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

I am a little unsure as to what this means. Will Keith and his joint action now be getting paid their deposits back or will this only apply to the 2nd law suit. Can any one elaborate ?

I'm pretty certain that the lawsuits are seperate. But it points to a positive resolution of the orignal lawsuit.

So all the people in the 2nd lawsuit will now win the case as there has been no defence and will have all their deposits returned to them is that correct ?

Great news if I am understanding it correctly.

Lets just keep our fingers crossed that the 1st lawsuit  decision is upheld and the appeal fails and Keith and the rest of his group get their deposits back. It is the very least the man deserves.

It will be even greater news when the money is safely in their bank accounts.

Not just for the pioneering first group but for all who have had their money stolen.

Fingers etc............, all still tightly crossed Keith!!

Hi All

Thanks for your positive comments.

To clarify:

Lawsuit 1 & Lawsuit 2 are totally separate and contain different group members.  But....the situations of those group members are IDENTICAL.

Lawsuit 1 - 47 group members without Bank Guarantees - submitted February 2011 - against BANCO CAM & CLEYTON GES SL - Amount claimed: 1,494,710€

Lawsuit 2 - 13 group members without Bank Guarantees - submitted December 2012 - against BANCO CAM & CLEYTON GES SL - Amount claimed: 444,709€

Lawsuit 3 - not yet submitted


Lawsuit 1 - was defended by Banco CAM and Cleyton GES.

We won in First Instance jointly and severally against both defendants in June 2012.

First Instance Sentence was enforced against both defendants in July 2012.

Banco CAM paid the amount due under the enforcement to the Court in August 2012.

Cleyton GES did not appeal but supposedly have no money.

Banco CAM appealed in July 2012.


DELIBERATION AND VOTING BY THE ALBACETE APPEAL COURT MAGISTRATES WAS 4 MARCH 2013.
WE ARE STILL WAITING FOR THE APPEAL COURT TO RELEASE ITS DECISION.


Lawsuit 2 - was served on BANCO CAM in February 2013.

Banco CAM had until 13 March 2013 to file a defence.

We have been informed by our Procurator that Banco CAM has not filed a defence to Lawsuit 2.  We are waiting for the Court to confirm this in writing in due course.

Lawsuit 2 not yet served on Cleyton GES as first serving address failed.

We do not know the reason why Banco CAM has not defended Lawsuit 2.  It could be deliberate or it maybe a mistake or an administrative oversight.

Banco CAM has NOT made an offer of settlement for Lawsuit 2.

Once Lawsuit 2 is served on Cleyton GES they will then have 20 working days to file their defence.

Then a date for the Preliminary Hearing will be set.

Banco CAM can appear at the Preliminary Hearing.  They can propose evidences but no new plea or fact can be added.

In theory lack of defence means they reject all the facts.  In practice it is considered that they admit them.

If there is no offer of settlement before or at the Preliminary Hearing then a date for the Trial will be set.

The Judge will then make a decision without any defence from Banco CAM and possibly without a defence from Cleyton GES if they also do not defend the Lawsuit.

Kind regards

Keith
FINCA PARCS ACTION GROUP

Hi Keith,

You observed :

WE ARE STILL WAITING FOR THE APPEAL COURT TO RELEASE ITS DECISION.

You also mentioned that there were no time constraints in place for this appeal resolution legal process, which presumably means that there is no official legal regulation in place to ensure timely law enforcement.

Is this correct?

The question therefore remains, what would be considered an abusive time frame relating to this legal process?

Hi Ads

Correct.  There is no time limit for a First Instance Court, Appeal Court or Supreme Court to release a decision.

Based on normal timescales from Albacete Appeal Court we did expect the Finca Parcs decision to be released within a month.  But I think we must appreciate that Finca Parcs is no ordinary case given the volume of paperwork, length of the trial and media interest.

Our Procurator is regularly contacting the Court for information.  But nothing so far.  As there is no time limit imposed on the Court I suppose we could be waiting for 3 months or more, who knows?

Of course it is frustrating but there is nothing we can do.

If there is one thing we have all learned............in Spain patience is a virtue.

And......with the benefit of hindsight probably most of us would never ever have purchased off-plan in Spain.

Once bitten, twice shy!

