Aroca Seiquer/Atlas International Problems

Hi Guys, I'm new to the site. Just wondered if anybody had any advice

Aroca/Atlas are probably famous on here, but just wanted to share my story....

Bought a property near Torrevieja 10 years ago, through Atlas...paid cash (130,000 Euros) , The Developer (Jutoma) didn't use the cash to pay off part of the mortgage that he had on the site, so 10 years later the mortgage is still outstanding and the property is basically owned by the Bank (Bankia). Obviously I'm very upset with Atlas/Aroca, for various issues...most of which you'll already know as other people are in the same position.

Aroca are still my solictors and have been trying to sort this out for 10 years. The house has almost been repossesed once. If the matter goes to court, it may take another few years & they may well rule in favour of the Bank anyway, we will totally lose the property....But today (via Aroca) we have had a proposal from the Bank....

They've said that they will accept 53,000 Euros, by way of a mortgage that will be in our names. If we agree with it, the developer will pay 10,000 euros immediately off that 53K and then he will pay another 25,000 Euro's towards the mortgage in installments....therefore theoretically, leaving us with 18,000 to pay ourselves..

I've got loads of questions/concerns that I've yet to put to Aroca & obviously I'm unhappy that they're asking me to pay anything else but.....What do you think? Ever heard of anything like this

Ta!

13 years ago, same problem for me and same companies. My place only (huh! only) cost €106,000. After some years we wanted to sell to get something bigger and the place was now worth (well, not worth but other properties nearby sold for it) €140,000. We then found the builders had taken out a mortgage on the land the place was built on and we had no legal title ** **. Upshot was we went to court 5 times (builders neve bothered turning up) and had to initially pay €4,000 to get the case heard. We eventually got the title in our name but had to pay another €4,000 as the notary reckoned the price was under declared and a further €650 on top to actually get the deeds in our name but the builders did pay off the mortgage on the land just before going bust..

So, bought in 2002, up for sale in 2006 and finally sold it in 2011 for €53,000 due to prices crashing out (after going to court all those time). All in all we paid €125,000 so got back less than half (I note a similar property going a few doors up is now going for €42,000).

You have to work out whether the property is now worth €148,000 (which it obviously isn't) to you (which it might be if you intend to keep it).

The real tragedy is that people thought they were doing the right thing. "Proper" agent, "proper" builder and "proper" solicitors and did everything exactly right by following all the advice. It went up the Swanee quicker than the proverbial off a shovel.

I can tell you that it didn't put us off Spain as we absolutely love it here. What it did do was make us very wary and we chose a well respected builder, a different agent ** ** and a totally independent solicitor ** ** for our next house. We also took out a small mortgage so the bank could get in on the act and check everything over. This time it all went smoothly, got all documents on time with no extra rip-off fees and the land registry deeds from the bank.

We are now extremely happy in our house and intend to stay here for a very long time (or for as long as we've got). Just learned a very expensive lesson.

Not sure if your problem will be solved. I think you need to speak to the bank and get it all written down (and checked) before proceeding. I'd hate for you to find you have another 53K to pay out on a mortgage despite what the solicitors have told you.

(Previous threads on here under the title "Colinas del Lago" with loads of input from Fly380 who could give you a tale of woe that makes my experiences pale into insignificance.

Take care.

This message was last edited by bobaol on 25/03/2015.

Hi....

Many thanks for that. I will search the site under "Colinas del Lago"....I appreciate your comments.

The house is now possibly worth 80,000 Euro's. It's hard to know if Aroca are being straight with us, I can imagine that they want this matter bought to a close & that could be swaying their advice to us.

In a way I'm surprised that the Developer is offering to pay anything & I wonder why this is...Is it a threat of criminal proceedings?...& if he is offering to pay something (and therefore accepting liability?) then why isn't he paying the full amount outstanding to the Bank....and why does the new mortgage have to be in our names?

Anyway, these are questions for Aroca really, not for here :)

Thanks again

Nick

** ** Our developer Tecnologia Urbanistica went into liquidation and the bank want around 100 grand out of me. I've been here over 10 years. ** ** We have a class action in progress in Spain against Aroca. Have fun reading the Colinas Del Lago site. ** **

Oh! I spent an hour on the phone with CPC Worldwide (is that the same as CPC International?) this afternoon!... they talk a good game! I I was just about to ask peoples opinion of them....They've quoted me £3000, I'm not sure for what?!

