much higher up the legal, judicial and political agenda. And we are creating 'hope' for others in the same situation as us.

However difficult and frustrating it is we must remain positive. Progress is being made. Those without Bank Guarantees, especially if they have already won against the developer, must now take a fresh look at their cases with their Lawyers and see if there is enough evidence to now take a case against the Bank according to LEY 57/1968.

The Finca Parcs case is very high profile in the media, but more importantly it is also high profile in the Judicial System, especially the C.G.P.J. If you click on the link below you will see that the TSJ in Castilla La Mancha (Tribunales Superiores de Justica) uploaded a Press Release to their website on 11 June 2012 together with links to PDF versions of the Full Judgment and a Summary Judgment.

http://www.poderjudicial.es/cgpj/es/Poder_Judicial/Tribunales_Superiores_de_Justicia/
TSJ_Castilla_La_Mancha/Sala_de_prensa/Notas_de_prensa/Caso_Las_Higuericas__Un_Juzgado_
de_Hellin__Albacete__condena_a_una_promotora_y_a_una_entidad_bancaria_a_devolver_casi_
1_5_millones_de_euros_a_55_compradores_de_origen_ingles_en_una_promocion_inmobiliaria

If you look at the link below you will see that the Poder Judicial - C.G.P.J - do not upload a great number of Press Releases, in fact between 1 June and 21 June 2012 they only issued 10 Press Releases and one of those on 11 June was for the Las Higuericas Finca Parcs case.

http://www.poderjudicial.es/portal/site/cgpj/menuitem.5995ef9c1fd84f1abea7b9d3c684caa0/?lang_choosen_furl=es&vgnextoid=be4105063580d210VgnVCM100000cb34e20aRCRD&pag01=3
&startAt=20&vgnextfmt=default

Also on the C.G.P.J website there is a facility called CENDOJ where Lawyers, Judges and other interested parties can search for the full text of various Judgments. All Judgments from Appeal Courts and higher are on this database. However, because they are not Case Law, only a small selection of First Instance Judgments appear in the database. However, the Las Higuericas Finca Parcs First Instance Judgment is in the database:

http://www.poderjudicial.es/search/doAction?action=contentpdf&databasematch=AN&reference=6405938&links=ley%2057/1968&optimize=20120615&publicinterface=true

So the Judiciary have taken notice of this case, Lawyers have taken notice of this case, the media has taken notice of this case and so too have other buyers with Bank Guarantees issues.

So it is a significant case and we must all try to remain positive and see if there is a way that other Lawyers and Buyers can use this case to enhance their own possible case against the Bank that accepted the off-plan deposit or issued the Generic Bank Guarantee.

Kind regards

Keith

My point is that we have to influence and demonstrate that a competent and trustworthy justice system is the basis upon which consumer trust is born, and without this Spain will never regain the trust they are striving to achieve within the real estate industry.

I agree of the important to focus on our Bank Guarantee issues Keith, but this is a classic case in point where trust will be demonstrated only by consistent and timely enforcement of this law.

This message was last edited by ads on 05/08/2012.

This message was last edited by ads on 05/08/2012.

This posting crossed with yours Keith, so I feel it necessary to point out that there have been all too many cases where delays were not related to developers going into administration, but that delays allowed developers to asset strip in the interim, impeded their ability to  enforce rulings when monies were available, where delays were used by those intent on abusing the lack of enforcement in the hope that claimants would give up the fight, would run out of monies to cover the cost of further appeals, further enforcement orders, etc etc. The "system" of using delays actively encouraged abuse of the Spanish Justice system, way before the downturn in the economy, so it is essential that we remain aware and must not suffer a repeat of circumstance in the cases relating to Bank Guarantees.

Also please bear in mind that the timescale to your case is sadly not typical, and as you rightly observed, those in other regions are suffering major delays, and to my knowledge no extra resource appears to be have been directed to improve matters in these regions so badly affected. 

So to me your suggestion for fast track courts and an ombudsman appears the only safe way forward Keith but just how likely is this?