Kind regards

Keith

As eyes become focused on your case, Keith, it is essential for those reviewing your educational posts to remain aware of the wider implications relating to the failure to ensure timely law enforcement  in Spain, and to comprehend how the need for time constraints to these legal processes is inextricably linked to the fair and proper enforcement of law 57/68, and how the balance is tipped in favour of the Banks.

Your observation "when you complain to the Bank of Spain – they can take months to reply, but when they want some information from you they only give you 10 days to comply otherwise the complaint will be archived. " is a typical example of how one sided time restrictions apply.

Likewise, as Courts, Judges and Magistrates are under no such deadlines, time limits or restrictions  then the actual return of deposited monies has been significantly compromised over these preceeding YEARS, and Banks (and developers) have used the system of appeals as a means to further delay actual return of monies. 

Am I correct in supposing that your group receive no interest from the Banks on the monies held by the courts in the interim period?

So when we witness YET AGAIN a delay to actual return of monies, as now in your particualr case, it is inevitable that alarm bells start ringing!!!

This message was last edited by ads on 10/04/2013.

Great info Keith.

Sorry, I was a little confused before your post - i thought the non-defence of the 2nd lawsuit by the bank meant that there had been a decision and the group had won, as the lawsuit was issued late last year! I thought they weren't defending an appeal.

So, they are just going to allow the court to judge and not have any 'circumstances' considered. Would a defense help them anyway, considering only facts can be presented, not circumstancial evidence? What kind of defense could they propose, other than the obvious 'we didn't know the money was for an off-plan deposit, even though millions of it came from a developer'?

Ads:-

Great work again - how do you keep it up? You've got more heart than I could imagine.

Couldn't Keith and the group take the money now, knowing that they might have to pay it back with legal interest at a later date? Maybe earn their own interest on it, if they were confident of winning?

I think i'd take the money and run. Literally!

Hi Ads & Fazarelli

I agree, over the past few years the judicial system and slowness of the Spanish Courts has been to the detriment of the victim.  Conversely, it has on many occasions been to the great benefit of the developers and banks for the reasons detailed on EOS previously and in the bank guarantees petition.  The developers and banks certainly know how to 'play' the system.

With regards to the Bank of Spain - yes again it is true - totally one sided.  In fact my 12 page complaint letter together with around 80 pages of evidence was sent to the Bank of Spain in October 2010.  Not only was the complaint about Banco CAM and Finca Parcs, but in truth my letter focussed mainly on a complaint against the Bank of Spain itself for its total lack of supervision of the financial entities.  To this day the Bank of Spain has NOT addressed this complaint.

In our Lawsuit 1 case the First Instance Judge ruled that interest was only payable from the date our Lawsuit was filed - which was February 2011 and not from the date each group member paid their off-plan deposits to CAM/Cleyton GES which was between 2004 and 2006.  Some Judges rule in this way and others rule that interest is payable from the date the deposits were paid to the developer/bank.  It varies from case to case.

You are correct - we do not receive any interest while the money is in the Court Bank Account.  The interest stopped accruing for us on 1 August 2012 which was the date CAM paid the money to the Court.  So providing the Albacete appeal decision is in our favour then interest will be paid to us from Feb 2011 to August 2012.

So you may ask........who is earning interest on the funds (gross figure of around 1.9 million Euros) since 1 August 2012 while it is in the Court Bank Account...............well that interest goes to the Spanish Treasury.

Fazarelli - no,  non-defence by CAM for Lawsuit 2 has no direct affect on Lawsuit 1.  In Lawsuit 1 it was the Bank that appealed and we opposed the Appeal.

In Lawsuit 2 a defence would certainly help CAM.  In Lawsuit 1 the CAM defence was around 45 pages and even the developer Cleyton GES submitted a defence running to 33 pages - and they never even built the houses in 6 years since most of the buyers paid their deposits!!  And as I mentioned before in Lawsuit 1 the CAM Appeal was 50 pages.

With regards to your other point about why we do not take the money from the Court - or why we didn't take the money from the Court in August last year when CAM paid.

It was our intention to have the money released to the group in August 2012 pending the Appeal decision that was due in March 2013.  I had made the group aware of the risks should the Bank win the Appeal and the money had to be returned with legal interest.

However:

CAM paid the money to the Court Bank Account on 1 August 2012 as a result of our Preliminary Enforcement of the First Instance Sentence

The Court issued a decree on 1 August 2012 to confirm the payment of funds by CAM and to announce that the asset freezing order had been lifted.