They've offered to review the documents etc free of charge, so I can't see the harm....but I am cautious! :)

pingusback - check your private messages

Whose legal responsibility was it to ensure that the developers mortgage on your property was paid off at the point of cash purchase? Was this considered part of the Notary's responsibility?

Might this be deemed "insufficient performance" by the Notary i.e be. in breach of the Notary Act?

Perhaps Maria can advise?

To make innocent purchasers responsible for developer debt and a conveyancing system that fails to protect purchasers rights in this way just beggars belief .... 

So long as these instances remain unchallenged and unreported, instances that highlight the consequences that  ensue from a failing /unregulated  /inconsistent / non-standardised conveyancing system in Spain, then purchasers rights will sadly continue to be abused. There should be system/procedural defaults in place to prevent these instances from occuring in the first place, and recognised professional bodies should be proactively fighting for reform, for timely justice, and effectively stamping out such malpractice or "insufficient performance" from wherever it occurs within the conveyancing process..

Sadly, those who have turned their backs to this abuse or put it down to "lessons learned" have ironically done no favours to improve a system that is crying out for reform and greater regulation, to the longer term benefit of all. :(

This message was last edited by ads on 30/03/2015.

Ads

Do you think chasing this for over 4 years, going to court 4 times and attending solicitors meetings God knows how many times and eventually paying thousands of euros to sort this problem out is "turning our back or putting it down as lessons learned"?
Eventually you come to a stage when your whole life could become ruined by pursuing something which you have no control over. It starts to take over your life until you say enough is enough.

I think your comments are well out of order as you know nothing about what happened except what is written here. Fly380 has been battling this for years and is still doing so. Some of the things you write in your ever so righteous and high handed way can only make matters worse. In my case, it's over after a long battle but your comments make it seem as if we have just rolled over and allowed all and sundry to walk over us which is nowhere near the truth.

I can only apologise if this has come across as righteous or high handed Bobaol as that was the last thing I intended.

Thanks again for your comments

It seems to me that Aroca want us off their back. They seem to be more concerned with protecting their interest than ours. I do take peoples point entirely that independent advice is needed as Aroca can hardly be "independent" when they're linked with Atlas and were part of the purchse process originally!

Notwithstanding that, they are doing all the for free & have being doing so for about that last 7 years (& by doing so, are they admitting they were in the wrong?).

I have loads of questions for Aroca that I'll ask tomorrow....before deciding what to do.

Does anybody know, however......Does the restriction/2nd charge (not sure what its called exactly) that Aroca have entered on the deeds re our interest (& the money paid)...stop the Bank from repossessing/auctioning without taking us to court.

If Aroca told me there was a road outside their office with vehicles travelling on it - I would go out and check. ** ** Do not hand over any more money ** **

LEY 57/1968 Won Case in First Instance Court against BANCO SABADELL for our client who purchased an off-plan property from the developer Tecnologia Urbanistica at Colinas De La Zenia Elite Fase III in Orihuela Costa

We were pleased to inform our client recently that we had won their case against Banco Sabadell (formerly Banco CAM) in the First Instance Court.

The client paid their off-plan deposit according to the Purchase Contract to the developer’s bank account at Banco CAM (now Banco Sabadell).  The client did not receive an individual Guarantee for their off-plan deposit from the developer, Tecnologia Urbanistica or from Banco CAM.

The First Instance Court has now found the Bank guilty according to its legal obligations under Article 1.2 of LEY 57/1968.  The bank must refund the amount paid to the developer’s account plus interest at the legal rate from the date the money was paid into the account.  Legal costs were not imposed on the Bank due to the fact that the Judge is of the opinion there was conflicting jurisprudence regarding banks liabilities according to LEY 57/1968 at the time the Lawsuit was filed and the Bank submitted its written defence.

Re: YOUR CASE AGAINST BANCO DE SABADELL S.A.
PO xxxx/2015

Please find attached Sentence No. xxx/2016 from the First Instance Court No.1 in Orihuela.

Your case against BANCO SABADELL has been won.

The final paragraph of the First Instance Sentence delivered on 5 September 2016 and notified on 5 September 2016 states:

“Upholding the Lawsuit filed by xxxxxx against BANCO DE SABADELL S.A. with the following pronouncements:

1. I declare the legal responsibility of the entity BANCO DE SABADELL S.A. pursuant to Article 1.2 of LEY 57/1968 and therefore condemn the financial entity to refund the sum of xx,xxx Euro, being the amount deposited in the account opened by the developer in the said bank.