The impact of major delays is inextricably linked to this action Keith, especially when Banks will be doing all in their power to delay return of monies, and should not be under-estimated. IMHO we should not detach the two issues and must push for fast tracking where delays are assisting those intent on denying justice.

Dear All,

whilst being 110% behind Keith and his action, with enthusiasm, I cannot help but to compare it with my own position in the totally corrupt system he is trying to work in, and lets face it, he is not alone but has substantial numbers of determined cohesive supporters.

Good for him.

Nevertheless his situation is totally, absurdly insane, that is not to strong I feel, where is the sanity in fighting against his case when nothing in the contract was ever completed and offered.

Those fighting against it are corrupt in thought and deed, but of course they are relying on corrupt lawyers and judges as before and as ingrained in the system and culture.

The only credible outcome is that he should win and be awarded punitive damages, as should all others in similar situation.

Unfortunately for those of us with less clear cut cases of lies, corruption and contract failures, the very fact that he and his group have to fight the obvious gives us no confidence in the system.

I would love to be confident in honesty, fair play, etc etc in all the world, but realism says don't be a sucker and throw good money after bad, but any success is very well worth having, though I am not ready to trust Spain with another penny at the moment.

I hope that makes it clear.

Regards

Norman

This message was last edited by normansands on 05/08/2012.

I wonder If Maria could confirm if there is a financial limit to cases that can come before the Supreme Court i.e. does it have to be over a certain value?

Hi Keith,

I was wondering if you could confirm the Statutory Legal Interest Rate set in your case. Our lawyer seems to think they are generally around 4-5%! I don't know a bank in Europe that gives that sort of rate; I'd have thought 1-2% would be more realistic. I'm still waiting for the actual rate set in our case - but now that we've hit August, and things have ground to a halt in Spain, this could take sometime.

Cheers,

Chris

Hi Chris

The official statutory legal rate of interest changes each year, so if a case has been ongoing for a number of years then a different rate will apply to each year.  I am not sure exactly what the current legal interest rate for this year is, but I think it is around 2%.

I have not yet seen the exact calculations in our case for the interest element.

The rate of legal interest mentioned in LEY 57/1968 is 6% per annum. However, the Building Act LEY 38/1999 amends this percentage to the legal rate as published annually in the Boletín Oficial del Estado.  The interest is calculated on a simple annual basis and is not compounded.

However in your case as you had a Bank Guarantee you may find that the developer mentions in the purchase contract that the interest payable is 6% per annum as stated originally in LEY 57/1968.  If that is the case then this will overrule the legal interest rate, providing the legal interest rate is lower than 6%, which it currently is and has been so for a number of years.

The interest should be calculated from the date of the deposit payment until such time as the refund is made.

Norman - I totally understand your scepticism and lack of trust in the system and as a fellow victim I do sympathise with your situation.

Kind regards

Keith

Many thanks again, you are a wealth of knowledge. So after a little digging around on google, I found this wikipedia page http://es.wikipedia.org/wiki/Inter%C3%A9s_legal_del_dinero_(Espa%C3%B1a) which agrees with this http://dineroexperto.com/blog/el-interes-legal-del-dinero/

Both state the El interés legal del dinero for 2011 was 4%, and that it is also 4% for 2012. Where did you get your figure from?

This is very high, I can't find a bank account any where in euro that offers this level of interest. At least not one that is instant access - I assume that if the deposits must be returned they will need to do so quickly, within a few weeks.

Best,

Chris

Hi Chris

OK, good work.  So the legal rate of interest for this year is 4%.  As we know this is "the rate of interest that is applied as compensation for damages when the debtor fails to comply with its obligation".

What we need to confirm is whether this is also the rate of interest that would apply should a buyer have to repay funds to the court after losing an appeal.

Take this example:

The buyer wins in the First Instance Court, enforces the judgment and holds the money for one year pending the result of the developer or banks appeal, then loses the appeal and is given 20 days by the court to repay the funds.

The buyer can only strictly be classed as a debtor who fails to comply with its obligations if they exceed the 20 days.  So the interest payable on the period the funds are legitimately held by the buyer pending the result of the appeal may possibly be at a lower rate??