The Court was closed during August 2012.  At the beginning of September 2012 we applied via our Procurator to the Court several times for the release of the funds.  The Court did not release the funds - they kept on saying that the Court Secretary was on holiday and that only she could authorise the release of funds.

This went on until 24 September 2012 when the Court Secretary finally admitted that she had some reservations about releasing the funds to 47 individuals (or as the court quoted 85 when you take into account husbands/wives etc).  On 27 September 2012 we received notification from the Court to say that CAM had filed a writ with the Court dated 25 September 2012 opposing the interim release of funds.........

On 2 October 2012 the Court Secretary issued a 5 page decree.  In brief her decree stated:

“On 1 August 2012 CAM paid the principal amount of the deposits plus an amount tentatively set for interest and costs to the Court.  On 25 September 2012 CAM filed a writ to the Court in which it indicated its opposition to the funds being released to the applicants.

Fundamentally it bases its request on the fact that if the judgment of the First Instance Court is revoked by the Appeal Court then it would cause considerable damage to the entity given the value of funds deposited with the Court and the fact that the 85 applicants are foreign citizens, not from a single country but of diverse nationalities.

CAM requests that the Court do not release the funds to the applicants given that the judgment is not yet firm, but instead the amount should be withheld by the Court until the Judgment of the Appeal Court is released.

Meanwhile as the plaintiffs are all foreign citizens without roots in Spain it would prove difficult if the amounts had to be returned to the Court as it would need to resort to international judicial assistance for each of the 85 plaintiffs and even this may not guarantee the recovery of the amounts.

The special circumstances of this case amply justify the potential difficulty of recovering the amounts if the Appeal Court revokes the First Instance judgment given the high number of applicants that are foreign citizens living in varied countries and the large sum of money involved”.

The Court Secretary then quoted from Article 528.3 of the Civil Procedure Act and from Article 533 of the Civil Procedure Act (Criminal).  The Court Secretary then quoted Case Law (Bilbao 296/04).

The Court Secretary then acknowledged that the CAM writ dated 25 September 2012 was ‘untimely’ as CAM was served with the Provisional Enforcement notice on 19 July 2012 and only had 5 working days to lodge an appeal.

So CAM was VERY late filing its Opposition to the Release of Funds.  About 2 months late!!

However, the Court Secretary said that the ultimate decision lies with her department.  She concluded that based on the arguments and explanations contained in her decree, she has resolved NOT to issue the corresponding payment orders to the plaintiffs and the funds will stay in the Banesto Bank account of the Court until the Albacte Appeal Court issues the Appeal decision.

The decree then allowed us 5 working days to lodge an appeal with the payment of 25 Euros to the Court Bank Account.


On 4 October 2012 we filed our Appeal to the Court opposing the Decree issued by the Court Secretary on 2 October 2012 which declared that the funds would not be released to the applicants and that the funds would remain in the Court bank account until the Albacete Appeal Court releases its decision on the appeal filed by CAM Bank.

We argued that the Court Secretary’s Decree breached the following Provisions:

Article 207 of the Civil Procedure Act due to the late filing of the writ by CAM opposing the enforcement order dated 19 July 2012.

Articles of Book III of the Civil Procedure Act, in particular Article 531

Articles 3 & 23 of LEY Organica 4/2000 on the rights and freedoms of foreigners in Spain, Articles 13 & 14 of the Spanish Constitution, Article 6 of the Human Convention of Human Rights and Article 12 & 13 of the Treaty of Amsterdam, which prohibit discrimination on grounds of nationality.

We argued that the decree issued by the Court Secretary not only violates basic procedural rules but also other superior policies related to the fundamental rights of equality and non-discrimination.

The decree stated that we are all foreign citizens living in many different countries.  We argued that this is not the case due to the fact that 8 persons reside in Spain and others in the UK and Ireland and that the decree openly violates the fundamental rights of foreign citizens in Spain.

We stated that the alleged infringement of the decree issued by the Court Secretary is particularly significant and serious because all foreign applicants in these proceedings are EU citizens.

We stated that of the 85 applicants, 8 reside legally in Spain and are being doubly discriminated against and the rest live in the UK and Ireland – i.e. neighbouring countries that apply and cooperate in smooth community procedures for the service and enforcement of judgments.