2. The amount indicated will accrue interest at the legal rate from the date of payment, or in this case, the date the funds were deposited in the account opened by the developer in Banco de Sabadell S.A.  The interest rate will be increased by 2 points from the date of this Sentence according to Article 576 of the Civil Procedure Act.

3. Without the express imposition of costs of the proceedings”


So BANCO SABADELL is sentenced to refund the amount of xx,xxx€ plus interest at the legal rate from the date the funds were paid into the developer’s account opened at Banco Sabadell.

The Judge did not impose costs on the bank; therefore each party will pay its own costs.

Interesting statements from the Judge in the Sentence were:


“On 12 November 2015 the plaintiffs filed a Lawsuit against Banco Sabadell, requesting the conviction of the bank according to its responsibility under Article 1.2 of LEY 57/1968.  The plaintiff requested the refund of the total amount paid to the developer under the Purchase Contract plus interest & costs, alternatively, the amount actually credited to the Banco Sabadell account opened by the developer, which was 3,000€ less than the total amount.

Banco Sabadell opposed the Lawsuit and said that it had not guaranteed the funds and that the funds were paid to an ordinary current account opened by the developer, over which the bank had no control or monitoring. 

The Preliminary Hearing was held on 8 March 2016 & the Trial was held on 23 May 2016.

Documentary evidence was provided to prove that xx,xxx€ was entered into the former Banco CAM (now Sabadell) account opened by the developer.  However, there is no evidence to confirm that the amount of £2,000 paid by cheque was entered into the developer’s account at Banco CAM.  This leads us to analyze the alternative claim for xx,xxx€ being the amount actually paid to the developer’s account at Banco CAM.

The former Deputy Director of the Banco CAM branch in which the account was held, gave evidence at the Trial.  She stated that the account was an ordinary account opened by the developer and that it was very difficult to control and monitor income in this type of account.

It is a completely reprehensible attitude of the bank knowing that it was an account opened by a developer which was funded largely by amounts paid by buyers to purchase off-plan homes.  However, this does not prevent this account to be considered as a Special Account according to the regulatory framework. 

Therefore, the bank has a legal duty to ensure these funds were guaranteed by an Insurance Certificate or Bank Guarantee.  Having failed in its legal duty, the bank then has a legal liability.

The bank should not allow the opening of accounts or the placing of deposits in those accounts, without first ensuring that the developer has assumed a legal obligation to guarantee the repayment of the funds. 

The bank was fully aware of the business of the developer and the fact that the account was being used to receive funds from off-plan buyers.  The fact that the account was opened as a normal current account, as alleged by the defendant bank, cannot prejudice the plaintiffs as the Supreme Court Sentence of 30 April 2015 confirms.

Banks that receive funds from off-plan buyers into developer’s accounts, although not called Special Accounts, must be responsible to the buyers for the total amounts paid to these accounts opened in its branches.  This doctrine, if there is any doubt, has again been reiterated and confirmed by the Sentences of the Supreme Court dated 9 & 17 March 2016.

As for costs, the plaintiff requested costs to be imposed on the bank.  Even though the Lawsuit has been upheld substantially in its alternative claim for the amount deposited in the developer’s account at the defendant bank, there is more or less uniform criteria in the Courts of this city (Orihuela) and in the Provincial Appeal Court of Alicante, to understand that the question before the prosecution regarding the liability of the Bank according to Article 1.2 of LEY 57/1968, has resulted in contradictory jurisprudence comparable to the existence of doubt.  So I plead the faculty contained in Article 394 of the Civil Procedure Act not to impose costs on the bank.  The Supreme Court Sentence of 21 December 2015 which clarifies the responsibility of financial institutions had not been published at the time the Lawsuit was filed (12 November 2015) or when the bank filed its written defence to the Court”


BANCO SABADELL has 20 working days from the date of notification of the Sentence, which was 5 September 2016, to comply with the Sentence or to file an Appeal to the Provincial Appeal Court of Alicante.

Although any appeal must be submitted strictly within the 20 working day deadline, we may not receive notification of an Appeal or of a firm sentence from the Court for a few weeks after the deadline due to the workload of the Court.

If an Appeal is filed by BANCO SABADELL it will be necessary for us to file an Opposition to the Appeal on your behalf.

Certain clients decided to hand their keys to the bank and take Aroca and Atlas to the high court in London. The case was heard in October and the final judgement was on 5th Dec. They won.