Is it possible that the buyer may only be charged the legal rate of 4% for any period of time in excess of the time allowed to repay the funds to the court - i.e the time at which it becomes a debtor who has failed to comply with its obligations.

This is quite technical and I am thinking out loud now, so please don't quote me on this.

Maybe María could confirm the exact situation regarding this.

Kind regards

Keith

PRESS / MEDIA RELEASE - FOR IMMEDIATE RELEASE – 10 AUGUST 2012

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

LEGAL PROCESS FORCES CAM BANK TO REFUND OFF-PLAN DEPOSITS

CAM BANK PAYS FULL AMOUNT OF THE BUYERS DEPOSITS PLUS LEGAL INTEREST AND COSTS TO THE COURT FOLLOWING THE FILING OF A PROVISIONAL ENFORCEMENT ORDER BY FINCA PARCS ACTION GROUP

FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION

●  2006 - No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million
    Euros
●  February 2011 - Lawsuit 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 – decision expected within 1 year

PROVISIONAL ENFORCEMENT ORDER

Following the Finca Parcs trial in May of this year Spanish property developer Cleyton GES SL and CAM Bank (now SabadellCAM) were convicted jointly and severally by the First Instance Court to repay in full the off-plan deposits paid by members of the Finca Parcs Action Group plus interest and costs.  Cleyton GES SL did not appeal the First Instance Court Judgment; however neither defendant paid the funds to the Court within the time limit set by the Judgment.  Therefore the Finca Parcs Action Group filed a Provisional Enforcement Order with the Court which resulted in CAM paying the full value of the deposits plus the amount tentatively set for interest and costs to the Court.

Keith Rule coordinator of the Finca Parcs Action Group comments:

“We continue to make progress in this case and it shows that the Provisional Enforcement Order can work in a timely and efficient manner if you are enforcing a judgment against a solvent entity.  Our case differs to other similar cases due to the fact that we also included the Bank in our Lawsuit.  We filed our Provisional Enforcement Order with the Court on 18 July, it was admitted and enforced by the Court against both defendants on 19 July and on 1 August CAM paid the full amount to the Court.  In due course the Court will transfer the funds to our Lawyers client account and we will have ‘interim’ possession of our funds pending the result of the Appeal”.

OPPOSITION TO THE CAM BANK APPEAL

Finca Parcs Action Group filed their Opposition to the CAM Bank Appeal on time and the Appeal will now be heard by the Albacete Appeal Court.

Keith explains, “The Appeal is not a physical hearing so we will not be called to appear in person again.  Three magistrates in the Albacete Appeal Court will preside over the Appeal reviewing all the evidence and the first instance Judgment.  Based on the timescales of other appeals in the Albacete jurisdiction, we expect the appeal decision to be released within one year”.

Jaime de Castro, Lawyer for the Finca Parcs Action Group comments, “After reviewing the Banco CAM appeal and submitting our Opposition to that Appeal, I feel confident of a successful outcome in this case given the strength of the First Instance Judgment against CAM and the available Case Law relating to Banks liabilities and obligations according to Spanish Law, LEY 57/1968”

Maria de Castro, Director of Costa Luz Lawyers, one of the two legal teams that have been working on this and other similar cases over the past few years adds, "The success of this appeal will enhance confidence in our judicial and banking systems abroad which have been severely weakened during these years of crisis.  We are confident that the precise interpretation of LEY 57/1968 by the courts will help to encourage future real estate investment by ensuring that these abuses do not occur again"

Despite its actions being described by the First Instance Judge as ‘banking malpractice’ CAM Bank continues to maintain that it is not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.

APPEAL DECISION EAGERLY AWAITED BY OTHER OFF-PLAN VICTIMS

Other buyers of off-plan property who were not issued with the legally required bank guarantees will be awaiting the outcome of this appeal with interest as an Appeal Court decision can be used as a Case Law precedent in other similar cases.

Keith says;     “During the past few years buyers without Bank Guarantees were advised to take legal action only against the developer.  They win the case, but enforcing the judgment proves very difficult as on most occasions the developers have asset stripped, gone missing, declared bankruptcy or entered Administration.