The Judge then had to issue a ruling on the 'release of funds'.


The Judge then issued a ruling dated 7 November 2012.

The Judge stated:

”I entirely dismiss the appeal filed by the counsel for KJR and Others and confirm in all respects the Decree issued by the Court Secretary dated 2 October 2012”

Therefore the funds had to remain in the Court Account at Banesto Bank until the decision of the Albacete Appeal Court is released.  As I mentioned earlier, during this time any interest earned will go to the Spanish Treasury.

If CAM is successful in their Appeal then the Court will return the funds to CAM and we will not be liable for the payment of any legal interest on those funds as we were denied interim possession of the funds.

If CAM loses the appeal then irrespective of whether CAM refers the case to the Supreme Court then according to the Court Secretary’s Decree dated 2 October 2012 and the Judge’s Ruling dated 7 November 2012 the funds can be released to our Lawyers for individual distribution.

In our opinion the Judge’s decision with regards to the release of funds is without any sound legal reasoning, violates procedural rules and our fundamental rights of equality and non-discrimination under the European Convention of Human Rights (ECHR).

We could have appealed that decision but any appeal would then have been heard by the Albacete Appeal Court – the same Court that is hearing the main appeal – and given the timescales involved any Appeal Court decision on the issue of release of funds would most likely be delivered after the main appeal decision.  Also if we lost the Appeal regarding the release of funds we would be liable for all the costs of that Appeal, irrespective of the result of the main Appeal.

Therefore, we had no real option other than to accept the Judge’s ruling with regards to the release of funds.

Sorry for such a long post but I wanted to explain it in full.

As you can see the legal process in Spain is very complex and slow with many twists and turns.  You cannot take anything for granted.  Each case is different and at the start of any case it is impossible to say exactly what the outcome will be and which exact procedures and steps will be encountered along the way.

Kind regards

Keith
FINCA PARCS ACTION GROUP

Brilliant, brilliant post Keith!

They're definitely worried that people will go AWOL with the cash! Now that would be justice!

STOP PRESS - FINCA PARCS ACTION GROUP - LAWSUIT 1

JUSTICE HAS PREVAILED IN ALBACETE

MORE TO FOLLOW SOON............

BRILLIANT.

AUDIENCIA PROVINCIAL DE ALBACETE SECCION PRIMERA

Apelación Civil 272/12

SENTENCIA NUM. 76

IN THE NAME OF THE KING

In Albacete 11 April 2013

DECISION

We dismiss the appeal filed by the representation of BANCO CAM S.LU. against the judgment of 8 June 2012 in ordinary procedure 182/11 issued by the Lady Judge of the First Instance Court No. 2 of Hellin.  We CONFIRM that decision and order the appellant (BANCO CAM S.L.U.) to pay the costs of this appeal.

Congratulations to all!!!!

Kind regards

Keith
FINCA PARCS ACTION GROUP

Congratulations Keith and the rest of the group!.  Congratulations to CostaLuz and De Castro. Congratulations to everyone fighting for balance and justice within the financial system.

We sincerely hope this will help a bit to bring back  confidence in our judicial system and our economy!

We love the way Judges are telling Banks how to treat people. It is so edifying!

Celebrate!

Maria

YES........Congratualtions to everyone who worked so hard for so long, I feel quite emotional for you! This will also surely influence future decisions so your hard work and determination will benefit many others too, you are heroes!

Congratulations Keith. I believe you deserve a medal.

You have shown the Spanish Banks, and anyone else who has followed your case, what fairness and justice is about.

Your case has hopefully opened the gates for others to confidently  persue their stolen deposits through the courts.

You must all be very ,very pleased with the result.

Well Done!!

Absolutely fantastic! Well done Keith and Maria!

So, when will you get your money back and what will you spend it on?

 Well done Keith it gives us hope.  Without your involvement in the situation and pointing out Law 57/68 and exposing it, thousands of purchasers would never in my estimation ever had a chance of getting any money back from the situation.  You have got to congratulate yourself and your wife for the stress this has caused, all we were really wanting was a house in the sun.   We understand the stress you went through because we have been going through the same for the last 6 years.  Again congratulations and am due you and your wife a drink for giving me some hope on our upcoming situation with the courts through Lucas Associates.

Hope we have the same success you have had 

Cheers Margaret and Charlie