For buyers in that situation it is important their cases are now reviewed by their legal teams to see if they have the necessary evidence required to file a Lawsuit against either the Bank who knowingly accepted the off-plan deposit and failed in its legal obligation to issue or verify the existence of the corresponding Bank Guarantee or against a Bank who may have issued a Generic or Collective Bank Guarantee to the developer”.

LICENCE TO BUILD AT LAS HIGUERICAS, FINCA PARCS EXPIRES

The Ayuntamiento de Hellín (Hellín Town Hall) has issued a Resolución de la Adjudicación
del Programa de Actuación Urbanizadora en el sector de Las Higuericas.

The result of this is that Finca Parcs developer Cleyton GES SL has had the contract for the licence to build the Las Higuericas Finca Parcs development cancelled after they failed to complete the urbanisation within the time limit set according to the Contract signed with the Town Hall.

The Town Hall has now claimed the funds under the security bond that was given by Cleyton GES SL at the time of signing the contract.

Cleyton GES SL abandoned the Las Higuericas Finca Parcs project in May 2009 completing only 10% of the planned 617 detached villas and none of the properties were granted a First Occupation Licence.

CAM Bank (SabadellCAM) as the single largest creditor now owns the properties that were constructed but they or any other developer or promoter cannot continue with the Urbanisation without first submitting a new draft plan to the Town Hall and requesting a new licence.

HUGE FOREST FIRE ALMOST DESTROYS LAS HIGUERICAS, FINCA PARCS

In July a huge forest fire burned out of control for 2 days in the mountains of the Sierra de los Donceles.  The fire came very close to the Las Higuericas Finca Parcs site and although the infrastructure was not affected, much of the forest area at the back of the site was destroyed.

Hi Keith,

I was wondering if you had been able to get any further on the interest rate issue. I have asked our lawyer, but I haven't been able to get any information out of them. We have been told that our deposit is being held in an account with no interest. This is a bit frustrating if the courts do expect us to pay back any additional interest if our case is lost - we could have been putting money aside to cover that eventuality. Now we could be looking to find several thousand Euros from somewhere if we loose the case.

They have agreed that, if we wish, we can have our money back, and that we will have to sign a document/waiver to take liability for it. However, we have not as yet seen the document so I can't give any more information on that.

Best wishes.

Chris

PRESS / MEDIA RELEASE - FOR IMMEDIATE RELEASE – 10 OCTOBER 2012

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

APPEAL COURT DECISION DUE IN MARCH 2013

FINCA PARCS ACTION GROUP – TIMELINE OF THE LEGAL ACTION

●  2006 - No legally required Bank Guarantees for Off-Plan deposits totalling 1.5 million
    Euros
●  February 2011 - Lawsuit 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
●  Appeal to be decided on 4 March 2013
●  Appeal decision will be announced by the end of March 2013

APPEAL BY CAM BANK

Following the Finca Parcs trial in May of this year involving 47 buyers at the Las Higuericas Finca Parcs development near Murcia, Spanish property developer Cleyton GES SL and CAM Bank (now SabadellCAM) were sentenced jointly and severally by the First Instance Court to repay in full the off-plan deposits paid by members of the Finca Parcs Action Group plus interest and costs.  Cleyton GES SL did not appeal the First Instance Court Judgment; however CAM Bank did Appeal.

DATE ANNOUNCED FOR APPEAL DECISION

Finca Parcs Action Group filed their Opposition to the CAM Bank Appeal and the Appeal was admitted into the Albacete Appeal Court on 3 September 2012.

4 March 2013 is the date that has recently been announced by the Court as the day that the Appeal Court Magistrates will make their decision.  The decision will be notified to all parties by the end of March 2013.

Coordinator of the Finca Parcs Action Group, Keith Rule explains;

“Three magistrates from the Albacete Appeal Court have been appointed to this case and will preside over the Appeal.  They will make their decision on 4 March 2013.  The decision will be released and notified to all parties by the end of March 2013 at the latest”.

CONFIDENCE

Keith says that both he and their legal team are very confident that the appeal court will dismiss CAM’s appeal and uphold the First Instance Court sentence in full.

He says;

“We have a very strong First Instance Sentence and our opposition to CAM’s Appeal included a significant amount of Case Law on the issue of banks liabilities according to Spanish Law, LEY 57/1968”

Jaime de Castro, Lawyer for the Finca Parcs Action Group comments;

“The most important steps have been taken and I have confidence that we will win primarily by the strength of the First Instance judgment and due to the number of favourable case law examples that already exist today which outline the responsibilities and obligations of the banks with respect to buyers who have large sums of money at risk on these off-plan purchases, all in accordance with Law 57/68”

Maria de Castro, Director of Costa Luz Lawyers, one of the two legal teams that have been working on this and other similar cases over the past 4 years adds;

"We are confident that the correct and accurate interpretation of Law 57/68 by the courts will be of interest to many people and families who bought off plan and are currently affected by similar problems. We look forward to the Albacete Appeal Court Judgment due next March”.

Despite its actions being described by the Judge as ‘banking malpractice’ CAM Bank continues to maintain that it is not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.

APPEAL DECISION EAGERLY AWAITED BY OTHER OFF-PLAN VICTIMS

Other buyers of off-plan property in Spain who were not issued with the legally required bank guarantees to protect their deposits are awaiting the outcome of this case with interest as an Appeal Court decision can be used as a Case Law precedent in other similar cases.

Keith says;

“There is great interest in our Finca Parcs case from thousands of other off-plan buyers who did not receive the legally required Bank Guarantees many of whom have their life savings at risk.  We have always believed that according to LEY 57/1968 banks have a liability in these types of cases.  We have worked tirelessly since 2008 to highlight this issue in the media and amongst buyers of off-plan properties in Spain.  As a result we are seeing successful judgments against Banks in other similar cases as victims of Bank Guarantee abuse begin to benefit from sentences now being released by many Courts.

Keith concludes;

“We are confident that in March our landmark First Instance Sentence against CAM Bank will be upheld in full by the Albacete Appeal Court”   

LAWSUIT 1 - FINCA PARCS ACTION GROUP v BANCO CAM (SABADELL) & CLEYTON GES SL

Deadline for Albacete Appeal Court to reach its decision on the Banco CAM appeal is just ONE MONTH from today on 4 MARCH 2013.

Decision will be released approx 15-20 days thereafter.

We remain 'cautiously optimistic' that the Court will dismiss the Banco CAM appeal and uphold the First Instance Court decision from June 2012 sentencing Banco CAM and Cleyton GES 'jointly & severally' liable to refund the off-plan deposits for 47 group members amounting to just under 1.5 million Euros together with legal interest and costs.

Kind regards

Keith
FINCA PARCS ACTION GROUP

I was only thinking about this appeal the other day, and was wondering when it was due. I take it that this court session will be behind closed doors? or will you and interested parties be present? Or will you also have to wait until near end of March?

Well, fingers crossed!

Hi Fazarelli

The Appeal is not a physical hearing as such.  Parties and legal teams do not attend.

The Bank submitted its appeal writ, we opposed it in writing.  The Court then admits the appeal into procedure, names three Magistrates who will preside over the appeal and issues a date for when the appeal decision must be made by.

So the deadline for the Magistrates to reach their decision in Monday 4 March 2013 at 10am.

Parties and legal teams will not be informed on that day.

The Court Secretary will type up the decision and it will be notified to the parties via their Procurators normally within 15 to 20 working days from the decision deadline date.

So we should have notification of the full appeal decision by the end of March at the latest.

Kind regards

Keith
FINCA PARCS ACTION GROUP

Ah, i see.

It's a bit of an agonising wait, even i'm getting nervous!

Wow, let's hope you get justice for all the work everyone has put in.

PRESS / MEDIA RELEASE - FOR IMMEDIATE RELEASE – 27 FEBRUARY 2013

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

ALBACETE APPEAL COURT DECISION DUE IN MARCH & SECOND LAWSUIT FILED IN THE FIRST INSTANCE COURT

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
● Appeal to be decided on 4 March 2013
● Appeal decision will be announced by the end of March 2013


APPEAL BY CAM BANK (BANCO SABADELL)

Following the Finca Parcs trial in May 2012 involving 47 buyers at the Las Higuericas Finca Parcs development near Murcia, Spanish property developer Cleyton GES SL and CAM Bank (now SabadellCAM) were sentenced ‘jointly and severally’ liable by the First Instance Court to repay in full the off-plan deposits amounting to just under 1.5 million Euros paid by members of the Finca Parcs Action Group plus interest and costs. Cleyton GES SL did not appeal the First Instance Court Judgment; however CAM Bank did Appeal.

APPEAL DECISION TO BE ANNOUNCED MARCH 2013

The Albacete Appeal Court Magistrates will make their decision on the CAM Bank Appeal on 4 March 2013. The decision will be notified to all parties by the end of March 2013.

CONFIDENCE

Coordinator of the Finca Parcs Action Group, Keith Rule says that both he and their legal team at Costa Luz Lawyers/De Castro remain confident that the appeal court will dismiss CAM’s appeal and uphold the First Instance Court sentence in full.

He says;

“We have a very strong First Instance Sentence and our opposition to CAM’s Appeal included a significant amount of Case Law on the issue of banks liabilities according to Spanish Law, LEY 57/1968. The number of examples of Case Law confirming the responsibilities and obligations of the banks according to LEY 57/1968 is increasing each month”

Despite its actions being described by the First Instance Judge as ‘banking malpractice’ CAM Bank continues to maintain that it is not responsible for the situation and that all irregular actions and illegalities were committed only by the developer.

APPEAL DECISION EAGERLY AWAITED BY OTHER OFF-PLAN VICTIMS

Other buyers of off-plan property in Spain who were not issued with the legally required Bank Guarantees to protect their deposits are awaiting the outcome of this case with interest as an Appeal Court decision can be used as a Case Law precedent in other similar cases.

Keith says;

“There remains great interest in our Finca Parcs case from other buyers of off-plan property in Spain who did not receive the legally required Bank Guarantees many of whom have their life savings at risk. We have always believed that according to LEY 57/1968 banks have a liability in these types of cases. We have worked tirelessly since 2008 to highlight this issue in the media and to the Spanish & British Governments.

Keith concludes;

“We are confident that in March our landmark First Instance Sentence against CAM Bank will be upheld in full by the Albacete Appeal Court”

SECOND LAWSUIT FILED ON BEHALF OF 13 MORE GROUP MEMBERS

In December 2012 Finca Parcs Action Group filed a second Lawsuit against the developer Cleyton GES SL and CAM Bank for another 13 group members who were not members of the group at the time Lawsuit 1 was filed in February 2011. This second Lawsuit was admitted into procedure at the First Instance Court in Hellín on 2 January 2013 and was recently served on both defendants.

The value of deposits claimed by the 13 buyers in the second Lawsuit is just under 500,000 Euros.

CAM Bank & Cleyton GES must now submit their defence to the second Lawsuit and then the First Instance Court in Hellín will set a date for the Preliminary Hearing with a full trial to follow thereafter should a settlement not be reached in the meantime.

Hi Trowell1

Good luck with your Trial next week.

Yes, if you win in The First Instance Court and the Bank is made liable for the return of your deposit then the Bank will have 20 working days to submit an Appeal.

If the Bank does not appeal then it should pay the money to the Court bank account within the 20 working days.  If the Bank does not comply with the sentence then you can Enforce the Sentence against the Bank.  As a solvent financial entity they will then have to pay.

Even if the Bank appeals then you can Provisionally Enforce the sentence against them.  This will force the Bank to pay the money to the Court.

Once the principal amount of your off-plan deposit is in the Court bank account at Banesto the Court will issue a payment order to your Lawyer.  Your Lawyer can then cash the payment order, receive the funds in their bank and transfer the funds to you.  At this stage your Lawyer may deduct any outstanding legal fees and send you the balance.

If you are awarded interest and costs by the Court then these will be calculated and paid later.

Just one point.  In our Finca Parcs case, as you know the developer and Bank were sentenced 'jointly and severally' liable by the First Instance Court.  The developer did not appeal but is virtually involvent so did not pay.

The Bank - Banco CAM - appealed, but we Provisionally Enforced the First Instance Sentence against them.  The Bank paid the principal amount of the deposits, plus interest and costs that we were awarded, to the Court.  But as the total value was just under 2 million Euros which would have been distributed between 47 individual group members, the Court ruled that they would not release the funds to us until after the Albacete Appeal Court decision which is due in March.

The Court ruled that it would be dangerous to release the funds to 47 individuals because if Banco CAM won the Appeal then the Court would find it difficult to reclaim all the money to return it to CAM.  So almost 2 million Euros has been in the Court Bank Account since August 2012.

The interest earned in the Court Bank Account on 'our' money from August 2012 to March 2013 does not go to us.  It goes to the Spanish Treasury.

In your case as an individual I would think that if you Provisionally Enforced a First Instance sentence against the Bank then the Court would release the funds to your Lawyer regardless of any appeal being submitted by the Bank.

However, be a little cautious because if the Bank appealed you would only have 'interim' possession of 'your' money.  If the Bank won the Appeal then you would have to pay the money back to the court with the addition of legal interest (currently 4% per annum) for the time that you held the funds.

Once again, good luck next week at your trial.  Please let us know how it goes.

Kind regards

Keith
FINCA PARCS ACTION GROUP

ROUND TOWN NEWS - 07 March 2013 Written by  Jack Troughton

Anxious wait over CAM appeal

OFF-PLAN HOME buyers left without ‘Bank Guarantee’ protection of their investment are anxiously waiting an imminent court judgement in a “landmark” test case.

An action group of buyers successfully won its case against a shamed Spanish bank in a Spanish court last May. However Cam Bank appealed the decision.

The appeal was decided this week by Albacete Appeal Court. The judgement will be announced by the end of March – although the court has a record of early notification.

The case, which has aroused massive public and media interest, surrounds 47 buyers losing 1.5 million euros after CAM failed to issue guarantees to cover deposits for the Las Higuericas Finca Parcs development near Hellin, close to the border with Murcia.

Last June the court at Hellin found in favour of the Finca Parcs Action Group and the bank was described by the judge as being guilty of “banking malpractice” for its failure to protect buyers’ cash after the bank – now Sabadell CAM – and the developer were found ‘jointly and severally’ liable.

CAM and developer Cleyton GES SL were ordered to return deposits to the purchasers and pay interest and costs. The bank paid the full amount into court last August but lodged an appeal.

CONFIDENT

Finca Parcs Action Group coordinator told Round Town News he and the legal team remained confident the bank’s appeal would be dismissed and the original sentence would be upheld.

“I am confident. We have so much evidence against CAM, such a strong sentence from the First Instance Court at Hellin, and ever increasing case law against the banks,” he said.

CAM continues to argue it was not responsible for the situation and all irregularities and illegalities were committed by the developer.

But Keith said the case had become important for all off-plan buyers who failed to get the protection that was legally required under Spanish law because it would become a precedent for similar cases.

“There remains great interest in our Finca Parcs case from other buyers of off-plan property in Spain who did not receive the legally required Bank Guarantees, many of whom have their life savings at risk,” he said.

“We have always believed that according to the law, banks have a liability in these types of cases. We have worked tirelessly since 2008 to highlight this issue in the media and with the Spanish and British governments.”

APPEAL

He added: “We are confident that this month our landmark case will be upheld by the Albacete Appeal Court.”

The action group has already lodged a second action against CAM and Cleyton GES. The case involves another 13 buyers at Finca Parcs and a further 500,000€ in lost deposits.

Keith explained the 13 purchasers had not been members of the group when the first lawsuit was filed in February 2011 but was admitted into Hellin Courts in January and served on both defendants.

He said CAM and Cleyton GES must now submit their defence to the second lawsuit to the court with the prospect of another trial unless a settlement could be reached.

“The second lawsuit is even stronger than the first as it incorporates all the additional evidence that we gained through the original trial,” said Keith.

“I really cannot see how CAM will even be able to defend it – the bank must file a defence by 13th March – I am very much looking forward to reading it.”